MIR » Topics » provided

This excerpt taken from the MIR 8-K filed Apr 18, 2007.
provided that the provisions of this Section 11.1(b) shall not apply as to any Claim or Claims made in respect of Article 7 hereof, all of which shall be governed solely by the terms of Article 7 hereof.

(c)   Notwithstanding anything in this Agreement to the contrary, the Seller shall have no obligation to indemnify the Purchaser or any of its Representatives pursuant to this Article 11 for any breach of a representation, warranty or covenant by the Seller if, prior to the Closing Date:

(i)            the Purchaser had actual knowledge (without any requirement of inquiry) of such breach;

(ii)           if the Seller had Knowledge of such breach prior to the Closing Date, the Seller used commercially reasonable efforts to cure such breach prior to the Closing Date, even if such breach was not cured as a result of such efforts; and

(iii)          the Purchaser had the right to terminate this Agreement as a result, in whole or in part, of such breach and elected not to do so.

For the avoidance of doubt, no Claim may be asserted by the Purchaser under this Section 11.1(c) with respect to differences (if any) between the Unaudited Company Financial Statements and the Audited Company Financial Statements.

This excerpt taken from the MIR 10-K filed Mar 14, 2006.
provided, that any such encumbrance or restriction shall not extend to any assets or property of the Company or any other Restricted Subsidiary other than the assets and property so acquired;

 

(iii)                               any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to an agreement effecting a refunding, replacement or refinancing of Indebtedness or other obligations Incurred pursuant to an

 

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agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii) or contained in any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement referred to in clause (i) or (ii) of this paragraph or this clause (iii); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement are, in the good faith judgment of the Board of Directors of the Company, no more restrictive in any material respect, taken as a whole, than the encumbrances and restrictions contained in such agreements referred to in clauses (i) or (ii) of this paragraph on the Emergence Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;

 

(iv)                           in the case of clause (3) of the first paragraph of this Section 3.4, any encumbrance or restriction:

 

(a)                                that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a permit, lease, license or similar contract, or the assignment or transfer of any such lease, license or other similar contract;

 

(b)                               contained in any Permitted Lien to the extent such encumbrances or restrictions restrict the transfer of the property subject to such Permitted Lien; or

 

(c)                                pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary; 

 

(v)                              (a) purchase money obligations and (b) Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of the first paragraph of this covenant on the property so acquired;

 

(vi)                           any restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;

 

(vii)                        any encumbrance or restriction pursuant to provisions limiting the disposition or distribution of assets or property in joint venture agreements and other similar agreements (in each case, relating to joint ventures and other Persons which are not Restricted Subsidiaries), which limitation is applicable only to the assets that are the subject of such agreements;

 

(viii)                     restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business;

 

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(ix)                             net worth provisions in leases and other agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;

 

(x)                                encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;

 

(xi)                             restrictions or conditions contained in any PPA, trading, netting, operating, construction, service, supply, purchase, sale or similar agreement to which the Company or any Restricted Subsidiary of the Company is a party entered into in the ordinary course of business; provided that such encumbrances or restrictions contained in any agreement referred to in this clause (xi) will not materially affect the Company’s ability to make anticipated principal or interest payments on the Securities (as determined in good faith by the Board of Directors or senior management of the Company); provided further that any encumbrances or restrictions with respect to any such agreement of MIRMA shall be no more restrictive in any material respect, taken as a whole, than the encumbrances and restrictions set forth in the Facility Lease Documents on the Emergence Date; and

 

(xii)                          encumbrances or restrictions contained in indentures or debt instruments or other debt arrangements Incurred or Preferred Stock issued by Restricted Subsidiaries in accordance with Section 3.2, that are not more restrictive, taken as a whole, than those applicable to the Company in either this Indenture on the Issue Date or the Senior Secured Credit Agreement on the Emergence Date (which results in encumbrances or restrictions comparable to those applicable to the Company at a Restricted Subsidiary level).

 

SECTION 3.5.  Limitation on Sales of Assets and Subsidiary Stock. The Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition

This excerpt taken from the MIR 8-K filed Dec 15, 2005.
provided that if the aggregate capital stock and other equity accounts (including retained earnings and paid-in capital) of Consolidated MAG as set forth on the balance sheet of Consolidated MAG for such period exceed the intangible assets of Consolidated MAG on such balance sheet, then the intangible assets of Consolidated MAG shall be excluded from Consolidated Intangible Assets.

 

This excerpt taken from the MIR 8-K filed Sep 8, 2005.
provided that if the aggregate capital stock and other equity accounts (including retained earnings and paid-in capital) of Consolidated MAG as set forth on the balance sheet of Consolidated MAG for such period exceed the intangible assets of Consolidated MAG on such balance sheet, then the intangible assets of Consolidated MAG shall be excluded from Consolidated Intangible Assets.

 

This excerpt taken from the MIR 10-K filed Mar 15, 2005.
provided that such settlement and its filing with FERC alternatively may consist of the Parties taking alternative action, such as (i) filing a notice with FERC, under the 2005 RMR

 

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FERC Settlement that extends the terms of the 2005 RMR FERC Settlement for the period from January 1, 2006, through December 31, 2008, or (ii), if the Agreement does not become effective until January 1, 2007, pursuant to Section 2.2.1 of the Global Settlement, seeking authorization from FERC to extend the terms of the 2005 RMR FERC Settlement from January 1, 2007, through December 31, 2008.

 

provided, that the Facility Agents shall return to the Disbursing Agent any Plan Distributions held on account of any MAG Revolver Claims, Mirant “C” Facility Claims, Mirant 364-day Revolver Claims and Mirant 4-year Revolver Claims as to which the requirements of Section 10.11 hereof are not satisfied by the first anniversary of the Effective Date.

 

(f)            Cure Payments in Respect of MAG Long-term Notes.  All payments required to be made pursuant to Section 5.2(g) by the Distribution Date to holders of Allowed MAG Long-term Note Claims in order to satisfy the requirements of section 1124(2)(A)-(C) of the Bankruptcy Code to reinstate the maturities of the MAG Long-term Notes shall be made to the indenture trustee under the MAG Indenture in complete satisfaction of all such obligations.  All rights and obligations under the MAG Indenture with respect to the MAG Long-term Notes shall remain in full force and effect from and after the Effective Date.

 

(g)           Enforcement of Rights of Old Indenture Trustees.  The rights, liens, and claims of the Old Indenture Trustees under the Old Indentures with respect to the collection of their fees and expenses from the holders of MAG Short-term Debt Claims, MAG Long-term Note Claims and Mirant Debt Claims or from Plan Distributions made on account of such Claims shall survive confirmation of the Plan and may be fully enforced by the Old Indenture Trustees.  All distributions to the Old Indenture Trustees on behalf of the holders of Allowed MAG Short-term Debt Claims, MAG Long-term Note Claims and Mirant Debt Claims shall be applied by the Old Indenture Trustees as provided by the Old Indentures.

 

(h)           Enforcement of Rights of Facility Agents.  The rights, liens, and claims of the Facility Agents with respect to the collection of their fees and expenses from the holders of MAG Revolver Claims, Mirant “C” Facility Claims, Mirant 364-day Revolver Claims and Mirant 4-year Revolver Claims or from Plan Distributions made on account of such Claims shall survive confirmation of the Plan and may be fully enforced by the Facility Agents.  All distributions to the Facility Agents on behalf of the holders of MAG

 

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provided, that the Facility Agents shall return to the Disbursing Agent any Plan Distributions held on account of any MAG Revolver Claims, Mirant “C” Facility Claims, Mirant 364-day Revolver Claims and Mirant 4-year Revolver Claims as to which the requirements of Section 10.11 of the Plan are not satisfied by the first anniversary of the Effective Date.

 

f.              Cure Payments in Respect of MAG Long-term Notes.

 

All payments required to be made pursuant to Section 5.2(g) of the Plan by the Distribution Date to holders of Allowed MAG Long-term Note Claims in order to satisfy the requirements of section 1124(2)(A)-(C) of the Bankruptcy Code to reinstate the maturities of the MAG Long-term Notes shall be made to the indenture trustee under the MAG Indenture in complete satisfaction of all such obligations.  All rights and obligations under the MAG Indenture with respect to the MAG Long-term Notes shall remain in full force and effect from and after the Effective Date.

 

g.             Enforcement of Rights of Old Indenture Trustees.

 

The rights, liens, and claims of the Old Indenture Trustees under the Old Indentures with respect to the collection of their fees and expenses from the holders of MAG Short-term Debt Claims, MAG Long-term Note Claims and Mirant Debt Claims or from Plan Distributions made on account of such Claims shall survive confirmation of the Plan and may be fully enforced by the Old Indenture Trustees.  All distributions to the Old Indenture Trustees on behalf of the holders of Allowed MAG Short-term Debt Claims, MAG Long-term Note Claims and Mirant Debt Claims shall be applied by the Old Indenture Trustees as provided by the Old Indentures.

 

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h.             Enforcement of Rights of Facility Agents.

 

The rights, liens, and claims of the Facility Agents under the Old Indentures with respect to the collection of their fees and expenses from the holders of MAG Revolver Claims, Mirant “C” Facility Claims, Mirant 364-day Revolver Claims and Mirant 4-year Revolver Claims or from Plan Distributions made on account of such Claims shall survive confirmation of the Plan and may be fully enforced by the Facility Agents.  All distributions to the Facility Agents on behalf of the holders of MAG Revolver Claims, Mirant “C” Facility Claims, Mirant 364-day Revolver Claims and Mirant 4-year Revolver Claims shall be applied by the Facility Agents as provided by the Old Indentures.

 

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