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, [insert name of
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, 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 actions reasonably necessary 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 indemnify or make any economic concession to the
MAG Indenture Trustee in
(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 ”).
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)
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 does not first
agree in writing to be bound by this Agreement (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 beneficially owned or
controlled by the Noteholder (including through affiliates under
common control), 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 and any related actions;
and
(iii)
the MAG Indenture
Trustee 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,
2
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 2(a)(i) 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
(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 Exit Commitment;
provided , that “Permitted Debt” would
include (a) all debt at MAG and its subsidiaries as of the
Effective Date, (b) debt at MIRMA as permitted by the MIRMA Leases,
(c) debt arising under or permitted by the Exit Facility (excluding
(x) “Subordinated Debt” as defined in the Exit
Commitment, and (y) intercompany loans not made in the ordinary
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