Exhibit 1.1
MIRANT AMERICAS GENERATION, INC.
PURCHASE AGREEMENT
7.625% SENIOR NOTES DUE 2006
8.300% SENIOR NOTES DUE 2011
9.125% SENIOR NOTES DUE 2031
April 26, 2001
▇▇▇▇▇▇ Brothers Inc.
Credit Suisse First Boston Corporation
Banc of America Securities LLC
Deutsche Banc ▇▇▇▇. ▇▇▇▇▇ Inc.
Wachovia Securities, Inc.
c/▇ ▇▇▇▇▇▇ Brothers Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Mirant Americas Generation, Inc., a Delaware corporation (the
"Company"), confirms its agreement with ▇▇▇▇▇▇ Brothers Inc., as
representative of the Initial Purchasers (the "Representative"), Credit
Suisse First Boston Corporation, Banc of America Securities LLC, Deutsche
Banc ▇▇▇▇. ▇▇▇▇▇ Inc. and Wachovia Securities, Inc. (collectively, the
"Initial Purchasers", which term shall also include any initial purchaser
substituted as hereinafter provided in Section 10 hereof), with respect to
the issue and sale by the Company and the purchase by the Initial Purchasers,
acting severally and not jointly, of the respective principal amounts set
forth opposite their names on Schedule 1 to this agreement (the "Agreement")
of the Company's $500,000,000 aggregate principal amount of 7.625% Senior
Notes due 2006 (the "2006 Notes"), $850,000,000 aggregate principal amount of
8.300% Senior Notes due 2011 (the "2011 Notes") and $400,000,000 aggregate
principal amount of 9.125% Senior Notes due 2031 (the "2031 Notes", and
together with the 2006 Notes and the 2011 Notes, the "Notes").
The Notes will be issued pursuant to an indenture and a supplemental
indenture relating to each series of Notes (such indenture and supplemental
indentures collectively referred to herein as the "Indenture"), in each case to
be dated as of the Closing Time (as hereinafter
defined), between the Company and Bankers Trust Company as trustee (the
"Trustee"). Capitalized terms used herein without definition have the
respective meanings specified in the Offering Circular (as hereinafter
defined).
The Notes will be offered and sold to the Initial Purchasers without
registration under the Securities Act of 1933, as amended (the "Securities
Act"), in reliance upon exemptions from the registration requirements of the
Securities Act.
The Initial Purchasers and their direct and indirect transferees
will be entitled to the benefits of a Registration Rights Agreement, dated
the date hereof and to be substantially in the form attached hereto as
Exhibit 5 (the "Registration Rights Agreement"), pursuant to which the
Company will use its reasonable best efforts to file a registration statement
with the United States Securities Exchange Commission (the "Commission")
under the Securities Act covering the Exchange Offer referred to in the
Registration Rights Agreement.
1. OFFERING CIRCULAR: In connection with the sale of the Notes, the
Company has prepared a preliminary offering circular dated April 13, 2001
(the "Preliminary Offering Circular") and a final offering circular dated the
date hereof (such final offering circular, in the form first furnished to the
Initial Purchasers for use in connection with the offering and sale of the
Notes, or if such form is not so used, in the form subsequently furnished for
such use, the "Offering Circular"), each setting forth certain information
concerning the Company and the Notes. The Company hereby confirms that it has
authorized the use of the Preliminary Offering Circular and the Offering
Circular in connection with the offer and resale of the Notes by the Initial
Purchasers. Unless stated to the contrary, all references herein to the
Offering Circular are to the Offering Circular dated as of the date hereof
and are not meant to include any amendment or supplement thereto subsequent
to such date.
The Company has been advised by you that the Initial Purchasers
propose to make an offering of the Notes only on the terms, subject to the
conditions and in the manner set forth in the Offering Circular and Section 5
of this Agreement, as soon as the Initial Purchasers deem advisable after
this Agreement has been executed and delivered.
2. PURCHASE AND SALE: On the basis of the representations and
warranties herein contained, and subject to the terms and conditions herein
set forth, the Company agrees to sell to each Initial Purchaser, and each
Initial Purchaser agrees, severally and not jointly, to purchase from the
Company, the respective principal amounts of Notes of each series set forth
opposite their names at the purchase prices set forth in Schedule I hereto.
3. PAYMENT AND DELIVERY: Payment of the purchase price for, and
delivery of certificates for, the Notes shall be made at the offices of
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ or such other locations as the Representative and the Company shall
determine, at 10:00 A.M., New York City time, on May 1, 2001 (the "Closing
Time"), or such later date and time as the Representative and the Company
shall determine, unless postponed in accordance with the provisions of
Section 10 hereof. Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by
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the Company against delivery to the Initial Purchasers of the Notes to be
purchased by them.
The Notes to be purchased by the Initial Purchasers shall be in
such denominations and registered in such names as the Representative may
request in writing at least three full business days before the Closing Time
or, if no such request is received, in the name of the respective Initial
Purchaser in denominations selected by the Company. If the Representative
shall request that any of the Notes be registered in a name or names other
than that of the Initial Purchaser agreeing to purchase such Notes, such
Initial Purchaser shall pay any transfer taxes resulting from such request.
The Company agrees to make the Notes available for inspection by the Initial
Purchasers at the offices of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP at least 24 hours prior to
the Closing Time.
4. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS: The several
obligations of the Initial Purchasers hereunder are subject to the accuracy
of the representations and warranties on the part of the Company herein
contained, to the receipt by the Representative of a letter on and dated the
date hereof from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP substantially in the form attached
hereto as Exhibit 4 and to the following other conditions:
(a) That, at the Closing Time, the Initial Purchasers shall be
furnished the following opinions and letter, with such changes therein
as may be agreed upon by the Company and the Initial Purchasers:
(i) Opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, of Atlanta,
Georgia, counsel to the Company,
substantially in the form attached hereto as
Exhibit 1.
(ii) Opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, of New York,
New York, counsel to the Initial Purchasers,
substantially in the form attached hereto as
Exhibit 2.
(iii) Opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, of New York,
New York, counsel to the Trustee,
substantially in the form attached hereto as
Exhibit 3.
(iv) A letter dated as of the Closing Time from
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, substantially in the
form attached hereto as Exhibit 4.
(v) Such documents relating to the Company's
corporate existence and its authorization
and execution of this Agreement, the
Registration Rights Agreement, the Indenture
and the Notes as the Representative may
reasonably request.
(b) That, prior to the Closing Time, there shall have been no
material adverse change in the business, properties or financial
condition of the Company from that set forth in or contemplated by the
Offering Circular, and that the Company shall, at the time
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of purchase, have delivered to the Initial Purchasers a certificate
to such effect of an executive officer of the Company.
(c) That the Company and the Initial Purchasers shall have
entered into the Registration Rights Agreement substantially in the
form attached hereto as Exhibit 5.
(d) That the Company shall have performed such of its
obligations under this Agreement as are to be performed at or prior to
the Closing Time by the terms hereof.
(e) That each of ▇.▇. ▇▇▇▇, Inc. (the "Independent Technical
Consultant") and PA Consulting Group (the "Independent Market
Consultant") shall have delivered to the Company and the Initial
Purchasers a letter dated the Closing Time (i) consenting to the
inclusion of its respective report in the Offering Circular, and (ii)
confirming that since the date of such report, based solely on its
inquiries of the Company as to whether there has been any material
change in the information provided to it by the Company, nothing has
come to its attention that causes it to believe that its opinions set
forth in the Offering Circular were not correct.
5. RESALE OF THE NOTES: Each Initial Purchaser severally and not
jointly represents and warrants to, and agrees with, the Company that:
(a) It is a Qualified Institutional Buyer and an "accredited
investor" within the meaning of Rule 501(a) under the Securities Act;
(b) It has not offered or sold, and will not offer or sell,
any Notes except (i) to persons whom it reasonably believes to be
Qualified Institutional Buyers as defined in and pursuant to Rule 144A
under the Securities Act ("Rule 144A"), (ii) to a limited number of
other institutional investors whom it believes to be "accredited
investors" (as defined in Rule 501(a) (1), (2), (3) or (7) of
Regulation D under the Securities Act ("Regulation D") that, prior to
their purchase of the Notes, deliver to it a letter substantially in
the form of Annex C to the Offering Circular or (iii) to non-U.S.
persons outside the United States to whom it reasonably believes offers
and sales of the Notes may be made in reliance upon Regulation S under
the Securities Act ("Regulation S");
(c) Neither it nor any of its U.S. affiliates or any person
acting on its or their behalf has made or will make offers or sales of
the Notes in the United States by means of any form of general
solicitation or general advertising (within the meaning of Regulation
D) or in any manner involving a public offering (within the meaning of
Section 4(2) under the Securities Act) in the United States;
(d) It has (i) not offered or sold and, prior to the expiry of
six months from the Closing Time, will not offer or sell, any Notes to
persons in the United Kingdom by means of any document except to
persons whose ordinary activities involve them acquiring, holding,
managing or disposing of investments, whether as principal or agent,
for the purposes of their businesses or otherwise in circumstances that
have not resulted and will not result in an offer to the public in the
United Kingdom within the meaning of
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the Public Offers of Securities Regulations 1995; (ii) complied and
will comply with all applicable provisions of the Financial
Services Act 1986 of the United Kingdom with respect to anything
done by it in relation to the Notes in, from or otherwise involving
the United Kingdom; and (iii) only issued or passed on and will
only issue or pass on, in the United Kingdom, any document received
by it in connection with the issue of the Notes if that person is
of a kind described in Article 11(3) of the Financial Services Act
1986 (Investment Advertisements)(Exemptions) Order 1996 or is a
person to whom the document may otherwise lawfully be issued or
passed on;
(e) It has offered and sold the Notes and will offer and sell
the Notes (i) as part of its distribution at any time and (ii)
otherwise until 40 days after the later of the commencement of the
offering of the Notes and the Closing Time, only in accordance with
Rule 903 of Regulation S, Rule 144A or another exemption from the
registration requirements of the Securities Act. Accordingly, neither
it, its affiliates nor any persons acting on its or their behalf have
engaged or will engage in any directed selling efforts (within the
meaning of Regulation S) with respect to the Notes, and it, its
affiliates and any such persons have complied and will comply with the
offering restrictions requirements of Regulation S; and
(f) It agrees that, at or prior to confirmation of sales of
the Notes, it will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that
purchases Notes from it during the restricted period a confirmation or
notice to substantially the following effect:
"The Notes covered hereby have not been registered under the
U.S. Securities Act of 1933 (the "Securities Act") and may not
be offered and sold within the United States or to, or for the
account or benefit of U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after
the later of the commencement of the offering and the closing
time, except in either case in accordance with Regulation S
(or Rule 144A or other exemption from the registration
requirements of the Securities Act, if available) under the
Securities Act. Terms used above have the meaning given to
them by Regulation S."
Terms used in this Section 5 shall have the meanings given to them by
Regulation S.
6. CERTAIN COVENANTS OF THE COMPANY: In further consideration of
the agreements of the Initial Purchasers herein contained, the Company
covenants as follows:
(a) The Company will furnish to the Initial Purchasers,
without charge, as many copies of the Preliminary Offering Circular and
the Offering Circular (as supplemented or amended if the Company shall
have made any supplements or amendments thereto) as the Representative
may reasonably request.
(b) The Company will give the Initial Purchasers notice of its
intention to prepare any amendment or supplement to the Preliminary
Offering Circular or the
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Offering Circular, will furnish the Initial Purchasers and counsel
to the Initial Purchasers with copies of such amendment or
supplement, and any such amendment or supplement to the Preliminary
Offering Circular or the Offering Circular made subsequent to the
time this Agreement becomes effective shall correct any untrue
statement of a material fact or omission to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(c) If at any time prior to the completion of the initial
resale of the Notes by the Initial Purchasers any event shall have
occurred as a result of which it is necessary to amend or supplement
the Offering Circular in order to make the statements therein, in light
of the circumstances when the Offering Circular is delivered to a
purchaser, not misleading, or if, in the reasonable judgment of the
Initial Purchasers or counsel to the Initial Purchasers, such amendment
or supplement is necessary to ensure that the initial resale of the
Notes is exempt from the registration requirements of the Securities
Act, the Company will, subject to paragraph (b) of this Section 6,
forthwith amend or supplement the Offering Circular by furnishing, at
its own expense, to the Initial Purchasers and to dealers (whose names
and addresses are furnished to the Company by the Representative) to
whom Notes may have been sold by the Initial Purchasers and, upon
request, to any other dealers making such request, either amendments to
the Offering Circular or supplements thereto so that the statements in
the Offering Circular as so amended or supplemented will not, in light
of the circumstances when the Offering Circular is delivered to a
purchaser, be misleading, or so that such Offering Circular as so
amended or supplemented will comply with any requirements necessary for
exemption of the initial resale of the Notes from the registration
requirements of the Securities Act, as the case may be.
(d) Notwithstanding any provision of paragraph (b) or (c) of
this Section 6 to the contrary, the Company's obligations under
paragraphs (b) and (c) of this Section 6 shall terminate on the date
upon which the Initial Purchasers and their affiliates cease to hold
Notes acquired as part of their initial distribution, but in any event
not later than nine months from the Closing Time.
(e) So long as any Notes shall remain outstanding, neither the
Company nor any of its affiliates (as defined in Rule 501(b) of
Regulation D) nor any person acting on behalf of the foregoing (other
than the Initial Purchasers and any person acting on their behalf, to
the extent that any of them may be deemed to be acting on behalf of the
Company) shall solicit any offer to buy or offer to sell the Notes by
means of any form of general solicitation or general advertising
(within the meaning of Rule 502(c) of Regulation D) in a manner that
would require the registration of the Notes under the Securities Act.
(f) So long as any Notes shall remain outstanding, neither the
Company nor any of its affiliates (as defined in Rule 501(b) of
Regulation D) nor any person acting on behalf of the foregoing (other
than the Initial Purchasers and any person acting on their behalf, to
the extent that any of them may be deemed to be acting on behalf of the
Company) will engage in any directed selling efforts (as defined in
Rule 902 under the
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Securities Act) with respect to the Notes in a manner that would
require the registration of the Notes under the Securities Act.
(g) So long as any Notes shall remain outstanding, neither the
Company nor any of its affiliates (as defined in Rule 501(b) of
Regulation D) will directly, or through any person acting on behalf of
the foregoing (other than the Initial Purchasers and any person acting
on their behalf, to the extent that any of them may be deemed to be
acting on behalf of the Company), sell, offer for sale, solicit offers
to buy or otherwise negotiate in respect of, any security (as defined
in the Securities Act) that is or will be integrated with the Notes in
a manner that would require the registration of the Notes under the
Securities Act.
(h) The Company agrees, so long as any of the Notes are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, to furnish to each holder of such restricted securities
and to each prospective purchaser (as designated by such holder) of
such restricted securities, upon the request of such holder or
prospective purchaser, any and all financial and other information
relating to the Company required to be delivered under Rule 144A(d)(4)
under the Securities Act in connection with sales of the Notes under
Rule 144A, if the Company is not required to file reports with the
Commission as a reporting company under Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") or
exempt from reporting pursuant to Rule 12g3-2b under the Exchange Act.
(i) The Company will cooperate with the Initial Purchasers to
qualify the Notes for offer and sale under the securities or "blue sky"
laws of such states and other jurisdictions as the Representative may
reasonably request and to pay filing fees, reasonable attorneys' fees
and disbursements in connection therewith in an amount not exceeding
$15,000 in the aggregate (including filing fees and disbursements paid
or incurred prior to the date this Agreement becomes effective);
provided, however, that the Company shall not be required to qualify as
a foreign corporation or to file a consent to service of process or to
file annual reports or to comply with any other requirements deemed by
the Company to be unduly burdensome.
(j) The Company will pay all costs and expenses incident to
the performance of the obligations of the Company under this Agreement,
including (i) the preparation of the Preliminary Offering Circular, the
Offering Circular (including financial statements) and any amendments
or supplements thereto, (ii) the preparation and printing of the Notes
and the Indenture, (iii) the issuance and delivery of the Notes to the
Initial Purchasers (other than transfer taxes), (iv) the furnishing of
the opinions, letters and certificates referred to in Section 4 hereof,
(v) any fees charged by rating agencies for rating the Notes and (vi)
the fees and expenses of any trustee appropriate under the Indenture,
including the fees and disbursements of counsel for such trustee in
connection with the Indenture, and in the amounts agreed pursuant to
separate agreements. In addition, the Company agrees to pay the
reasonable and documented third party out-
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of-pocket expenses incurred by the Representative in connection
with the offer and sale of the Notes to the Initial Purchasers
(including the reasonable and documented third party out-of-pocket
expenses incurred by the Representative in connection with the road
show prior to the execution of this Agreement and the reasonable
and documented fees and expenses of counsel to the Initial
Purchasers).
(k) If the Initial Purchasers shall not take up and pay for
the Notes due to the failure of the Company to comply with any of the
conditions specified in Section 4 hereof, the Company's sole obligation
and liability shall be to reimburse the Initial Purchasers for their
reasonable and documented third party out-of-pocket expenses described
in the last sentence of Section 6(j) of this Agreement.
7. WARRANTIES AND REPRESENTATIONS OF AND INDEMNITY BY THE COMPANY:
(a) The Company warrants and represents to each of the Initial
Purchasers that:
(i) The Company is a corporation duly organized and
validly existing under the laws of Delaware and has all
requisite corporate power and authority to execute, deliver
and perform its material obligations under this Agreement, the
Registration Rights Agreement, the Indenture and the Notes.
(ii) Assuming compliance by the Initial Purchasers
with the last paragraph of Section 1 of this Agreement, no
authorization or approval or other action by, and no notice to
or filing with, any governmental agency is required for the
due execution, delivery and performance by the Company of this
Agreement, the Indenture or the Notes in the manner described
in the Offering Circular except such approvals,
authorizations, consents, orders, registrations or
qualifications as may be required under "blue sky" or state
securities laws of any state of the United States of America.
(iii) The execution and delivery of this Agreement,
the Registration Rights Agreement, the Indenture and the Notes
have been duly authorized by the Company. Each of the
Registration Rights Agreement, the Indenture and the Notes,
when delivered, will be the legal, valid and binding
obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to the effect
of any applicable bankruptcy, insolvency (including all laws
relating to fraudulent transfers), reorganization, moratorium
or other similar laws relating to or affecting enforcement of
creditors' rights generally and general principals of equity
(regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law).
(iv) To the knowledge of the Company, there is no
pending or threatened action or proceeding against the Company
of or before any court, arbitrator or governmental agency that
purports to affect the legality, validity or enforceability of
this Agreement.
(v) As of their respective dates, none of the
Offering Circular or any amendment or supplement thereto, and
as of the Closing Time, the Offering
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Circular, as amended or supplemented to such time,
contained or will contain an untrue statement of a material
fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in light
of the circumstances under which they were made, not
misleading; except that this representation and warranty
does not apply to (i) statements or omissions made in
reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Initial
Purchaser specifically for use in the Offering Circular and
(ii) Annex A and Annex B to the Offering Circular or the
information contained in the Offering Circular relating to
matters referred to in Annex A or Annex B.
(vi) The factual information furnished by the Company
to ▇. ▇. ▇▇▇▇, Inc. ("▇▇▇▇") specifically for use by ▇▇▇▇ in
its report contained in Annex A to the Offering Circular was
to the Company's knowledge, accurate in all material respects
as of the time it was furnished.
(vii) No securities of the Company are listed on a
national securities exchange, registered under Section 6 of
the Exchange Act or quoted in a United States automated
inter-dealer quotation system.
(viii) Neither the Company nor any of its affiliates
(as defined in Rule 501(b) of Regulation D) has directly, or
through any person acting on their behalf (other than the
Initial Purchasers and any person acting on their behalf, to
the extent that any of them may be deemed to be acting on
behalf of the Company) (1) sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of, any
security (as defined in the Securities Act) that is or will be
integrated with the sale of the Notes in a manner that would
require the registration of the Notes under the Securities Act
or (2) engaged in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the
Securities Act in connection with any offer or sale of the
Notes in the United States or, with respect to Notes sold
outside the United States in reliance on Rule 903 under the
Securities Act, by means of any directed selling efforts
within the meaning of Rule 902 under the Securities Act, and
each of them has complied with the offering restrictions
requirement of Regulation S under the Securities Act.
(b) The Company agrees to indemnify and hold harmless each of
the Initial Purchasers and each person, if any, who controls any such
Initial Purchaser within the meaning of Section 15 of the Securities
Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the
Securities Act or otherwise, and to reimburse the Initial Purchasers
and such controlling person or persons, if any, for any legal or other
expenses incurred by them in connection with investigating or defending
any actions, insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Preliminary
Offering Circular, the Offering Circular or the Offering Circular as
amended or supplemented, or arise out of or are based upon any omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of
the circumstances
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under which they were made, not misleading, except insofar as such
losses, claims, damages, liabilities or actions arise out of or are
based upon any such untrue statement or omission or alleged untrue
statement or omission that was made in such Preliminary Offering
Circular, Offering Circular or the Offering Circular as amended or
supplemented, in reliance upon and in conformity with information
furnished in writing to the Company by, or through the
Representative on behalf of, any Initial Purchaser for use therein
and except that this indemnity with respect to the Preliminary
Offering Circular and with respect to the Offering Circular, shall
not inure to the benefit of any Initial Purchaser (or of any person
controlling such Initial Purchaser) on account of any losses,
claims, damages, liabilities or actions arising from the sale of
Notes to any person if a copy of the Offering Circular, as the same
may then be amended or supplemented, shall not have been sent or
given by or on behalf of such Initial Purchaser to such person with
or prior to the written confirmation of the sale involved and if
the Offering Circular (as so amended or supplemented) would have
corrected the defect giving rise to such loss, liability, claim or
damage. The parties hereto agree that the only information with
respect to the Initial Purchasers that has been furnished to the
Company by or on behalf of the Initial Purchasers for inclusion in
the Preliminary Offering Circular and in the Offering Circular is
set forth in the first, fifth, seventh and ninth paragraphs and the
sixth and seventh sentences of the tenth paragraph under the
caption "Plan of Distribution" in the Offering Circular (which,
except for the completion of blanks, shall be substantially the
same as the corresponding paragraphs in the Preliminary Offering
Circular).
The Company's indemnity agreement contained in this Section
7(b), and its covenants, warranties and representations contained in
this Agreement, shall remain in full force and effect regardless of any
investigation made by or on behalf of any Initial Purchaser or any
controlling person, and shall survive the delivery of and payment for
the Notes hereunder.
8. WARRANTIES AND REPRESENTATIONS OF AND INDEMNITY BY THE INITIAL
PURCHASERS:
(a) Each Initial Purchaser warrants and represents to the
Company and its directors and officers that the information furnished
in writing to the Company by, or through you on behalf of, such Initial
Purchaser for use in the Preliminary Offering Circular, the Offering
Circular or the Offering Circular as amended or supplemented, does not
contain an untrue statement of a material fact and does not omit to
state a material fact in connection with such information required to
be stated therein or necessary to make such information not misleading.
(b) Each Initial Purchaser severally agrees to indemnify and
hold harmless the Company, its directors and officers, and each person,
if any, who controls the Company within the meaning of Section 15 of
the Securities Act, to the same extent and upon the same terms as the
indemnity agreement of the Company set forth in Section 7(b) hereof,
but only with respect to untrue statements or omissions or alleged
untrue statements or omissions made in the Preliminary Offering
Circular, the Offering Circular or the Offering Circular as amended or
supplemented, in reliance upon and in conformity with
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information furnished in writing to the Company by, or through the
Representative on behalf of, such Initial Purchaser for use therein.
The indemnity agreement on the part of each Initial Purchaser
contained in this Section 8(b), and the warranties and representations
of such Initial Purchaser contained in this Agreement, shall remain in
full force and effect regardless of any investigation made by or on
behalf of the Company or other Initial Purchaser or any controlling
person, and shall survive the delivery of and payment for the Notes
hereunder.
9. PROCEDURES RELATING TO INDEMNIFICATION. Promptly after
receipt by a party indemnified under Section 7 or 8 above of written notice of
any loss, claim, damage or liability in respect of which indemnity may be sought
by it hereunder, such indemnified party will, if a claim is to be made against
an indemnifying party, notify the indemnifying party thereof in writing, but the
omission so to notify the indemnifying party will not relieve the indemnifying
party from any liability (otherwise than under Section 7 or 8 hereof, as the
case may be) that it may have to the indemnified party. Thereafter, the
indemnified party and the indemnifying party shall consult, to the extent
appropriate, with a view to minimizing the cost to the indemnifying party of its
obligations hereunder. In case any indemnified party receives written notice of
any loss, claim, damage or liability in respect of which indemnity may be sought
by it hereunder and it notifies the indemnifying party thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from the indemnified party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party; PROVIDED,
HOWEVER, that if the parties against which any loss, claim, damage or liability
arises include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that defenses available to it
create a conflict of interest for the counsel selected by the indemnifying party
under the code of professional responsibility applicable to such counsel, the
indemnified party shall have the right to select one separate counsel to assume
such legal defenses and otherwise to participate in the defenses of such loss,
claim, damage or liability on behalf of the indemnified party. Upon receipt by
the indemnified party of notice from the indemnifying party of its selection so
to assume the defense of such loss, claim, damage or liability and approval by
the indemnified party of counsel, the indemnifying party shall not be liable to
the indemnified party under Section 7 or 8 hereof, as the case may be, for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof unless (i) the indemnified party shall have
employed such counsel in connection with the assumption of legal defenses in
accordance with the proviso to the next preceding sentence, (ii) the
indemnifying party shall not have employed and continued to employ counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party shall have authorized in writing the employment of
separate counsel for the indemnified party at the expense of the indemnifying
party. No indemnifying party shall, without prior written consent of the
indemnified party, effect any settlement of any pending or threatened action in
respect of which the indemnified party is or is entitled or subject to be a
party and the indemnified party is entitled to indemnity hereunder unless such
settlement includes an unconditional release of the indemnified party from all
liability on any claims that are the subject matter of such action. No
indemnifying party shall be
-11-
liable for any settlement, compromise or consent to the entry of any order
adjudicating or otherwise disposing of any loss, claim, damage or liability
effected without its consent.
10. SUBSTITUTION OF INITIAL PURCHASERS: If any Initial Purchaser under
this Agreement shall fail or refuse (whether for some reason sufficient to
justify, in accordance with the terms hereof, the termination of its obligations
to purchase or otherwise) to purchase the Notes that it has agreed to purchase,
the Company shall immediately notify the remaining Initial Purchasers and the
remaining Initial Purchasers may, within 24 hours of receipt of such notice,
procure some other responsible party or parties satisfactory to the Company, who
may include one or more of the remaining Initial Purchasers, to purchase or
agree to purchase such Notes on the terms herein set forth; and, if the
remaining Initial Purchasers shall fail to procure a satisfactory party or
parties to purchase or agree to purchase such Notes on such terms within such
period after the receipt of such notice, then the Company shall be entitled to
an additional period of 24 hours within which to procure another party or
parties to purchase or agree to purchase such Notes on the terms herein set
forth. In any such case, either the remaining Initial Purchasers or the Company
shall have the right to postpone the Closing Time for a period not to exceed
five full business days from the date set forth in Section 3 hereof, in order
that the necessary changes to the Offering Circular and any other documents and
arrangements may be effected. If the remaining Initial Purchasers shall fail to
procure a satisfactory party or parties to purchase or agree to purchase such
Notes, and if the Company also does not procure another party or parties to
purchase or agree to purchase such Notes, as above provided, then this Agreement
shall terminate. In the event of any such termination, the Company shall not be
under any liability to any Initial Purchaser (except to the extent, if any,
provided in Section 6 hereof), nor shall any Initial Purchaser (other than an
Initial Purchaser who shall have failed or refused to purchase Notes without
some reason sufficient to justify, in accordance with the terms hereof, its
termination of its obligations hereunder) be under any liability to the Company.
11. TERMINATION OF AGREEMENT: This Agreement may be terminated at any
time prior to the time of purchase by the Initial Purchasers who have agreed to
purchase in the aggregate 75% or more of the aggregate principal amount of the
Notes, if, after this Agreement becomes effective and prior to the Closing Time,
(i) trading in securities on the New York Stock Exchange shall have been
generally suspended, (ii) minimum or maximum ranges for prices shall have been
generally established on the New York Stock Exchange by the Securities and
Exchange Commission or by the New York Stock Exchange, (iii) a general banking
moratorium shall have been declared by federal or New York State authorities or
(iv) there shall have occurred any declaration of war by the United States
Congress or any other substantial national or international emergency affecting
the United States, in any such case provided for in clauses (i) through (iv)
with the result that, in your reasonable judgment, the marketability of the
Notes shall have been materially impaired.
If the Initial Purchasers elect to terminate this Agreement as
provided in this Section 11, the Company shall be notified promptly by the
Representative by telephone, confirmed in writing. If this Agreement shall not
be carried out by any Initial Purchaser for any reason permitted hereunder, or
if the sale of the Notes to the Initial Purchasers as herein contemplated shall
not be carried out because the Company is not able to comply with the terms
hereof, the Company shall not be under any obligation under this Agreement and
shall not be
12
liable to any Initial Purchaser or to any member of any selling group for the
loss of anticipated profits from the transactions contemplated by this Agreement
(except that the Company shall remain liable to the extent provided in Section 6
hereof) and the Initial Purchasers (other than a defaulting Initial Purchaser)
shall be under no liability to the Company nor be under any liability under this
Agreement to one another.
12. NOTICES: All notices hereunder shall, unless otherwise expressly
permitted, be in writing and be delivered at or mailed to the following
addresses:
Mirant Americas Generation, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to (such copy not to constitute notice):
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
Bank of America Plaza, Suite ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Atlanta, Georgia 30308
Attention: ▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇, Esq.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Initial Purchasers at:
▇▇▇▇▇▇ Brothers Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Fixed Income Syndicate Department
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to (such copy not to constitute notice):
Director of Litigation, Office of General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
13. PARTIES IN INTEREST: This Agreement has been and is made solely
for the benefit of the Initial Purchasers and the Company, its directors and
officers, and the controlling persons, if any, referred to in Sections 7 and 8
hereof, and their respective successors, assigns, executors and administrators,
and, subject to the provisions of Section 10 hereof, no other person shall
acquire or have any right under or by virtue of this Agreement.
14. APPLICABLE LAW, JURISDICTION: This Agreement shall be governed by
and construed in accordance with the laws of the State of New York. Each party
hereto consents to
13
the jurisdiction of each court in which any action is commenced seeking
indemnity pursuant to Section 7 or 8 above and agrees to accept, either directly
or through an agent, service of process of each such court.
15. COUNTERPARTS: This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
-14-
Please confirm that the foregoing correctly sets forth the
agreement between the Company and the several Initial Purchasers.
Very truly yours,
MIRANT AMERICAS
GENERATION, INC.
By:
-----------------------------------------
Name:
Title:
Confirmed and accepted as of the date first above written.
▇▇▇▇▇▇ BROTHERS INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
DEUTSCHE BANC ALEX. BROWN INC.
WACHOVIA SECURITIES, INC.
By: ▇▇▇▇▇▇ BROTHERS, INC.
By:
-------------------------------------------------
Name:
Title:
-15-
SCHEDULE I
I. Purchase Price
The purchase prices to be paid by the Initial Purchasers for the 2006
Notes, 2011 Notes and 2031 Notes shall be as follows:
Initial Purchasers'
Price to Public Underwriting Spread Purchase Price
---------------------------- ----------------------------- ----------------------------
2006 Notes 100.000% 0.700% 99.300%
2011 Notes 99.692% 0.775% 98.917%
2031 Notes 99.371% 1.000% 98.371%
II. Principal Amount to be Purchased
Principal Amount of Principal Amount of Principal Amount of
Initial Purchaser 2006 Notes Purchased 2011 Notes Purchased 2031 Notes Purchased
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇ Brothers Inc. $ 325,000,000 $ 552,500,000 $ 260,000,000
Credit Suisse First Boston
Corporation 100,000,000 170,000,000 80,000,000
Banc of America Securities LLC 50,000,000 85,000,000 40,000,000
Deutsche Banc ▇▇▇▇ ▇▇▇▇▇, Inc. 12,500,000 21,250,000 10,000,000
Wachovia Securities, Inc. 12,500,000 21,250,000 10,000,000
----------------------- ------------------------- ------------------------
Amount Aggregate Principal $ 500,000,000 $ 850,000,000 $ 400,000,000
======================= ========================= ========================
EXHIBIT 1
Form of Opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ pursuant to Section 4(a)(i)
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State
of Delaware, and has the corporate power and authority to own
its properties and to conduct its business as described in the
Offering Circular and to enter into and perform its
obligations under the Purchase Agreement, the Registration
Rights Agreement and the Indenture;
(ii) The Purchase Agreement, the Registration Rights Agreement and
the Indenture have been duly authorized, executed and
delivered by the Company;
(iii) The Notes and the Indenture conform in all material respects
as to legal matters to the descriptions thereof in the
Offering Circular;
(iv) The issuance of the Notes has been duly authorized by the
Company, and the Notes have been duly executed by the Company;
(v) Subject to the paragraph numbered (viii) below, no consent,
approval, authorization or order of, and no filing or
registration with, any United States or Georgia state court or
governmental agency or body (other than the securities or blue
sky laws of the various states, as to which we express no
opinion under this paragraph (v) or paragraph (vii) below), is
legally required for the issuance, sale and delivery of the
Notes by the Company to the Initial Purchasers pursuant to the
Purchase Agreement, or the performance by the Company of its
obligations under the Purchase Agreement, the Indenture and
the Notes;
(vi) The statements made in the Offering Circular under the
captions "Description of the Notes and the Indenture" and
"Certain U.S. Federal Income Tax Considerations," to the
extent they constitute matters of United States federal law or
legal conclusions under United States federal law, have been
reviewed by us and are accurate, complete and fair in all
material respects;
(vii) The execution, delivery and performance by the Company of the
Purchase Agreement, the Indenture and the Notes, the
consummation by the Company of the transactions contemplated
thereby, compliance by the Company with the terms of the
foregoing and the application of the proceeds from the sale of
the Notes, to the extent specifically described by the
Offering Circular, do not and will not as of the date hereof
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any published
statute, rule or regulation applicable to the Company or any
judgment, order or decree of which we have knowledge of any
court, regulatory body, administrative agency or governmental
body of the United States or the State of Georgia having
jurisdiction over the Company;
(viii) Assuming (a) the accuracy of the representations and
warranties of the Company set forth in Section 7 of the
Purchase Agreement and of the Initial Purchasers set forth in
Section 8 of the Purchase Agreement, (b) the due performance
by the Company of the covenants and agreements set forth in
Section 6 of the Purchase Agreement and the due performance by
each Initial Purchaser of the covenants and agreements set
forth in Section 5 of the Purchase Agreement, (c) compliance
by the Initial Purchasers with the offering and transfer
procedures and restrictions described in the Offering Circular
and (d) the accuracy of the representations and warranties
made in accordance with the Offering Circular by purchasers to
whom the Initial Purchasers initially resell the Notes, (i)
the offer, sale and delivery of the Notes to the Initial
Purchasers in the manner contemplated by the Purchase
Agreement and the Offering Circular and the initial resale of
the Notes by the Initial Purchasers in the manner contemplated
in the Purchase Agreement and the Offering Circular do not
require registration under the Securities Act of 1933, as
amended, it being understood that we express no opinion as to
any subsequent resale of any Notes, and (ii) the Indenture is
not required to be qualified under the Trust Indenture Act of
1939, as amended; and
(ix) The Company is not an "investment company" under the
Investment Company Act of 1940, as amended.
In addition, such opinion shall state that such counsel has
participated in the preparation of the Offering Circular and in conferences with
officers and other representatives of the Company, representatives of the
independent public accountants for the Company and with your representatives and
your counsel at which the contents of the Offering Circular and related matters
were discussed and, although such counsel need not pass upon or assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Offering Circular, on the basis of the foregoing, no facts have
come to the attention of such counsel that have caused them to believe that the
Offering Circular or any amendment thereto (except for the financial statements
and other financial and statistical data and projections included therein or
omitted therefrom and all of the information contained in Annexes A and B to the
Offering Circular and all references in the Offering Circular to the matters
discussed in Annexes A and B, as to which such counsel need express no opinion)
at the Closing Time or at the time any such amended or supplemented Offering
Circular was issued, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
In giving such opinion, such counsel may state that, insofar as such
opinion involves factual matters, they have relied to the extent they deem
proper, upon certificates of officers of the Company, certificates of officers
of the Trustee and certificates of public officials and that such counsel has
relied on the representations and warranties of the Company and of the Initial
Purchasers made in the Purchase Agreement.
Such opinion shall state that such counsel are members of the State Bar
of Georgia and do not express any opinion concerning any law other than the law
of the State of Georgia, the federal law of the United States and the General
Corporation Law of the State of Delaware.
2
EXHIBIT 2
Form of Opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ pursuant to Section 4(a)(ii)
The Indenture has been duly authorized, executed and delivered by the
Company and, assuming due authorization, execution and delivery by the Trustee,
constitutes a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as the enforcement
thereof (x) may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights generally (including, without
limitation, all laws relating to fraudulent transfers) and (y) is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law).
The Notes have been duly authorized and executed by the Company and,
when duly authenticated by the Trustee in the manner contemplated in the
Indenture and delivered to and paid for by the Initial Purchasers in accordance
with the terms of the Purchase Agreement and the Indenture, will be (x) valid
and legally binding obligations of the Company enforceable against the Company
in accordance with their terms, except as enforcement thereof (A) may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally (including, without limitation, all laws relating to
fraudulent transfers) and (B) is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law) and (y) entitled to the benefits of the Indenture.
The Purchase Agreement has been duly authorized, executed and delivered
by the Company.
The Registration Rights Agreement has been duly authorized, executed
and delivered by the Company and constitutes a legal, valid and binding
obligation of the Company in accordance with its terms, except as the
enforcement thereof (x) may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
(including, without limitation, all laws relating to fraudulent transfers), (y)
is subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and (z) any rights to indemnity
and contribution provided therein may be limited by federal and state securities
laws and the public policy considering underlying these laws.
The statements made in the Offering Circular under the captions
"Description of Notes and the Indenture" and "Certain U.S. Federal Income Tax
Considerations", insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly summarize the
matters referred to therein.
Assuming (i) the accuracy of the representations and warranties of each
of the Company and the Initial Purchasers in the Purchase Agreement and (ii) the
due performance by each of the Company and the Initial Purchasers of the
covenants and agreements set forth therein and with the offering and transfer
procedures and restrictions described in the Offering Circular, it is not
necessary in connection with the offer, sale and delivery of the Notes to the
Initial Purchasers in the manner contemplated in the Offering Circular and the
Purchase Agreement, or in connection
with the initial resale of the Notes by the Initial Purchasers in the manner
contemplated in the Offering Circular and the Purchase Agreement, to register
the Notes under the Securities Act of 1933, as amended, or to qualify the
Indenture under the Trust Indenture Act of 1939, as amended.
In addition, such opinion shall state that the limitations inherent in
the independent verification of factual matters and in the role of outside
counsel are such, however, that they cannot and do not assume any responsibility
for the accuracy, completeness or fairness of any of the statements made in the
Offering Circular except as set forth in paragraph (v) of their opinion
addressed to the Initial Purchasers and dated the date of the Closing Time.
They have, however, reviewed, and participated in discussions
concerning the preparation of, the Offering Circular with certain officers and
employees of the Company, with its counsel and its auditors and with the Initial
Purchasers' representatives. In the course of this review and discussion, no
facts came to such counsel's attention that gave them reason to believe that the
Offering Circular (except for the financial statements and other financial and
statistical data and projections included therein or omitted therefrom and all
information contained in Annexes A and B to the Offering Circular and their
respective summaries in the Offering Circular, as to which they have not been
requested to comment), as of its date or as of Closing Time, contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
In giving such opinion, such counsel may state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem
proper, upon the representations and warranties of the Company contained in or
made pursuant to the Purchase Agreement, certificates of officers of the Company
and certificates of public officials.
Such opinion shall state the foregoing opinions are limited to the
federal laws of the United States and the laws of the State of New York and, to
the extent relevant, the General Corporation Law of the State of Delaware, in
each case as in effect at Closing Time and they do not express any opinion
herein concerning any other law.
2
EXHIBIT 3
Form of Opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP pursuant to Section 4(a)(iii)
(i) Trustee is a banking corporation duly incorporated and validly
existing under the laws of the State of New York.
(ii) The Trustee has the requisite power and authority to execute,
deliver and perform its obligations under the Indenture, and
has taken all necessary action to authorize the execution,
delivery and performance by it of the Indenture.
(iii) The Indenture has been duly executed and delivered by the
Trustee and constitutes a legal, valid and binding obligation
of the Trustee, enforceable against the Trustee in accordance
with its terms, except that such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium,
liquidation, or other similar laws affecting the enforcement
of creditors' rights generally, and by general principles of
equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iv) No approval, authorization or other action by or filing with
any United States or New York governmental authority, having
jurisdiction over the banking or trust powers of the Trustee
is required in connection with the execution and delivery by
the Trustee of the Indenture.
(v) The execution, delivery and performance of the Indenture does
not conflict with or result in a violation of (a) any federal
or New York State law or regulation governing the banking or
trust powers of the Trustee or (b) the Articles of
Incorporation or By-laws of the Trustee.
(vi) The Notes delivered on the date hereof have been duly
authenticated by the Trustee in accordance with the terms of
the Indenture.
Such opinion shall be to such further effect with respect to other
legal matters relating to the Purchase Agreement and the Notes as counsel for
the Initial Purchasers may reasonably request. In giving such opinion, such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York and the federal law of the United States,
upon the opinions of counsel satisfactory to counsel for the Initial Purchasers.
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers of the Company, certificates of officers of the Trustee and
certificates of public officials; provided that such certificates have been
delivered to the Initial Purchasers.
3