EXHIBIT 10.100
EXECUTION COPY
AMENDMENT TWO
AMENDMENT TWO (this "AMENDMENT") dated as of June 23, 2000 by and
among, (i) XXXXXXX HOLDINGS EME, LLC ("XXXXXXX HOLDINGS"), (ii) XXXXXXX TRUST I,
as the Owner Lessor, (iii) WILMINGTON TRUST COMPANY, as the Owner Trustee, (iv)
XXXXXXX 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, Xxxxxxx 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, Holdings desires to enter into the Synthetic Lease
Transaction (as defined herein); and
WHEREAS, Holdings has requested, and Xxxxxxx Holdings, the
Owner Lessor, Owner Trustee, Owner Participant, Midwest, 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 Synthetic Lease Transaction;
WHEREAS, Holdings has requested, and Xxxxxxx Holdings, the
Owner Lessor, Owner Trustee, Owner Participant, Midwest, Funding LLC, the
Midwest LC Issuer, the RCE LC Issuer and the Holder Representative have agreed,
to clarify the definitions of Fixed Charges and Operating Expenses;
AMENDMENT TWO TO PARTICIPATION AGREEMENT (T1)
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 4 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 SYNTHETIC LEASE CONSENT" shall mean the Consent to
Sale of Assets between Midwest and ComEd referred to in the
Synthetic Lease Basic Documents.
"INCREMENTAL SYNTHETIC LEASE ENVIRONMENTAL INDEMNITY PAYMENTS"
shall mean Synthetic Lease Environmental Indemnity Obligations
paid to Indemnitees that would not otherwise have been borne
by Midwest had the Synthetic Lease Transaction not been
consummated and Midwest been both the owner and the operator
of Synthetic Lease Assets.
"SYNTHETIC LEASE" shall mean the Lease Agreement dated as of
June 23, 2000 between Midwest and Synthetic Lease Trust.
"SYNTHETIC LEASE ASSETS" shall mean certain electric
generating turbines further described in the Synthetic Lease
Participation Agreement as the "Leased Equipment".
"SYNTHETIC LEASE BASIC DOCUMENTS" shall mean the Basic
Documents as defined in the Synthetic Lease Participation
Agreement.
"SYNTHETIC LEASE ENVIRONMENTAL INDEMNITY OBLIGATIONS" shall
mean Synthetic Lease Liabilities consisting of liabilities or
obligations with
respect to Section 6.2 or 6.7 of the Synthetic Lease
Participation Agreement that by virtue of Section 6.8 of the
Synthetic Lease Participation Agreement and the Synthetic
Lease Guarantee are not liabilities or obligations of Edison
Mission Energy.
"SYNTHETIC LEASE GUARANTEE" shall mean the Guaranty Agreement
dated as of June 23, 2000 made by Edison Mission Energy in
favor of the Synthetic Lease Trust that, among other things,
guarantees the payment by Midwest of all Synthetic Lease
Liabilities other than Synthetic Lease Environmental Indemnity
Obligations.
"SYNTHETIC LEASE INTERCOMPANY NOTE" shall mean the
Intercompany Note dated the Closing Date (as defined in the
Synthetic Lease Participation Agreement) evidencing the loan
by Midwest to Edison Mission Energy of the proceeds of the
Synthetic Lease Transaction (net of transaction expenses paid
by Midwest in connection with the Synthetic Lease
Transaction).
"SYNTHETIC LEASE INTERCOMPANY NOTE PAYMENTS" shall mean the
payments by Edison Mission Energy to Midwest under or in
respect of the Synthetic Lease Intercompany Note.
"SYNTHETIC LEASE LIABILITIES" shall mean the basic rent, the
supplemental rent or any other amount, liability or
obligation that Midwest is obligated to pay under the
Synthetic Lease or the other Synthetic Lease Basic Documents,
including, without limitation, Synthetic Lease Environmental
Indemnity Obligations.
"SYNTHETIC LEASE PARTICIPATION AGREEMENT" shall mean the
Participation Agreement dated as of June 23, 2000 by and
among Midwest, Edison Mission Energy, the Synthetic Lease
Trust, investors party thereto, noteholders party thereto,
Wilmington Trust Company, and [Citicorp North America, Inc.],
as Agent.
"SYNTHETIC LEASE TRANSACTION" shall mean the transaction
pursuant to the Synthetic Lease Participation Agreement and
the Synthetic Lease Basic Documents whereby Midwest sells the
Synthetic Lease Assets
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to the Synthetic Lease Trust and the Synthetic Lease Trust
leases the Synthetic Lease Assets to Midwest under the
Synthetic Lease.
"SYNTHETIC LEASE TRUST" shall mean EME/CDL Trust, a Delaware
statutory business trust.".
(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" and "OPERATING EXPENSES" in their entirety and
replacing them with the following definitions:
""CASH FLOW AVAILABLE FOR FIXED CHARGES" shall mean, 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 and (iii)
Synthetic Lease Intercompany Note Payments) during such
period OVER Operating Expenses during such period.
"DEBT TO CAPITAL RATIO" shall mean, with respect to Holdings
and its Consolidated Subsidiaries, the ratio as of the end of
the last Fiscal Quarter for which financial statements 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) and SECTION 8.1(i)) then outstanding to
(ii) Total Capitalization (excluding, to the extent included,
the Synthetic Lease Intercompany Note and payments by Edison
Mission Energy pursuant to the Synthetic Lease Guarantee).
"FIXED CHARGES" shall mean, 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)
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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 and payable by the Loan Parties
with respect to Indebtedness (other than (x) Capital Lease
Liabilities and Operating Lease Liabilities permitted under
SECTION 8.1(b)(i) hereof and (y) Synthetic Lease Liabilities)
permitted under SECTION 8.1 hereof during such period.
"OPERATING EXPENSES" shall mean, in respect of any period, all
cash amounts paid by the 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 Holdings, Midwest or
Xxxxxxx Holdings. Operating Expenses shall exclude (to the
extent included) Lease Obligations and Synthetic Lease
Liabilities (other than payments of Synthetic Lease
Environmental Indemnity Obligations) and shall include (to the
extent excluded) Capital Lease Liabilities and Operating Lease
Liabilities permitted under SECTION 8.1(B)(i) hereof (other
than Lease Obligations).".
(c) SECTION 8.1(b) of the Participation Agreement shall be deleted and
replaced 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 and
(iii) Synthetic Lease Liabilities;".
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(d) SECTION 8.2 of the Participation Agreement shall be amended by (i)
deleting the period at the end of SECTION 8.2(m) of the Participation Agreement
and replacing it with the following: "; and"; and (ii) adding SUBSECTION 8.2(n)
to SECTION 8.2 of the Participation Agreement as follows:
"(n) Liens created pursuant to the Synthetic Lease Basic
Documents.".
(e) SECTION 8.4 of the Participation Agreement shall be amended by
deleting SECTION 8.4(iv) of the Participation Agreement and replacing it in its
entirety with the following subsections:
"(iv) transfer certain railcars or rights to railcars as part
of the Transco Transaction and (v) sell Synthetic Lease Assets
to Synthetic Lease Trust pursuant to the Synthetic Lease Basic
Documents; PROVIDED, FURTHER, that any Asset Disposition
pursuant to CLAUSES (i), (ii), (iii), (iv) and (v) of this
proviso shall not be included in the calculation of the
aggregate net book value of assets sold pursuant to this
SECTION 8.4.".
(f) SECTION 8.5 of the Participation Agreement shall be amended by (i)
deleting the period at the end of SECTION 8.5(iv) of the Participation Agreement
and replacing it with the following: "; and"; and (ii) adding SUBSECTION 8.5(v)
to SECTION 8.5 of the Participation Agreement as follows:
"(v) Investments evidenced by the Synthetic Lease Intercompany
Note.".
(g) SECTION 8.6 of the Participation Agreement shall be amended by
adding the following sentence at the end of the section:
"Notwithstanding the foregoing, the Synthetic Lease
Transaction and the transactions contemplated by the Synthetic
Lease Basic Documents shall be deemed not to be a Transaction
with an Affiliate for the purposes of this SECTION 8.6.".
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(h) SECTION 8.12 of the Participation Agreement shall be amended by
adding the following sentence at the end of Section 8.12 of the Participation
Agreement:
"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 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 Environ-
mental Indemnity Payments, the aggregate 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.".
(i) SECTION 8 of the Participation Agreement shall be amended by adding
SECTION 8.13 to the Participation Agreement as follows:
"SECTION 8.13 SYNTHETIC LEASE BASIC DOCUMENTS. Holdings shall
not, and shall not permit any of its Subsidiaries, to agree or
consent to any termination, amendment, modification or waiver
of (a) Section 6.8 or 7.2 of the Synthetic Lease Participation
Agreement, (b) the definition of "Free Cashflow" set forth in
the Synthetic Lease Basic Documents or (c) or any other
provision of the Synthetic Lease Basic 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 Synthetic Lease
Basic Documents in any material respect.".
Section 3. AUTHORIZATION OF AMENDMENT OF FACILITY LEASE AND
FACILITY SUBLEASE.
(a) Xxxxxxx 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,
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the Owner Participant and Xxxxxxx Holdings (as heretofore amended, modified and
supplemented, the "FACILITY LEASE"), substantially in the form of Exhibit A
hereto.
(b) The Holder Representative, Xxxxxxx 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 Xxxxxxx Holdings,
Midwest and the Owner Lessor (as heretofore amended, modified and supplemented,
the "FACILITY SUBLEASE").
Section 4. 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:
(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 Synthetic Lease Basic Documents in form and
substance satisfactory to the recipients;
(c) All conditions precedent to effectuate the Synthetic Lease
Transaction have been satisfied (including delivery of the ComEd
Synthetic Lease Consent) or waived;
(d) 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 Xxxxxxx Holdings, (ii) the special New York counsel to
Holdings, Midwest and Xxxxxxx Holdings and (iii) Federal Energy
Regulatory Commission counsel to the Holdings, Midwest and Xxxxxxx
Holdings. Each such opinion shall be in form and substance reasonably
satisfactory to the recipients;
(e) The representations and warranties of Holdings, Midwest and Xxxxxxx
Holdings as set forth in the Participation Agreement, shall be true and
correct as of the Amendment Effective Date after giving effect to the
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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); and
(f) 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.
Section 5. 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
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 Amendment shall be governed by, and construed in
accordance with, the law of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective officers thereunto duly authorized.
XXXXXXX HOLDINGS EME, LLC
By: /s/ Xxxx X. Xxxxxxxx, Xx.
-------------------------
Name: Xxxx X. Xxxxxxxx, Xx.
Title: Vice President
Date: July 10, 2000
XXXXXXX TRUST I
By: Wilmington Trust Company,
not in its individual capacity but solely
as Owner Trustee
By: /s/ Xxxxx Xxxxxxx
-----------------
Name: Xxxxx Xxxxxxx
Title: Financial Services Officer
Date: July 10, 2000
WILMINGTON TRUST COMPANY, not in its
individual capacity, except as ex pressly
provided herein, but solely as Owner Trustee
By: /s/ Xxxxx Xxxxxxx
-----------------
Name: Xxxxx Xxxxxxx
Title: Financial Services Officer
Date: July 10, 2000
XXXXXXX GENERATION I, LLC
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President
Date: July 10, 2000
EDISON MISSION MIDWEST HOLDINGS
CO.,
By: /s/ Xxxx X. Xxxxxxxx
--------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
Date: July 10, 2000
MIDWEST GENERATION, LLC
By: /s/ Xxxx X. Xxxxxxxx
--------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
Date: July 10, 2000
CITIBANK, N.A.
not in its individual capacity, but solely as
Holder Representative
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: Vice President
Date: July 10, 2000
MIDWEST FUNDING LLC
By: /s/ Xxxxxx Xxxxxxx
------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
Date: July __, 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/ Xxxxx Xxxx
--------------
Name: Xxxxx Xxxx
----------------------
Title: Senior Manager
-----------------
Date: June 27, 2000
By: /s/ Klaus Ense
----------------------
Name: Klaus Ense
Title: Manager
------------------
Date: June 27, 2000
BAYERISCHE LANDESBANK GIROZENTRALE,
as issuer of the RCE Letter of Credit
By: /s/ X. Xxxxxxxxx
---------------------------------
Name: X. Xxxxxxxxx
---------------------------
Title: Vice President
--------------------------
Date: June 27, 2000
By: /s/ X. Xxxx
---------------------------------
Name: X. Xxxx
---------------------------
Title: First Vice President
--------------------------
Date: June 27, 2000
EXHIBIT A
FORM OF AMENDMENT TO FACILITY LEASE AGREEMENT
AMENDMENT ONE
AMENDMENT ONE (this "AMENDMENT") dated as of July [__], 2000 by and
between Xxxxxxx Trust I (the "OWNER LESSOR") and Xxxxxxx 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, Xxxxxxx 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 Synthetic 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 Synthetic Lease Transaction; and
WHEREAS, Midwest has requested, and the other parties to the
Participation Agreement have agreed, in that certain Amendment Two, dated as of
June 23, 2000, by and among the parties to the Participation Agreement,
("AMENDMENT TWO TO THE PARTICIPATION AGREEMENT"), to amend and waive certain
provisions of the Participation Agreement so as to permit the Synthetic 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".
(b) SECTION 16 of the Facility Lease shall be amended by adding Section
16(u) to the Facility Lease as follows:
"(u) The Synthetic Lease Trust shall have commenced to exercise
remedies in accordance with Section 15 of the Synthetic Lease to
terminate the Synthetic Lease and repossess any of the Synthetic Lease
Assets.".
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:
(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 Two to
the Participa tion 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 Amendment 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.
XXXXXXX HOLDINGS EME, LLC
By:
---------------------------
Name:
Title:
Date:
XXXXXXX TRUST I
By: Wilmington Trust Company,
not in its individual capacity but solely
as Owner Trustee
By:
---------------------------
Title:
Date:
WILMINGTON TRUST COMPANY,
not in its individual capacity, except as
expressly provided herein, but solely as
Owner Trustee
By:
---------------------------
Name:
Title:
Date:
