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Exhibit 99.1
LOCK-UP AGREEMENT
This
Lock-Up Agreement (this "Agreement") is made and entered into as
of
September____, 2005, among Mirant
Corporation ("Mirant"), a Delaware
corporation; Mirant Americas Generation,
LLC, a Delaware limited liability
company ("MAG"); the undersigned noteholder
(the "Noteholder"); the Official
Committee of Unsecured Creditors of Mirant
Americas Generation, LLC (the "MAG
Official Committee"); and the Ad Hoc
Committee of Bondholders of Mirant Americas
Generation, LLC (the "MAG Ad Hoc
Committee"). Mirant, MAG, the Noteholder, the
MAG Official Committee, and the MAG Ad Hoc
Committee are collectively referred
to herein as the "Parties" and each
individually as a "Party."
In
consideration of the premises and the mutual covenants and
agreements
set forth herein, and for other good and
valuable consideration, the receipt and
sufficiency of which are hereby
acknowledged, the Parties hereby agree as
follows:
1. Agreement by
Noteholder.
(a)
The
Noteholder hereby agrees, so long as this Agreement remains in
effect and during the period commencing on the date of this
Agreement and continuing until the termination of this
Agreement
as provided for in Section 5 hereof, to (i) not directly or
indirectly oppose (or encourage any other Person(1) or Entity
to
oppose) approval of the Amended Disclosure Statement, and (ii)
not
directly or indirectly oppose (or encourage any other Person or
Entity to oppose) confirmation of the Amended Plan; provided,
that, the obligations imposed on the Noteholder by this Section
1(a) shall apply to Noteholder solely in its capacity as a
holder
of the MAG Long-term Notes.
(b)
So long as
this Agreement remains in effect and during the period
commencing on the date of this Agreement and continuing until
the
termination of this Agreement as provided for in Section 5
hereof,
the Noteholder agrees to take commercially reasonable actions
to
instruct, and hereby instructs, the MAG Indenture Trustee and
the
MAG Ad Hoc Committee to (i) withdraw, prior to the commencement
of
the hearing on the Amended Disclosure Statement, (A) the MAG
Indenture Trustee's and the MAG Ad Hoc Committee's objections
to
the March 25 Disclosure Statement, (B) the MAG Ad Hoc
Committee's
Impairment Appeal (C) the MAG Indenture Trustee's joinder in
the
MAG Official Committee's Impairment Appeal, and (D) the MAG Ad
Hoc
Committee's joinder in the MAG Official Committee's objection
to
the Debtors' motion for approval of the Exit Commitment, and
(ii)
not oppose (A) approval of the CEO Motion, (B) approval of the
Amended Disclosure Statement, or (C) confirmation of the
Amended
Plan; provided, that, without limiting the MAG Ad Hoc
Committee's
obligations under Section 4 hereof, the Noteholder shall not be
required (x) to
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(1) Any capitalized term used herein
but not defined herein shall have the
meaning ascribed to such term in the term sheet attached hereto
as
EXHIBIT A (the "Term Sheet").
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indemnify or make any economic concession to the MAG Indenture
Trustee in connection with such instruction, (y) to the extent
the
Noteholder has sold all or a portion of its MAG Long-term
Notes,
to locate or obtain an instruction from any Person or Entity
that
has purchased such MAG Long-term Notes, or (z) to the extent
the
Noteholder has sold all or a portion of its MAG Long-term
Notes,
to issue an instruction on behalf of a face amount of MAG
Long-term Notes greater than the face amount of MAG Long-term
Notes it then owns, after taking into account any of its sales
of
MAG Long-term Notes.
(c)
So long as
this Agreement remains in effect and during the period
commencing
on the date of this Agreement and continuing until the
termination of this Agreement as provided for in Section 5
hereof,
the Noteholder agrees to take commercially reasonable actions
to
further instruct, and hereby further instructs, the MAG
Indenture
Trustee:
(i) to
consent to the inclusion in the master indenture and/or
supplemental indenture for the MAG Long-term Notes of the
covenants described in
paragraph 2(a)(y)(2) below, and, to
the extent necessary, to enter into a supplemental
indenture memorializing the addition of such covenants to
the master indenture and/or the supplemental indenture;
provided, however, that this instruction is contingent upon
confirmation of a chapter 11 plan for the Debtors in
substantially the form of the Amended Plan no later than
January 31, 2006; and
(ii) not to
object to findings by the Bankruptcy Court in a
confirmation order or otherwise determining that under the
Amended Plan the MAG Long-term Notes are not impaired,
including that all existing defaults are cured and that no
new defaults are created under the Amended Plan, including
without limitation any defaults under the following
sections of the master indenture: (a) section 501(3), (b)
section 801, and (c) section 802; and supplemental
indenture: (a) section 109, and (b) section 111;
provided, that, without limiting the MAG Ad Hoc Committee's
obligations under Section 4 hereof, the Noteholder shall not be
required (x) to indemnify or make any economic concession to
the
MAG Indenture Trustee in connection with such instruction, (y)
to
the extent the Noteholder has sold all or a portion of its MAG
Long-term Notes, to locate or obtain an instruction from any
Person or Entity that has purchased such MAG Long-term Notes,
or
(z) to the extent the Noteholder has sold all or a portion of
its
MAG Long-term Notes, to issue an instruction on behalf of a
face
amount of MAG Long-term Notes greater than the face amount of
MAG
Long-term Notes it then owns, after taking into account any of
its
sales of MAG Long-term Notes.
(d)
The
Noteholder hereby agrees, so long as this Agreement remains in
effect and during the period commencing on the date of this
Agreement and continuing until the termination of this
Agreement
as provided for in Section 5 hereof, not to sell or transfer
any
of the MAG Long-term Notes it owns to any Person or Entity who
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does not first agree in writing to be bound by this Agreement
by
executing an acknowledgment substantially in the form of the
acknowledgment attached hereto as EXHIBIT B (and any sale or
transfer not in compliance with the foregoing shall be null and
void); provided, that such restriction on transfer shall apply
only to MAG Long-term Notes owned by the Noteholder, including
any
MAG Long-term Notes acquired by the Noteholder after the date
of
this Agreement. For the avoidance of doubt, nothing in this
Agreement shall limit the Noteholder's ability to sell or
transfer
any other securities.
2. Agreement by
Mirant.
(a)
Provided
that:
(i) Mirant
receives executed lock-up agreements ("Lock-up
Agreements"), each of which shall be substantially in the
form of this Agreement, from the holders of MAG Long-term
Notes in a minimum aggregate face amount to be mutually
agreed among Mirant, the MAG Official Committee, and
counsel to the MAG Ad Hoc Committee; and
(ii) the MAG
Indenture Trustee and the MAG Ad Hoc Committee
withdraw their objections to the March 25 Disclosure
Statement (as it is to be amended) and any related actions;
and
(iii) the MAG
Indenture Trustee, in conjunction with the MAG
Official Committee's and the MAG Ad Hoc Committee's
withdrawal of the Impairment Appeal, withdraws its joinder
to the MAG Official Committee's Impairment Appeal and any
related actions; and
(iv) the MAG Ad
Hoc Committee withdraws its (A) Impairment
Appeal, and (B) joinder to the MAG Official Committee's
objection to the Debtors' motion for approval of the Exit
Commitment and any related actions; and
(v) the
MAG Indenture Trustee and the MAG Ad Hoc Committee
agree not to oppose (A) approval of (I) the CEO Motion, or
(II) the Amended Disclosure Statement, or (B) confirmation
of the Amended Plan,
then Mirant shall file, by 5 p.m. (eastern time) on the date
that
is three (3) business days prior to the hearing on the Amended
Disclosure Statement, but in no event later than October 17,
2005,
(x) a Form 8-K with the Securities and Exchange Commission
disclosing that the condition set forth in Section 2(a)(i)
hereof
and paragraph 10(b) of the Term Sheet has been satisfied, and
(y)
with the Bankruptcy Court, the Amended Disclosure Statement and
the Amended Plan, which shall provide for the following
treatment
of MAG Debtor Class 6 - Long-term Note Claims thereunder:
(1)
payment in Cash on the Effective Date of the Amended Plan
of all unpaid interest accrued at the contractual rate
through the Effective Date
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(including "interest on interest" as contemplated by
Section 503 of the MAG Indenture governing the MAG
Long-term Notes), compounded semi-annually on the date of
each scheduled payment, and "Additional Interest," as
defined in Section 2(e) of the MAG Registration Rights
Agreement, during the period while MAG was not a timely SEC
filer); and
(2)
provision of (I) a new covenant enforceable by the MAG
Indenture Trustee that would provide that any payments from
MAG to New Mirant at a time when MAG or its subsidiaries
owe debt to New Mirant (or any of its non-MAG
subsidiaries), shall be treated as a repayment of such
debt, rather than as a dividend until all such debt is
repaid, and (II) a new debt incurrence test enforceable by
the MAG Indenture Trustee that would limit the ability of
MAG and its subsidiaries to incur additional debt (other
than "Permitted Debt"), unless the consolidated ratio of
net debt to EBITDA for MAG and its subsidiaries was 6.75:1
or less. For purposes of the covenant, all terms shall be
as defined in the
