Exhibit 10.29
ASSIGNMENT AGREEMENT
ASSIGNMENT, dated as of December [_], 2001, between THE
BANK OF NEW YORK (as successor to United States Trust Company), not in its
individual capacity but solely as Collateral Agent for the Owner Lessors (as
defined below), as assignee ("COLLATERAL AGENT"); EME HOMER CITY GENERATION
L.P., a Pennsylvania limited partnership, as assignor ("XXXXX CITY"); EDISON
MISSION MARKETING & TRADING, INC., a California corporation ("EMMT"), as
consenting party; and EDISON MISSION ENERGY FUEL SERVICES, INC., a California
corporation as consenting party ("EMEFS", and together with EMMT, the
"CONSENTING PARTIES").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, contemporaneously herewith, Xxxxx City will enter
into a transaction pursuant to the Participation Agreements listed on EXHIBIT A
by and among EME Homer City, each of the Owner Lessors party thereto (the "OWNER
LESSORS"), Xxxxx Fargo Bank Northwest, National Association, not in its
individual capacity but solely as Owner Manager, the Owner Participant, Xxxxx
City Funding LLC, as Lender, the Lease Indenture Trustee, the Security Agent and
The Bank of New York, not in its individual capacity but solely as Bondholder
Trustee (as amended, modified and supplemented and in effect from time to time,
collectively, the "PARTICIPATION AGREEMENTS") whereby Xxxxx City will sell
undivided interests in its generating assets to the Owner Lessors and the Owner
Lessors will lease such undivided interests in its generating assets back to
Xxxxx City under the Facility Leases. Capitalized terms used but not defined
herein shall have the meanings assigned to them in Appendix A to the
Participation Agreements.
WHEREAS, in consideration of the transactions contemplated by
the Participation Agreements, Xxxxx City will be obligated to pay to the Secured
Parties (as defined in the Amended and Restated Guarantee and Collateral
Agreement) the aggregate amount of all obligations owed by Xxxxx City to the
Secured Parties under the Operative Documents related thereto.
WHEREAS, pursuant to the Ownership and Operation Agreement,
the Collateral Agent has agreed to serve as a common collateral agent for the
Owner Lessors.
WHEREAS, it is a condition precedent to the consummation of
the transactions contemplated by the Operative Documents that Xxxxx City shall
have executed and delivered this Assignment Agreement to the Collateral Agent
for the benefit of the Owner Lessors.
WHEREAS, in consideration thereof, Xxxxx City has agreed to
assign all of its rights, title and interest in and to certain Material Project
Agreements described on EXHIBIT B hereto (the "ASSIGNED AGREEMENTS") to the
Collateral Agent acting on behalf of the Owner Lessors;
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained herein, the parties hereto agree
as follows:
1. Xxxxx City hereby unconditionally and irrevocably assigns,
transfers and conveys to Collateral Agent all of Xxxxx City's rights, title and
interests in, to and under the Assigned Agreements. Notwithstanding such assign
ment, Xxxxx City shall remain solely and exclusively liable for all duties and
obligations under or with respect to the Assigned Agreements subject to the
provi sions of Section 2 below.
2. (a) Subject to paragraphs (b) and (c) of this Section 2,
the Collateral Agent, solely on behalf of the Owner Lessors, hereby assumes and
agrees to perform, effective as of the earliest date on which all of the
Facility Leases have terminated in accordance with their respective terms (the
"LESSOR POSSESSION DATE"), all of the duties and obligations of Xxxxx City under
the Assigned Agreement incurred on or after the Lease Possession Date.
(1) (i) Prior to the Lessor Possession Date, the Collateral
Agent shall have no obligation or liability under the Assigned Agreement and
(ii) in no event shall the Collateral Agent have any liability for liabilities
accruing prior to the Lessor Possession Date.
(2) The provisions of this Section 2 notwithstanding, upon the
occurrence of the Lessor Possession Date, the Owner Lessors shall have the
option to terminate any Assigned Agreement in accordance with its terms,
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whereupon such agreement shall terminate and any and all liabilities thereunder
(including, without limitation, with respect to such termination) shall remain
the sole obligation of Xxxxx City, other than liabilities that are attributable
to the actions or omissions of the Collateral Agent or the Owner Lessors taken
in connection with such termination or this Assignment Agreement. The Owner
Lessors may exercise such option by written notice to Xxxxx City, EMEFS, and/or
EMMT, as applicable, at any time prior to the 30th day after the Lessor
Possession Date.
3. This Assignment Agreement shall remain in effect unless and
until each of the Facility Site Leases have been terminated in accordance with
their terms, whereupon each of the assignments provided for in Section 1 above
shall terminate.
4. The Consenting Parties hereby consent to the assignment of
the Assigned Agreements and approve the execution by Xxxxx City of the Assign
ment Agreement, and acknowledge that no further consents, acknowledgments, or
approvals of any kind shall be required for the effectiveness of the assignments
contemplated hereby.
5. The parties hereto expressly acknowledge and approve the
sub-assignment agreement executed by the Collateral Agent and Xxxxx City
simultaneously herewith whereby the Collateral Agent will sub-assign of all its
rights, title, and interest in the Assigned Agreements to Xxxxx City for so long
as any of the Facility Leases are in effect, such term to be extended in
accordance with the provisions governing extension of the term of the Facility
Leases, and remaining in effect unless and until all of the Facility Leases may
be terminated in accordance with their terms.
6. All of the terms of this Assignment Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, including without limitation each of the Owner Lessors.
The rights and duties of the Owner Lessors hereunder shall be determined based
upon their respective Owner Lessor's Percentages.
Notwithstanding the foregoing, in order to secure the Lessor
Notes of each Owner Lessor, such Owner Lessor will assign and grant a first
priority security interest in favor of its applicable Lease Indenture Trustee in
and to all of such Owner Lessor's right, title and interest in, to and under
this Agreement (other than to the extent relating to Excepted Payments and the
rights to enforce and collect the same). Each of the parties hereto hereby
consents to such assignment and to the creation of
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such Lien and security interest and acknowledges receipt of copies of the Lease
Indenture, it being understood that such consent shall not affect any
requirement or the absence of any requirement for any consent of such party
under any other circumstances. Unless and until the Collateral Agent shall have
received written notice from the Lease Indenture Trustee that the Lien of the
applicable Lease Indenture has been fully discharged, the applicable Security
Agent shall have the right (i) to directly receive for application in accordance
with the terms of the applicable Lease Indenture all amounts payable or
otherwise distributable under this Agreement to the applicable Owner Lessor
(other than in respect of the Excepted Payments) and (ii) to exercise the rights
of such Owner Lessor under this Agreement (other than with respect to Excepted
Payments and the rights to enforce and collect the same) to the extent set forth
in and subject to the exceptions set forth in the applicable Lease Indenture.
7. The Collateral Agent is executing this Agreement on behalf
of the Owner Lessors solely in its capacity as collateral agent under the
Ownership and Operation Agreement and not in its individual capacity and in no
case shall the Collateral Agent (or any successor entity acting as collateral
agent under the Owner ship and Operation Agreement) be personally liable for or
on account of any of the statements, representations, warranties, covenants or
obligations hereunder, all such liability, if any, being expressly waived by the
parties hereto and any Person claiming by, through, or under such party.
8. This Assignment Agreement shall be governed by and
construed in accordance with the laws of the State of New York without reference
to choice of law principles (except Section 5-1401 of the New York General
Obliga tions Law), including all matters of construction, validity and
performance.
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IN WITNESS WHEREOF, the parties have signed this Assignment
Agreement as of the date first above written.
EME HOMER CITY GENERATION L.P.
By: Mission Energy Westside, Inc.
as General Partner
By:
---------------------------------
Name:
Title:
THE BANK OF NEW YORK
not in its individual capacity, but solely as
Collateral Agent for the Owner Lessors
By:
---------------------------------
Name:
Title:
EDISON MISSION MARKETING
& TRADING, INC., a California
corporation (with respect to the Energy
Sales Agreement and NOx Agreement only)
By:
---------------------------------
Name:
Title:
EDISON MISSION ENERGY FUEL
SERVICES, INC., a California corporation
(with respect to the Fuel Supply Agreement only)
By:
---------------------------------
Name:
Title:
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EXHIBIT A
PARTICIPATION AGREEMENTS
1. The Participation Agreement dated as of December __, 2001 by and
among EME Homer City Generation, L.P., a Pennsylvania limited partnership, as
Facility Lessee; Xxxxx City OL1 LLC, a Delaware limited liability company, as
Owner Lessor; Xxxxx Fargo Bank Northwest, National Association, both in its
individual capacity and solely as Owner Manager; General Electric Capital
Corpora tion, a Delaware corporation, as Owner Participant; Xxxxx City Funding
LLC, a Delaware limited liability company, as Lender; The Bank of New York (as
successor to United States Trust Company of New York), both in its individual
capacity and solely as Lease Indenture Trustee; The Bank of New York (as
successor to United States Trust Company of New York), both in its individual
capacity and solely as Security Agent; and The Bank of New York (as successor to
United States Trust Company of New York), both in its individual capacity and
solely as Bondholder Trustee.
2. The Participation Agreement dated as of December __, 2001 by and
among EME Homer City Generation, L.P., a Pennsylvania limited partnership, as
Facility Lessee; Xxxxx City OL2 LLC, a Delaware limited liability company, as
Owner Lessor; Xxxxx Fargo Bank Northwest, National Association, both in its
individual capacity and solely as Owner Manager; General Electric Capital
Corpora tion, a Delaware corporation, as Owner Participant; Xxxxx City Funding
LLC, a Delaware limited liability company, as Lender; The Bank of New York (as
successor to United States Trust Company of New York), both in its individual
capacity and solely as Lease Indenture Trustee; The Bank of New York (as
successor to United States Trust Company of New York), both in its individual
capacity and solely as Security Agent; and The Bank of New York (as successor to
United States Trust Company of New York), both in its individual capacity and
solely as Bondholder Trustee.
3. The Participation Agreement dated as of December __, 2001 by and
among EME Homer City Generation, L.P., a Pennsylvania limited partnership, as
Facility Lessee; Xxxxx City OL3 LLC, a Delaware limited liability company, as
Owner Lessor; Xxxxx Fargo Bank Northwest, National Association, both in its
individual capacity and solely as Owner Manager; General Electric Capital
Corpora tion, a Delaware corporation, as Owner Participant; Xxxxx City Funding
LLC, a Delaware limited liability company, as Lender; The Bank of New York (as
successor to United States Trust Company of New York), both in its individual
capacity and solely as Lease Indenture Trustee; The Bank of New York (as
successor to United
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States Trust Company of New York), both in its individual capacity and solely as
Security Agent; and The Bank of New York (as successor to United States Trust
Company of New York), both in its individual capacity and solely as Bondholder
Trustee.
4. The Participation Agreement dated as of December __, 2001 by and
among EME Homer City Generation, L.P., a Pennsylvania limited partnership, as
Facility Lessee; Xxxxx City OL4 LLC, a Delaware limited liability company, as
Owner Lessor; Xxxxx Fargo Bank Northwest, National Association, both in its
individual capacity and solely as Owner Manager; General Electric Capital
Corpora tion, a Delaware corporation, as Owner Participant; Xxxxx City Funding
LLC, a Delaware limited liability company, as Lender; The Bank of New York (as
successor to United States Trust Company of New York), both in its individual
capacity and solely as Lease Indenture Trustee; The Bank of New York (as
successor to United States Trust Company of New York), both in its individual
capacity and solely as Security Agent; and The Bank of New York (as successor to
United States Trust Company of New York), both in its individual capacity and
solely as Bondholder Trustee.
5. The Participation Agreement dated as of December __, 2001 by and
among EME Homer City Generation, L.P., a Pennsylvania limited partnership, as
Facility Lessee; Xxxxx City OL5 LLC, a Delaware limited liability company, as
Owner Lessor; Xxxxx Fargo Bank Northwest, National Association, both in its
individual capacity and solely as Owner Manager; General Electric Capital
Corpora tion, a Delaware corporation, as Owner Participant; Xxxxx City Funding
LLC, a Delaware limited liability company, as Lender; The Bank of New York (as
successor to United States Trust Company of New York), both in its individual
capacity and solely as Lease Indenture Trustee; The Bank of New York (as
successor to United States Trust Company of New York), both in its individual
capacity and solely as Security Agent; and The Bank of New York (as successor to
United States Trust Company of New York), both in its individual capacity and
solely as Bondholder Trustee.
6. The Participation Agreement dated as of December __, 2001 by and
among EME Homer City Generation, L.P., a Pennsylvania limited partnership, as
Facility Lessee; Xxxxx City OL6 LLC, a Delaware limited liability company, as
Owner Lessor; Xxxxx Fargo Bank Northwest, National Association, both in its
individual capacity and solely as Owner Manager; General Electric Capital
Corpora tion, a Delaware corporation, as Owner Participant; Xxxxx City Funding
LLC, a Delaware limited liability company, as Lender; The Bank of New York (as
successor
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to United States Trust Company of New York), both in its individual capacity and
solely as Lease Indenture Trustee; The Bank of New York (as successor to United
States Trust Company of New York), both in its individual capacity and solely as
Security Agent; and The Bank of New York (as successor to United States Trust
Company of New York), both in its individual capacity and solely as Bondholder
Trustee.
7. The Participation Agreement dated as of December __, 2001 by and
among EME Homer City Generation, L.P., a Pennsylvania limited partnership, as
Facility Lessee; Xxxxx City OL7 LLC, a Delaware limited liability company, as
Owner Lessor; Xxxxx Fargo Bank Northwest, National Association, both in its
individual capacity and solely as Owner Manager; General Electric Capital
Corpora tion., a Delaware corporation, as Owner Participant; Xxxxx City Funding
LLC, a Delaware limited liability company, as Lender; The Bank of New York (as
successor to United States Trust Company of New York), both in its individual
capacity and solely as Lease Indenture Trustee; The Bank of New York (as
successor to United States Trust Company of New York), both in its individual
capacity and solely as Security Agent; and The Bank of New York (as successor to
United States Trust Company of New York), both in its individual capacity and
solely as Bondholder Trustee.
8. The Participation Agreement dated as of December __, 2001 by and
among EME Homer City Generation, L.P., a Pennsylvania limited partnership, as
Facility Lessee; Xxxxx City OL8 LLC, a Delaware limited liability company, as
Owner Lessor; Xxxxx Fargo Bank Northwest, National Association, both in its
individual capacity and solely as Owner Manager; General Electric Capital
Corpora tion, a Delaware corporation, as Owner Participant; Xxxxx City Funding
LLC, a Delaware limited liability company, as Lender; The Bank of New York (as
successor to United States Trust Company of New York), both in its individual
capacity and solely as Lease Indenture Trustee; The Bank of New York (as
successor to United States Trust Company of New York), both in its individual
capacity and solely as Security Agent; and The Bank of New York (as successor to
United States Trust Company of New York), both in its individual capacity and
solely as Bondholder Trustee.
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EXHIBIT B
ASSIGNED AGREEMENTS
1. Energy Sales Agreement
2. NOx Agreement
3. Fuel Supply Agreement
4. The Power Sales Agreements
5. The SCR Construction Contract
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