Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated December 23, 2005 (the
"Agreement") is entered into by and among Mirant North America Escrow, LLC, a
Delaware limited liability company ("Escrow LLC"), Mirant North America, LLC, a
Delaware limited liability company ("Mirant LLC") and MNA Finance Corp. (the
"Corp. Co-Issuer" and, together with the Mirant LLC and Escrow LLC, the
"Co-issuers"), the guarantors listed in Schedule 1 hereto (the "Guarantors"),
and the several Initial Purchasers listed in Schedule 2 hereto (collectively,
the "Initial Purchasers").
The Co-issuers, the Guarantors and the Initial Purchasers are parties to
the Purchase Agreement dated December 20, 2005 (the "Purchase Agreement"), which
provides for the sale by the Co-issuers to the Initial Purchasers of
$850,000,000 aggregate principal amount of the Co-issuers' 7.375% Senior Notes
due 2013 (the "Notes") which will be guaranteed on an unsecured senior basis by
each of the Guarantors. The term "Securities" in this Agreement refers,
collectively, to the Notes and the Guarantees.
The Securities are being issued in connection with the emergence of MNA and
its subsidiaries from Chapter 11 proceedings. The Notes will be initially issued
by Escrow LLC and the Corp. Co-Issuer. On or prior to emergence, Escrow LLC will
merge with and into Mirant LLC, with Mirant LLC as the surviving entity (the
"Merger"). Upon the consummation of the Merger, (i) Mirant LLC will assume all
of the obligations of Escrow LLC, (ii) Corp. Co-Issuer will become a direct,
wholly-owned subsidiary of Mirant LLC, and (iii) the Guarantees will, without
any further act, become effective.
As an inducement to the Initial Purchasers to enter into the Purchase
Agreement, the Co-issuers and the Guarantors have agreed to provide to the
Initial Purchasers and their direct and indirect transferees the registration
rights set forth in this Agreement. The execution and delivery of this Agreement
is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the following meanings:
"Business Day" shall mean any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed.
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Co-issuers" shall have the meaning set forth in the preamble and shall
also include the Co-issuers' successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Exchange Dates" shall have the meaning set forth in Section 2(a)(ii)
hereof.
"Exchange Offer" shall mean the exchange offer by the Co-issuers and the
Guarantors of Exchange Securities for Registrable Securities pursuant to Section
2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and any
document incorporated by reference therein.
"Exchange Securities" shall mean senior notes issued by the Co-issuers and
guaranteed by the Guarantors under the Indenture containing terms identical to
the Securities (except that the Exchange Securities will not be subject to
restrictions on transfer or to any increase in annual interest rate for failure
to comply with this Agreement) and to be offered to Holders of Securities in
exchange for Securities pursuant to the Exchange Offer.
"Guarantees" shall have the meaning set forth in the Purchase Agreement.
"Guarantors" shall have the meaning set forth in the preamble and shall
also include any Guarantor's successors.
"Holders" shall mean the Initial Purchasers, for so long as they own any
Registrable Securities, and each of their successors, assigns and direct and
indirect transferees who become owners of Registrable Securities under the
Indenture; provided that for purposes of Sections 4 and 5 of this Agreement, the
term "Holders" shall include Participating Broker-Dealers.
"Indenture" shall mean the Indenture relating to the Securities dated as of
December 23, 2005 among the Co-issuers, the Guarantors and Law Debenture Trust
Company of New York, as trustee, and as the same may be amended,
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supplemented or otherwise modified from time to time in accordance with the
terms thereof.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Inspector" shall have the meaning set forth in Section 3(a)(xiii) hereof.
"JPMorgan" means X.X. Xxxxxx Securities Inc.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of the outstanding Registrable Securities; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, any Registrable Securities owned
directly or indirectly by the Co-issuers or any of their affiliates shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage or amount; and provided, further, that if the
Co-issuers shall issue any additional Securities under the Indenture prior to
the consummation of the Exchange Offer or, if applicable, the effectiveness of
any Shelf Registration Statement, such additional Securities and the Registrable
Securities to which this Agreement relates shall be treated together as one
class for purposes of determining whether the consent or approval of Holders of
a specified percentage of Registrable Securities has been obtained.
"Participating Broker-Dealers" shall have the meaning set forth in Section
4(a) hereof.
"Person" shall mean an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
any document incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the Securities; provided that the
Securities shall cease to be Registrable Securities (i) when a Registration
Statement with respect to such Securities has been declared effective under the
Securities Act and such Securities have been exchanged or disposed of pursuant
to such Registration Statement, (ii) when such Securities are eligible to be
sold
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pursuant to Rule 144(k) (or any similar provision then in force, but not Rule
144A) under the Securities Act or (iii) when such Securities cease to be
outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Co-issuers and the Guarantors with this
Agreement, including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees, (ii) all
fees and expenses incurred in connection with compliance with state securities
or blue sky laws (including reasonable fees and disbursements of counsel for any
Underwriters or Holders in connection with blue sky qualification of any
Exchange Securities or Registrable Securities), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus and any amendments or
supplements thereto, any underwriting agreements, securities sales agreements or
other similar agreements and any other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency fees, (v) all fees
and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the fees and disbursements of the Trustee and
its counsel, (vii) the fees and disbursements of counsel for the Co-issuers and
the Guarantors and, in the case of a Shelf Registration Statement, the fees and
disbursements of one counsel for the Holders (which counsel shall be a
nationally recognized law firm experienced in securities law matters and which
shall be selected by the Majority Holders and which counsel may also be counsel
for the Initial Purchasers) and (viii) the fees and disbursements of the
independent public accountants of the Co-issuers and the Guarantors, including
the expenses of any special audits or "comfort" letters required by or incident
to the performance of and compliance with this Agreement, but excluding fees and
expenses of counsel to the Underwriters (other than fees and expenses set forth
in clause (ii) above) or the Holders and underwriting discounts and commissions,
brokerage commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Co-issuers and the Guarantors that covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement and all
amendments and supplements to any such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and any document incorporated by reference
therein.
"SEC" shall mean the United States Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
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"Shelf Effectiveness Period" shall have the meaning set forth in Section
2(b) hereof.
"Shelf Registration" shall mean a registration effected pursuant to Section
2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Co-issuers and the Guarantors that covers all or a portion of the
Registrable Securities (but no other securities unless approved by the Holders
whose Registrable Securities are to be covered by such Shelf Registration
Statement) on an appropriate form under Rule 415 under the Securities Act, or
any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and any document incorporated by reference therein.
"Staff" shall mean the staff of the SEC.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended from time to time.
"Trustee" shall mean the trustee with respect to the Securities under the
Indenture.
"Underwriter" shall have the meaning set forth in Section 3(e) hereof.
"Underwritten Offering" shall mean an offering in which Registrable
Securities are sold to an Underwriter for reoffering to the public.
2. Registration Under the Securities Act. (a) To the extent not prohibited
by any applicable law or applicable interpretations of the Staff, the Co-issuers
and the Guarantors shall use their reasonable best efforts to (i) cause to be
filed with the SEC an Exchange Offer Registration Statement covering an offer to
the Holders to exchange all the Registrable Securities for Exchange Securities
and (ii) have such Registration Statement remain effective until the earlier of
(a) 180 days after the closing of the Exchange Offer and (y) the date on which
Participating Broker-Dealers and Initial Purchasers have sold all Exchange
Securities held by them. The Co-issuers and the Guarantors shall commence the
Exchange Offer promptly after the Exchange Offer Registration Statement is
declared effective by the SEC and use their reasonable best efforts to complete
the Exchange Offer not later than 60 days after such effective date.
The Co-issuers and the Guarantors shall commence the Exchange Offer by
mailing the related Prospectus, appropriate letters of transmittal and other
accompanying documents to each Holder stating, in addition to such other
disclosures as are required by applicable law, substantially the following:
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(i) that the Exchange Offer is being made pursuant to this Agreement and that
all Registrable Securities validly tendered and not properly withdrawn will
be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least
20 Business Days from the date such notice is mailed) (the "Exchange
Dates");
(iii) that any Registrable Security not tendered will remain outstanding and
continue to accrue interest but will not retain any rights under this
Agreement;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant
to the Exchange Offer will be required to surrender such Registrable
Security, together with the appropriate letters of transmittal, to the
institution and at the address (located in the Borough of Manhattan, The
City of New York) and in the manner specified in the notice, prior to the
close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than
the close of business on the last Exchange Date, by sending to the
institution and at the address (located in the Borough of Manhattan, The
City of New York) specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Registrable Securities delivered for exchange and a statement
that such Holder is withdrawing its election to have such Securities
exchanged.
As a condition to participating in the Exchange Offer, a Holder will be
required to represent to the Co-issuers and the Guarantors that (i) any Exchange
Securities to be received by it will be acquired in the ordinary course of its
business, (ii) at the time of the commencement of the Exchange Offer it has no
arrangement or understanding with any Person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Securities in
violation of the provisions of the Securities Act, (iii) it is not an
"affiliate" (within the meaning of Rule 405 under the Securities Act) of either
of the Co-issuers or any Guarantor and (iv) if such Holder is a broker-dealer
that will receive Exchange Securities for its own account in exchange for
Registrable Securities that were acquired as a result of market-making or other
trading activities, then such Holder will deliver a Prospectus in connection
with any resale of such Exchange Securities.
As soon as practicable after the last Exchange Date, the Co-issuers and the
Guarantors shall:
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(i) accept for exchange Registrable Securities or portions thereof validly
tendered and not properly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all
Registrable Securities or portions thereof so accepted for exchange by the
Co-issuers and issue, and cause the Trustee to promptly authenticate and
deliver to each Holder, Exchange Securities equal in principal amount to
the principal amount of the Registrable Securities surrendered by such
Holder.
The Co-issuers and the Guarantors shall use their reasonable best efforts
to complete the Exchange Offer as provided above and shall comply with the
applicable requirements of the Securities Act, the Exchange Act and other
applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate any applicable law or applicable interpretations
of the Staff.
(b) In the event that (i) the Co-issuers and the Guarantors determine that
the Exchange Offer Registration provided for in Section 2(a) above is not
available or may not be completed as soon as practicable after the last Exchange
Date because it would violate any applicable law or applicable interpretations
of the Staff, (ii) the Exchange Offer is not for any other reason completed by
September 19, 2006, (iii) any Initial Purchaser shall so request in connection
with any offer or sale of Registrable Securities that are not eligible to be
exchanged for Exchange Securities in the Exchange Offer, or (iv) any Initial
Purchaser does not receive freely tradeable Exchange Securities in exchange for
Securities constituting any portion of an unsold allotment (it being understood
that the requirement that any Initial Purchaser acting in a capacity as a
Participating Broker-Dealer deliver a Prospectus in connection with sales of
Exchange Securities acquired in the Exchange Offer in exchange for Securities
acquired as a result of market making activities or other trading activities
shall not result in such Exchange Securities being not "freely tradeable"), the
Co-issuers and the Guarantors shall use their reasonable best efforts to cause
to be filed as soon as practicable after such determination, date or request, as
the case may be, a Shelf Registration Statement providing for the sale of all
the Registrable Securities by the Holders thereof and to have such Shelf
Registration Statement declared effective by the SEC.
In the event that the Co-issuers and the Guarantors are required to file a
Shelf Registration Statement pursuant to clause (iii) of the preceding sentence,
the Co-issuers and the Guarantors shall use their reasonable best efforts to
file and have declared effective by the SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all Registrable Securities
and a Shelf Registration Statement (which may be a combined Registration
Statement with the Exchange Offer Registration Statement) with respect to offers
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and sales of Registrable Securities held by the Initial Purchasers after
completion of the Exchange Offer.
The Co-issuers and the Guarantors agree to use their reasonable best
efforts to keep the Shelf Registration Statement continuously effective until
the expiration of the period referred to in Rule 144(k) (or any similar rule
then in force, but not Rule 144A) under the Securities Act with respect to the
Registrable Securities or such shorter period that will terminate when all the
Registrable Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement (the "Shelf Effectiveness
Period"). The Co-issuers and the Guarantors further agree to supplement or amend
the Shelf Registration Statement and the related Prospectus if required by the
rules, regulations or instructions applicable to the registration form used by
the Co-issuers for such Shelf Registration Statement or by the Securities Act or
by any other rules and regulations thereunder for shelf registration or if
reasonably requested by a Holder of Registrable Securities with respect to
information relating to such Holder, and to use their reasonable best efforts to
cause any such amendment to become effective and such Shelf Registration
Statement and Prospectus to become usable as soon as thereafter practicable. The
Co-issuers and the Guarantors agree to furnish to the Holders of Registrable
Securities copies of any such supplement or amendment promptly after its being
used or filed with the SEC.
(c) The Co-issuers and the Guarantors shall pay all Registration Expenses
in connection with any registration pursuant to Section 2(a) or Section 2(b)
hereof. Each Holder shall pay all underwriting discounts and commissions,
brokerage commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to the Shelf
Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC.
In the event that either the Exchange Offer is not completed or the Shelf
Registration Statement, if required hereby, is not declared effective on or
prior to by September 19, 2006, the interest rate on the Registrable Securities
will be increased by 1.00% per annum until the Exchange Offer is completed or
the Shelf Registration Statement, if required hereby, is declared effective by
the SEC or the Securities become freely tradable under the Securities Act.
If the Shelf Registration Statement, if required hereby, has been declared
effective and thereafter either ceases to be effective or the Prospectus
contained therein ceases to be usable at any time during the Shelf Effectiveness
Period, and such failure to remain effective or usable exists for more than 30
days
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(whether or not consecutive) in any 12-month period, then the interest rate on
the Registrable Securities will be increased by 1.00% per annum commencing on
the 31st day in such 12-month period and ending on such date that the Shelf
Registration Statement has again been declared effective or the Prospectus again
becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and
the Holders, the Co-issuers and the Guarantors acknowledge that any failure by
the Co-issuers or the Guarantors to comply with their obligations under Section
2(a) and Section 2(b) hereof may result in material irreparable injury to the
Initial Purchasers or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, the Initial Purchasers or any Holder may
obtain such relief as may be required to specifically enforce the Co-issuers'
and the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. (a) In connection with their obligations
pursuant to Section 2(a) and Section 2(b) hereof, the Co-issuers and the
Guarantors shall as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be selected by
the Co-issuers and the Guarantors, (y) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Securities by the
Holders thereof and (z) shall comply as to form in all material respects with
the requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith; and use their reasonable best efforts
to cause such Registration Statement to become effective and remain effective
for the applicable period in accordance with Section 2 hereof;
(ii) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period in accordance with
Section 2 hereof and cause each Prospectus to be supplemented by any required
prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424
under the Securities Act; and keep each Prospectus current during the period
described in Section 4(3) of and Rule 174 under the Securities Act that is
applicable to transactions by brokers or dealers with respect to the Registrable
Securities or Exchange Securities;
(iii) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Initial Purchasers, to counsel for
such Holders and to each Underwriter of an Underwritten Offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus as such
Person requests, including each preliminary Prospectus, and any amendment or
supplement thereto, in order to facilitate the sale or other disposition of the
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Registrable Securities thereunder; and the Co-issuers and the Guarantors consent
to the use of such Prospectus and any amendment or supplement thereto in
accordance with applicable law by each of the Holders of Registrable Securities
and any such Underwriters in connection with the offering and sale of the
Registrable Securities covered by and in the manner described in such Prospectus
or any amendment or supplement thereto in accordance with applicable law;
(iv) use their reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or blue sky laws of
such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the SEC; cooperate
with such Holders in connection with any filings required to be made with the
National Association of Securities Dealers, Inc.; and do any and all other acts
and things that may be reasonably necessary or advisable to enable each Holder
to complete the disposition in each such jurisdiction of the Registrable
Securities owned by such Holder; provided that neither of the Co-issuers nor any
Guarantor shall be required to (1) 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, (2) file any general consent to service of
process in any such jurisdiction or (3) subject itself to taxation in any such
jurisdiction if it is not so subject;
(v) notify counsel for the Initial Purchasers and, in the case of a Shelf
Registration, notify each Holder of Registrable Securities and counsel for such
Holders (and, in the case of the Exchange Offer Registration Statement, notify
any Initial Purchaser or Participating Broker-Dealer that shall have made a
request pursuant to Section 4(b) hereof) promptly and, if requested by any such
Holder or counsel, confirm such advice in writing (1) when a Registration
Statement has become effective and when any post-effective amendment thereto has
been filed and becomes effective, (2) of any request by the SEC or any state
securities authority for amendments and supplements to a Registration Statement
and Prospectus or for additional information after the Registration Statement
has become effective, (3) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (4) if, between
the effective date of a Shelf Registration Statement and the closing of any sale
of Registrable Securities covered thereby, the representations and warranties of
the Co-issuers or any Guarantor contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any, relating to an
offering of such Registrable Securities cease to be true and correct in all
material respects or if the Co-issuers or any Guarantor receives any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (5) of the happening of any event during the period
a Registration Statement is
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effective that makes any statement made in such Registration Statement or the
related Prospectus untrue in any material respect or that requires the making of
any changes in such Registration Statement or Prospectus in order to make the
statements therein not misleading and (6) of any determination by the Co-issuers
or any Guarantor that a post-effective amendment to a Registration Statement
would be appropriate;
(vi) use their reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide immediate notice to each Holder of the withdrawal of
any such order;
(vii) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without any
documents incorporated therein by reference or exhibits thereto, unless
requested by such Holder);
(viii) in the case of a Shelf Registration, cooperate with the Holders of
Registrable Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends and enable such Registrable Securities to be issued in such
denominations and registered in such names (consistent with the provisions of
the Indenture) as such Holders may reasonably request at least one Business Day
prior to the closing of any sale of Registrable Securities;
(ix) in the case of a Shelf Registration, upon the occurrence of any event
contemplated by Section 3(a)(v)(5) hereof, use their reasonable best efforts to
prepare and file with the SEC a supplement or post-effective amendment to such
Shelf Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to purchasers of the Registrable Securities, such
Prospectus will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and the Co-issuers
and the Guarantors shall notify the Holders of Registrable Securities to suspend
use of the Prospectus as promptly as practicable after the occurrence of such an
event, and such Holders hereby agree to suspend use of the Prospectus until the
Co-issuers and the Guarantors have amended or supplemented the Prospectus to
correct such misstatement or omission;
(x) a reasonable time prior to the filing of any Registration Statement,
any Prospectus, any amendment to a Registration Statement or amendment or
supplement to a Prospectus or of any document that is to be incorporated by
reference into a Registration Statement or a Prospectus after initial filing of
a Registration Statement, provide copies of such document to the Initial
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Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, to the Holders of Registrable Securities and their counsel) and make
such of the representatives of the Co-issuers and the Guarantors as shall be
reasonably requested by the Initial Purchasers or their counsel (and, in the
case of a Shelf Registration Statement, the Holders of Registrable Securities or
their counsel) available for discussion of such document; and the Co-issuers and
the Guarantors shall not, at any time after initial filing of a Registration
Statement, file any Prospectus, any amendment of or supplement to a Registration
Statement or a Prospectus, or any document that is to be incorporated by
reference into a Registration Statement or a Prospectus, of which the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, the Holders of Registrable Securities and their counsel) shall not
have previously been advised and furnished a copy or to which the Initial
Purchasers or their counsel (and, in the case of a Shelf Registration Statement,
the Holders of Registrable Securities or their counsel) shall reasonably object;
(xi) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement;
(xii) cause the Indenture to be qualified under the Trust Indenture Act in
connection with the registration of the Exchange Securities or Registrable
Securities, as the case may be; cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for the Indenture to be
so qualified in accordance with the terms of the Trust Indenture Act; and
execute, and use their reasonable best efforts to cause the Trustee to execute,
all documents as may be required to effect such changes and all other forms and
documents required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(xiii) in the case of a Shelf Registration, make available for inspection
by a representative of the Holders of the Registrable Securities (an
"Inspector"), any Underwriter participating in any disposition pursuant to such
Shelf Registration Statement, any attorneys and accountants designated by the
Holders of Registrable Securities and any attorneys and accountants designated
by such Underwriter, at reasonable times and in a reasonable manner, all
pertinent financial and other records, documents and properties of the
Co-issuers and the Guarantors, and cause the respective officers, directors and
employees of the Co-issuers and the Guarantors to supply all information
reasonably requested by any such Inspector, Underwriter, attorney or accountant
in connection with a Shelf Registration Statement; provided that if any such
information is identified by the Co-issuers or any Guarantor as being
confidential or proprietary, each Person receiving such information shall take
such actions as are reasonably necessary to protect the confidentiality of such
information to the extent such action is otherwise not inconsistent with, an
impairment of or in derogation of the rights and interests of any Inspector,
Holder or Underwriter);
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(xiv) in the case of a Shelf Registration, use their reasonable best
efforts to cause all Registrable Securities to be listed on any securities
exchange or any automated quotation system on which similar securities issued or
guaranteed by either of the Co-issuers or any Guarantor are then listed if
requested by the Majority Holders, to the extent such Registrable Securities
satisfy applicable listing requirements;
(xv) if reasonably requested by any Holder of Registrable Securities
covered by a Shelf Registration Statement, promptly include in a Prospectus
supplement or post-effective amendment such information with respect to such
Holder as such Holder reasonably requests to be included therein and make all
required filings of such Prospectus supplement or such post-effective amendment
as soon as the Co-issuers has received notification of the matters to be so
included in such filing; and
(xvi) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith (including
those requested by the Holders of a majority in principal amount of the
Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities including, but not limited to, an
Underwritten Offering and in such connection, (1) to the extent possible, make
such representations and warranties to the Holders and any Underwriters of such
Registrable Securities with respect to the business of the Co-issuers and its
subsidiaries and the Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated by reference, if any, in each
case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested, (2) obtain opinions of counsel to the Co-issuers and the Guarantors
(which counsel and opinions, in form, scope and substance, shall be reasonably
satisfactory to the Holders and such Underwriters and their respective counsel)
addressed to each selling Holder and Underwriter of Registrable Securities,
covering the matters customarily covered in opinions requested in underwritten
offerings, (3) obtain "comfort" letters from the independent certified public
accountants of the Co-issuers and the Guarantors (and, if necessary, any other
certified public accountant of any subsidiary of either of the Co-issuers or any
Guarantor, or of any business acquired by either of the Co-issuers or any
Guarantor for which financial statements and financial data are or are required
to be included in the Registration Statement) addressed to each selling Holder
and Underwriter of Registrable Securities, such letters to be in customary form
and covering matters of the type customarily covered in "comfort" letters in
connection with underwritten offerings and (4) deliver such documents and
certificates as may be reasonably requested by the Holders of a majority in
principal amount of the Registrable Securities being sold or the Underwriters,
and which are customarily delivered in underwritten offerings, to evidence the
continued validity of the representations and warranties of the Co-issuers and
the
13
Guarantors made pursuant to clause (1) above and to evidence compliance with any
customary conditions contained in an underwriting agreement.
(b) In the case of a Shelf Registration Statement, the Co-issuers may
require each Holder of Registrable Securities to furnish to the Co-issuers such
information regarding such Holder and the proposed disposition by such Holder of
such Registrable Securities as the Co-issuers and the Guarantors may from time
to time reasonably request in writing; provided that if such Holders fail to
provide the requested information within forty Business Days, the Co-Issuers may
exclude such Holders' Registrable Securities from such Shelf Registration
Statement.
(c) In the case of a Shelf Registration Statement, each Holder of
Registrable Securities agrees that, upon receipt of any notice from the
Co-issuers and the Guarantors of the happening of any event of the kind
described in Section 3(a)(v)(3) or 3(a)(v)(5) hereof, such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to the Shelf
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(a)(ix) hereof and,
if so directed by the Co-issuers and the Guarantors, such Holder will deliver to
the Co-issuers and the Guarantors all copies in its possession, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities that is current at the time of receipt of
such notice.
(d) If the Co-issuers and the Guarantors shall give any notice pursuant to
Section 3(c) hereof to suspend the disposition of Registrable Securities
pursuant to a Shelf Registration Statement, the Co-issuers and the Guarantors
shall extend the period during which such Shelf Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days during the
period from and including the date of the giving of such notice to and including
the date when the Holders of such Registrable Securities shall have received
copies of the supplemented or amended Prospectus necessary to resume such
dispositions. The Co-issuers and the Guarantors may give any such notice only
three times during any 365-day period and any such suspensions shall not exceed
30 days for each suspension and there shall not be more than three suspensions
in effect during any 365-day period.
(e) The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment bank or
investment banks and manager or managers (each an "Underwriter") that will
administer the offering will be selected by the Holders of a majority in
principal amount of the Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer. (a) The Staff has
taken the position that any broker-dealer that receives Exchange Securities
14
for its own account in the Exchange Offer in exchange for Securities that were
acquired by such broker-dealer as a result of market-making or other trading
activities (a "Participating Broker-Dealer") may be deemed to be an
"underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Securities.
The Co-issuers and the Guarantors understand that it is the Staff's
position that if the Prospectus contained in the Exchange Offer Registration
Statement includes a plan of distribution containing a statement to the above
effect and the means by which Participating Broker-Dealers may resell the
Exchange Securities, without naming the Participating Broker-Dealers or
specifying the amount of Exchange Securities owned by them, such Prospectus may
be delivered by Participating Broker-Dealers to satisfy their prospectus
delivery obligation under the Securities Act in connection with resales of
Exchange Securities for their own accounts, so long as the Prospectus otherwise
meets the requirements of the Securities Act.
(b) In light of the above, and notwithstanding the other provisions of this
Agreement, the Co-issuers and the Guarantors agree to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement for a period
of up to the earlier of (a) 180 days after the closing of the Exchange Offer and
(y) the date on which Participating Broker-Dealers and Initial Purchasers have
sold all Exchange Securities held by them, if requested by the Initial
Purchasers or by one or more Participating Broker-Dealers, in order to expedite
or facilitate the disposition of any Exchange Securities by Participating
Broker-Dealers consistent with the positions of the Staff recited in Section
4(a) above; provided that if, during such 180-day period, any event of the kind
described in Section 3(a)(v)(3) or 3(a)(v)(5) hereof shall occur, the Company
and the Guarantors shall extend such 180-day period by the number of days during
the period from and including the date of receipt of notice pursuant to Section
3(a)(v) hereof to and including the date when such stop order shall have been
lifted or such Participating Broker-Dealers shall have received copies of the
supplemented or amended Prospectus necessary to resume such dispositions. The
Co-issuers and the Guarantors further agree that Participating Broker-Dealers
shall be authorized to deliver such Prospectus during such period in connection
with the resales contemplated by this Section 4.
(c) The Initial Purchasers shall have no liability to the Co-issuers, any
Guarantor or any Holder with respect to any request that they may make pursuant
to Section 4(b) above.
5. Indemnification and Contribution. (a) The Co-issuers and each Guarantor,
jointly and severally, agree to indemnify and hold harmless each Initial
Purchaser and each Holder, their respective affiliates, directors and officers
and each Person, if any, who controls any Initial Purchaser or any Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
15
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), that arise out of, or are based upon, any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement or any Prospectus or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, 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 or information
relating to any Holder furnished to the Co-issuers in writing through JPMorgan
or any selling Holder expressly for use therein. In connection with any
Underwritten Offering permitted by Section 3, the Co-issuers and the Guarantors,
jointly and severally, will also indemnify the Underwriters, if any, selling
brokers, dealers and similar securities industry professionals participating in
the distribution, their respective affiliates and each Person who controls such
Persons (within the meaning of the Securities Act and the Exchange Act) to the
same extent as provided above with respect to the indemnification of the
Holders, if requested in connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Co-issuers, the Guarantors, the Initial Purchasers and their
respective affiliates, the other selling Holders, the directors of the
Co-issuers and the Guarantors, each officer of the Co-issuers and the Guarantors
who signed the Registration Statement and each Person, if any, who controls the
Co-issuers, the Guarantors, any Initial Purchaser and any other selling Holder
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 Holder furnished to the Co-issuers in writing by
such Holder expressly for use in any Registration Statement and any Prospectus.
(c) 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 5 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
16
that it may have to an Indemnified Person otherwise than under this Section 5.
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 and any others entitled
to indemnification pursuant to this Section 5 that the Indemnifying Person may
designate in such proceeding 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 (x) for any Initial Purchaser, its affiliates, directors and
officers and any control Persons of such Initial Purchaser shall be designated
in writing by JPMorgan, (y) for any Holder, its directors and officers and any
control Persons of such Holder shall be designated in writing by the Majority
Holders and (z) in all other cases shall be designated in writing by the
Co-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 in
writing 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 (A) includes an
unconditional release of such Indemnified Person, in
17
form and substance reasonably satisfactory to such Indemnified Person, from all
liability on claims that are the subject matter of such proceeding and (B) 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) 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
Co-issuers and the Guarantors from the offering of the Securities and the
Exchange Securities, on the one hand, and by the Holders from receiving
Securities or Exchange Securities registered under the Securities Act, on the
other hand, 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
Co-issuers and the Guarantors on the one hand and the Holders 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 fault of the Co-issuers and the Guarantors on the
one hand and the Holders 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 Co-issuers and the Guarantors or by the Holders and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(e) The Co-issuers, the Guarantors and the Holders agree that it would not
be just and equitable if contribution pursuant to this Section 5 were determined
by pro rata allocation (even if the Holders 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 5, in no event shall a Holder be
required to contribute any amount in excess of the amount by which the total
price at which the Securities or Exchange Securities sold by such Holder exceeds
the amount of any damages that such Holder 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.
18
(f) The remedies provided for in this Section 5 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.
(g) The indemnity and contribution provisions contained in this Section 5
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchasers or any Holder or any Person controlling any Initial
Purchaser or any Holder, or by or on behalf of the Co-issuers or the Guarantors
or the officers or directors of or any Person controlling the Co-issuers or the
Guarantors, (iii) acceptance of any of the Exchange Securities and (iv) any sale
of Registrable Securities pursuant to a Shelf Registration Statement.
6. General.
(a) No Inconsistent Agreements. The Co-issuers and the Guarantors
represent, warrant and agree that (i) the rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of any other outstanding securities issued or
guaranteed by either of the Co-issuers or any Guarantor under any other
agreement and (ii) neither the Co-issuers nor any Guarantor has entered into, or
on or after the date of this Agreement will enter into, any agreement that is
inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
unless the Co-issuers and the Guarantors have obtained the written consent of
Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or consent; provided that no amendment, modification, supplement, waiver
or consent to any departure from the provisions of Section 5 hereof shall be
effective as against any Holder of Registrable Securities unless consented to in
writing by such Holder. Any amendments, modifications, supplements, waivers or
consents pursuant to this Section 6(b) shall be by a writing executed by each of
the parties hereto.
(c) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, telecopier, or any courier guaranteeing overnight delivery (i) if
to a Holder, at the most current address given by such Holder to the Co-issuers
by means of a notice given in accordance with the provisions of this Section
6(c), which address initially is, with respect to the Initial Purchasers, the
address set forth in the Purchase Agreement; (ii) if to the Co-issuers and the
Guarantors, initially at the Co-issuers's address set forth in the Purchase
Agreement and
19
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 6(c); and (iii) to such other persons at their
respective addresses as provided in the Purchase Agreement and thereafter at
such other address, notice of which is given in accordance with the provisions
of this Section 6(c). All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telexed; when receipt is acknowledged, if
telecopied; and on the next Business Day if timely delivered to an air courier
guaranteeing overnight delivery. Copies of all such notices, demands or other
communications shall be concurrently delivered by the Person giving the same to
the Trustee, at the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all the terms of this Agreement, and by taking and holding such
Registrable Securities such Person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement
and such Person shall be entitled to receive the benefits hereof. The Initial
Purchasers (in their capacity as Initial Purchasers) shall have no liability or
obligation to the Co-issuers or the Guarantors with respect to any failure by a
Holder to comply with, or any breach by any Holder of, any of the obligations of
such Holder under this Agreement.
(e) Third Party Beneficiaries. Each Holder shall be a third party
beneficiary to the agreements made hereunder between the Co-issuers and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the rights of
other Holders hereunder.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only, are not a part of this Agreement and shall not limit or
otherwise affect the meaning hereof.
20
(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(i) Miscellaneous. This Agreement contains the entire agreement between the
parties relating to the subject matter hereof and supersedes all oral statements
and prior writings with respect thereto. If any term, provision, covenant or
restriction contained in this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable or against public policy, the
remainder of the terms, provisions, covenants and restrictions contained herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated. The Co-issuers, the Guarantors and the Initial Purchasers shall
endeavor in good faith negotiations to replace the invalid, void or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, void or unenforceable
provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
MIRANT NORTH AMERICA ESCROW, LLC
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MIRANT NORTH AMERICA, LLC
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MNA FINANCE CORP.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MIRANT TEXAS MANAGEMENT, LLC
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
21
MIRANT TEXAS, LP
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MIRANT CALIFORNIA, LLC
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MIRANT POTRERO, LLC
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MIRANT DELTA, LLC
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MIRANT CANAL, LLC
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXX XXXXXXX, LLC
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
22
MIRANT ZEELAND, LLC
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MIRANT SPECIAL PROCUREMENT, INC.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MLW DEVELOPMENT, LLC
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
23
Confirmed and accepted as of the date
first above written:
X.X. XXXXXX SECURITIES INC.
For itself and on behalf of the
several Initial Purchasers
By
-------------------------------------
Authorized Signatory
24
Schedule 1
Guarantors
Mirant Texas Management, LLC
Mirant Texas, LP
Mirant California, LLC
Mirant Potrero, LLC
Mirant Delta, LLC
Mirant Canal, LLC
Xxxxxx Xxxxxxx, LLC
Mirant Zeeland, LLC
Mirant Special Procurement, Inc.
MLW Development, LLC
25
Schedule 2
Initial Purchasers
X.X. Xxxxxx Securities Inc.
Deutsche Bank Securities Inc.
Xxxxxxx, Xxxxx & Co.
Credit Suisse First Boston LLC
Xxxxxx Brothers Inc.
Greenwich Capital Markets, Inc.
