EXHIBIT 10.2
EXECUTION COPY
PURCHASER GUARANTY AGREEMENT
THIS PURCHASER GUARANTY AGREEMENT (this "Guaranty"), dated as of
September 6, 2002, is by PPL Energy Supply, LLC, a Delaware limited liability
company ("Purchaser Guarantor"), for the benefit of Mirant Investments Europe
UK, Inc., a Delaware corporation ("Mirant Investments") and Mirant Holdings
Europe UK, Inc., a Delaware corporation ("Mirant Holdings").
RECITALS:
A. Towerweave Limited, a corporation formed under the laws of England and
Wales ("Purchaser"), is an affiliate of Purchaser Guarantor.
B. Under the Purchase and Sale Agreement, dated as of September 6, 2002
(the "Purchase and Sale Agreement"), by and between Mirant Investments and
Mirant Holdings (each a "Seller" and collectively, the "Sellers") and Purchaser,
Seller 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. Purchaser 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, Purchaser Guarantor covenants and agrees with Sellers as
follows:
1. Guaranty. Purchaser Guarantor hereby irrevocably and unconditionally
guarantees (a) the full, complete, and timely performance by Purchaser of all of
the Purchaser's obligations under the Purchase and Sale Agreement, the Consent
and Agreement, and the other documents executed and delivered by Purchaser 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 either or both Sellers in enforcing this Guaranty.
Purchaser Guarantor agrees that in the event that Purchaser fails to pay or
perform any of its obligations to either or both Sellers under the Purchase
Agreement or the Closing Documents, as each may from time to time be amended
(the "Guaranteed Obligations"), then Purchaser Guarantor will pay or perform
such Guaranteed Obligations in the place and stead of Purchaser and to the full
extent that Purchaser is obligated to pay or perform such Guaranteed
Obligations. In the event Purchaser becomes obligated to pay or perform any
Guaranteed Obligations and fails to timely pay or perform such obligations in
accordance with the terms of the Closing Documents, then either or both Sellers,
as applicable, may provide written notice to Purchaser Guarantor demanding that
Purchaser Guarantor either cause Purchaser to pay or perform the Guaranteed
Obligations or to pay or perform such Guaranteed Obligations in the place and
stead of Purchaser. Notwithstanding anything to the contrary in this Guaranty,
Purchaser Guarantor's aggregate liability hereunder shall not exceed U.S.
$5,000,000.
2. Representation and Warranties. Purchaser Guarantor represents and
warrants to Sellers that the following are true and correct.
(i) Purchaser Guarantor is duly organized, validly existing, and in
good standing under the laws of Delaware.
(ii) Purchaser 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 Purchaser
Guarantor, enforceable against Purchaser 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). Purchaser 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 Purchaser 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
Purchaser Guarantor is subject, or any provision of its certificate of
formation or limited liability company agreement or any material agreement
or instruments to which Purchaser Guarantor is a party.
3. Purchaser Guarantor's Obligations Unconditional. The obligations of
Purchaser 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, Purchaser 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 either or both Sellers 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 Purchaser or any Affiliate
of Purchaser (other than Purchaser Guarantor); or
(iv) the existence of any facts or circumstances which cause (or
result in) any of the representations or warranties of Purchaser under the
Purchase and Sale Agreement to be (or being) inaccurate.
4. Independent Obligations. The obligations of Purchaser Guarantor
hereunder are independent of the obligations of Purchaser and, in the event of
any default hereunder, a separate action or actions may be brought and
prosecuted against Purchaser Guarantor whether or not Purchaser is joined
therein or a separate action or actions are brought against Purchaser. All
remedies of Sellers are cumulative.
5. Waiver. Purchaser Guarantor unconditionally waives:
(i) demands, protests, or notices as the same pertain to Purchaser;
(ii) any right to require either or both Sellers to proceed against
Purchaser or to exhaust any security held by either or both Sellers or to
pursue any other remedy;
(iii) any defense based upon an election of remedies by either or both
Sellers, unless the same would excuse performance by Purchaser, under the
Closing Documents; and
(iv) any duty of either or both Sellers to advise Purchaser Guarantor
of any information known to either or both Sellers regarding Purchaser or
its ability to perform under the Closing Documents.
6. Continuing Guaranty. Purchaser Guarantor's obligations under Section 1
of this Guaranty constitute a continuing guaranty and shall continue in full
force and effect until Purchaser's 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 Purchaser Guarantor's obligations
hereunder shall terminate and expire.
7. Reinstatement. The obligations of Purchaser Guarantor under this
Guaranty shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of Purchaser 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 Purchaser Guarantor agrees that
it will indemnify either or both Sellers, as applicable, 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 defending against any claim alleging that such
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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:
to Mirant Investments:
Mirant Investments Europe UK, Inc.
c/o Mirant Corporation
1155 Perimeter Center West
Atlanta, Georgia 30338
Attention: General Counsel
Fax: (678) 579-5771
to Mirant Holdings:
Mirant Holdings Europe UK, Inc.
c/o Mirant Corporation
1155 Perimeter Center West
Atlanta, Georgia 30338
Attention: General Counsel
Fax: (678) 579-5771
With a copy to:
Mirant Corporation
1155 Perimeter Center West
Atlanta, Georgia 30338
Attention: Bruce Davis, Esq.
Fax: (678) 579-5889
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If to Purchaser Guarantor:
PPL Energy Supply, LLC
Two North Ninth Street
Allentown, PA 18101-1179
Attention: James E. Abel
Facsimile: (610) 774-5235
With a copy to:
PPL Global, LLC
11350 Random Hills Road, Suite 400
Fairfax, VA 22030
Attention: Robert W. Burke Jr., Esq.
Facsimile: (703) 293-2659
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 Purchaser Guarantor and Sellers. 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 Purchaser Guarantor and Sellers. No amendment of
any provision of this Guaranty shall be valid unless the amendment shall be in
writing and signed by Sellers and Purchaser Guarantor.
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
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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 Purchaser Guarantor's
own defenses and remedies hereunder, the Purchaser Guarantor reserves to itself
all rights, setoffs, counterclaims and other defenses to which the Purchaser 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 Purchaser.
[Signature page follows]
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IN WITNESS WHEREOF, the Purchaser Guarantor has executed this Guaranty as
of the date first above written.
PPL ENERGY SUPPLY, LLC
By: /s/ James E. Abel
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Name: James E. Abel
Title: Treasurer
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