EXHIBIT 10.4
EXECUTION COPY
SELLER GUARANTY AGREEMENT
THIS SELLER GUARANTY AGREEMENT (this "Guaranty"), dated as of September 6,
2002, is by Mirant Corporation, a Delaware corporation ("Seller Guarantor"), for
the benefit of Towerweave Limited, a corporation formed under the laws of
England and Wales ("Purchaser").
RECITALS:
A. Mirant Investments Europe UK, Inc., a Delaware corporation, and Mirant
Holdings Europe UK, Inc., a Delaware corporation (each a "Seller" and,
collectively, the "Sellers") are indirect wholly owned subsidiaries of Seller
Guarantor.
B. Under the Purchase and Sale Agreement, dated as of September 6, 2002
(the "Purchase and Sale Agreement"), by and between Sellers and Purchaser,
Sellers will sell, convey, assign, transfer and deliver to Purchaser, and
Purchaser will purchase and accept from Sellers, all of the WPDI Shares (as
defined in the Purchase and Sale Agreement).
C. Seller Guarantor will derive a substantial benefit from the purchase by
Purchaser of the WPDI Shares.
D. Capitalized terms used in this Guaranty, but not defined herein, shall
have the meanings given to such terms in the Purchase and Sale Agreement.
NOW, THEREFORE, Seller Guarantor covenants and agrees with Purchaser as
follows:
1. Guaranty. Seller Guarantor hereby irrevocably and unconditionally
guarantees (a) the full, complete, and timely performance by either or both
Sellers, as applicable, of all of either or both Sellers' obligations under the
Purchase and Sale Agreement, the Consent and Agreement, and the other documents
executed and delivered by Sellers in connection with the Closing of the
transactions contemplated thereunder (collectively, the "Closing Documents"),
whether for the payment of money, the making of representations and warranties
or otherwise, and (b) the payment of any and all damages arising under the
Closing Documents together with all reasonable out-of-pocket expenses (including
reasonable attorneys' fees and expenses) incurred by Purchaser in enforcing this
Guaranty. Seller Guarantor agrees that in the event that either or both Sellers
fail to pay or perform any of their obligations to Purchaser under the Closing
Documents, as each may from time to time be amended (the "Guaranteed
Obligations"), then Seller Guarantor will pay or perform such Guaranteed
Obligations in the place and stead of either or both such Sellers, as
applicable, and to the full extent that either or both such Sellers are
obligated to pay or perform such Guaranteed Obligations. In the event either or
both Sellers become obligated to pay or perform any Guaranteed Obligations and
fail to timely pay or perform such obligations in accordance with the terms of
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the Purchase Agreement and the Closing Documents, then Purchaser may provide
written notice to Seller Guarantor demanding that Seller Guarantor either cause
either or both such Sellers, as applicable, to pay or perform the Guaranteed
Obligations or to pay or perform such Guaranteed Obligations in the place and
stead of either or both such Sellers, as applicable. Notwithstanding anything to
the contrary in this Guaranty, Seller Guarantor's aggregate liability hereunder
shall not exceed U.S. $5,000,000; provided, however, that Seller Guarantor's
aggregate liability hereunder with respect to Sections 2.1 and 4.3 of the
Purchase and Sale Agreement shall be unlimited.
2. Representation and Warranties. Seller Guarantor represents and warrants
to Purchaser that the following are true and correct.
(i) Seller Guarantor is duly organized, validly existing, and in
good standing under the laws of Delaware.
(ii) Seller Guarantor has full power and authority (including full
corporate power and authority and all necessary board approvals) to
execute and deliver this Guaranty and to perform its obligations
hereunder. This Guaranty constitutes the valid and legally binding
obligations of Seller Guarantor, enforceable against Seller Guarantor in
accordance with its terms and conditions except as such enforceability may
be limited by or subject to (A) any bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar
Applicable Law relating to creditors' rights generally, and (B) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Seller Guarantor is not
required to give any notice to, make any filing with, or obtain any
authorization, consent or approval of, any Governmental Authority or any
other Person to perform its obligations under this Guaranty.
(iii) Neither the execution and the delivery of this Guaranty, nor
the performance by Seller Guarantor of its obligations hereunder, will in
any material respect violate any statue, regulation, rule, injunction,
judgment, order, decree or ruling of any Governmental Authority to which
Seller Guarantor is subject, or any provision of its charter or bylaws or
any material agreement or instruments to which Seller Guarantor is a
party.
3. Seller Guarantor's Obligations Unconditional. The obligations of Seller
Guarantor hereunder shall remain in full force and effect without regard to, and
shall not be affected or impaired by any of the following, any of which may be
taken without the consent of, or notice to, Seller Guarantor:
(i) any amendment, modification, addition, supplement, extension,
or acceleration of or to any part of any Closing Document;
(ii) any exercise or non-exercise by Purchaser of any right or
privilege under the Closing Documents;
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(iii) any bankruptcy, insolvency, reorganization, dissolution,
liquidation, or similar proceeding relating to either or both Sellers or
any Affiliate of either or both Sellers (other than Seller Guarantor); or
(iv) the existence of any facts or circumstances which cause (or
result in) any of the representations or warranties of either or both
Sellers under the Purchase and Sale Agreement to be (or being) inaccurate.
4. Independent Obligations. The obligations of Seller Guarantor hereunder
are independent of the obligations of Sellers and, in the event of any default
hereunder, a separate action or actions may be brought and prosecuted against
Seller Guarantor whether or not either or both Sellers are joined therein or a
separate action or actions are brought against either or both Sellers. All
remedies of Purchaser are cumulative.
5. Waiver. Seller Guarantor unconditionally waives:
(i) demands, protests, or notices as the same pertain to either or
both Sellers;
(ii) any right to require Purchaser to proceed against either or
both Sellers or to exhaust any security held by Purchaser or to pursue any
other remedy;
(iii) any defense based upon an election of remedies by Purchaser,
unless the same would excuse performance by either or both Sellers, under
the Closing Documents; and
(iv) any duty of Purchaser to advise Seller Guarantor of any
information known to Purchaser regarding either or both Sellers or their
abilities to perform under the Closing Documents.
6. Continuing Guaranty. Seller Guarantor's obligations under Section 1 of
this Guaranty constitute a continuing guaranty and shall continue in full force
and effect until Sellers' obligations under the Closing Documents shall have
been fully performed or otherwise extinguished under the Closing Documents, at
which time this Guaranty and all of the Seller Guarantor's obligations hereunder
shall terminate and expire. Without limiting the foregoing, it is expressly
understood that the guaranty relating to Section 4.3 of the Purchase and Sale
Agreement shall survive indefinitely.
7. Reinstatement. The obligations of Seller Guarantor under this Guaranty
shall be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of either or both Sellers or any other person in respect
of the Guaranteed Obligations is rescinded or must be otherwise restored by any
holder of any of such obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and Seller Guarantor agrees that it
will indemnify Purchaser on demand for all reasonable costs and expenses
(including fees of counsel) incurred by any such party in connection with such
rescission or restoration, including any such costs and expenses incurred in
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defending against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law.
8. Third Parties. This Guaranty shall not confer any rights or remedies
upon any Person, other than the parties hereto and their successors and assigns.
9. Successors and Assigns. This Guaranty shall be binding upon and inure
to the benefit of the parties hereto and their successors and assigns.
10. Notices. All notices, requests, demands and other communications under
this Guaranty must be in writing and must be delivered in person or sent by
certified mail, postage prepaid, by overnight delivery, or by telefacsimile and
properly addressed as follows:
If to Seller Guarantor:
Mirant Corporation
0000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
With a copy to:
Mirant Investments Europe UK, Inc.
c/o Mirant Corporation
0000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
and:
Mirant Holdings Europe UK, Inc.
c/o Mirant Corporation
0000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
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If to Purchaser:
Towerweave Limited
c/o PPL Global, LLC
00000 Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
PPL Global, LLC
00000 Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx Xx., Esq.
Facsimile: (000) 000-0000
Any party may from time to time change its address for the purpose of notices to
that party by a similar notice specifying a new address, but no such change is
effective until it is actually received by the party sought to be charged with
its contents. Notices which are addressed as provided in this Section 10 given
by overnight delivery or mail shall be effective (a) upon delivery, if delivered
personally or by overnight delivery, (b) five days following deposit in the
United States mail, postage prepaid, if delivered by mail, or (c) at such time
as delivery is refused by the addressee upon presentation. Notices which are
addressed as provided in this Section 10 given by telefacsimile shall be
effective upon actual receipt if received during the recipient's normal business
hours, or at the beginning of the recipient's next business day after receipt if
not received during the recipient's normal business hours. All notices by
telefacsimile shall be confirmed promptly by the sender after transmission in
writing by certified mail or overnight delivery.
11. Governing Law and Forum. This Guaranty shall be governed by, and
construed in accordance with, the law of the State of New York without regard to
principles of conflicts of law, other than New York General Obligations Law
Section 5-1401. Each of the parties hereby irrevocably and unconditionally
submits to the jurisdiction of any court of the State of New York and any
federal court located in New York County, New York, with respect to any
proceeding relating to this Guaranty.
12. Entire Agreement and Amendments. This Guaranty embodies the entire
agreement between Seller Guarantor and Purchaser. There are no promises, terms,
conditions or obligations other those contained herein, and this Guaranty shall
supercede all pervious communications, representations or agreements, either
verbal or written, between the Seller Guarantor and Purchaser. No amendment of
any provision of this Guaranty shall be valid unless the amendment shall be in
writing and signed by Purchaser and Seller Guarantor.
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13. Severability. Any term or provision of this Guaranty that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
14. Setoffs and Counterclaims. Without limiting the Seller Guarantor's own
defenses and remedies hereunder, the Seller Guarantor reserves to itself all
rights, setoffs, counterclaims and other defenses to which either or both
Sellers may be entitled to arising from or out of the Closing Documents, except
for defenses arising out of the bankruptcy, insolvency, dissolution,
liquidation, reorganization or other similar proceeding relating to either or
both Sellers.
[Signature page follows]
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IN WITNESS WHEREOF, the Seller Guarantor has executed this Guaranty as of
the date first above written.
MIRANT CORPORATION
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: Vice President
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