Exhibit 99.2
X.X. XXXXXX SECURITIES INC.
$850,000,000
Mirant North America, LLC
Mirant North America Escrow, LLC
MNA Finance Corp.
7.375% Senior Notes due 2013
Purchase Agreement
December 20, 2005
X.X. Xxxxxx Securities Inc.
as Representative of the
several Initial Purchasers listed
in Schedule 1 hereto
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Mirant North America Escrow, LLC, a Delaware limited liability company
("Escrow LLC"), Mirant North America, LLC, a Delaware limited liability company
("MNA" and together with Escrow LLC, the "LLC Issuer") and MNA Finance Corp.
(the "Corp. Co-Issuer" and, together with the LLC Issuer, the "Issuers"),
propose to issue and sell to the several Initial Purchasers listed in Schedule 1
hereto (the "Initial Purchasers"), for whom you are acting as representative
(the "Representative"), $850,000,000 principal amount of their 7.375% Senior
Notes due 2013 (the "Securities"). The Securities will be issued pursuant to an
Indenture to be dated as of December 23, 2005 (as amended, supplemented or
otherwise modified from time to time, the "Indenture") among the Issuers, the
guarantors listed on Schedule 2 hereto (the "Guarantors") and Law Debenture
Trust Company of New York, as trustee (the "Trustee").
The Securities are being issued in connection with the emergence of MNA and
its subsidiaries from Chapter 11 proceedings. The Securities will be initially
issued by Escrow LLC and the Corp. Co-Issuer. On or prior to emergence, Escrow
LLC will merge with and into MNA, with MNA as the surviving entity (the
"Merger"). Upon the consummation of the Merger, (i) MNA will assume all of the
obligations of Escrow LLC, (ii) Corp. Co-Issuer will become a direct,
wholly-owned subsidiary of MNA and (iii) the guarantee of the Securities on an
unsecured senior basis by each of the subsidiaries of
the LLC Issuer listed on Schedule 2 hereto (the "Guarantees") will, without any
further act, become effective.
For the purposes of this Agreement, (i) the term "Plan of Reorganization"
means the Amended and Restated Second Amended Joint Chapter 11 Plan of
Reorganization for Mirant Corporation and its Affiliated Debtors, dated as of
December 7, 2005, Case No. 03-46590 filed in the United States Bankruptcy Court
for the Northern District of Texas, Fort Worth Division, as confirmed by the
order of the United States Bankruptcy Court for the Northern District of Texas,
Fort Worth Division dated December 9, 2005 (the "Confirmation Order"), (ii) the
term "Credit Agreement" means the Credit Agreement to be entered into as of
January 3, 2006 among the Company, JPMorgan Chase Bank, N.A., as Administrative
Agent, and the lenders parties thereto, (iii) the term "Emergence Transactions"
means the various transactions set forth in the Plan of Reorganization entered
into by MNA and its affiliates in connection with the Emergence Date (as defined
below) and substantial consummation of the Plan of Reorganization, including
without limitation, the various corporate restructuring transactions outlined in
the Plan of Reorganization (other than the contribution of Mirant Energy Trading
LLC to the MNA which shall occur no later than 60 days after the Emergence
Date), the issuance of the Securities, borrowings made under the Credit
Agreement on the Emergence Date and the application of a portion of the proceeds
of such financings in accordance with such Plan of Reorganization, and (iv) the
term "Emergence Date" means the date on which Section 12.2 of the Plan of
Reorganization (Conditions Precedent to the Occurrence of the Effective Date)
shall have been satisfied, the Emergence Transactions shall have occurred and
the Plan of Reorganization shall have been substantially consummated.
On or prior to the Closing Date (as defined below), the Issuers will enter
into an escrow agreement in form and substance reasonably satisfactory to the
Representative (the "Escrow Agreement"), and will deposit in cash into an escrow
account (the "Escrow Account") with Deutsche Bank Trust Company Americas, as
escrow agent (the "Escrow Agent"), (a) the gross proceeds of the offering of the
Securities (the "Proceeds") and (b) an additional $2,960,243.06 (the "Additional
Escrow Amount" and, together with the Proceeds, the "Escrow Funds"), such that
the Escrow Funds are in an amount sufficient to redeem the Securities at a price
equal to the issue price of the Securities, plus accrued and unpaid interest
from and including the Closing Date to but excluding January 10, 2006. If (i)
the conditions contained in the Escrow Agreement for the release of the Escrow
Funds are not satisfied, (ii) the Plan of Reorganization shall have been amended
and such amendments are materially adverse to the holders of the Securities or
(iii) the Plan of Reorganization shall have been terminated, in each case on or
prior to January 6, 2006, the Securities shall be mandatorily redeemed. The
Escrow Agreement shall provide that the Escrowed Funds shall only be released
pursuant to the terms of the Escrow Agreement.
The Securities will be sold to the Initial Purchasers without being
registered under the Securities Act of 1933, as amended (the "Securities Act"),
in reliance upon an exemption therefrom. The Issuers have prepared a preliminary
offering memorandum
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dated December 10, 2005 (the "Preliminary Offering Memorandum") and will prepare
an offering memorandum dated the date hereof (the "Offering Memorandum") setting
forth information concerning the Issuers and the Securities. Copies of the
Preliminary Offering Memorandum have been, and copies of the Offering Memorandum
will be, delivered by the Issuers to the Initial Purchasers pursuant to the
terms of this Agreement. The Issuers hereby confirm that they have authorized
the use of the Preliminary Offering Memorandum, the Time of Sale Information (as
defined below) and the Offering Memorandum in connection with the offering and
resale of the Securities by the Initial Purchasers in the manner contemplated by
this Agreement. Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Offering Memorandum.
At or prior to the time when sales of the Securities were first made (the
"Time of Sale"), the Issuers had prepared the following information
(collectively, the "Time of Sale Information"): the Preliminary Offering
Memorandum, as supplemented and amended by the written communications listed on
Annex A hereto, including a term sheet substantially in the form of Annex B if
such term sheet has been prepared at the Time of Sale.
Holders of the Securities (including the Initial Purchasers and their
direct and indirect transferees) will be entitled to the benefits of a
Registration Rights Agreement, to be dated the Closing Date (as defined below)
and substantially in the form attached hereto as Exhibit A (the "Registration
Rights Agreement"), pursuant to which the Issuers and the Guarantors will agree
to file one or more registration statements with the Securities and Exchange
Commission (the "Commission") providing for the registration under the
Securities Act of the Securities or the Exchange Securities referred to (and as
defined) in the Registration Rights Agreement.
Each of the Issuers hereby confirms its agreement with the several Initial
Purchasers concerning the purchase and resale of the Securities, as follows:
1. Purchase and Resale of the Securities. (a) The Issuers agree to issue
and sell the Securities to the several Initial Purchasers as provided in this
Agreement, and each Initial Purchaser, on the basis of the representations,
warranties and agreements set forth herein and subject to the conditions set
forth herein, agrees, severally and not jointly, to purchase from the Issuers
the respective principal amount of Securities set forth opposite such Initial
Purchaser's name in Schedule 1 hereto at a price equal to 100% of the principal
amount thereof plus accrued interest, if any, from December 23, 2005 to the
Closing Date. The Initial Purchasers' Commission with respect to the Securities
shall equal 2.25% of the aggregate principal amount of the Securities (the
"Initial Purchasers' Commission") and shall be payable only in the event if the
Escrow Funds are released to the Issuers. The Issuers will not be obligated to
deliver any of the Securities except upon payment for all the Securities to be
purchased as provided herein.
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(b) The Issuers understand that the Initial Purchasers intend to offer the
Securities for resale on the terms set forth in the Offering Memorandum. Each
Initial Purchaser, severally and not jointly, represents, warrants and agrees
that:
(i) it is a qualified institutional buyer within the meaning of Rule
144A under the Securities Act (a "QIB") and an accredited investor within
the meaning of Rule 501(a) under the Securities Act;
(ii) it has not solicited offers for, or offered or sold, and will not
solicit offers for, or offer or sell, the Securities by means of any form
of general solicitation or general advertising within the meaning of Rule
502(c) of Regulation D under the Securities Act ("Regulation D") or in any
manner involving a public offering within the meaning of Section 4(2) of
the Securities Act; and
(iii) it has not solicited offers for, or offered or sold, and will
not solicit offers for, or offer or sell, the Securities as part of their
initial offering except:
(A) within the United States to persons whom it reasonably
believes to be QIBs in transactions pursuant to Rule 144A under the
Securities Act ("Rule 144A") and in connection with each such sale, it
has taken or will take reasonable steps to ensure that the purchaser
of the Securities is aware that such sale is being made in reliance on
Rule 144A; or
(B) in accordance with the restrictions set forth in Annex C
hereto.
(c) Each Initial Purchaser acknowledges and agrees that the Issuers and,
for purposes of the opinions to be delivered to the Initial Purchasers pursuant
to Sections 5(f) and 5(g), counsel for the Issuers and counsel for the Initial
Purchasers, respectively, may rely upon the accuracy of the representations and
warranties of the Initial Purchasers, and compliance by the Initial Purchasers
with their agreements, contained in paragraph (b) above (including Annex C
hereto), and each Initial Purchaser hereby consents to such reliance.
(d) The Issuers acknowledge and agree that the Initial Purchasers may offer
and sell Securities to or through any affiliate of an Initial Purchaser and that
any such affiliate may offer and sell Securities purchased by it to or through
any Initial Purchaser.
(e) The Issuers and the Guarantors acknowledge and agree that the Initial
Purchasers are acting solely in the capacity of an arm's length contractual
counterparty to the Issuers and the Guarantors with respect to the offering of
Securities contemplated hereby (including in connection with determining the
terms of the offering) and not as
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financial advisors or fiduciaries to, or agents of, the Issuers, the Guarantors
or any other person. Additionally, neither the Representative nor any other
Initial Purchaser is advising the Issuers, the Guarantors or any other person as
to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Issuers and the Guarantors shall consult with their own
advisors concerning such matters and shall be responsible for making their own
independent investigation and appraisal of the transactions contemplated hereby,
and neither the Representative nor any other Initial Purchaser shall have any
responsibility or liability to the Issuers or the Guarantors with respect
thereto. Any review by the Representative or any Initial Purchaser of the
Issuers, the Guarantors, and the transactions contemplated hereby or other
matters relating to such transactions will be performed solely for the benefit
of the Representative or such Initial Purchaser, as the case may be, and shall
not be on behalf of the Issuers, the Guarantors or any other person.
2. Payment and Delivery. (a) Payment for and delivery of the Securities
will be made at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, at 10:00 A.M.,
New York City time, on December 23, 2005, or at such other time or place on the
same or such other date, not later than the fifth business day thereafter, as
the Representative and the Issuers may agree upon in writing. The time and date
of such payment and delivery is referred to herein as the "Closing Date".
(b) Payment for the Securities shall be made by wire transfer in
immediately available funds to the Escrow Account against delivery to the
nominee of The Depository Trust Company ("DTC"), for the account of the Initial
Purchasers, of one or more global notes representing the Securities
(collectively, the "Global Note"), with any transfer taxes payable in connection
with the sale of the Securities duly paid by the Issuers. The Global Note will
be made available for inspection by the Representative not later than 1:00 P.M.,
New York City time, on the business day prior to the Closing Date.
(c) Delivery of the Securities by the Issuers shall be made to the Initial
Purchasers against payment of the purchase price by the Initial Purchasers
pursuant to Section 2(b). The Issuers will pay to the Initial Purchasers the
Initial Purchasers' Commission immediately upon the release of the Escrow Funds
to the Issuers (in which event the Issuers shall direct the Escrow Agent to pay
such commission from the Escrow Funds as provided in the Escrow Agreement).
3. Representations and Warranties of the Issuers and the Guarantors. Each
of the Issuers and the Guarantors jointly and severally represent and warrant to
each Initial Purchaser that:
(a) Offering Memorandum. The Offering Memorandum, in the form first used by
the Initial Purchasers to confirm sales of the Securities and as of the Closing
Date, will not contain any untrue statement of a material fact or omit to state
a material fact
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necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the
Issuers and the Guarantors make no representation or warranty with respect to
any statements or omissions made in reliance upon and in conformity with
information relating to any Initial Purchaser furnished to the Issuers in
writing by such Initial Purchaser through the Representative expressly for use
in the Offering Memorandum.
(b) Time of Sale Information. The Time of Sale Information, at the Time of
Sale did not, and at the Closing Date will not, contain any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Issuers make no representation and
warranty with respect to any statements or omissions made in reliance upon and
in conformity with information relating to any Initial Purchaser furnished to
the Issuers in writing by such Initial Purchaser through the Representative
expressly for use in such Time of Sale Information. Other than the Preliminary
Offering Memorandum and the Offering Memorandum, the Issuers (including their
agents and representatives, other than the Initial Purchasers in their capacity
as such) have not made, used, prepared, authorized, approved or referred to and
will not prepare, make, use, authorize, approve or refer to any written
communication that constitutes an offer to sell or solicitation of an offer to
buy the Securities other than the documents listed on Annex A hereto and other
written communications approved in writing in advance by the Representative
(c) Financial Statements. The financial statements and the related notes
thereto included in each of the Time of Sale Information and the Offering
Memorandum present fairly, in all material respects, the financial position of
the LLC Issuer and its subsidiaries as of the dates indicated and the results of
their operations and the changes in their cash flows for the periods specified;
such financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods covered thereby; the other financial information included in each of the
Time of Sale Information and the Offering Memorandum has been derived from the
accounting records of the LLC Issuer and its subsidiaries and presents fairly,
in all material respects, the information included therein; and the pro forma
financial information and the related notes thereto included in each of the Time
of Sale Information and the Offering Memorandum has been prepared in accordance
with the Commission's rules and guidance with respect to pro forma financial
information, except as disclosed in each of the Time of Sale Information and the
Offering Memorandum, and the assumptions underlying such pro forma financial
information are reasonable and are set forth in each of the Time of Sale
Information and the Offering Memorandum.
(d) No Material Adverse Change. Since the date of the most recent financial
statements included in each of the Time of Sale Information and the Offering
Memorandum, (i) there has not been any change in the capital stock or long-term
debt
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of the LLC Issuer or any of its subsidiaries, or any dividend or distribution of
any kind declared, set aside for payment, paid or made by the LLC Issuer on any
class of its equity interests, or any material adverse change, or, to the
knowledge of the Issuers and the Guarantors, any development involving a
prospective material adverse change, in or affecting the business, properties,
management, financial position or results of operations of the LLC Issuer and
its subsidiaries taken as a whole other than in the ordinary course of business;
(ii) neither the LLC Issuer nor any of its subsidiaries has entered into any
transaction or agreement that is material to the LLC Issuer and its subsidiaries
taken as a whole or incurred any liability or obligation, direct or contingent,
that is material to the LLC Issuer and its subsidiaries taken as a whole; and
(iii) neither the LLC Issuer nor any of its subsidiaries has sustained any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
disturbance or dispute or any action, order or decree of any court or arbitrator
or governmental or regulatory authority, except in each case as otherwise
disclosed in each of the Time of Sale Information and the Offering Memorandum.
(e) Organization and Good Standing. The LLC Issuer and each of its
subsidiaries have been duly organized and are validly existing as a limited
liability company or corporation, as the case may be, and are in good standing
under the laws of their respective jurisdictions of organization, are duly
qualified to do business and are in good standing in each jurisdiction in which
their respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power and
authority necessary to own or hold their respective properties and to conduct
the businesses in which they are engaged, except where the failure to be so
qualified or have such power or authority would not, individually or in the
aggregate, be reasonably expected to have a material adverse effect on the
business, properties, financial position, results of operations or prospects of
the LLC Issuer and its subsidiaries taken as a whole or on the performance by
the Issuers and the Guarantors of their obligations under the Securities and the
Guarantees (a "Material Adverse Effect"). The LLC Issuer does not own or
control, directly or indirectly, any corporation, association or other entity
other than the subsidiaries listed in Schedule 3 to this Agreement.
(f) Capitalization. The LLC Issuer has an authorized capitalization as set
forth in each of the Time of Sale Information and the Offering Memorandum under
the heading "Capitalization"; and all the outstanding shares of capital stock or
other equity interests of each subsidiary of the LLC Issuer have been duly and
validly authorized and issued, are fully paid and non-assessable and are owned
directly or indirectly by the LLC Issuer, and, except as described in each of
the Time of Sale Information and the Offering Memorandum, free and clear of any
lien, charge, encumbrance, security interest, restriction on voting or transfer
or any other claim of any third party.
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(g) Due Authorization. The Issuers and each of the Guarantors have full
right, power and authority to execute and deliver this Agreement, the
Securities, the Indenture (including each Guarantee set forth therein), the
Exchange Securities, the Registration Rights Agreement and the Escrow Agreement
(such documents, together with the Plan of Reorganization, the "Transaction
Documents") and to perform their respective obligations hereunder and
thereunder; and all action required to be taken for the due and proper
authorization, execution and delivery of each of the Transaction Documents and
the consummation of the transactions contemplated thereby has been duly and
validly taken.
(h) The Indenture. On or prior to the Closing Date, the Indenture will have
been duly authorized by the Issuers and each of the Guarantors and, when duly
executed and delivered in accordance with its terms by each of the parties
thereto, will constitute a valid and legally binding agreement of the Issuers
and each of the Guarantors enforceable against the Issuers and each of the
Guarantors in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally or by general principles of equity (collectively,
the "Enforceability Exceptions"); and as of each of the Closing Date and the
Emergence Date, the Indenture will conform in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission applicable to
an indenture that is qualified thereunder.
(i) The Securities and the Guarantees. The Securities have been duly
authorized by the Issuers and, when duly executed, authenticated, issued and
delivered as provided in the Indenture and paid for as provided herein, will be
duly and validly issued and outstanding and will constitute valid and legally
binding obligations of the Issuers enforceable against the Issuers in accordance
with their terms, subject to the Enforceability Exceptions, and will be entitled
to the benefits of the Indenture; and the Guarantees have been duly authorized
by each of the Guarantors and, when the Securities have been duly executed,
authenticated, issued and delivered as provided in the Indenture and paid for as
provided herein, will be valid and legally binding obligations of each of the
Guarantors, enforceable against each of the Guarantors in accordance with their
terms, subject to the Enforceability Exceptions, and will be entitled to the
benefits of the Indenture.
(j) The Exchange Securities. On the Closing Date, the Exchange Securities
(including the related guarantees) will have been duly authorized by the Issuers
and each of the Guarantors and, when duly executed, authenticated, issued and
delivered as contemplated by the Registration Rights Agreement and the
Indenture, will be duly and validly issued and outstanding and will constitute
valid and legally binding obligations of the Issuers, as issuers, and each of
the Guarantors, as guarantor, enforceable against the Issuers and each of the
Guarantors in accordance with their terms, subject to the Enforceability
Exceptions, and will be entitled to the benefits of the Indenture.
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(k) Escrow Agreement. The Escrow Agreement has been duly authorized by the
Issuers and, when duly executed and delivered in accordance with its terms by
each of the other parties thereto, will constitute a valid and legally binding
agreement of the Issuers enforceable against the Issuers in accordance with its
terms, subject to the Enforceability Exceptions.
(l) Purchase and Registration Rights Agreements. This Agreement has been
duly authorized, executed and delivered by the Issuers and each of the
Guarantors; and the Registration Rights Agreement has been duly authorized by
the Issuers and each of the Guarantors and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will constitute a
valid and legally binding agreement of the Issuers and each of the Guarantors
enforceable against the Issuers and each of the Guarantors in accordance with
its terms, subject to the Enforceability Exceptions, and except that rights to
indemnity and contribution thereunder may be limited by applicable law and
public policy.
(m) Other Transaction Documents. On or prior to the Emergence Date, each of
the Agreement and Plan of Merger between Escrow LLC and the LLC Issuer (the
"Merger Agreement") and the Credit Agreement will have been duly authorized by
the Issuers and, to the extent a party thereto, their subsidiaries and, when
executed and delivered in accordance with their terms by the Issuers and, to the
extent a party thereto, their subsidiaries, and each of the Merger Agreement and
the Credit Agreement will constitute a valid and legally binding agreement of
the Issuers and, to the extent a party thereto, their subsidiaries, enforceable
against the Issuers and, to the extent a party thereto, their subsidiaries in
accordance with their respective terms, subject to the Enforceability
Exceptions. None of the Issuers has any reason to believe that any conditions
precedent to the consummation of the Merger pursuant to the terms of the Merger
Agreement will not be fulfilled on or prior to the Emergence Date.
(n) Descriptions of the Transaction Documents. Each Transaction Document
conforms in all material respects to the description thereof contained in each
of the Time of Sale Information and the Offering Memorandum.
(o) No Violation or Default. Neither the LLC Issuer nor any of its
subsidiaries is (i) in violation of its limited liability company agreement,
charter or by-laws or similar organizational documents; (ii) in default, and no
event has occurred that, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the LLC Issuer or any of its subsidiaries
is a party or by which the LLC Issuer or any of its subsidiaries is bound or to
which any of the property or assets of the LLC Issuer or any of its subsidiaries
is subject; or (iii) in violation of any law or statute or any judgment, order,
rule or regulation of any court or arbitrator or governmental or regulatory
authority, except, in the case of clauses (ii) and (iii) above, for any such
default or violation that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
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(p) No Conflicts. The execution, delivery and performance by the Issuers
and each of the Guarantors of each of the Transaction Documents to which each is
a party, the issuance and sale of the Securities (including the Guarantees) and
compliance by the Issuers and each of the Guarantors with the terms thereof and
the consummation of the transactions contemplated by the Transaction Documents
will not (i) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or, except for those
created under the Transaction Documents, result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the LLC Issuer or
any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the LLC Issuer or any
of its subsidiaries is a party or by which the LLC Issuer or any of its
subsidiaries is bound or to which any of the property or assets of the LLC
Issuer or any of its subsidiaries is subject, (ii) result in any violation of
the provisions of the charter or by-laws or similar organizational documents of
the LLC Issuer or any of its subsidiaries or (iii) result in the violation of
any law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the case of
clauses (i) and (iii) above, for any such conflict, breach or violation that
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(q) No Consents Required. No consent, approval, authorization, order,
registration or qualification of or with any court or arbitrator or governmental
or regulatory authority is required for the execution, delivery and performance
by the Issuers and each of the Guarantors of each of the Transaction Documents
to which each is a party, the issuance and sale of the Securities (including the
Guarantees) and compliance by the Issuers and each of the Guarantors with the
terms thereof and the consummation of the transactions contemplated by the
Transaction Documents, except for such consents, approvals, authorizations,
orders and registrations or qualifications (x) which shall have been obtained or
made on or prior to the Closing Date and (y) as may be required (i) under
applicable state securities laws in connection with the purchase and resale of
the Securities by the Initial Purchasers and (ii) with respect to the Exchange
Securities (including the related guarantees) under the Securities Act and
applicable state securities laws as contemplated by the Registration Rights
Agreement.
(r) Legal Proceedings. Except as described in each of the Time of Sale
Information and the Offering Memorandum, there are no legal, governmental or
regulatory investigations, actions, suits or proceedings pending to which the
LLC Issuer or any of its subsidiaries is or may be a party or to which any
property of the LLC Issuer or any of its subsidiaries is or may be the subject
that, individually or in the aggregate, if determined adversely to the LLC
Issuer or any of its subsidiaries, would reasonably be expected to have a
Material Adverse Effect; and no such investigations, actions, suits or
proceedings are, to the knowledge of the Issuers and each of the Guarantors,
threatened by any governmental or regulatory authority or by others.
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(s) Independent Accountants. To the knowledge of the Issuers and each of
the Guarantors, KPMG LLP, who have certified certain financial statements of the
LLC Issuer and its subsidiaries are independent public accountants with respect
to the LLC Issuer and its subsidiaries within the meaning of Rule 101 of the
Code of Professional Conduct of the American Institute of Certified Public
Accountants and its interpretations and rulings thereunder and Rule 2-01 of
Regulation S-X of the Securities Act.
(t) Title to Real and Personal Property. The LLC Issuer and its
subsidiaries have good and marketable title in fee simple to, or have valid
rights to lease or otherwise use, all items of real and personal property that
are material to the respective businesses of the LLC Issuer and its
subsidiaries, in each case free and clear of all liens, encumbrances, claims and
defects and imperfections of title except those that (i) secure obligations
under the Credit Agreement, (ii) do not materially interfere with the use made
and proposed to be made of such property by the LLC Issuer and its subsidiaries
or (iii) would not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect.
(u) Title to Intellectual Property. The LLC Issuer and its subsidiaries
possess adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service xxxx
registrations, copyrights, licenses and know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) necessary for the conduct of their respective businesses;
and the conduct of their respective businesses will not conflict in any material
respect with any such rights of others, except where the failure to do so,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect; and the LLC Issuer and its subsidiaries have not
received any written notice of any claim of infringement of, or written notice
of any conflict with, any such rights of others.
(v) No Undisclosed Relationships. No material relationship, direct or
indirect, exists between or among the LLC Issuer or any of its subsidiaries, on
the one hand, and the directors, officers, stockholders, customers or suppliers
of the LLC Issuer or any of its subsidiaries, on the other, that is not
described in each of the Time of Sale Information and the Offering Memorandum.
(w) Investment Company Act. Neither the LLC Issuer nor any of its
subsidiaries is, and after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in each of
the Time of Sale Information and the Offering Memorandum none of them will be,
an "investment company" or an entity "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, and the
rules and regulations of the Commission thereunder (collectively, the
"Investment Company Act").
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(x) Public Utility Holding Company Act. Neither the LLC Issuer nor any of
its subsidiaries (1) is a "holding company" or a "subsidiary company" or an
"affiliate" of a holding company within the meaning of the Public Utility
Holding Company Act of 1935, as amended ("PUHCA") or (2) is subject to any
regulation under the PUHCA or the Federal Power Act restricting its ability to
incur Indebtedness (as such term is defined in the Indenture) or execute or
perform their respective obligations under this Agreement or the Indenture.
(y) Taxes. Except as described in each of the Time of Sale Information and
the Offering Memorandum, the LLC Issuer and its subsidiaries have paid all
federal, state, local and foreign taxes and filed all tax returns required to be
paid or filed through the date hereof or have adequately reserved for the
payment thereof; and except as otherwise disclosed in each of the Time of Sale
Information and the Offering Memorandum, there is no tax deficiency that has
been, or would reasonably be expected to be, asserted against the LLC Issuer or
any of its subsidiaries or any of their respective properties or assets, except
as would not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(z) Licenses and Permits. The LLC Issuer and its subsidiaries possess all
licenses, certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal, state, local or
foreign governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of their
respective businesses as described in each of the Time of Sale Information and
the Offering Memorandum, except where the failure to possess or make the same
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and except as described in each of the Time of Sale
Information and the Offering Memorandum, neither the LLC Issuer nor any of its
subsidiaries has received notice of any revocation or modification of any such
license, certificate, permit or authorization or believes that any such license,
certificate, permit or authorization will not be renewed in the ordinary course,
except as would not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect.
(aa) No Labor Disputes. No labor disturbance by, or dispute with, employees
of Mirant Services, LLC, the LLC Issuer or any of its subsidiaries exists or, to
the best knowledge of the Issuers and each of the Guarantors, is threatened and
neither the Issuers nor any Guarantor knows of any existing or imminent labor
disturbance by, or dispute with, the employees of any of Mirant Services, LLC,
the LLC Issuer or any of the LLC Issuer's subsidiaries' principal suppliers,
except as would not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect.
(bb) Compliance With Environmental Laws. (i) The LLC Issuer and its
subsidiaries (x) are, and at all prior times were, in compliance with any and
all applicable federal, state, local and foreign laws, rules, regulations,
requirements, decisions and orders relating to the protection of human health or
safety, the environment, or natural
12
resources or hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, "Environmental Laws"), (y) have received and are in compliance
with all permits, licenses, certificates or other authorizations or approvals
required of them under applicable Environmental Laws to conduct their respective
businesses, and (z) have not received notice of any actual or potential
liability under or relating to any Environmental Laws, including for the
investigation or remediation of any disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants, and have no knowledge of any
event or condition that would reasonably be expected to result in any such
notice, and (ii) there are no costs or liabilities associated with Environmental
Laws of or relating to the LLC Issuer or its subsidiaries, except in the case of
each of (i) and (ii) of this paragraph, for any such failure to comply, or
failure to receive required permits, licenses or approvals, or cost or
liability, as would not, individually or in the aggregate, have a Material
Adverse Effect; and (iii) except as described in each of the Time of Sale
Information and the Offering Memorandum, (x) there are no proceedings that are
pending, or that are known to be threatened, against the LLC Issuer or any of
its subsidiaries under any Environmental Laws in which a governmental entity is
also a party, other than such proceedings regarding which it is reasonably
believed no monetary sanctions of $100,000 or more will be imposed, (y) the LLC
Issuer and its subsidiaries are not aware of any issues regarding compliance
with Environmental Laws, or liabilities or other obligations under Environmental
Laws or concerning hazardous or toxic substances or wastes, pollutants or
contaminants, that would reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect on the capital expenditures,
earnings or competitive position of the LLC Issuer and its subsidiaries, and (z)
none of the LLC Issuer and its subsidiaries anticipates material capital
expenditures relating to any Environmental Laws.
(cc) Compliance With ERISA, (i) Each employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), that is maintained, administered, contributed to or
required to be contributed to by the LLC Issuer or any member of its "Controlled
Group" (defined as any organization which is a member of a controlled group of
corporations within the meaning of Section 414(b) or (c) of the Internal Revenue
Code of 1986, as amended (the "Code")) for employees or former employees of the
LLC Issuer or any member of its Controlled Group (each, a "Plan") has been
maintained in compliance with its terms and the requirements of any applicable
statutes, orders, rules and regulations, including but not limited to ERISA and
the Code; (ii) for each Plan that is subject to the funding rules of Section 412
of the Code or Section 302 of ERISA, no "accumulated funding deficiency" as
defined in Section 412 of the Code, whether or not waived, has occurred or is
reasonably expected to occur; (iii) neither the LLC Issuer nor any member of the
Controlled Group has incurred, nor reasonably expects to incur, any liability
under Title IV of ERISA (other than contributions to the Plan or premiums to the
PBGC, in the ordinary course and without default) in respect of a Plan
(including a "multiemployer plan", within the meaning of Section 4001(a)(3) of
ERISA); (iv) no prohibited transaction, within the meaning of Section 406 of
ERISA or Section 4975 of the Code, has occurred with respect to any employee
benefit
13
plan, within the meaning of Section 3(3) of ERISA, that is maintained,
administered, contributed to or required to be contributed to by the LLC Issuer
or any of its subsidiaries excluding transactions effected pursuant to a
statutory or administrative exemption; and (v) except as disclosed in the
Offering Memorandum, as of December 31, 2004, the Plans subject to Title IV of
ERISA have no unfunded accumulated benefit obligations or unfunded projected
benefit obligation, as calculated in accordance with FASB Statement No. 132R,
except, with respect to the foregoing clauses (i) through (v), as would not
reasonably be expected, individually on in the aggregate, to have a Material
Adverse Effect.
(dd) Accounting Controls. The LLC Issuer and its subsidiaries maintain
systems of internal accounting control sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. Except as disclosed in each of the
Time of Sale Information and the Offering Memorandum, there are no material
weaknesses in the LLC Issuer's and its subsidiaries' internal control over
financial reporting.
(ee) Insurance. The LLC Issuer and its subsidiaries have insurance covering
their respective properties, operations, personnel and businesses, including
business interruption and products liability insurance, which insurance is in
amounts and insures against such losses and risks as are customary for the
businesses of the LLC Issuer and its subsidiaries; and neither the LLC Issuer
nor any of its subsidiaries (i) has received notice from any insurer or agent of
such insurer that capital improvements or other expenditures are required or
necessary to be made in order to continue such insurance or (ii) believes that
it will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage at reasonable cost from similar
insurers as may be necessary to continue its business.
(ff) No Unlawful Payments. Neither the LLC Issuer nor any of its
subsidiaries nor, to the knowledge of the LLC Issuer and its subsidiaries, any
director, officer, agent, employee or other person associated with or acting on
behalf of the LLC Issuer or any of its subsidiaries has (i) used any corporate
funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made any direct or indirect
unlawful payment to any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
14
(gg) Compliance with Money Laundering Laws. The operations of the LLC
Issuer and its subsidiaries are and have been conducted at all times in
compliance with applicable financial recordkeeping and reporting requirements of
the Currency and Foreign Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the "Money
Laundering Laws") and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the LLC
Issuer or any of its subsidiaries with respect to the Money Laundering Laws is
pending or, to the knowledge of the LLC Issuer, threatened.
(hh) Compliance with OFAC. None of the LLC Issuer, any of its subsidiaries
or, to the knowledge of the Issuers, any director, officer, agent or employee of
the LLC Issuer or any of its subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury ("OFAC"); and the LLC Issuer will not directly or
indirectly use the proceeds of the offering of the Securities hereunder, or
lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing
the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(ii) Solvency. On and immediately after the Emergence Date, the Issuers
(after giving effect to the issuance of the Securities, the consummation of the
Plan of Reorganization, and the Emergence Transactions related thereto as
described in each of the Time of Sale Information and the Offering Memorandum)
will be Solvent. As used in this paragraph, the term "Solvent" means, with
respect to a particular date, that on such date (i) the present fair market
value (or present fair saleable value) of the assets of the Issuers is not less
than the total amount required to pay the liabilities of the Issuers on their
total existing debts and liabilities (including contingent liabilities) as they
become absolute and matured; (ii) the Issuers are able to realize upon their
assets and pay their debts and other liabilities, contingent obligations and
commitments as they mature and become due in the normal course of business;
(iii) assuming consummation of the issuance of the Securities as contemplated by
this Agreement, the Time of Sale Information and the Offering Memorandum, the
Issuers are not incurring debts or liabilities beyond its ability to pay as such
debts and liabilities mature; (iv) the Issuers are not engaged in any business
or transaction, and do not propose to engage in any business or transaction, for
which their property would constitute unreasonably small capital after giving
due consideration to the prevailing practice in the industry in which the
Issuers are engaged; and (v) the Issuers are not defendants in any civil action
that would result in a judgment that the Issuers are or would become unable to
satisfy.
(jj) No Restrictions on Subsidiaries. Except as described in each of the
Time of Sale Information and in the Offering Memorandum or as permitted under
the Indenture, no subsidiary of the LLC Issuer (other than subsidiaries
remaining in bankruptcy as described in each of the Time of Sale Information and
in the Offering
15
Memorandum) is currently prohibited, directly or indirectly, under any agreement
or other instrument to which it is a party or is subject, from paying any
dividends to the LLC Issuer, from making any other distribution on such
subsidiary's capital stock, from repaying to the LLC Issuer any loans or
advances to such subsidiary from the LLC Issuer or from transferring any of such
subsidiary's properties or assets to the LLC Issuer or any other subsidiary of
the LLC Issuer.
(kk) No Broker's Fees. Neither the LLC Issuer nor any of its subsidiaries
is a party to any contract, agreement or understanding with any person (other
than this Agreement) that would give rise to a valid claim against any of them
or any Initial Purchaser for a brokerage commission, finder's fee or like
payment in connection with the offering and sale of the Securities.
(ll) Rule 144A Eligibility. On each of the Closing Date and the Emergence
Date, the Securities will not be of the same class as securities of the Issuers
listed on a national securities exchange registered under Section 6 of the
Exchange Act or quoted in an automated inter-dealer quotation system; and each
of the Time of Sale Information and the Offering Memorandum, as of its
respective date, contains or will contain all the information that, if requested
by a prospective purchaser of the Securities, would be required to be provided
to such prospective purchaser pursuant to Rule 144A(d)(4) under the Securities
Act.
(mm) No Integration. Neither the LLC Issuer nor any of its affiliates (as
defined in Rule 501 (b) of Regulation D) has, directly or through any agent,
sold, offered for sale, solicited offers to buy or otherwise negotiated in
respect of, any security (as defined in the Securities Act), that is or will be
integrated with the sale of the Securities in a manner that would require
registration of the Securities under the Securities Act.
(nn) No General Solicitation or Directed Selling Efforts. None of the LLC
Issuer or any of its affiliates or any other person acting on its or their
behalf (other than the Initial Purchasers, as to which no representation is
made) has (i) solicited offers for, or offered or sold, the Securities by means
of any form of general solicitation or general advertising within the meaning of
Rule 502(c) of Regulation D or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act or (ii) engaged in any
directed selling efforts within the meaning of Regulation S under the Securities
Act ("Regulation S"), and all such persons have complied with the offering
restrictions requirement of Regulation S.
(oo) Securities Law Exemptions. Assuming the accuracy of the
representations and warranties of the Initial Purchasers contained in Section
1(b) (including Annex C hereto) and their compliance with their agreements set
forth therein, it is not necessary, in connection with the issuance and sale of
the Securities to the Initial Purchasers and the offer, resale and delivery of
the Securities by the Initial Purchasers in the manner contemplated by this
Agreement, the Time of Sale Information
16
and the Offering Memorandum, to register the Securities under the Securities Act
or to qualify the Indenture under the Trust Indenture Act.
(pp) No Stabilization. Neither the Issuers nor any of the Guarantors has
taken, directly or indirectly, any action designed to or that could reasonably
be expected to cause or result in any stabilization or manipulation of the price
of the Securities.
(qq) Margin Rules. None of the issuance, sale and delivery of the
Securities, the consummation of the Emergence Transactions or the application of
the proceeds thereof by the Issuers as described in each of the Time of Sale
Information and the Offering Memorandum will violate Regulation T, U or X of the
Board of Governors of the Federal Reserve System or any other regulation of such
Board of Governors.
(rr) Forward-Looking Statements. No forward-looking statement (within the
meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act) contained in any of the Time of Sale Information or the Offering Memorandum
has been made or reaffirmed without a reasonable basis or has been disclosed
other than in good faith.
(ss) Statistical and Market Data. Nothing has come to the attention of the
Issuers that has caused the Issuers to believe that the statistical and
market-related data included in each of the Time of Sale Information and the
Offering Memorandum is not based on or derived from sources that are reliable
and accurate in all material respects.
4. Further Agreements of the Issuers and the Guarantors. The Issuers and
each of the Guarantors jointly and severally covenant and agree with each
Initial Purchaser that:
(a) Delivery of Copies. The Issuers will deliver to the Initial Purchasers
as many copies of the Preliminary Offering Memorandum, any other Time of Sale
Information and the Offering Memorandum (including all amendments and
supplements thereto) as the Representative may reasonably request.
(b) Offering Memorandum, Amendments or Supplements. Before finalizing the
Offering Memorandum or making or distributing any amendment or supplement to any
of the Time of Sale Information or the Offering Memorandum, the Issuers will
furnish to the Representative and counsel for the Initial Purchasers a copy of
the proposed Offering Memorandum, amendment or supplement for review, and will
not distribute any such proposed Offering Memorandum, amendment or supplement to
which the Representative reasonably objects.
(c) Amendments or Supplements. Before preparing, using, authorizing,
approving or referring to any written communication that constitutes an offer to
sell or a solicitation of an offer to buy the Securities (which written
communication shall be listed
17
on Annex A hereto), the Issuers will furnish to the Representative and counsel
for the Initial Purchasers a copy of such written communication for review and
will not prepare, use, authorize, approve or refer to any such written
communication to which the Representative reasonably objects.
(d) Notice to the Representative. The Issuers will advise the
Representative promptly, and confirm such advice in writing, (i) of the issuance
by any governmental or regulatory authority of any order preventing or
suspending the use of any of the Time of Sale Information or the Offering
Memorandum or the initiation or threatening of any proceeding for that purpose;
(ii) of the occurrence of any event at any time prior to the completion of the
initial offering of the Securities as a result of which any of the Time of Sale
Information or the Offering Memorandum as then amended or supplemented would
include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing when such Time of Sale Information or the Offering
Memorandum is delivered to a purchaser, not misleading; and (iii) of the receipt
by the Issuers of any notice with respect to any suspension of the qualification
of the Securities for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and the Issuers will use their
reasonable best efforts to prevent the issuance of any such order preventing or
suspending the use of any of the Time of Sale Information or the Offering
Memorandum or suspending any such qualification of the Securities and, if any
such order is issued, will obtain as soon as possible the withdrawal thereof.
(e) Ongoing Compliance of the Offering Memorandum. (1) If at any time prior
to the completion of the initial offering of the Securities (i) any event shall
occur or condition shall exist as a result of which the Offering Memorandum as
then amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances existing when the Offering
Memorandum is delivered to a purchaser, not misleading or (ii) it is necessary
to amend or supplement the Offering Memorandum to comply with law, the Issuers
will immediately notify the Initial Purchasers thereof and forthwith prepare
and, subject to paragraph (b) above, furnish to the Initial Purchasers such
amendments or supplements to the Offering Memorandum as may be necessary so that
the statements in the Offering Memorandum as so amended or supplemented will
not, in the light of the circumstances existing when the Offering Memorandum is
delivered to a purchaser, be misleading or so that the Offering Memorandum will
comply with law and (2) if at any time prior to the Closing Date (i) any event
shall occur or condition shall exist as a result of which any of the Time of
Sale Information as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading or (ii) it is necessary to amend or
supplement any of the Time of Sale Information so that any of the Time of Sale
Information will not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
light of the
18
circumstances under which they were made, not misleading, the Issuers will
immediately notify the Initial Purchasers thereof and forthwith prepare and,
subject to paragraphs (b) and (c) above, furnish to the Initial Purchasers such
amendments or supplements to any of the Time of Sale Information as may be
necessary so that the statements in any of the Time of Sale Information as so
amended or supplemented will not, in light of the circumstances under which they
were made, be misleading.
(f) Blue Sky Compliance. The Issuers will qualify the Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as the
Representative shall reasonably request and will continue such qualifications in
effect so long as required for the offering and resale of the Securities;
provided that neither the Issuers nor any of the Guarantors shall be required to
(i) qualify as a foreign corporation or other entity or as a dealer in
securities in any such jurisdiction where it would not otherwise be required to
so qualify, (ii) file any general consent to service of process in any such
jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it
is not otherwise so subject.
(g) Clear Market. During the period from the date hereof through and
including the date that is 180 days after the date hereof, the Issuers and each
of the Guarantors will not, without the prior written consent of the
Representative, offer, sell, contract to sell or otherwise dispose of any debt
securities issued or guaranteed by the Issuers or any of the Guarantors and
having a tenor of more than one year.
(h) Use of Proceeds. The Issuers will apply the net proceeds from the sale
of the Securities released to the Issuers from the Escrow Account in the manner
described in each of the Time of Sale Information and the Offering Memorandum
under the heading "Use of proceeds".
(i) Supplying Information. While the Securities remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, the Issuers and each of the Guarantors will, during any period
in which the Issuers are not subject to and in compliance with Section 13 or
15(d) of the Exchange Act, furnish to holders of the Securities and prospective
purchasers of the Securities designated by such holders, upon the request of
such holders or such prospective purchasers, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(j) PORTAL and DTC. The Issuers will assist the Initial Purchasers in
arranging for the Securities to be designated Private Offerings, Resales and
Trading through Automated Linkages ("PORTAL") Market securities in accordance
with the rules and regulations adopted by the National Association of Securities
Dealers, Inc. ("NASD") relating to trading in the PORTAL Market and for the
Securities to be eligible for clearance and settlement through the DTC.
19
(k) No Resales by the Issuers. Until the issuance of the Exchange
Securities, the Issuers will not, and will not permit any of their affiliates
(as defined in Rule 144 under the Securities Act) to, resell any of the
Securities that have been acquired by any of them, except for Securities
purchased by the Issuers or any of their affiliates and resold in a transaction
registered under the Securities Act.
(l) No Integration. Neither the Issuers nor any of their affiliates (as
defined in Rule 501(b) of Regulation D) will, directly or through any agent,
sell, offer for sale, solicit offers to buy or otherwise negotiate in respect
of, any security (as defined in the Securities Act), that is or will be
integrated with the sale of the Securities in a manner that would require
registration of the Securities under the Securities Act.
(m) No General Solicitation or Directed Selling Efforts. None of the
Issuers or any of their affiliates or any other person acting on their behalf
(other than the Initial Purchasers, as to which no covenant is given) will (i)
solicit offers for, or offer or sell, the Securities by means of any form of
general solicitation or general advertising within the meaning of Rule 502(c) of
Regulation D or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act or (ii) engage in any directed selling
efforts within the meaning of Regulation S, and all such persons will comply
with the offering restrictions requirement of Regulation S.
(n) No Stabilization. Neither the Issuers nor any of the Guarantors will
take, directly or indirectly, any action designed to or that could reasonably be
expected to cause or result in any stabilization or manipulation of the price of
the Securities.
(o) Payment of Initial Purchasers' Commission. The Issuers will pay to the
Initial Purchasers the Initial Purchasers' Commission immediately (and only)
upon the release of the Escrow Funds to the Issuers (in which event the Issuers
shall direct the Escrow Agent to pay such commission from the Escrow Funds as
provided in the Escrow Agreement).
(p) Credit Agreement. On or prior to the Emergence Date, the Issuers shall
enter into the Credit Agreement. The Credit Agreement shall provide for
commitments of up to $1,500 million and have terms and conditions consistent in
all material respects with those described in each of the Time of Sale
Information and the Offering Memorandum.
5. Certain Agreements of the Initial Purchasers. Each Initial
Purchaser hereby represents and agrees that it has not and will not use,
authorize use of, refer to, or participate in the planning for use of, any
written communication that constitutes an offer to sell or the solicitation of
an offer to buy the Securities other than (i) a written communication that
contains no "issuer information" (as defined in Rule 433(h)(2) under the
Securities Act) that was not included (including through incorporation by
reference) in the Preliminary Offering Memorandum, (ii) any written
20
communication listed on Annex A or prepared pursuant to Section 3(b) or Section
4(c) above, (iii) any written communication prepared by such Initial Purchaser
and approved by the Company in advance in writing, (iv) any written
communication relating to or that contains the terms of the Securities or (v)
any written communication that contains other information that was included
(including through incorporation by reference) in the Preliminary Offering
Memorandum.
6. Conditions of Initial Purchasers' Obligations. The obligation of
each Initial Purchaser to purchase Securities on the Closing Date as provided
herein is subject to the performance by the Issuers and each of the Guarantors
of their respective covenants and other obligations hereunder and to the
following additional conditions:
(a) Representations and Warranties. The representations and warranties of
the Issuers and the Guarantors contained herein shall be true and correct on the
date hereof and on and as of the Closing Date; and the statements of the
Issuers, the Guarantors and their respective officers made in any certificates
delivered pursuant to this Agreement shall be true and correct on and as of the
Closing Date.
(b) No Downgrade. Subsequent to the execution and delivery of this
Agreement, (i) no downgrading shall have occurred in the rating accorded the
Securities or any other debt securities or preferred stock issued or guaranteed
by the Issuers or any of their subsidiaries by any "nationally recognized
statistical rating organization", as such term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act; and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, or has changed its outlook with respect to, its rating of the Securities
or of any other debt securities or preferred stock issued or guaranteed by the
Issuers or any of their subsidiaries (other than an announcement with positive
implications of a possible upgrading).
(c) No Material Adverse Change. No event or condition of a type described
in Section 3(d) hereof shall have occurred or shall exist, which event or
condition is not described in each of the Time of Sale Information (excluding
any amendment or supplement thereto) and the Offering Memorandum (excluding any
amendment or supplement thereto) and the effect of which in the judgment of the
Representative makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Securities on the terms and in the manner
contemplated by this Agreement, the Time of Sale Information and the Offering
Memorandum.
(d) Officer's Certificate. The Representative shall have received (i) on
and as of the Closing Date a certificate, in form and substance reasonably
satisfactory to the Representatives, of an executive officer of the Issuers and
of each Guarantor who has specific knowledge of the Issuers' or such Guarantor's
financial matters, substantially to the effect set forth in Annex E-1 or E-2, as
the case may be, hereto and (ii) on the date hereof and on and as of the Closing
Date, a certificate with respect to certain financial
21
data contained in the Time of Sale Information and the Offering Memorandum,
providing "management comfort" with respect to such information to the extent
KPMG LLP is unable to provide such comfort, substantially to the effect set
forth in Annex E-3 hereto; provided that the certificate delivered on the
Closing Date shall use a "cut-off" date that is the same as the cut-off date for
the "comfort letter" delivered on the Closing Date pursuant to clause 5(e).
(e) Comfort Letters. On the date of this Agreement and on the Closing Date,
KPMG LLP shall have furnished to the Representative, at the request of the
Issuers, letters, dated the respective dates of delivery thereof and addressed
to the Initial Purchasers, in form and substance reasonably satisfactory to the
Representative, containing statements and information of the type customarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the Time of
Sale Information and the Offering Memorandum; provided that these letters shall
use a "cut-off" date no more than three business days prior to the date of this
Agreement or the Closing Date, as the case may be.
(f) Opinion of Counsel for the Issuers, (i) White & Case LLP, counsel for
the Issuers and the Guarantors, shall have furnished to the Representative, at
the request of the Issuers, their written opinion, dated the Closing Date and
addressed to the Initial Purchasers in form and substance reasonably
satisfactory to the Representative, to the effect set forth in Annex D-1 hereto
and (ii) Xxxxxx X. Xxxxxxxxx, Associate General Counsel, Finance of Mirant
Corporation, shall have furnished to the Representative, at the request of the
Issuers, his written opinion, dated the Closing Date and addressed to the
Initial Purchasers in form and substance reasonably satisfactory to the
Representative, to the effect set forth in Annex D-2 hereto.
(g) Opinion of Counsel for the Initial Purchasers. The Representative shall
have received on and as of the Closing Date an opinion and 10b-5 statement of
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Initial Purchasers, with respect
to such matters as the Representative may reasonably request, and such counsel
shall have received such documents and information as they may reasonably
request to enable them to pass upon such matters.
(h) No Legal Impediment to Issuance. No action shall have been taken and no
statute, rule, regulation or order shall have been enacted, adopted or issued by
any federal, state or foreign governmental or regulatory authority that would,
as of the Closing Date or the Emergence Date, prevent the issuance or sale of
the Securities or the issuance of the Guarantees; and no injunction or order of
any federal, state or foreign court shall have been issued that would, as of the
Closing Date or the Emergence Date, prevent the issuance or sale of the
Securities or the issuance of the Guarantees.
22
(i) Good Standing. The Representative shall have received on and as of each
of the Closing Date and the Emergence Date satisfactory evidence of the good
standing of the LLC Issuer and its subsidiaries in their respective
jurisdictions of organization and their good standing in such other
jurisdictions as the Representative may reasonably request, in each case in
writing or any standard form of telecommunication, from the appropriate
governmental authorities of such jurisdictions.
(j) Escrow Agreement and Escrow Deposit. The Initial Purchasers shall have
received a counterpart of the Escrow Agreement that shall have been executed and
delivered by a duly authorized officer of each party thereto. The Additional
Escrow Amount shall have been deposited into the Escrow Account.
(k) Registration Rights Agreement. The Initial Purchasers shall have
received a counterpart of the Registration Rights Agreement that shall have been
executed and delivered by a duly authorized officer of the Issuers and each of
the Guarantors.
(l) PORTAL and DTC. The Securities shall have been approved by the NASD for
trading in the PORTAL Market and shall be eligible for clearance and settlement
through DTC.
(m) Additional Documents. On or prior to the Closing Date, the Issuers and
the Guarantors shall have furnished to the Representative such further
certificates and documents as the Representative may reasonably request.
(n) Secretary's Certificate. Each of the Issuers and each Guarantor shall
have delivered to the Representative a Secretary's Certificate, dated the
Closing Date, in form and substance reasonably satisfactory to the
Representative, to the effect set forth in Annex F hereto.
(o) Plan of Reorganization and Escrow Arrangements. (i) The Plan of
Reorganization, as confirmed by the Confirmation Order, shall be in full force
and effect and, except as would not reasonably be expected to have a Material
Adverse Effect, shall not have been reversed, modified, stayed or amended or be
the subject of a pending appeal and at least ten (10) days shall have passed
since the entry of the Confirmation Order and (ii) the Order, entered by the
United States Bankruptcy Court for the Northern District of Texas, Fort Worth
Division dated December 15, 2005, approving the Debtors' Emergency Motion to
Facilitate Exit Financing and to Escrow Funds Pending the Effective Date (Docket
No. 12572), shall be in full force and effect and, except as would not
reasonably be expected to have a Material Adverse Effect, shall not have been
reversed, modified, stayed or amended or be the subject of a pending appeal.
23
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchasers.
7. Indemnification and Contribution.
(a) Indemnification of the Initial Purchasers. The Issuers and each of the
Guarantors jointly and severally agree to indemnify and hold harmless each
Initial Purchaser, its affiliates, directors and officers and each person, if
any, who controls such Initial Purchaser within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint
or several, that arise out of, or are based upon, any untrue statement or
alleged untrue statement of a material fact contained in any of the Time of Sale
Information or the Offering Memorandum (or any amendment or supplement thereto)
or any omission or alleged omission to state therein a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, in each case except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to any Initial
Purchaser furnished to the Issuers in writing by such Initial Purchaser through
the Representative expressly for use therein; provided that the foregoing
indemnity with respect to the Preliminary Offering Memorandum shall not inure to
the benefit of any Initial Purchaser (or to the benefit of any person
controlling such Initial Purchaser) from whom the person asserting any such
losses, claims, damages, liabilities or expenses purchased Securities that are
the subject thereof if (a) such untrue statement or omission or alleged untrue
statement or omission made in the Preliminary Memorandum was eliminated or
remedied in the Time of Sale Information (other than the Final Pricing Term
Sheet and the Electronic Road Show (as such term is defined in Annex A)) and (b)
such Time of Sale Information was not furnished to such person at or prior to
the written confirmation of the sale of such Securities to such person, unless
such failure to deliver was a result of non-compliance by the Issuers with
Section 4 of this Agreement. For the avoidance of doubt, the information
contained in (x) Supplement to the Preliminary Offering Memorandum, dated
December 19, 2005 and (y) Supplement to the Preliminary Offering Memorandum,
dated December 20, 2005 shall be deemed "furnished" to investors for the
purposes of the proviso in this Section 7(a) as such information has been made
publicly available by the Issuers or their affiliates by means of a press
release or a filing with the Commission under the Exchange Act.
(b) Indemnification of the Issuers. Each Initial Purchaser agrees,
severally and not jointly, to indemnify and hold harmless the Issuers, each of
the Guarantors, each of their respective directors and officers and each person,
if any, who controls the
24
Issuers or any of the Guarantors within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity set forth in paragraph (a) above, but only with respect to any losses,
claims, damages or liabilities that arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information relating to such Initial Purchaser
furnished to the Issuers in writing by such Initial Purchaser through the
Representative expressly for use in any of the Time of Sale Information and the
Offering Memorandum (or any amendment or supplement thereto), it being
understood and agreed that the only such information consists of the following:
the third paragraph and the fifth and sixth sentences of the fourteenth
paragraph under the heading "Plan of Distribution."
(c) Notice and Procedures. If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnification may be sought
pursuant to either paragraph (a) or (b) above, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnification may
be sought (the "Indemnifying Person") in writing; provided that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it
may have under this Section 7 except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such
failure; and provided, further, that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have to an
Indemnified Person otherwise than under this Section 7. If any such proceeding
shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person in such proceeding and any others entitled to indemnification
pursuant to this Section 7 that the Indemnifying Person may designate and shall
pay the fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for any Initial
Purchaser, its affiliates, directors
25
and officers and any control persons of such Initial Purchaser shall be
designated in writing by X.X. Xxxxxx Securities Inc. and any such separate firm
for the Issuers, the Guarantors, their respective officers and directors and any
control persons of the Issuers and the Guarantors shall be designated in writing
by the Issuers. The Indemnifying Person shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify each Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by this paragraph, the Indemnifying Person
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by the Indemnifying Person of such request and (ii) the Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall,
without the written consent of the Indemnified Person, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified Person
is or could have been a party and indemnification could have been sought
hereunder by such Indemnified Person, unless such settlement (x) includes an
unconditional release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (y) does not include any
statement as to or any admission of fault, culpability or a failure to act by or
on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and
(b) above is unavailable to an Indemnified Person or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuers and the Guarantors on the one hand and the
Initial Purchasers on the other from the offering of the Securities or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Issuers and the
Guarantors on the one hand and the Initial Purchasers on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Issuers and the Guarantors on the one hand and
the Initial Purchasers on the other shall be deemed to be in the same respective
proportions as the net proceeds (before deducting expenses) received by the
Issuers from the sale of the Securities and the total discounts and commissions
received by the Initial Purchasers in connection therewith, as provided in this
Agreement, bear to the aggregate offering price of the Securities. The relative
fault of
26
the Issuers and the Guarantors on the one hand and the Initial Purchasers on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Issuers
or any Guarantor or by the Initial Purchasers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) Limitation on Liability. The Issuers, the Guarantors and the Initial
Purchasers agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if the
Initial Purchasers were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and liabilities referred to in
paragraph (d) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with any such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall an Initial Purchaser be required to contribute any
amount in excess of the amount by which the total discounts and commissions
received by such Initial Purchaser with respect to the offering of the
Securities exceeds the amount of any damages that such Initial Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11 (f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Initial Purchasers' obligations to contribute
pursuant to this Section 7 are several in proportion to their respective
purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are
not exclusive and shall not limit any rights or remedies that may otherwise be
available to any Indemnified Person at law or in equity.
8. Termination. This Agreement may be terminated in the absolute discretion
of the Representative, by notice to the Issuers, if after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on the New York Stock Exchange
or the over-the-counter market; (ii) trading of any securities issued or
guaranteed by the Issuers or any of the Guarantors shall have been suspended on
any exchange or in any over-the-counter market; (iii) a general moratorium on
commercial banking activities declared by either Federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis, either within or outside the United States,
that, in the reasonable judgment of the Representative, is material and adverse
and makes it impracticable or inadvisable to proceed with the offering, sale or
delivery of the
27
Securities on the terms and in the manner contemplated by this Agreement, the
Time of Sale Information and the Offering Memorandum or (v) the representation
in Section 3(b) is incorrect in any respect.
9. Defaulting Initial Purchaser. (a) If, on the Closing Date, any Initial
Purchaser defaults on its obligation to purchase the Securities that it has
agreed to purchase hereunder, the non-defaulting Initial Purchasers may in their
discretion arrange for the purchase of such Securities by other persons
satisfactory to the Issuers on the terms contained in this Agreement. If, within
36 hours after any such default by any Initial Purchaser, the non-defaulting
Initial Purchasers do not arrange for the purchase of such Securities, then the
Issuers shall be entitled to a further period of 36 hours within which to
procure other persons satisfactory to the non-defaulting Initial Purchasers to
purchase such Securities on such terms. If other persons become obligated or
agree to purchase the Securities of a defaulting Initial Purchaser, either the
non-defaulting Initial Purchasers or the Issuers may postpone the Closing Date
for up to five full business days in order to effect any changes that in the
opinion of counsel for the Issuers or counsel for the Initial Purchasers may be
necessary in the Time of Sale Information, the Offering Memorandum or in any
other document or arrangement, and the Issuers agree to promptly prepare any
amendment or supplement to the Time of Sale Information or the Offering
Memorandum that effects any such changes. As used in this Agreement, the term
"Initial Purchaser" includes, for all purposes of this Agreement unless the
context otherwise requires, any person not listed in Schedule 1 hereto that,
pursuant to this Section 9, purchases Securities that a defaulting Initial
Purchaser agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Initial Purchaser or Initial Purchasers by the
non-defaulting Initial Purchasers and the Issuers as provided in paragraph (a)
above, the aggregate principal amount of such Securities that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
all the Securities, then the Issuers shall have the right to require each
non-defaulting Initial Purchaser to purchase the principal amount of Securities
that such Initial Purchaser agreed to purchase hereunder plus such Initial
Purchaser's pro rata share (based on the principal amount of Securities that
such Initial Purchaser agreed to purchase hereunder) of the Securities of such
defaulting Initial Purchaser or Initial Purchasers for which such arrangements
have not been made.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Initial Purchaser or Initial Purchasers by the
non-defaulting Initial Purchasers and the Issuers as provided in paragraph (a)
above, the aggregate principal amount of such Securities that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the
Securities, or if the Issuers shall not exercise the right described in
paragraph (b) above, then this Agreement shall terminate without liability on
the part of the non-defaulting Initial Purchasers. Any termination of this
Agreement pursuant to this Section 9 shall be without liability on the part of
the Issuers or the Guarantors, except that the Issuers and each of the
Guarantors will continue to be liable
28
for the payment of expenses as set forth in Section 10 hereof and except that
the provisions of Section 7 hereof shall not terminate and shall remain in
effect.
(d) Nothing contained herein shall relieve a defaulting Initial Purchaser
of any liability it may have to the Issuers, the Guarantors or any
non-defaulting Initial Purchaser for damages caused by its default.
10. Payment of Expenses, (a) Whether or not the transactions contemplated
by this Agreement are consummated or this Agreement is terminated, the Issuers
and each of the Guarantors jointly and severally agree to pay or cause to be
paid all costs and expenses incident to the performance of their respective
obligations hereunder, including without limitation, (i) the costs incident to
the authorization, issuance, sale, preparation and delivery of the Securities
and any stamp, transfer, documentary or similar taxes imposed by the United
States or any State thereof payable in that connection; (ii) the costs incident
to the preparation and printing of the Preliminary Offering Memorandum, the Time
of Sale Information and the Offering Memorandum (including any amendment or
supplement thereto) and the distribution thereof; (iii) the costs of reproducing
and distributing each of the Transaction Documents; (iv) the fees and expenses
of the Issuers' and the Guarantors' counsel and independent accountants; (v) the
fees and expenses incurred in connection with the registration or qualification
and determination of eligibility for investment of the Securities under the laws
of such jurisdictions as the Representative may designate and the preparation,
printing and distribution of a Blue Sky Memorandum (including the related fees
and expenses of counsel for the Initial Purchasers); (vi) any fees charged by
rating agencies for rating the Securities; (vii) the fees and expenses of the
Trustee and any paying agent (including related fees and expenses of any counsel
to such parties); (viii) all expenses and application fees incurred in
connection with the application for the inclusion of the Securities on the
PORTAL Market and the approval of the Securities for book-entry transfer by DTC;
and (ix) all expenses incurred by the Issuers in connection with any "road show"
presentation to potential investors.
(b) If (i) this Agreement is terminated pursuant to Section 8 (other than
pursuant to clause (v) of Section 8 if the Issuers and the Initial Purchasers
subsequently enter into another agreement for the Initial Purchasers to purchase
the same or substantially similar securities of the Issuers), (ii) the Issuers
for any reason fail to tender the Securities for delivery to the Initial
Purchasers or (iii) the Initial Purchasers decline to purchase the Securities
for any reason permitted under this Agreement, the Issuers and each of the
Guarantors jointly and severally agree to reimburse the Initial Purchasers for
all out-of-pocket costs and expenses (including the reasonable fees and expenses
of their counsel) reasonably incurred by the Initial Purchasers in connection
with this Agreement and the offering contemplated hereby.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors
29
and any controlling persons referred to herein, and the affiliates, officers and
directors of each Initial Purchaser referred to in Section 7 hereof. Nothing in
this Agreement is intended or shall be construed to give any other person any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein. No purchaser of Securities from any Initial
Purchaser shall be deemed to be a successor merely by reason of such purchase.
12. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Issuers, the Guarantors and
the Initial Purchasers contained in this Agreement or made by or on behalf of
the Issuers, the Guarantors or the Initial Purchasers pursuant to this Agreement
or any certificate delivered pursuant hereto shall survive the delivery of and
payment for the Securities and shall remain in full force and effect, regardless
of any termination of this Agreement or any investigation made by or on behalf
of the Issuers, the Guarantors or the Initial Purchasers.
13. Certain Defined Terms. For purposes of this Agreement, (a) except where
otherwise expressly provided, the term "affiliate" has the meaning set forth in
Rule 405 under the Securities Act; (b) the term "business day" means any day
other than a day on which banks are permitted or required to be closed in New
York City; (c) the term "Exchange Act" means the Securities Exchange Act of
1934, as amended; (d) the term "subsidiary" has the meaning set forth in Rule
405 under the Securities Act; and (e) the term "written communication" has the
meaning set forth in Rule 405 under the Securities Act.
14. Miscellaneous. (a) Authority of the Representative. Any action by the
Initial Purchasers hereunder may be taken by X.X. Xxxxxx Securities Inc. on
behalf of the Initial Purchasers, and any such action taken by X.X. Xxxxxx
Securities Inc. shall be binding upon the Initial Purchasers.
(b) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted and
confirmed by any standard form of telecommunication. Notices to the Initial
Purchasers shall be given to the Representative c/o X.X. Xxxxxx Securities Inc.,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: 000-000-0000); Attention: Xxxxx
Xxxxxx. Notices to the Issuers and the Guarantors shall be given to them at
Mirant North America, LLC, 0000 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000, fax: (000) 000-0000; Attention: Senior Vice President and
Treasurer (with a copy to Executive Vice President and General Counsel).
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which may
include counterparts delivered by any standard form of telecommunication), each
of
30
which shall be an original and all of which together shall constitute one and
the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
(f) Headings. The headings herein are included for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing is in accordance with your understanding, please indicate
your acceptance of this Agreement by signing in the space provided below.
[Signature pages follow]
31
Very truly yours,
MIRANT NORTH AMERICA ESCROW, LLC
By /s/ J. Xxxxxxx Xxxxxx III
-------------------------------------
Name: J. Xxxxxxx Xxxxxx III
Title: Senior Vice President, Chief
Financial Officer & Treasurer
MIRANT NORTH AMERICA, LLC
By /s/ J. Xxxxxxx Xxxxxx III
-------------------------------------
Name: J. Xxxxxxx Xxxxxx III
Title: Senior Vice President, Chief
Financial Officer & Treasurer
MNA FINANCE CORP.
By /s/ J. Xxxxxxx Xxxxxx III
-------------------------------------
Name: J. Xxxxxxx Xxxxxx III
Title: Senior Vice President, Chief
Financial Officer & Treasurer
MIRANT TEXAS MANAGEMENT, LLC
By /s/ J. Xxxxxxx Xxxxxx III
-------------------------------------
Name: J. Xxxxxxx Xxxxxx III
Title: Senior Vice President & Treasurer
MIRANT TEXAS, LP
By: Mirant Texas Management, LLC
Its: General Partner
By /s/ J. Xxxxxxx Xxxxxx III
-------------------------------------
Name: J. Xxxxxxx Xxxxxx III
Title: Senior Vice President & Treasurer
MIRANT CALIFORNIA, LLC
By /s/ J. Xxxxxxx Xxxxxx III
-------------------------------------
Name: J. Xxxxxxx Xxxxxx III
Title: Senior Vice President & Treasurer
MIRANT POTRERO, LLC
By /s/ J. Xxxxxxx Xxxxxx III
-------------------------------------
Name: J. Xxxxxxx Xxxxxx III
Title: Senior Vice President & Treasurer
MIRANT DELTA, LLC
By /s/ J. Xxxxxxx Xxxxxx III
-------------------------------------
Name: J. Xxxxxxx Xxxxxx III
Title: Senior Vice President & Treasurer
MIRANT CANAL, LLC
By /s/ J. Xxxxxxx Xxxxxx III
-------------------------------------
Name: J. Xxxxxxx Xxxxxx III
Title: Senior Vice President & Treasurer
XXXXXX XXXXXXX, LLC
By /s/ J. Xxxxxxx Xxxxxx III
-------------------------------------
Name: J. Xxxxxxx Xxxxxx III
Title: Senior Vice President & Treasurer
MIRANT ZEELAND, LLC
By /s/ J. Xxxxxxx Xxxxxx III
-------------------------------------
Name: J. Xxxxxxx Xxxxxx III
Title: Senior Vice President & Treasurer
MIRANT SPECIAL PROCUREMENT, INC.
By /s/ J. Xxxxxxx Xxxxxx III
-------------------------------------
Name: J. Xxxxxxx Xxxxxx III
Title: Senior Vice President & Treasurer
MLW DEVELOPMENT, LLC
By: Mirant Texas Management, LLC
Its: Sole Manager
By /s/ J. Xxxxxxx Xxxxxx III
-------------------------------------
Name: J. Xxxxxxx Xxxxxx III
Title: Senior Vice President & Treasurer
Accepted: December 20, 2005
X.X. XXXXXX SECURITIES INC.
For itself and on behalf of the
several Initial Purchasers listed in
Schedule 1 hereto.
By /s/ Illegible
----------------------------------
Authorized Signatory
