Exhibit 10.101
AMENDMENT THREE
AMENDMENT THREE (this "AMENDMENT") dated as of August 17, 2000 by and
among, (i) ▇▇▇▇▇▇▇ HOLDINGS EME, LLC ("▇▇▇▇▇▇▇ HOLDINGS"), (ii) ▇▇▇▇▇▇▇ TRUST I,
as the Owner Lessor, (iii) WILMINGTON TRUST COMPANY, as the Owner Trustee, (iv)
▇▇▇▇▇▇▇ GENERATION I, LLC, as the Owner Participant, (v) EDISON MISSION MIDWEST
HOLDING CO. ("HOLDINGS"), (vi) MIDWEST GENERATION, LLC ("MIDWEST"), (vii)
MIDWEST FUNDING LLC ("FUNDING LLC"), (viii) BAYERISCHE LANDESBANK INTERNATIONAL
S.A., as the Midwest LC Issuer, (ix) BAYERISCHE LANDESBANK GIROZENTRALE, as the
RCE LC Issuer and (x) CITIBANK, N.A., as Holder Representative.
WHEREAS, ▇▇▇▇▇▇▇ Holdings, the Owner Lessor, Owner Trustee,
the Owner Participant, Holdings, Midwest, Funding LLC, the Midwest LC Issuer,
the RCE LC Issuer and the Holder Representative have entered into that certain
Participation Agreement (T1), dated as of December 15, 1999 (as heretofore
amended, modified and supplemented, the "PARTICIPATION AGREEMENT"), which set
forth, INTER ALIA, certain covenants of Holdings;
WHEREAS, Midwest desires to enter into the Powerton/Joliet
Lease Transaction (as defined herein); and
WHEREAS, Midwest has requested, and ▇▇▇▇▇▇▇ Holdings, the
Owner Lessor, Owner Trustee, Owner Participant, Holdings, Funding LLC, the
Midwest LC Issuer, the RCE LC Issuer and the Holder Representative have agreed,
to amend and waive certain provisions of the Participation Agreement so as to
permit the Powerton/Joliet Lease Transaction;
WHEREAS, the parties hereto are willing to permit Midwest to
enter into the Powerton/Joliet Lease Transaction on the terms and conditions of
this Amendment;
WHEREAS, Midwest and ComEd have entered into Amendment No. 1
To The Power Purchase Agreement dated as of December 15, 1999 attached as
Exhibit C, (the "Amendment No.1 to the ▇▇▇▇▇▇▇ PPA") in order to provide gas
price
AMENDMENT THREE TO PARTICIPATION AGREEMENT (T1)
protection to Midwest and an adjustment to the maximum power purchase require-
ment of ComEd in connection with Midwest's sale of energy from the Facility;
WHEREAS, the consent of the Owner Lessor, Funding LLC and the
Holder Representative is a condition to the execution and delivery of the
Amendment No.1 to the ▇▇▇▇▇▇▇ PPA, Midwest has requested and the Lenders party
hereto consent to Midwest's execution and delivery of Amendment No.1 to the
▇▇▇▇▇▇▇ PPA;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined in this
Amendment, terms defined in the Participation Agreement are used herein (and in
the introductions and recitals hereto) as defined therein.
Section 2. AMENDMENT TO THE PARTICIPATION AGREEMENT. Subject
to the satisfaction of the conditions precedent specified in Section 5 below,
but effective as of the Amendment Effective Date, the Participation Agreement
shall be amended as follows:
(a) APPENDIX A to the Participation Agreement shall be amended by
adding the following definitions:
""COMED JOLIET LEASE CONSENT I" means the Consent to Sale of
Assets between Midwest, ComEd and Joliet Trust I referred to
in the Joliet Lease Operative Documents.
"COMED JOLIET LEASE CONSENT II" means the Consent to Sale of
Assets between Midwest, ComEd and Joliet Trust II referred to
in the Joliet Lease Operative Documents.
"COMED POWERTON LEASE CONSENT I" means the Consent to Sale of
Assets between Midwest, ComEd and Powerton Trust I referred to
in the Powerton Lease Operative Documents.
"COMED POWERTON LEASE CONSENT II" means the Consent to Sale of
Assets between Midwest, ComEd and Powerton Trust II referred
to in the Powerton Lease Operative Documents.
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"COMED POWERTON/JOLIET LEASE CONSENTS" means, collectively,
ComEd Joliet Lease Consent I, ComEd Joliet Lease Consent II,
ComEd Powerton Lease Consent I and ComEd Powerton Lease
Consent II.
"JOLIET EQUITY FINANCING PARTIES I" means, collectively, the
Equity Investor, the Owner Participant and the OP Guarantor
(each defined in the Joliet Lease Participation Agreement
(T1)).
"JOLIET EQUITY FINANCING PARTIES II" means, collectively, the
Equity Investor, the Owner Participant and the OP Guarantor
(each as defined in the Joliet Lease Participation Agreement
(T2)).
"JOLIET FACILITY" means the Joliet Station, Units 7 and 8,
1044 megawatts of the 1358 megawatt coal-fired electric
generating facility and certain related assets located in Will
County, Illinois and more fully described in Exhibit B to each
of Joliet Leases.
"JOLIET GUARANTEE (T1)" means the Guaranty Agreement dated as
of August 17, 2000 made by Edison Mission Energy in favor of
Joliet Trust I that, among other things, guarantees the
payment by Midwest of all Joliet Lease Liabilities (T1)
payable to Joliet Trust I.
"JOLIET GUARANTEE (T2)" means the Guaranty Agreement dated as
of August 17, 2000 made by Edison Mission Energy in favor of
Joliet Trust II that, among other things, guarantees the
payment by Midwest of all Joliet Lease Liabilities (T2)
payable to Joliet Trust II.
"JOLIET GUARANTEE (T1: EQUITY FINANCING PARTIES)" means the
Guaranty Agreement dated as of August 17, 2000 made by Edison
Mission Energy in favor of the Joliet Equity Financing Parties
I that, among other things, guarantees the payment by Midwest
of certain Joliet Lease Liabilities (T1) payable to Joliet
Lease Financing Parties I.
"JOLIET GUARANTEE (T2: EQUITY FINANCING PARTIES)" means the
Guaranty Agreement dated as of August 17, 2000 made by Edison
Mission Energy in favor of the Joliet Equity Financing Parties
II that, among
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other things, guarantees the payment by Midwest of certain
Joliet Lease Liabilities (T2) payable to Joliet Lease
Financing Parties II.
"JOLIET GUARANTEES" means, collectively, the Joliet Guarantee
(T1), the Joliet Guarantee (T2), the Joliet Guarantee (T1:
Equity Financing Parties), the Joliet Guarantee (T2: Equity
Financing Parties), the Joliet Reimbursement Agreement (T1)
and the Joliet Reimbursement Agreement (T2).
"JOLIET INTERCOMPANY NOTE PLEDGE AGREEMENT (T1)" means the
Pledge Agreement (T1) dated as of August 17, 2000 between
Midwest and the Holdings Collateral Agent relating to the
pledge of the Joliet Lease Intercompany Note (T1).
"JOLIET INTERCOMPANY NOTE PLEDGE AGREEMENT (T2)" means the
Pledge Agreement (T2) dated as of August 17, 2000 between
Midwest and the Holdings Collateral Agent relating to the
pledge of the Joliet Lease Intercompany Note (T2).
"JOLIET LEASE (T1)" means the Facility Lease Agreement (T1)
dated as of August 17, 2000 between Midwest and Joliet Trust
I.
"JOLIET LEASE (T2)" means the Facility Lease Agreement (T2)
dated as of August 17, 2000 between Midwest and Joliet Trust
II.
"JOLIET LEASE INTERCOMPANY NOTE (T1)" means the EME Note (as
defined in the Joliet Lease Participation Agreement (T1))
dated the Closing Date (as defined in the Joliet Lease
Participation Agreement (T1)) evidencing the loan by Midwest
to Edison Mission Energy of the proceeds of the Joliet Lease
Transaction (T1).
"JOLIET LEASE INTERCOMPANY NOTE (T2)" means the EME Note (as
defined in the Joliet Lease Participation Agreement (T2))
dated the Closing Date (as defined in the Joliet Lease
Participation Agreement (T2)) evidencing the loan by Midwest
to Edison Mission Energy of the proceeds of the Joliet Lease
Transaction (T2).
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"JOLIET LEASE INTERCOMPANY NOTES" means, collectively, the
Joliet Lease Intercompany Note (T1) and the Joliet
Intercompany Note (T2).
"JOLIET LEASE LIABILITIES" means, collectively, the Joliet
Lease Liabilities (T1) and the Joliet Lease Liabilities (T2).
"JOLIET LEASE LIABILITIES (T1)" mean the basic rent, the
supplemental rent, termination value or any other amount,
liability or obligation that Midwest is obligated to pay under
the Joliet Lease (T1) or the other Joliet Lease Operative
Documents (T1).
"JOLIET LEASE LIABILITIES (T2)" mean the basic rent, the
supplemental rent, termination value or any other amount,
liability or obligation that Midwest is obligated to pay under
the Joliet Leases (T2) or the other Joliet Lease Operative
Documents (T2).
"JOLIET LEASE OPERATIVE DOCUMENTS" means, collectively, the
Joliet Lease Operative Documents (T1) and the Joliet Lease
Operative Documents (T2).
"JOLIET LEASE OPERATIVE DOCUMENTS (T1)" means, collectively,
the Operative Documents as defined in the Joliet Lease
Participation Agreement (T1).
"JOLIET LEASE OPERATIVE DOCUMENTS (T2)" means, collectively,
the Operative Documents as defined in the Joliet Lease
Participation Agreement (T2).
"JOLIET LEASE PARTICIPATION AGREEMENT (T1)" means the
Participation Agreement (T1) dated as of August 17, 2000 by
and among Midwest, Edison Mission Energy, Joliet Trust I,
Wilmington Trust Company, Joliet Generation I, the Lease
Indenture Trustee named therein and the Pass Through Trustees
named therein.
"JOLIET LEASE PARTICIPATION AGREEMENT (T2)" means the
Participation Agreement (T2) dated as of August 17, 2000 by
and among Midwest, Edison Mission Energy, Joliet Trust II,
Wilmington Trust Company,
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Joliet Generation II, the Lease Indenture Trustee named
therein and the Pass Through Trustees named therein.
"JOLIET LEASE PARTICIPATION AGREEMENTS" means, collectively,
the Joliet Lease Participation Agreement (T1) and the Joliet
Lease Participation Agreement (T2).
"JOLIET LEASE TRANSACTION (T1)" means the transactions
pursuant to the Joliet Lease Participation Agreement (T1) and
the Joliet Lease Operative Documents (T1) whereby Midwest
sells a 63.6% undivided interest in the Joliet Facility to
Joliet Trust I and Joliet Trust I leases such undivided
interest to Midwest pursuant to the Joliet Lease (T1).
"JOLIET LEASE TRANSACTION (T2)" means the transactions
pursuant to the Joliet Lease Participation Agreement (T2) and
the Joliet Lease Operative Documents (T2) whereby Midwest
sells a 36.4% undivided interest in the Joliet Facility to
Joliet Trust II and Joliet Trust II leases such undivided
interest to Midwest pursuant to the Joliet Lease (T2).
"JOLIET LEASE TRANSACTIONS" means, collectively, the Joliet
Lease Transaction (T1) and the Joliet Lease Transaction (T2).
"JOLIET LEASE TRUSTS" means, collectively, Joliet Trust I and
Joliet Trust II.
"JOLIET LEASES" means, collectively, the Joliet Lease (T1) and
Joliet Lease (T2).
"JOLIET REIMBURSEMENT AGREEMENT (T1)" means the Reimbursement
Agreement (T1) dated as of August 17, 2000 between Edison
Mission Energy and Midwest.
"JOLIET REIMBURSEMENT AGREEMENT (T2)" means the Reimbursement
Agreement (T2) dated as of August 17, 2000 between Edison
Mission Energy and Midwest.
"JOLIET SUBORDINATION AGREEMENT (T1)" means the Subordination
Agreement dated as of August 17, 2000 between Joliet Trust I,
the
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Owner Participant (as defined in the Joliet Participation
Agreement (T1)), the Lease Indenture Trustee (as defined in
the Joliet Participation Agreement (T1)) and the Holdings
Collateral Agent.
"JOLIET SUBORDINATION AGREEMENT (T2)" means the Subordination
Agreement dated as of August 17, 2000 between Joliet Trust II,
the Owner Participant (as defined in the Joliet Participation
Agreement (T2)), the Lease Indenture Trustee (as defined in
the Joliet Participation Agreement (T2)) and the Holdings
Collateral Agent.
"JOLIET TRUST I" means Joliet Trust I, a Delaware business
trust.
"JOLIET TRUST II" means Joliet Trust II, a Delaware business
trust.
"POWERTON EQUITY FINANCING PARTIES I" means, collectively, the
Equity Investor, the Owner Participant and the OP Guarantor
(each as defined in the Powerton Lease Participation Agreement
(T1)).
"POWERTON EQUITY FINANCING PARTIES II" means, collectively,
the Equity Investor, the Owner Participant and the OP
Guarantor (each as defined in the Powerton Lease Participation
Agreement (T2))
"POWERTON FACILITY" means the Powerton Station, 1,538 Megawatt
Coal Fired Electric Generating Plant and certain related
assets located in Tazewell County, Illinois and more fully
described in Exhibit B to each of Powerton Leases.
"POWERTON GUARANTEE (T1)" means the Guaranty Agreement dated
as of August 17, 2000 made by Edison Mission Energy in favor
of Powerton Trust I that, among other things, guarantees the
payment by Midwest of all Powerton Lease Liabilities (T1)
payable to Powerton Trust I.
"POWERTON GUARANTEE (T2)" means the Guaranty Agreement dated
as of August 17, 2000 made by Edison Mission Energy in favor
of Powerton Trust II that, among other things, guarantees the
payment by Midwest of all Powerton Lease Liabilities (T2)
payable to Powerton Trust II.
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"POWERTON GUARANTEE (T1: EQUITY FINANCING PARTIES)" means the
Guaranty Agreement dated as of August 17, 2000 made by Edison
Mission Energy in favor of the Powerton Equity Financing
Parties I that, among other things, guarantees the payment by
Midwest of certain Powerton Lease Liabilities (T1) payable to
Powerton Equity
Financing Parties I.
"POWERTON GUARANTEE (T2: EQUITY FINANCING PARTIES)" means the
Guaranty Agreement dated as of August 17, 2000 made by Edison
Mission Energy in favor of the Powerton Equity Financing
Parties II that, among other things, guarantees the payment by
Midwest of certain Powerton Lease Liabilities (T2) payable to
Powerton Equity
Financing Parties II.
"POWERTON GUARANTEES" means, collectively, the Powerton
Guarantee (T1), the Powerton Guarantee (T2), the Powerton
Guarantee (T1: Equity Financing Parties), the Powerton
Guarantee (T2: Equity Financing Parties), the Powerton
Reimbursement Agreement (T1) and the Powerton Reimbursement
Agreement (T2).
"POWERTON INTERCOMPANY NOTE PLEDGE AGREEMENT (T1)" means the
Pledge Agreement (T1) dated as of August 17, 2000 among
Midwest and the Holdings Collateral Agent relating to the
pledge of the Powerton Lease Intercompany Note (T1).
"POWERTON INTERCOMPANY NOTE PLEDGE AGREEMENT (T2)" means the
Pledge Agreement (T2) dated as of August 17, 2000 among
Midwest and the Holdings Collateral Agent relating to the
pledge of the Powerton Lease Intercompany Note (T2).
"POWERTON LEASE (T1)" means the Facility Lease Agreement (T1)
dated as of August 17, 2000 between Midwest and Powerton Trust
I.
"POWERTON LEASE (T2)" means the Facility Lease Agreement (T2)
dated as of August 17, 2000 between Midwest and Powerton Trust
II.
"POWERTON LEASE INTERCOMPANY NOTE (T1)" means the EME Note (as
defined in the Powerton Lease Participation Agreement (T1))
dated
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the Closing Date (as defined in the Powerton Lease
Participation Agreement (T1)) evidencing the loan by Midwest
to Edison Mission Energy of the proceeds of the Powerton Lease
Transaction (T1).
"POWERTON LEASE INTERCOMPANY NOTE (T2)" means the EME Note (as
defined in the Powerton Lease Participation Agreement (T2))
dated the Closing Date (as defined in the Powerton Lease
Participation Agreement (T2)) evidencing the loan by Midwest
to Edison Mission Energy of the proceeds of the Powerton Lease
Transaction (T2).
"POWERTON LEASE INTERCOMPANY NOTES" means, collectively, the
Powerton Lease Intercompany Note (T1) and the Powerton Lease
Intercompany Note (T2).
"POWERTON LEASE LIABILITIES" means, collectively, the Powerton
Lease Liabilities (T1) and the Powerton Lease Liabilities
(T2).
"POWERTON LEASE LIABILITIES (T1)" mean the basic rent, the
supplemental rent, termination value or any other amount,
liability or obligation that Midwest is obligated to pay
under the Powerton Lease (T1) or the other Powerton Lease
Operative Documents (T1).
"POWERTON LEASE LIABILITIES(T2)" mean the basic rent, the
supplemental rent, termination value or any other amount,
liability or obligation that Midwest is obligated to pay under
the Powerton Leases (T2) or the other Powerton Lease Operative
Documents (T2).
"POWERTON LEASE OPERATIVE DOCUMENTS" means, collectively, the
Powerton Lease Operative Documents (T1) and the Powerton Lease
Operative Documents (T2).
"POWERTON LEASE OPERATIVE DOCUMENTS (T1)" means, collectively,
the Operative Documents as defined in the Powerton Lease
Participation Agreement (T1).
"POWERTON LEASE OPERATIVE DOCUMENTS (T2)" means, collectively,
the Operative Documents as defined in the Powerton Lease
Participation Agreement (T2).
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"POWERTON LEASE PARTICIPATION AGREEMENT (T1)" means the
Participation Agreement (T1) dated as of August 17, 2000 by
and among Midwest, Edison Mission Energy, Powerton Trust I,
Wilmington Trust Company, Powerton Generation I, the Lease
Indenture Trustee named therein and the Pass Through Trustees
named therein.
"POWERTON LEASE PARTICIPATION AGREEMENT (T2)" means the
Participation Agreement (T2) dated as of August 17, 2000 by
and among Midwest, Edison Mission Energy, Powerton Trust II,
Wilmington Trust Company, Powerton Generation II, the Lease
Indenture Trustee named therein and the Pass Through Trustees
named therein.
"POWERTON LEASE PARTICIPATION AGREEMENTS" means, collectively,
the Powerton Lease Participation Agreement (T1) and the
Powerton Lease Participation Agreement (T2).
"POWERTON LEASE TRANSACTION (T1)" means the transactions
pursuant to the Powerton Lease Participation Agreement (T1)
and the Powerton Lease Operative Documents (T1) whereby
Midwest sells a 63.6% undivided interest in the Powerton
Facility to Powerton Trust I and Powerton Trust I leases such
undivided interest to Midwest pursuant to the Powerton Lease
(T1).
"POWERTON LEASE TRANSACTION (T2)" means the transactions
pursuant to the Powerton Lease Participation Agreement (T2)
and the Powerton Lease Operative Documents (T2) whereby
Midwest sells a 36.4% undivided interest in the Powerton
Facility to Powerton Trust II and Powerton Trust II leases
such undivided interest to Midwest pursuant to the Powerton
Lease (T2).
"POWERTON LEASE TRANSACTIONS" means, collectively, the
Powerton Lease Transaction (T1) and the Powerton Lease
Transaction (T2).
"POWERTON LEASE TRUSTS" means, collectively, Powerton Trust I
and Powerton Trust II.
"POWERTON LEASES" means, collectively, the Powerton Lease (T1)
and Powerton Lease (T2).
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"▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ AGREEMENT (T1)" means the
Reimbursement Agreement (T1) dated as of August 17, 2000
between Edison Mission Energy and Midwest.
"POWERTON REIMBURSEMENT AGREEMENT (T2)" means the
Reimbursement Agreement (T2) dated as of August 17, 2000
between Edison Mission Energy and Midwest.
"POWERTON SUBORDINATION AGREEMENT (T1)" means the
Subordination Agreement dated as of August 17, 2000 between
Powerton Trust I, the Owner Participant (as defined in the
Powerton Participation Agreement (T1)), the Lease Indenture
Trustee (as defined in the Powerton Participation Agreement
(T1)) and the Holdings Collateral Agent.
"POWERTON SUBORDINATION AGREEMENT (T2)" means the
Subordination Agreement dated as of August 17, 2000 between
Powerton Trust II, the Owner Participant (as defined in the
Powerton Participation Agreement (T2)), the Lease Indenture
Trustee (as defined in the Powerton Participation Agreement
(T2)) and the Holdings Collateral Agent.
"POWERTON TRUST I" means Powerton Trust I, a Delaware business
trust.
"POWERTON TRUST II" means Powerton Trust II, a Delaware
business trust.
"POWERTON/JOLIET INTERCOMPANY NOTE PLEDGE AGREEMENT" means,
collectively, the Powerton Intercompany Note Pledge Agreement
(T1), the Powerton Intercompany Note Pledge Agreement (T2),
the Joliet Intercompany Note Pledge Agreement (T1) and the
Joliet Intercompany Note Pledge Agreement (T2).
"POWERTON/JOLIET LEASE ASSETS" means, collectively, the
Powerton Facility and the Joliet Facility.
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"POWERTON/JOLIET LEASE GUARANTEES" means, collectively, the
Powerton Guarantees and the Joliet Guarantees.
"POWERTON/JOLIET LEASE INTERCOMPANY NOTES" means,
collectively, the Powerton Lease Intercompany Notes and the
Joliet Lease Intercompany Notes.
"POWERTON/JOLIET LEASE INTERCOMPANY NOTE PAYMENTS" mean the
payments by Edison Mission Energy to Midwest under or in
respect of the Powerton/Joliet Lease Intercompany Notes.
"POWERTON/JOLIET LEASE LIABILITIES" means, collectively, the
Powerton Lease Liabilities and the Joliet Lease Liabilities.
"POWERTON/JOLIET LEASE OPERATIVE DOCUMENTS" means,
collectively, the Powerton Lease Operative Documents and the
Joliet Lease Operative Documents.
"POWERTON/JOLIET LEASE PARTICIPATION AGREEMENTS" means,
collectively, the Powerton Lease Participation Agreement (T1),
Powerton Lease Participation Agreement (T2), Joliet Lease
Participation Agreement (T1) and Joliet Lease Participation
Agreement (T2).
"POWERTON/JOLIET LEASE TRANSACTION" means, collectively, the
Powerton Lease Transaction and the Joliet Lease Transaction.
"POWERTON/JOLIET LEASES" means, collectively, Powerton Leases
and Joliet Leases.
"POWERTON/JOLIET SUBORDINATION AGREEMENTS" means,
collectively, the Powerton Subordination Agreement (T1), the
Powerton Subordination Agreement (T2), the Joliet
Subordination Agreement (T1) and the Joliet Subordination
Agreement (T2).
"POWERTON/JOLIET LEASE TRUSTS" means, collectively, the
Powerton Lease Trusts and the Joliet Lease Trusts.".
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(b) APPENDIX A of the Participation Agreement shall be further amended
by deleting the definitions of "CASH FLOW AVAILABLE FOR FIXED CHARGES", "DEBT TO
CAPITAL RATIO", "FIXED CHARGES", "OPERATING EXPENSES" and "SECURITY DOCUMENTS"
in their entirety and replacing them with the following definitions:
""CASHFLOW AVAILABLE FOR FIXED CHARGES" means, in respect of
any period, the excess, if any, of Revenues (excluding (i)
proceeds of any permitted asset sale, (ii) amounts available
in the Cashflow Recapture Fund, (iii) Synthetic Lease
Intercompany Note Payments and (iv) Powerton/Joliet
Intercompany Note Payments) during such period OVER Operating
Expenses during such period.
"DEBT TO CAPITAL RATIO" means, with respect to Holdings and
its Consolidated Subsidiaries, the ratio as of the end of the
last Fiscal Quarter for which financial statements referred to
in SECTION 7.1 are available of (i) the aggregate principal
amount of Indebtedness of Holdings and its Consolidated
Subsidiaries (other than Indebtedness of Holdings incurred
pursuant to SECTION 8.1(b)(iii), SECTION 8.1(b)(iv) and
SECTION 8.1(i) then outstanding to (ii) Total Capitalization
(excluding, to the extent included, the Synthetic Lease
Intercompany Note, payments by Edison Mission Energy pursuant
to the Synthetic Lease Guarantee, the Powerton/Joliet
Intercompany Notes and payments by Edison Mission Energy
pursuant to the Powerton/Joliet Guarantees).
"FIXED CHARGES" means, in respect of any period, an amount
equal to the aggregate of, without duplication, (i) all
interest due and payable on the Loans PLUS or MINUS any net
amount due and payable in respect of Interest Rate Hedging
Transactions during such period, including (A) all capitalized
interest and (B) the interest portion of any deferred payment
obligation, (ii) amounts due and payable under SECTIONS 3.3.1
and 3.3.2 of the Holdings Credit Agreement during such period,
(iii) amounts due and payable to the Lenders with respect to
the deduction of withholding tax on such payments pursuant to
SECTION 4.7 of the Holdings Credit Agreement during such
period, (iv) the interest portion of any deferred payment
obligation due and payable during such period, (v) the
aggregate amount of the Lease Obligations due and payable
during such period, and (vi) all other amounts due
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and payable by the Loan Parties with respect to Indebtedness
(other than Designated Lease Liabilities, Synthetic Lease
Liabilities and Powerton/Joliet Lease Liabilities) permitted
under SECTION 8.1 during such period.
"OPERATING EXPENSES" means, in respect of any period, all cash
amounts paid by the Holdings Loan Parties in the conduct of
their business during such period, including premiums for
insurance policies, fuel supply and transportation costs,
utilities, costs of maintaining, renewing and amending
Governmental Approvals, franchise, licensing, property, real
estate and income taxes, sales and excise taxes, general and
administrative expenses, employee salaries, wages and other
employment-related costs, business management and
administrative services fees, fees for letters of credit,
surety bonds and performance bonds, Necessary Capital
Expenditures and all other fees and expenses necessary for the
continued operation and maintenance of the Generating Assets
and the conduct of the business of the Holdings Loan Parties.
Operating Expenses shall exclude (to the extent included)
Lease Obligations, Synthetic Lease Liabilities (other than
payments of Synthetic Lease Environmental Indemnity
Obligations) and Powerton/Joliet Lease Liabilities and shall
include (to the extent excluded) Designated Lease Liabilities
(other than Lease Obligations).
"SECURITY DOCUMENTS" means (i) the Collateral Agency and
Intercreditor Agreement, (ii) the Holdings Guarantee, (iii)
each Pledge Agreement, (iv) the Powerton/Joliet Intercompany
Note Pledge Agreements, (v) the Powerton/Joliet Subordination
Agreements and (vi) any other agreement or instrument
hereafter entered into by Holdings or any other Person which,
directly or indirectly, guarantees or secures payment of the
indebtedness evidenced by the Notes or payment or performance
of any other obligation.".
(c) SECTION 7 of the Participation Agreement shall be amended by adding
Section 7.7 as follows:
"SECTION 7.7 POWERTON/JOLIET INTERCOMPANY NOTES. As soon as
possible after the end of each Fiscal Quarter, Holdings shall
provide
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to the Holder Representative an Officer's Certificate stating
the outstanding principal amounts of each of the
Powerton/Joliet Intercompany Notes and a statement of
transactions reconciling such amounts to the previous Fiscal
Quarter end.".
(d) SECTION 8.1(b) of the Participation Agreement shall be amended by
deleting Section 8.1(b) of the Participation Agreement and replacing it in its
entirety with the following:
"(b)(i) Capitalized Lease Liabilities and Operating Lease
Liabilities outstanding (or anticipated to be outstanding) on
the Closing Date and set forth on SCHEDULE 8.2.1(a) to the
Holdings Credit Agreement, (ii) Capitalized Lease Liabilities
and Operating Lease Liabilities entered into after the Closing
Date in the ordinary course of business not to exceed at any
time an aggregate principal amount equal to $50,000,000, (iii)
Synthetic Lease Liabilities and (iv) Powerton/Joliet Lease
Liabilities;".
(e) SECTION 8.2 of the Participation Agreement shall be amended by (i)
deleting SECTION 8.2(n) of the Participation Agreement and replacing it in its
entirety with the following:
"(n) Liens created pursuant to the Synthetic Lease Basic
Documents, Powerton/Joliet Lease Operative Documents and the
Powerton/Joliet Intercompany Note Pledge Agreement.".
(f) SECTION 8.4 of the Participation Agreement shall be amended by
deleting SECTION 8.4(iv) and SECTION 8.4(v) of the Participation Agreement and
replacing them in their entirety with the following subsections:
"(iv) transfer certain railcars or rights to railcars as part
of the Transco Transaction, (v) sell Synthetic Lease Assets to
Synthetic Lease Trust pursuant to the Synthetic Lease Basic
Documents and (vi) sell the Powerton/Joliet Assets and lease
the associated Ground Interests (as defined in the
Powerton/Joliet Operative Documents) to the Powerton/Joliet
Lease Trusts pursuant to the Powerton/Joliet Lease Operative
Documents; PROVIDED, FURTHER, that any Asset Disposition
pursuant to CLAUSES (i), (ii), (iii), (iv), (v) and (vi) of
this proviso shall
-15-
not be included in the calculation of the aggregate net book
value of assets sold pursuant to this SECTION 8.4.".
(g) SECTION 8.5 of the Participation Agreement shall be amended by
deleting SECTION 8.5(v) of the Participation Agreement and replacing it in its
entirety with the following:
"(v) Investments evidenced by the Synthetic Lease
Intercompany Note and the Powerton/Joliet Lease Intercompany
Notes.".
(h) SECTION 8.6 of the Participation Agreement shall be amended by
deleting the last sentence and replacing it with the following sentence:
"Notwithstanding the foregoing, the Synthetic Lease
Transaction, the transactions contemplated by the Synthetic
Lease Basic Documents, the Powerton/Joliet Lease Transaction
and the transactions contemplated by the Powerton/Joliet
Lease Operative Documents shall be deemed not to be a
Transaction with an Affiliate for the purposes of this SECTION
8.6.".
(i) SECTION 8.12 of the Participation Agreement shall be amended by
deleting the last sentence and replacing it with the following sentence:
"Notwithstanding the foregoing, so long as no Event of Loss or
Lease Event of Default shall have occurred and be continuing,
Holdings or its Subsidiaries may make a Restricted Payment to
Edison Mission Energy on or within 30 days after the date (A)
any Powerton/Joliet Lease Intercompany Note Payment is
received by Midwest in an amount not exceeding such
Powerton/Joliet Lease Intercompany Note Payment (to the extent
that the same was not included in any Restricted Payment
theretofore made in accordance with this SECTION 8.12 or used
to pay Powerton/Joliet Lease Liabilities) and (B) any
Synthetic Lease Intercompany Note Payment is received by
Midwest in an amount not exceeding such Synthetic Lease
Intercompany Note Payment (to the extent that the same was not
included in any Restricted Payment theretofore made in
accordance with this SECTION 8.12); PROVIDED that, in the
event that Midwest pays Incremental Synthetic Lease
Environmental Indemnity Payments, the aggregate
-16-
amount of Restricted Payments payable in accordance with this
sentence (but not otherwise in accordance with this SECTION
8.12) shall be reduced by a like amount.".
(j) SECTION 8 of the Participation Agreement shall be amended by adding
SECTION 8.14 to the Participation Agreement as follows:
"SECTION 8.14 POWERTON/JOLIET LEASE OPERATIVE DOCUMENTS.
Holdings shall not, and shall not permit any of its Sub-
sidiaries, to agree or consent to any termination, amendment,
modification or waiver of (a) Section 18.19 of each of the
Powerton/Joliet Lease Participation Agreements, (b) the
definition of "Free Cashflow" set forth in the Powerton/Joliet
Lease Operative Documents, (c) the Powerton/Joliet Lease
Intercompany Notes or (d) or any other provision of the
Powerton/Joliet Lease Operative Documents that increases or is
reasonably likely to increase the liability, or the
obligations, of Midwest (or decreases or is reasonably likely
to decrease the liability, or the obligations, of Edison
Mission Energy) with respect to the Powerton/Joliet Lease
Operative Documents in any material respect.".
Section 3. AUTHORIZATION OF AMENDMENT OF FACILITY LEASE AND FACILITY
SUBLEASE.
(a) ▇▇▇▇▇▇▇ Holdings, the Owner Lessor, the Owner Participant and the
Holder Representative hereby authorize amendments to that certain Facility Lease
Agreement (T1), dated as of December 15, 1999, by and among the Owner Lessor,
the Owner Participant and ▇▇▇▇▇▇▇ Holdings (as heretofore amended, modified and
supplemented, the "FACILITY LEASE"), substantially in the form of Exhibit A
hereto.
(b) The Holder Representative, ▇▇▇▇▇▇▇ Holdings, the Owner Participant,
the Owner Lessor and Midwest hereby authorize that the amendments to the
Facility Lease authorized by paragraph (a) of this Section 3 will effect
corresponding amendments to the terms of that certain Facility Sublease
Agreement (T1), dated as of December 15, 1999, by and among ▇▇▇▇▇▇▇ Holdings,
Midwest and the Owner Lessor (as heretofore amended, modified and supplemented,
the "FACILITY SUBLEASE").
-17-
Section 4. CONSENT/WAIVER. The Owner Lessor, Funding LLC and
the Holder Representative hereby consent to the execution and delivery by
Midwest and ComEd of Amendment No.1 to ▇▇▇▇▇▇▇ PPA.
Section 5. CONDITIONS PRECEDENT. This Amendment shall not
become effective until the date (the "AMENDMENT EFFECTIVE DATE") on which each
of the following conditions precedent have been satisfied or will be satisfied
contemporaneously with this Amendment becoming effective:
(a) Delivery to the parties hereto of this Amendment duly executed and
delivered by each other party hereto;
(b) Delivery to Owner Lessor, Owner Trustee, Owner Participant, Funding
LLC, the Midwest LC Issuer, the RCE LC Issuer and the Holder
Representative of the Powerton/Joliet Lease Operative Documents in form
and substance satisfactory to the recipients;
(c) All conditions precedent to effectuate the Powerton/Joliet Lease
Transaction have been satisfied (including delivery of the ComEd
Powerton/Joliet Lease Consents) or waived;
(d) Delivery to the Holdings Collateral Agent of (i) the
Powerton/Joliet Intercompany Note Pledge Agreement and (ii) the
Powerton/Joliet Subordination Agreements, each in form and substance
satisfactory to the recipient;
(e) The Owner Lessor, Owner Trustee, Owner Participant, Funding LLC,
the Midwest LC Issuer, the RCE LC Issuer and the Holder Representative
shall have received opinions, dated the Amendment Effective Date and
addressed to the recipients from (i) the general counsel to Holdings,
Midwest and ▇▇▇▇▇▇▇ Holdings, (ii) the special New York counsel to
Holdings, Midwest and ▇▇▇▇▇▇▇ Holdings and (iii) the special Illinois
counsel to the Loan Parties, and (iv) Federal Energy Regulatory
Commission counsel to the Holdings, Midwest and ▇▇▇▇▇▇▇ Holdings. Each
such opinion shall be in form and substance reasonably satisfactory to
the recipients;
(f) Holdings shall have received written confirmation that after giving
effect to the Powerton/Joliet Lease Transaction, no Debt Rating shall
fall below the
-18-
Debt Rating in effect prior to giving effect to the Powerton/Joliet
Lease Transaction;
(g) The representations and warranties of Holdings, Midwest and ▇▇▇▇▇▇▇
Holdings as set forth in the Participation Agreement, shall be true and
correct as of the Amendment Effective Date after giving effect to the
amendments contemplated hereby (unless stated to be given as of an
earlier date, in which case such representation and warranty shall be
true and correct only as of such earlier date);
(h) As of the Amendment Effective Date, no Lease Event of Default, or
Event of Loss or event that, with passage of time or giving of notice
or both, would constitute a Lease Event of Default or an Event of Loss,
shall have occurred and be continuing; and
(i) Contemporaneously with this Amendment becoming effective, the
Holder Representative shall have received confirmation that Edison
Mission Energy has used the proceeds of the Powerton/Joliet
Intercompany Notes to repay in full Indebtedness of Edison Mission
Energy (including, without limitation, the repayment in full of its
obligations under the Credit Agreement dated as of December 15, 1999
among Edison Mission Energy, the commercial lending institutions party
thereto and The Chase Manhattan Bank, as Administrative Agent and the
termination of related commitments).
Section 6. MISCELLANEOUS. Except as expressly amended hereby,
all of the terms and provisions of the Participation Agreement are and shall
remain in full force and effect. This Amendment may be executed in any number of
counter parts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Amendment by signing
any such counter part. This Amendment shall be governed by, and construed in
accordance with, the law of the State of New York.
-19-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective officers thereunto duly authorized.
▇▇▇▇▇▇▇ HOLDINGS EME, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Date: August 24, 2000
▇▇▇▇▇▇▇ TRUST I
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Date: August 24, 2000
WILMINGTON TRUST COMPANY,
not in its individual capacity, except
as expressly provided herein, but
solely as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Date: August 24, 2000
▇▇▇▇▇▇▇ GENERATION I, LLC
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Manager
Date: August 24, 2000
EDISON MISSION MIDWEST HOLDINGS CO.,
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Date: August 24, 2000
MIDWEST GENERATION, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Date: August 24, 2000
CITIBANK, N.A.
not in its individual capacity, but
solely as Holder Representative
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Date: August 24, 2000
MIDWEST FUNDING LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
Date: August 24, 2000
BAYERISCHE LANDESBANK INTERNATIONAL S.A.,
a banking institution organized under the
laws of Luxembourg, as issuer of the Midwest
Letter of Credit
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Head of Corporate Banking
Date: August 11, 2000
By: /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Group Head of Corporate Finance
Date: August 11, 2000
BAYERISCHE LANDESBANK GIROZENTRALE,
as issuer of the RCE Letter of Credit
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
----------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: First Vice President
Date: August 11, 2000
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Date: August 11, 2000
EXHIBIT A
FORM OF AMENDMENT TO FACILITY LEASE AGREEMENT
AMENDMENT TWO
AMENDMENT TWO (this "AMENDMENT") dated as of August __, 2000 by and
between ▇▇▇▇▇▇▇ Trust I (the "OWNER LESSOR") and ▇▇▇▇▇▇▇ Holdings EME, LLC (the
"FACILITY LESSEE").
WHEREAS, the Owner Lessor and the Facility Lessee have entered into
that certain Facility Lease Agreement (T1), dated as of December 15, 1999 (as
amended, supplemented or otherwise modified from time to time and in accordance
with the provisions thereof, the "FACILITY LEASE").
WHEREAS, the Owner Lessor, the Facility Lessee, Wilmington Trust
Company, ▇▇▇▇▇▇▇ Generation I, LLC, Edison Mission Midwest Holdings Co.,
Midwest, Midwest Funding LLC, Bayerische Landesbank International S.A.,
Bayerische Landesbank Girozentrale and Citibank, N.A. have entered into that
certain Participation Agreement, dated as of December 15, 1999 (as amended,
supplemented or otherwise modified from time to time and in accordance with the
provisions thereof, the "PARTICIPATION AGREEMENT").
WHEREAS, Midwest desires to enter into the Leveraged Lease Transaction;
WHEREAS, Midwest has requested, and the Owner Lessor and the Facility
Lessee have agreed, to amend and waive certain provisions of the Facility Lease
so as to permit the Leveraged Lease Transaction; and
WHEREAS, Midwest has requested, and the other parties to the
Participation Agreement have agreed, in that certain Amendment Three, dated as
of August __, 2000, by and among the parties to the Participation Agreement,
("AMENDMENT THREE TO THE PARTICIPATION AGREEMENT"), to amend and waive certain
provisions of the Participation Agreement so as to permit the Leveraged Lease
Transaction;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined in this Amendment,
terms defined in the Facility Lease are used herein (and in the introductions
and recitals hereto) as defined therein.
Section 2. AMENDMENT TO THE FACILITY LEASE. Subject to the satisfaction
of the conditions precedent specified in Section 3 below, but effective as of
the Amendment Effective Date, the Facility Lease shall be amended as follows:
(a) SECTION 16(h) of the Facility Lease shall be amended by inserting the
following phrase immediately after the phrase "but excluding obligations
arising under the Operative Documents" in the second line of SECTION 16(h)
of the Facility Lease:
", Synthetic Lease Liabilities, Powerton/Joliet Lease Liabilities".
(b) SECTION 16 of the Facility Lease shall be amended by adding SECTIONS
16(v), 16(w) and 16(x) to the Facility Lease as follows:
"(v) any of the Powerton/Joliet Lease Trusts (or the related Lease
Indenture Trustee (under, and as defined in the related,
Powerton/Joliet Lease Operative Documents) should have commenced to
exercise remedies in accordance with Section 17 of the Powerton/Joliet
Leases to terminate any of the Powerton/Joliet Leases and repossess any
of the Powerton/Joliet Lease Assets.
(w) Edison Mission Energy shall fail to make payment or fail to perform
its obligations under any Powerton/Joliet Lease Guarantee or any
Powerton/Joliet Lease Intercompany Note within five Business Days after
any such payment becomes due in accordance with the terms thereof or
hereof.
(x) any of the Powerton/Joliet Lease Guarantees or the Powerton/Joliet
Lease Intercompany Notes is declared unenforceable or is terminated, or
Edison Mission Energy or any Powerton/Joliet Trust shall assert that
any of the Powerton/Joliet Lease Guarantees or the Powerton/Joliet
Lease Intercompany Notes to which it is a party shall no longer be in
full force and effect.".
Section 3. CONDITIONS PRECEDENT. This Amendment shall not become
effective until the date (the "AMENDMENT EFFECTIVE DATE") on which each of the
following conditions precedent has been satisfied or will be satisfied
contemporaneously with this Amendment becoming effective:
(a) Delivery to the parties hereto of this Amendment duly executed and
delivered by each other party hereto;
(b) All conditions precedent contained in Section 4 of Amendment Three to
the Participation Agreement have been satisfied.
Section 4. MISCELLANEOUS. Except as expressly amended hereby, all of
the terms and provisions of the Facility Lease are and shall remain in
full force and effect. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Amendment
by signing any such counterpart. This Amend ment shall be governed by, and
construed in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
and delivered by their respective officers thereunto duly authorized.
▇▇▇▇▇▇▇ HOLDINGS EME, LLC
By:
----------------------------------
Name:
Title:
Date: August , 2000
▇▇▇▇▇▇▇ TRUST I
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee
By:
----------------------------------
Name:
Title:
Date: August , 2000
