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Exhibit 99.2
J.P. MORGAN SECURITIES INC.
$850,000,000
Mirant North America, LLC
Mirant North America Escrow, LLC
MNA Finance Corp.
7.375% Senior Notes due 2013
Purchase Agreement
December 20, 2005
J.P. Morgan Securities Inc.
as
Representative of the
several Initial
Purchasers listed
in Schedule 1
hereto
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Mirant North America Escrow, LLC, a Delaware limited liability
company
("Escrow LLC"), Mirant North America, LLC, a Delaware limited
liability company
("MNA" and together with Escrow LLC, the "LLC Issuer") and MNA
Finance Corp.
(the "Corp. Co-Issuer" and, together with the LLC Issuer, the
"Issuers"),
propose to issue and sell to the several Initial Purchasers listed
in Schedule 1
hereto (the "Initial Purchasers"), for whom you are acting as
representative
(the "Representative"), $850,000,000 principal amount of their
7.375% Senior
Notes due 2013 (the "Securities"). The Securities will be issued
pursuant to an
Indenture to be dated as of December 23, 2005 (as amended,
supplemented or
otherwise modified from time to time, the "Indenture") among the
Issuers, the
guarantors listed on Schedule 2 hereto (the "Guarantors") and Law
Debenture
Trust Company of New York, as trustee (the "Trustee").
The
Securities are being issued in connection with the emergence of MNA
and
its subsidiaries from Chapter 11 proceedings. The Securities will
be initially
issued by Escrow LLC and the Corp. Co-Issuer. On or prior to
emergence, Escrow
LLC will merge with and into MNA, with MNA as the surviving entity
(the
"Merger"). Upon the consummation of the Merger, (i) MNA will assume
all of the
obligations of Escrow LLC, (ii) Corp. Co-Issuer will become a
direct,
wholly-owned subsidiary of MNA and (iii) the guarantee of the
Securities on an
unsecured senior basis by each of the subsidiaries of
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the LLC Issuer listed on Schedule 2 hereto (the "Guarantees") will,
without any
further act, become effective.
For
the purposes of this Agreement, (i) the term "Plan of
Reorganization"
means the Amended and Restated Second Amended Joint Chapter 11 Plan
of
Reorganization for Mirant Corporation and its Affiliated Debtors,
dated as of
December 7, 2005, Case No. 03-46590 filed in the United States
Bankruptcy Court
for the Northern District of Texas, Fort Worth Division, as
confirmed by the
order of the United States Bankruptcy Court for the Northern
District of Texas,
Fort Worth Division dated December 9, 2005 (the "Confirmation
Order"), (ii) the
term "Credit Agreement" means the Credit Agreement to be entered
into as of
January 3, 2006 among the Company, JPMorgan Chase Bank, N.A., as
Administrative
Agent, and the lenders parties thereto, (iii) the term "Emergence
Transactions"
means the various transactions set forth in the Plan of
Reorganization entered
into by MNA and its affiliates in connection with the Emergence
Date (as defined
below) and substantial consummation of the Plan of Reorganization,
including
without limitation, the various corporate restructuring
transactions outlined in
the Plan of Reorganization (other than the contribution of Mirant
Energy Trading
LLC to the MNA which shall occur no later than 60 days after the
Emergence
Date), the issuance of the Securities, borrowings made under the
Credit
Agreement on the Emergence Date and the application of a portion of
the proceeds
of such financings in accordance with such Plan of Reorganization,
and (iv) the
term "Emergence Date" means the date on which Section 12.2 of the
Plan of
Reorganization (Conditions Precedent to the Occurrence of the
Effective Date)
shall have been satisfied, the Emergence Transactions shall have
occurred and
the Plan of Reorganization shall have been substantially
consummated.
On
or prior to the Closing Date (as defined below), the Issuers will
enter
into an escrow agreement in form and substance reasonably
satisfactory to the
Representative (the "Escrow Agreement"), and will deposit in cash
into an escrow
account (the "Escrow Account") with Deutsche Bank Trust Company
Americas, as
escrow agent (the "Escrow Agent"), (a) the gross proceeds of the
offering of the
Securities (the "Proceeds") and (b) an additional $2,960,243.06
(the "Additional
Escrow Amount" and, together with the Proceeds, the "Escrow
Funds"), such that
the Escrow Funds are in an amount sufficient to redeem the
Securities at a price
equal to the issue price of the Securities, plus accrued and unpaid
interest
from and including the Closing Date to but excluding January 10,
2006. If (i)
the conditions contained in the Escrow Agreement for the release of
the Escrow
Funds are not satisfied, (ii) the Plan of Reorganization shall have
been amended
and such amendments are materially adverse to the holders of the
Securities or
(iii) the Plan of Reorganization shall have been terminated, in
each case on or
prior to January 6, 2006, the Securities shall be mandatorily
redeemed. The
Escrow Agreement shall provide that the Escrowed Funds shall only
be released
pursuant to the terms of the Escrow Agreement.
The
Securities will be sold to the Initial Purchasers without being
registered under the Securities Act of 1933, as amended (the
"Securities Act"),
in reliance upon an exemption therefrom. The Issuers have prepared
a preliminary
offering memorandum
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dated December 10, 2005 (the "Preliminary Offering Memorandum") and
will prepare
an offering memorandum dated the date hereof (the "Offering
Memorandum") setting
forth information concerning the Issuers and the Securities. Copies
of the
Preliminary Offering Memorandum have been, and copies of the
Offering Memorandum
will be, delivered by the Issuers to the Initial Purchasers
pursuant to the
terms of this Agreement. The Issuers hereby confirm that they have
authorized
the use of the Preliminary Offering Memorandum, the Time of Sale
Information (as
defined below) and the Offering Memorandum in connection with the
offering and
resale of the Securities by the Initial Purchasers in the manner
contemplated by
this Agreement. Capitalized terms used but not defined herein shall
have the
meanings given to such terms in the Offering Memorandum.
At
or prior to the time when sales of the Securities were first made
(the
"Time of Sale"), the Issuers had prepared the following
information
(collectively, the "Time of Sale Information"): the Preliminary
Offering
Memorandum, as supplemented and amended by the written
communications listed on
Annex A hereto, including a term sheet substantially in the form of
Annex B if
such term sheet has been prepared at the Time of Sale.
Holders of the Securities (including the Initial Purchasers and
their
direct and indirect transferees) will be entitled to the benefits
of a
Registration Rights Agreement, to be dated the Closing Date (as
defined below)
and substantially in the form attached hereto as Exhibit A (the
"Registration
Rights Agreement"), pursuant to which the Issuers and the
Guarantors will agree
to file one or more registration statements with the Securities and
Exchange
Commission (the "Commission") providing for the registration under
the
Securities Act of the Securities or the Exchange Securities
referred to (and as
defined) in the Registration Rights Agreement.
Each
of the Issuers hereby confirms its agreement with the several
Initial
Purchasers concerning the purchase and resale of the Securities, as
follows:
1.
Purchase and Resale of the Securities. (a) The Issuers agree to
issue
and sell the Securities to the several Initial Purchasers as
provided in this
Agreement, and each Initial Purchaser, on the basis of the
representations,
warranties and agreements set forth herein and subject to the
conditions set
forth herein, agrees, severally and not jointly, to purchase from
the Issuers
the respective principal amount of Securities set forth opposite
such Initial
Purchaser's name in Schedule 1 hereto at a price equal to 100% of
the principal
amount thereof plus accrued interest, if any, from December 23,
2005 to the
Closing Date. The Initial Purchasers' Commission with respect to
the Securities
shall equal 2.25% of the aggregate principal amount of the
Securities (the
"Initial Purchasers' Commission") and shall be payable only in the
event if the
Escrow Funds are released to the Issuers. The Issuers will not be
obligated to
deliver any of the Securities except upon payment for all the
Securities to be
purchased as provided herein.
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(b)
The Issuers understand that the Initial Purchasers intend to offer
the
Securities for resale on the terms set forth in the Offering
Memorandum. Each
Initial Purchaser, severally and not jointly, represents, warrants
and agrees
that:
(i) it is a qualified institutional buyer within the meaning of
Rule
144A
under the Securities Act (a "QIB") and an accredited investor
within
the
meaning of Rule 501(a) under the Securities Act;
(ii) it has not solicited offers for, or offered or sold, and will
not
solicit offers for, or offer or sell, the Securities by means of
any form
of
general solicitation or general advertising within the meaning of
Rule
502(c) of Regulation D under the Securities Act ("Regulation D") or
in any
manner involving a public offering within the meaning of Section
4(2) of
the
Securities Act; and
(iii) it has not solicited offers for, or offered or sold, and
will
not
solicit offers for, or offer or sell, the Securities as part of
their
initial offering except:
(A) within the United States to persons whom it reasonably
believes to be QIBs in transactions pursuant to Rule 144A under
the
Securities Act ("Rule 144A") and in connection with each such sale,
it
has taken or will take reasonable steps to ensure that the
purchaser
of the Securities is aware that such sale is being made in reliance
on
Rule 144A; or
(B) in accordance with the restrictions set forth in Annex C
hereto.
(c)
Each Initial Purchaser acknowledges and agrees that the Issuers
and,
for purposes of the opinions to be delivered to the Initial
Purchasers pursuant
to Sections 5(f) and 5(g), counsel for the Issuers and counsel for
the Initial
Purchasers, respectively, may rely upon the accuracy of the
representations and
warranties of the Initial Purchasers, and compliance by the Initial
Purchasers
with their agreements, contained in paragraph (b) above (including
Annex C
hereto), and each Initial Purchaser hereby consents to such
reliance.
(d)
The Issuers acknowledge and agree that the Initial Purchasers may
offer
and sell Securities to or through any affiliate of an Initial
Purchaser and that
any such affiliate may offer and sell Securities purchased by it to
or through
any Initial Purchaser.
(e)
The Issuers and the Guarantors acknowledge and agree that the
Initial
Purchasers are acting solely in the capacity of an arm's length
contractual
counterparty to the Issuers and the Guarantors with respect to the
offering of
Securities contemplated hereby (including in connection with
determining the
terms of the offering) and not as
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financial advisors or fiduciaries to, or agents of, the Issuers,
the Guarantors
or any other person. Additionally, neither the Representative nor
any other
Initial Purchaser is advising the Issuers, the Guarantors or any
other person as
to any legal, tax, investment, accounting or regulatory matters in
any
jurisdiction. The Issuers and the Guarantors shall consult with
their own
advisors concerning such matters and shall be responsible for
making their own
independent investigation and appraisal of the transactions
contemplated hereby,
and neither the Representative nor any other Initial Purchaser
shall have any
responsibility or liability to the Issuers or the Guarantors with
respect
thereto. Any review by the Representative or any Initial Purchaser
of the
Issuers, the Guarantors, and the transactions contemplated hereby
or other
matters relating to such transactions will be performed solely for
the benefit
of the Representative or such Initial Purchaser, as the case may
be, and shall
not be on behalf of the Issuers, the Guarantors or any other
person.
2.
Payment and Delivery. (a) Payment for and delivery of the
Securities
will be made at the offices of Simpson Thacher & Bartlett LLP,
at 10:00 A.M.,
New York City time, on December 23, 2005, or at such other time or
place on the
same or such other date, not later than the fifth business day
thereafter, as
the Representative and the Issuers may agree upon in writing. The
time and date
of such payment and delivery is referred to herein as the "Closing
Date".
(b)
Payment for the Securities shall be made by wire transfer in
immediately available funds to the Escrow Account against delivery
to the
nominee of The Depository Trust Company ("DTC"), for the account of
the Initial
Purchasers, of one or more global notes representing the
Securities
(collectively, the "Global Note"), with any transfer taxes payable
in connection
with the sale of the Securities duly paid by the Issuers. The
Global Note will
be made available for inspection by the Representative not later
than 1:00 P.M.,
New York City time, on the business day prior to the Closing
Date.
(c)
Delivery of the Securities by the Issuers shall be made to the
Initial
Purchasers against payment of the purchase price by the Initial
Purchasers
pursuant to Section 2(b). The Issuers will pay to the Initial
Purchasers the
Initial Purchasers' Commission immediately upon the release of the
Escrow Funds
to the Issuers (in which event the Issuers shall direct the Escrow
Agent to pay
such commission from the Escrow Funds as provided in the Escrow
Agreement).
3.
Representations and Warranties of the Issuers and the Guarantors.
Each
of the Issuers and the Guarantors jointly and severally represent
and warrant to
each Initial Purchaser that:
(a)
Offering Memorandum. The Offering Memorandum, in the form first
used by
the Initial Purchasers to confirm sales of the Securities and as of
the Closing
Date, will not contain any untrue statement of a material fact or
omit to state
a material fact
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necessary in order to make the statements therein, in the light of
the
circumstances under which they were made, not misleading; provided
that the
Issuers and the Guarantors make no representation or warranty with
respect to
any statements or omissions made in reliance upon and in conformity
with
information relating to any Initial Purchaser furnished to the
Issuers in
writing by such Initial Purchaser through the Representative
expressly for use
in the Offering Memorandum.
(b)
Time of Sale Information. The Time of Sale Information, at the Time
of
Sale did not, and at the Closing Date will not, contain any untrue
statement of
a material fact or omit to state a material fact necessary in order
to make the
statements therein, in the light of the circumstances under which
they were
made, not misleading; provided that the Issuers make no
representation and
warranty with respect to any statements or omissions made in
reliance upon and
in conformity with information relating to any Initial Purchaser
furnished to
the Issuers in writing by such Initial Purchaser through the
Representative
expressly for use in such Time of Sale Information. Other than the
Preliminary
Offering Memorandum and the Offering Memorandum, the Issuers
(including their
agents and representatives, other than the Initial Purchasers in
their capacity
as such) have not made, used, prepared, authorized, approved or
referred to and
will not prepare, make, use, authorize, approve or refer to any
written
communication that constitutes an offer to sell or solicitation of
an offer to
buy the Securities other than the documents listed on Annex A
hereto and other
written communications approved in writing in advance by the
Representative
(c)
Financial Statements. The financial statements and the related
notes
thereto included in each of the Time of Sale Information and the
Offering
Memorandum present fairly, in all material respects, the financial
position of
the LLC Issuer and its subsidiaries as of the dates indicated and
the results of
their operations and the changes in their cash flows for the
periods specified;
such financial statements have been prepared in conformity with
generally
accepted accounting principles applied on a consistent basis
throughout the
periods covered thereby; the other financial information included
in each of the
Time of Sale Information and the Offering Memorandum has been
derived from the
accounting records of the LLC Issuer and its subsidiaries and
presents fairly,
in all material respects, the information included therein; and the
pro forma
financial information and the related notes thereto included in
each of the Time
of Sale Information and the Offering Memorandum has been prepared
in accordance
with the Commission's rules and guidance with respect to pro forma
financial
information, except as disclosed in each of the Time of Sale
Information and the
Offering Memorandum, and the assumptions underlying such pro forma
financial
information are reasonable and are set forth in each of the Time of
Sale
Information and the Offering Memorandum.
(d)
No Material Adverse Change. Since the date of the most recent
financial
statements included in each of the Time of Sale Information and the
Offering
Memorandum, (i) there has not been any change in the capital stock
or long-term
debt
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of the LLC Issuer or any of its subsidiaries, or any dividend or
distribution of
any kind declared, set aside for payment, paid or made by the LLC
Issuer on any
class of its equity interests, or any material adverse change, or,
to the
knowledge of the Issuers and the Guarantors, any development
involving a
prospective material adverse change, in or affecting the business,
properties,
management, financial position or results of operations of the LLC
Issuer and
its subsidiaries taken as a whole other than in the ordinary course
of business;
(ii) neither the LLC Issuer nor any of its subsidiaries has entered
into any
transaction or agreement that is material to the LLC Issuer and its
subsidiaries
taken as a whole or incurred any liability or obligation, direct or
contingent,
that is material to the LLC Issuer and its subsidiaries taken as a
whole; and
(iii) neither the LLC Issuer nor any of its subsidiaries has
sustained any
material loss or interference with its business from fire,
explosion, flood or
other calamity, whether or not covered by insurance, or from any
labor
disturbance or dispute or any action, order or decree of any court
or arbitrator
or governmental or regulatory authority, except in each case as
otherwise
disclosed in each of the Time of Sale Information and the Offering
Memorandum.
(e)
Organization and Good Standing. The LLC Issuer and each of its
subsidiaries have been duly organized and are validly existing as a
limited
liability company or corporation, as the case may be, and are in
good standing
under the laws of their respective jurisdictions of organization,
are duly
qualified to do business and are in good standing in each
jurisdiction in which
their respective ownership or lease of property or the conduct of
their
respective businesses requires such qualification, and have all
power and
authority necessary to own or hold their respective properties and
to conduct
the businesses in which they are engaged, except where the failure
to be so
qualified or have such power or authority would not, individually
or in the
aggregate, be reasonably expected to have a material adverse effect
on the
business, properties, financial position, results of operations or
prospects of
the LLC Issuer and its subsidiaries taken as a whole or on the
performance by
the Issuers and the Guarantors of their obligations under the
Securities and the
Guarantees (a "Material Adverse Effect"). The LLC Issuer does not
own or
control, directly or indirectly, any corporation, association or
other entity
other than the subsidiaries listed in Schedule 3 to this
Agreement.
(f)
Capitalization. The LLC Issuer has an authorized capitalization as
set
forth in each of the Time of Sale Information and the Offering
Memorandum under
the heading "Capitalization"; and all the outstanding shares of
capital stock or
other equity interests of each subsidiary of the LLC Issuer have
been duly and
validly authorized and issued, are fully paid and non-assessable
and are owned
directly or indirectly by the LLC Issuer, and, except as described
in each of
the Time of Sale Information and the Offering Memorandum, free and
clear of any
lien, charge, encumbrance, security interest, restriction on voting
or transfer
or any other claim of any third party.
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(g)
Due Authorization. The Issuers and each of the Guarantors have
full
right, power and authority to execute and deliver this Agreement,
the
Securities, the Indenture (including each Guarantee set forth
therein), the
Exchange Securities, the Registration Rights Agreement and the
Escrow Agreement
(such documents, together with the Plan of Reorganization, the
"Transaction
Documents") and to perform their respective obligations hereunder
and
thereunder; and all action required to be taken for the due and
proper
authorization, execution and delivery of each of the Transaction
Documents and
the consummation of the transactions contemplated thereby has been
duly and
validly taken.
(h)
The Indenture. On or prior to the Closing Date, the Indenture will
have
been duly authorized by the Issuers and each of the Guarantors and,
when duly
executed and delivered in accordance with its terms by each of the
parties
thereto, will constitute a valid and legally binding agreement of
the Issuers
and each of the Guarantors enforceable against the Issuers and each
of the
Guarantors in accordance with its terms, except as enforceability
may be limited
by applicable bankruptcy, insolvency or similar laws affecting the
enforcement
of creditors' rights generally or by general principles of equity
(collectively,
the "Enforceability Exceptions"); and as of each of the Closing
Date and the
Emergence Date, the Indenture will conform in all material respects
to the
requirements of the Trust Indenture Act of 1939, as amended (the
"Trust
Indenture Act"), and the rules and regulations of the Commission
applicable to
an indenture that is qualified thereunder.
(i)
The Securities and the Guarantees. The Securities have been
duly
authorized by the Issuers and, when duly executed, authenticated,
issued and
delivered as provided in the Indenture and paid for as provided
herein, will be
duly and validly issued and outstanding and will constitute valid
and legally
binding obligations of the Issuers enforceable against the Issuers
in accordance
with their terms, subject to the Enforceability Exceptions, and
will be entitled
to the benefits of the Indenture; and the Guarantees have been duly
authorized
by each of the Guarantors and, when the Securities have been duly
executed,
authenticated, issued and delivered as provided in the Indenture
and paid for as
provided herein, will be valid and legally binding obligations of
each of the
Guarantors, enforceable against each of the Guarantors in
accordance with their
terms, subject to the Enforceability Exceptions, and will be
entitled to the
benefits of the Indenture.
(j)
The Exchange Securities. On the Closing Date, the Exchange
Securities
(including the related guarantees) will have been duly authorized
by the Issuers
and each of the Guarantors and, when duly executed, authenticated,
issued and
delivered as contemplated by the Registration Rights Agreement and
the
Indenture, will be duly and validly issued and outstanding and will
constitute
valid and legally binding obligations of the Issuers, as issuers,
and each of
the Guarantors, as guarantor, enforceable against the Issuers and
each of the
Guarantors in accordance with their terms, subject to the
Enforceability
Exceptions, and will be entitled to the benefits of the
Indenture.
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(k)
Escrow Agreement. The Escrow Agreement has been duly authorized by
the
Issuers and, when duly executed and delivered in accordance with
its terms by
each of the other parties thereto, will constitute a valid and
legally binding
agreement of the Issuers enforceable against the Issuers in
accordance with its
terms, subject to the Enforceability Exceptions.
(l)
Purchase and Registration Rights Agreements. This Agreement has
been
duly authorized, executed and delivered by the Issuers and each of
the
Guarantors; and the Registration Rights Agreement has been duly
authorized by
the Issuers and each of the Guarantors and, when duly executed and
delivered in
accordance with its terms by each of the parties thereto, will
constitute a
valid and legally binding agreement of the Issuers and each of the
Guarantors
enforceable against the Issuers and each of the Guarantors in
accordance with
its terms, subject to the Enforceability Exceptions, and except
that rights to
indemnity and contribution thereunder may be limited by applicable
law and
public policy.
(m)
Other Transaction Documents. On or prior to the Emergence Date,
each of
the Agreement and Plan of Merger between Escrow LLC and the LLC
Issuer (the
"Merger Agreement") and the Credit Agreement will have been duly
authorized by
the Issuers and, to the extent a party thereto, their subsidiaries
and, when
executed and delivered in accordance with their terms by the
Issuers and, to the
extent a party thereto, their subsidiaries, and each of the Merger
Agreement and
the Credit Agreement will constitute a valid and legally binding
agreement of
the Issuers and, to the extent a party thereto, their subsidiaries,
enforceable
against the Issuers and, to the extent a party thereto, their
subsidiaries in
accordance with their respective terms, subject to the
Enforceability
Exceptions. None of the Issuers has any reason to believe that any
conditions
precedent to the consummation of the Merger pursuant to the terms
of the Merger
Agreement will not be fulfilled on or prior to the Emergence
Date.
(n)
Descriptions of the Transaction Documents. Each Transaction
Document
conforms in all material respects to the description thereof
contained in each
of the Time of Sale Information and the Offering Memorandum.
(o)
No Violation or Default. Neither the LLC Issuer nor any of its
subsidiaries is (i) in violation of its limited liability company
agreement,
charter or by-laws or similar organizational documents; (ii) in
default, and no
event has occurred that, with notice or lapse of time or both,
would constitute
such a default, in the due performance or observance of any term,
covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement or
other agreement or instrument to which the LLC Issuer or any of its
subsidiaries
is a party or by which the LLC Issuer or any of its subsidiaries is
bound or to
which any of the property or assets of the LLC Issuer or any of its
subsidiaries
is subject; or (iii) in violation of any law or statute or any
judgment, order,
rule or regulation of any court or arbitrator or governmental or
regulatory
authority, except, in the case of clauses (ii) and (iii) above, for
any such
default or violation that would not, individually or in the
aggregate,
reasonably be expected to have a Material Adverse Effect.
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(p)
No Conflicts. The execution, delivery and performance by the
Issuers
and each of the Guarantors of each of the Transaction Documents to
which each is
a party, the issuance and sale of the Securities (including the
Guarantees) and
compliance by the Issuers and each of the Guarantors with the terms
thereof and
the consummation of the transactions contemplated by the
Transaction Documents
will not (i) conflict with or result in a breach or violation of
any of the
terms or provisions of, or constitute a default under, or, except
for those
created under the Transaction Documents, result in the creation or
imposition of
any lien, charge or encumbrance upon any property or assets of the
LLC Issuer or
any of its subsidiaries pursuant to, any indenture, mortgage, deed
of trust,
loan agreement or other agreement or instrument to which the LLC
Issuer or any
of its subsidiaries is a party or by which the LLC Issuer or any of
its
subsidiaries is bound or to which any of the property or assets of
the LLC
Issuer or any of its subsidiaries is subject, (ii) result in any
violation of
the provisions of the charter or by-laws or similar organizational
documents of
the LLC Issuer or any of its subsidiaries or (iii) result in the
violation of
any law or statute or any judgment, order, rule or regulation of
any court or
arbitrator or governmental or regulatory authority, except, in the
case of
clauses (i) and (iii) above, for any such conflict, breach or
violation that
would not, individually or in the aggregate, reasonably be expected
to have a
Material Adverse Effect.
(q)
No Consents Required. No consent, approval, authorization,
order,
registration or qualification of or with any court or arbitrator or
governmental
or regulatory authority is required for the execution, delivery and
performance
by the Issuers and each of the Guarantors of each of the
Transaction Documents
to which each is a party, the issuance and sale of the Securities
(including the
Guarantees) and compliance by the Issuers and each of the
Guarantors with the
terms thereof and the consummation of the transactions contemplated
by the
Transaction Documents, except for such consents, approvals,
authorizations,
orders and registrations or qualifications (x) which shall have
been obtained or
made on or prior to the Closing Date and (y) as may be required (i)
under
applicable state securities laws in connection with the purchase
and resale of
the Securities by the Initial Purchasers and (ii) with respect to
the Exchange
Securities (including the related guarantees) under the Securities
Act and
applicable state securities laws as contemplated by the
Registration Rights
Agreement.
(r)
Legal Proceedings. Except as described in each of the Time of
Sale
Information and the Offering Memorandum, there are no legal,
governmental or
regulatory investigations, actions, suits or proceedings pending to
which the
LLC Issuer or any of its subsidiaries is or may be a party or to
which any
property of the LLC Issuer or any of its subsidiaries is or may be
the subject
that, individually or in the aggregate, if determined adversely to
the LLC
Issuer or any of its subsidiaries, would reasonably be expected to
have a
Material Adverse Effect; and no such investigations, actions, suits
or
proceedings are, to the knowledge of the Issuers and each of the
Guarantors,
threatened by any governmental or regulatory authority or by
others.
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(s)
Independent Accountants. To the knowledge of the Issuers and each
of
the Guarantors, KPMG LLP, who have certified certain financial
statements of the
LLC Issuer and its subsidiaries are independent public accountants
with respect
to the LLC Issuer and its subsidiaries within the meaning of Rule
101 of the
Code of Professional Conduct of the American Institute of Certified
Public
Accountants and its interpretations and rulings thereunder and Rule
2-01 of
Regulation S-X of the Securities Act.
(t)
Title to Real and Personal Property. The LLC Issuer and its
subsidiaries have good and marketable title in fee simple to, or
have valid
rights to lease or otherwise use, all items of real and personal
property that
are material to the respective businesses of the LLC Issuer and
its
subsidiaries, in each case free and clear of all liens,
encumbrances, claims and
defects and imperfections of title except those that (i) secure
obligations
under the Credit Agreement, (ii) do not materially interfere with
the use made
and proposed to be made of such property by the LLC Issuer and its
subsidiaries
or (iii) would not reasonably be expected, individually or in the
aggregate, to
have a Material Adverse Effect.
(u)
Title to Intellectual Property. The LLC Issuer and its
subsidiaries
possess adequate rights to use all material patents, patent
applications,
trademarks, service marks, trade names, trademark registrations,
service mark
registrations, copyrights, licenses and know-how (including trade
secrets and
other unpatented and/or unpatentable proprietary or confidential
information,
systems or procedures) necessary for the conduct of their
respective businesses;
and the conduct of their respective businesses will not conflict in
any material
respect with any such rights of others, except where the failure to
do so,
individually or in the aggregate, would not reasonably be expected
to have a
Material Adverse Effect; and the LLC Issuer and its subsidiaries
have not
received any written notice of any claim of infringement of, or
written notice
of any conflict with, any such rights of others.
(v)
No Undisclosed Relationships. No material relationship, direct
or
indirect, exists between or among the LLC Issuer or any of its
subsidiaries, on
the one hand, and the directors, officers, stockholders, customers
or suppliers
of the LLC Issuer or any of its subsidiaries, on the other, that is
not
described in each of the Time of Sale Information and the Offering
Memorandum.
(w)
Investment Company Act. Neither the LLC Issuer nor any of its
subsidiaries is, and after giving effect to the offering and sale
of the
Securities and the application of the proceeds thereof as described
in each of
the Time of Sale Information and the Offering Memorandum none of
them will be,
an "investment company" or an entity "controlled" by an "investment
company"
within the meaning of the Investment Company Act of 1940, as
amended, and the
rules and regulations of the Commission thereunder (collectively,
the
"Investment Company Act").
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<PAGE>
(x)
Public Utility Holding Company Act. Neither the LLC Issuer nor any
of
its subsidiaries (1) is a "holding company" or a "subsidiary
company" or an
"affiliate" of a holding company within the meaning of the Public
Utility
Holding Company Act of 1935, as amended ("PUHCA") or (2) is subject
to any
regulation under the PUHCA or the Federal Power Act restricting its
ability to
incur Indebtedness (as such term is defined in the Indenture) or
execute or
perform their respective obligations under this Agreement or the
Indenture.
(y)
Taxes. Except as described in each of the Time of Sale Information
and
the Offering Memorandum, the LLC Issuer and its subsidiaries have
paid all
federal, state, local and foreign taxes and filed all tax returns
required to be
paid or filed through the date hereof or have adequately reserved
for the
payment thereof; and except as otherwise disclosed in each of the
Time of Sale
Information and the Offering Memorandum, there is no tax deficiency
that has
been, or would reasonably be expected to be, asserted against the
LLC Issuer or
any of its subsidiaries or any of their respective properties or
assets, except
as would not reasonably be expected, individually or in the
aggregate, to have a
Material Adverse Effect.
(z)
Licenses and Permits. The LLC Issuer and its subsidiaries possess
all
licenses, certificates, permits and other authorizations issued by,
and have
made all declarations and filings with, the appropriate federal,
state, local or
foreign governmental or regulatory authorities that are necessary
for the
ownership or lease of their respective properties or the conduct of
their
respective businesses as described in each of the Time of Sale
Information and
the Offering Memorandum, except where the failure to possess or
make the same
would not, individually or in the aggregate, reasonably be expected
to have a
Material Adverse Effect; and except as described in each of the
Time of Sale
Information and the Offering Memorandum, neither the LLC Issuer nor
any of its
subsidiaries has received notice of any revocation or modification
of any such
license, certificate, permit or authorization or believes that any
such license,
certificate, permit or authorization will not be renewed in the
ordinary course,
except as would not reasonably be expected, individually or in the
aggregate, to
have a Material Adverse Effect.
(aa)
No Labor Disputes. No labor disturbance by, or dispute with,
employees
of Mirant Services, LLC, the LLC Issuer or any of its subsidiaries
exists or, to
the best knowledge of the Issuers and each of the Guarantors, is
threatened and
neither the Issuers nor any Guarantor knows of any existing or
imminent labor
disturbance by, or dispute with, the employees of any of Mirant
Services, LLC,
the LLC Issuer or any of the LLC Issuer's subsidiaries' principal
suppliers,
except as would not reasonably be expected, individually or in the
aggregate, to
have a Material Adverse Effect.
(bb)
Compliance With Environmental Laws. (i) The LLC Issuer and its
subsidiaries (x) are, and at all prior times were, in compliance
with any and
all applicable federal, state, local and foreign laws, rules,
regulations,
requirements, decisions and orders relating to the protection of
human health or
safety, the environment, or natural
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<PAGE>
resources or hazardous or toxic substances or wastes, pollutants or
contaminants
(collectively, "Environmental Laws"), (y) have received and are in
compliance
with all permits, licenses, certificates or other authorizations or
approvals
required of them under applicable Environmental Laws to conduct
their respective
businesses, and (z) have not received notice of any actual or
potential
liability under or relating to any Environmental Laws, including
for the
investigation or remediation of any disposal or release of
hazardous or toxic
substances or wastes, pollutants or contaminants, and have no
knowledge of any
event or condition that would reasonably be expected to result in
any such
notice, and (ii) there are no costs or liabilities associated with
Environmental
Laws of or relating to the LLC Issuer or its subsidiaries, except
in the case of
each of (i) and (ii) of this paragraph, for any such failure to
comply, or
failure to receive required permits, licenses or approvals, or cost
or
liability, as would not, individually or in the aggregate, have a
Material
Adverse Effect; and (iii) except as described in each of the Time
of Sale
Information and the Offering Memorandum, (x) there are no
proceedings that are
pending, or that are known to be threatened, against the LLC Issuer
or any of
its subsidiaries under any Environmental Laws in which a
governmental entity is
also a party, other than such proceedings regarding which it is
reasonably
believed no monetary sanctions of $100,000 or more will be imposed,
(y) the LLC
Issuer and its subsidiaries are not aware of any issues regarding
compliance
with Environmental Laws, or liabilities or other obligations under
Environmental
Laws or concerning hazardous or toxic substances or wastes,
pollutants or
contaminants, that would reasonably be expected, individually or in
the
aggregate, to have a Material Adverse Effect on the capital
expenditures,
earnings or competitive position of the LLC Issuer and its
subsidiaries, and (z)
none of the LLC Issuer and its subsidiaries anticipates material
capital
expenditures relating to any Environmental Laws.
(cc)
Compliance With ERISA, (i) Each employee benefit plan, within
the
meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974,
as amended ("ERISA"), that is maintained, administered, contributed
to or
required to be contributed to by the LLC Issu
