EXHIBIT 10.3
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 Investment UK, Ltd., a corporation formed under the laws of
England and Wales ("Seller"), is an indirect wholly owned subsidiary of Seller
Guarantor.
B. Under the Purchase and Sale Agreement, dated as of September 6, 2002
(the "Purchase and Sale Agreement"), by and between Seller and Purchaser, Seller
will sell, convey, assign, transfer and deliver to Purchaser, and Purchaser will
purchase and accept from Seller, all of the WPDH Shares (as defined in the
Purchase and Sale Agreement).
C. Seller Guarantor will derive a substantial benefit from the purchase
by Purchaser of the WPDH 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 Seller of all of
the Seller's obligations under the Purchase and Sale Agreement, the Consent and
Agreement, and the other documents executed and delivered by Seller 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 Seller fails to pay or perform any of its
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 Seller and to
the full extent that Seller is obligated to pay or perform such Guaranteed
Obligations. In the event Seller 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 Purchase Agreement and the Closing Documents,
then Purchaser may provide written notice to Seller Guarantor demanding that
Seller Guarantor either cause Seller to pay or perform the Guaranteed
Obligations or to pay or perform such Guaranteed Obligations in the place and
stead of Seller. 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;
(iii) any bankruptcy, insolvency, reorganization, dissolution,
liquidation, or similar proceeding relating to Seller or any Affiliate of
Seller (other than Seller Guarantor); or
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(iv) the existence of any facts or circumstances which cause (or
result in) any of the representations or warranties of Seller 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 Seller and, in the event of any default
hereunder, a separate action or actions may be brought and prosecuted against
Seller Guarantor whether or not Seller is joined therein or a separate action or
actions are brought against Seller. All remedies of Purchaser are cumulative.
5. Waiver. Seller Guarantor unconditionally waives:
(i) demands, protests, or notices as the same pertain to Seller;
(ii) any right to require Purchaser to proceed against Seller 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 Seller, under the Closing
Documents; and
(iv) any duty of Purchaser to advise Seller Guarantor of any
information known to Purchaser regarding Seller or its ability 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 Seller'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 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 Seller 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 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.
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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
1155 Perimeter Center West
Atlanta, GA 30338
Attention: Bruce D. Davis, Esq.
Facsimile: (678) 579-5889
With a copy to:
Mirant Investments UK, Ltd.
c/o Mirant Corporation
1155 Perimeter Center West
Atlanta, GA 30338
Attention: General Counsel
Facsimile: (678) 579-5771
If to Purchaser:
Towerweave Limited
c/o PPL Global, LLC
11350 Random Hills Road, Suite 400
Fairfax, VA 22030
Attention: Roger L. Petersen
Facsimile: (703) 293-2659
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
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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.
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 Seller 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 Seller.
[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/ Don Dysert
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Name: Don Dysert
Title: Vice President
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