EXHIBIT 4.1.4
ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT, dated as of December __, 2001 (this
"Agreement"), made by EME Homer City Generation, L.P. ("XXXXX CITY" or "EME
HOMER CITY"), Xxxxx City OL1 LLC, Xxxxx City OL2 LLC, Xxxxx City OL3 LLC,
Xxxxx City OL4 LLC, Xxxxx City OL5 LLC, Xxxxx City OL6 LLC, Xxxxx City OL7
LLC and Xxxxx City OL8 LLC (each, an "Owner Lessor" and collectively, the
"Owner Lessors"), The Bank of New York, as successor to United States Trust
Company of New York (the "BONDHOLDER TRUSTEE") and Xxxxx City Funding LLC
("Xxxxx City Funding").
RECITALS
WHEREAS, Xxxxx City Funding is a Delaware limited liability
company and special purpose funding vehicle created for the purpose of engaging
in the sale-leaseback transaction (the "Sale-Leaseback Transaction") involving
certain facilities (the "Facilities") owned by EME Homer City Generation L.P.
("EME Homer City").
WHEREAS, Edison Mission Holdings Co. ("Holdings") entered into
the Indenture, dated as of May 27, 0000, xxxxxxx Xxxxxxxx xxx xxx Xxxxxx Xxxxxx
Trust Company of New York (as amended from time to time, the "Indenture")
pursuant to which Holdings issued 8.137% Senior Secured Bonds due 2019 and
8.734% Senior Secured Bonds due 2026 which it subsequently exchanged for a like
amount of substantially similar bonds that had been registered under the
Securities Act of 1933 (collectively, the "Bonds").
WHEREAS, the direct and indirect subsidiaries of Holdings,
including EME Homer City (collectively, the "Subsidiary Guarantors") entered
into the Guarantee and Collateral Agreement, dated as of March 18, 1999, among
Holdings, each Subsidiary Guarantor and the United States Trust Company of New
York (as amended from time to time, the "Guarantee and Collateral Agreement")
pursuant to which each Subsidiary Guarantor unconditionally guarantees the
obligations of Holdings under the Indenture and the Bonds.
WHEREAS, in connection with the Sale-Leaseback Transaction,
Holdings and each Subsidiary Guarantor (other than EME Homer City), were
released from all their respective obligations under the Indenture, the
Guarantee and Collateral Agreement and the Bonds.
WHEREAS, pursuant to the Assumption Agreement, dated
December __, 2001, among Holdings, EME Homer City and the Bondholder Trustee,
EME Homer City assumed, and Holdings was released from, all the obligations of
Holdings under
the Indenture and the Bonds.
WHEREAS, pursuant to the Bills of Sale and Participation
Agreements, and in partial consideration for the sale of the Facilities, each
Owner Lessor agreed to expressly assume, on a several basis, a pro rata portion
of all the obligations of EME Homer City under the Indenture and the related
Bonds.
WHEREAS, Xxxxx City Funding desires to expressly assume, on
behalf of each Owner Lessor, all obligations of EME Homer City under the
Indenture and the Bonds in consideration for (i) the issuance to Xxxxx City
Funding by the Owner Lessors of notes in an aggregate principal amount of
approximately $830,000,000 (the "Notes") and (ii) the transfer of funds as
set forth below.
NOW THEREFORE, for and in consideration of the premises and
the mutual promises and covenants set forth herein:
1. ASSUMPTION. Xxxxx City Funding hereby unconditionally and
irrevocably assumes all obligations of EME Homer City under the Indenture and
the Bonds, including, but not limited to, all accrued and unpaid interest on
the Bonds to the date hereof. Each Owner Lessor is released from its
obligations to assume, on a several basis, a pro rata portion of all
obligations of EME Homer City under the Indenture and the Bonds. EME Homer
City is released from its obligations under the Indenture and the Bonds.
2. ACCEPTANCE. Xxxxx City and each Owner Lessor hereby
accepts this assumption of all its respective obligations to assume, on a
several basis, and in the case of each Owner Lessor, a pro rata portion of
all obligations of EME Homer City under the Indenture and the Bonds.
3. ACKNOWLEDGMENT. The Bondholder Trustee acknowledges
that, as a consequence of the assignment and assumption contained herein,
neither EME Homer City nor any Owner Lessor has any liability under the Bonds
and the Bond Indenture Trustee agrees, and by its acceptance, each holder of
a Bond agrees, that it will not look to EME Homer City or such Owner Lessor
for payments of any amounts owed in respect of the Bonds. (For the avoidance
of doubt the foregoing will not be deemed to limit application of payments
made by any Owner Lessor on Lessor Notes for the account of Xxxxx City
Funding to Xxxxx City Funding's obligations in respect of the Bonds.)
4. TRANSFER. EME Homer City shall transfer to The Bank of
New York as Bondholder Trustee/Paying Agent funds in an amount equal to the
accrued and unpaid interest on the Bonds as of the date hereof, to be used on
the next Payment Date (as defined in the Bonds) to pay a portion of the
interest on the Bonds.
5. BINDING OBLIGATION. Each Owner Xxxxxx, Xxxxx City
Funding and the Bondholder Trustee hereby represents that its respective
obligations under this Agreement constitute its legal, valid and binding
obligations, enforceable in accordance with its respective terms.
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6. SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and be binding upon each Owner Xxxxxx, Xxxxx City Funding and
the Bondholder Trustee and their respective heirs, successors and assigns
as permitted under the Indenture.
7. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
8. LIMITATIONS OF LIABILITY OF THE INDEPENDENT MANAGER. It
is expressly understood and agreed by the parties hereto that this Agreement
is executed by Xxxxx Fargo, not individually or personally, but solely as
Independent Manager under the applicable Lessor LLC Agreement in the exercise
of the power and authority conferred and vested in it as such Independent
Manager, that each and all of the representations, undertakings and
agreements herein made on the part of the Independent Manager or the Owner
Lessor are intended not as personal representations, undertakings and
agreements by Xxxxx Fargo, or for the purpose or with the intention of
binding Xxxxx Fargo, personally, but are made and intended for the purpose of
binding only the Lease Indenture Estate, that nothing herein contained shall
be construed as creating any liability of Xxxxx Fargo, or any incorporator or
any past, present or future subscriber to the capital stock of, or
stockholder, officer or director of Xxxxx Fargo, to perform any covenant
either express or implied contained herein or in the other Operative
Documents to which the Independent Manager or the Owner Lessor is a party,
and that so far as Xxxxx Fargo is concerned, any Person shall look solely to
the Lease Indenture Estate for the performance of any obligation hereunder or
thereunder or under any of the instruments referred to herein or therein;
PROVIDED, that nothing contained in this SECTION shall be construed to limit
in scope or substance any general corporate liability of Xxxxx Fargo as
expressly provided in the Lessor LLC Agreement or in the Participation
Agreement.
9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10. LIMITATION OF LIABILITY. No director, officer, employee,
incorporator, Shareholder, member, manager, agent or affiliate of Xxxxx City
Funding shall have any liability for or in connection with any of the
representations, warranties, or obligations of Xxxxx City Funding under this
Agreement, the Bonds, or the Indenture, as to all of which recourse shall be
had solely to the Notes.
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered as of the date first written above.
EME HOMER CITY GENERATION, L.P.
By:___________________________
Name:
Title:
XXXXX CITY OL1 LLC
By: Xxxxx Fargo Bank
Northwest, National
Association, not in its
individual capacity,
but solely as owner
Manager
By:___________________________
Name:
Title:
XXXXX CITY OL2 LLC
By: Xxxxx Fargo Bank
Northwest, National
Association, not in its
individual capacity,
but solely as Owner
Manager
By:___________________________
Name:
Title:
XXXXX CITY OL3 LLC
By: Xxxxx Fargo Bank
Northwest, National
Association, not in its
individual capacity,
but solely as Owner
Manager
By:___________________________
Name:
Title:
XXXXX CITY OL4, LLC
By: Xxxxx Fargo Bank
Northwest, National
Association, not in its
individual capacity,
but solely as Owner
Manager
By:___________________________
Name:
Title:
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XXXXX CITY OL5 LLC
By:___________________________
Name:
Title:
XXXXX CITY OL6 LLC
By:___________________________
Name:
Title:
XXXXX CITY OL7 LLC
By:___________________________
Name:
Title:
XXXXX CITY OL8 LLC
By:___________________________
Name:
Title:
XXXXX CITY FUNDING LLC
By:___________________________
Name:
Title:
THE BANK OF NEW YORK, as successor to
UNITED STATES TRUST COMPANY OF
NEW YORK
By:___________________________
Name:
Title:
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