Exhibit 99.6
__________, 2001
Exchange Agent Agreement
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Wilmington Trust Company
0000 X. Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxx
Ladies and Gentlemen:
Mission Energy Holding Company (the "Company") proposes to make an
offer (the "Exchange Offer") to exchange an aggregate principal amount of up to
$800,000,000 of its outstanding 13.50% Senior Secured Notes due 2008 (the
"Original Notes"), for a like principal amount of the Company's 13.50% Senior
Secured Notes due 2008, which have been registered under the Securities Act of
1933, as amended (the "Exchange Notes"). The terms and conditions of the
Exchange Offer as currently contemplated are set forth in a prospectus dated
_________, 2001 (the "Prospectus"), proposed to be distributed to all record
holders of the Original Notes as of ________, 2001. The Original Notes and the
Exchange Notes are collectively referred to herein as the "Notes."
The Company hereby appoints Wilmington Trust Company to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to Wilmington Trust Company.
The Exchange Offer is expected to be commenced by the Company on or
about _____________, 2001. The Letter of Transmittal accompanying the
Prospectus or, in the case of book-entry securities, the Automated Tender Offer
Program of The Depository Trust Company (the "Book-Entry Transfer Facility"),
are to be used by the holders of the Original Notes to accept the Exchange
Offer, and the Letter of Transmittal contains instructions with respect to the
delivery of certificates for Original Notes tendered.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
________, 2001 or on such later date or time to which the Company may extend the
Exchange Offer (the "Expiration Date"). Subject to the terms and conditions set
forth in the Prospectus, the Company expressly reserves the right to extend the
Exchange Offer from time to time and may extend the Exchange Offer by giving
oral (promptly
confirmed in writing) or written notice to you before 9:00 A.M., New York City
time, on the business day following the previously scheduled Expiration Date.
The Company expressly reserves the right to amend or terminate the
Exchange Offer, and not to accept for exchange any Original Notes not
theretofore accepted for exchange. The Company will give oral (promptly
confirmed in writing) or written notice of any amendment, termination or
nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus entitled "The Exchange
Offer" and as specifically set forth herein and such duties which are
necessarily incidental thereto; provided, however, that in no way will your
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general duty to act in good faith and without gross negligence or willful
misconduct be limited by the foregoing.
2. You will establish an account with respect to the Original Notes
at the Book-Entry Transfer Facility for purposes of the Exchange Offer within
two business days after the date of the Prospectus, or, if you already have
established an account with the Book-Entry Transfer Facility suitable for the
Exchange Offer, you will identify such pre-existing account to be used in the
Exchange Offer, and any financial institution that is a participant in the Book-
Entry Transfer Facility's systems may make book-entry delivery of the Original
Notes by causing the Book-Entry Transfer Facility to transfer such Original
Notes into your account in accordance with the Book-Entry Transfer Facility's
procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Original Notes and each confirmation of book-entry transfer
into your account at the Book-Entry Transfer Facility and any other documents
delivered or mailed to you by or for holders of the Original Notes to ascertain
whether: (i) the Letters of Transmittal and any such other documents are duly
executed and properly completed in accordance with instructions set forth
therein and that such book-entry confirmations are in due and proper form and
contain the information required to be set forth therein and (ii) the Original
Notes have otherwise been properly tendered. In each case where the Letter of
Transmittal or any other document has been improperly completed or executed or
where such book-entry confirmations are not in due and proper form or omit
certain information, or where any of the certificates for Original Notes are not
in proper form for transfer or some other irregularity in connection with the
acceptance of the Exchange Offer exists, you will endeavor to inform the
presenters of the need (i) for fulfillment of all requirements and (ii) to take
any other action as may be necessary or advisable to cause such irregularity to
be corrected.
4. With the approval of the Chairman of the Board, Chief Executive
Officer, Secretary or any Senior Vice President of the Company (such approval,
if given orally, to be promptly confirmed in writing) or any other party
designated by such an officer in writing, you are authorized to waive any
defects, irregularities or conditions of tender in connection with any tender of
Original Notes pursuant to the Exchange Offer.
5. At the written request and expense of the Company or its outside
counsel, you shall notify tendering holders of Original Notes (through the
facilities of the Book-Entry Transfer Facility in the case of book-entry
securities) in the event of any extension, termination or amendment of the
Exchange Offer. In the event of any such termination, you will return all
tendered Original Notes to the persons entitled thereto, at the request and
expense of the Company.
6. Tenders of Original Notes may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer - Procedures for Tendering Original Notes," and Original Notes
shall be considered properly tendered to you only when tendered in accordance
with the procedures set forth therein. Notwithstanding the provisions of this
paragraph 6, Original Notes which the Chairman of the Board, Chief Executive
Officer, Secretary or any Senior Vice President of the Company or any other
party designated by such officer in writing shall approve as having been
properly tendered shall be considered to be properly tendered (such approval, if
given orally, shall be promptly confirmed in writing).
7. You shall advise the Company with respect to any Original Notes
delivered subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Original Notes.
8. You shall accept tenders:
(a) in cases where the Original Notes are registered in two or
more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter
of Transmittal) is acting in a fiduciary or a representative capacity
only when proper evidence of his or her authority so to act is
submitted; and
(c) from persons other than the registered holder of Original
Notes provided that customary transfer requirements, including any
applicable transfer taxes, are fulfilled.
9. You shall accept partial tenders of Original Notes where so
indicated and as permitted in the Letter of Transmittal and deliver certificates
for Original Notes to the transfer agent therefor for split-up and return any
untendered Original Notes to the holder (or such other person as may be
designated in the Letter of Transmittal) as promptly as practicable after
expiration or termination of the Exchange Offer.
10. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Company will notify you (such notice, if given orally, to be
promptly confirmed in writing) of its acceptance, promptly after the Expiration
Date, of all Original Notes properly tendered and you, on behalf of the Company,
will exchange such Original Notes for Exchange Notes and cause such Original
Notes to be canceled. Delivery of Exchange Notes will be made on behalf of the
Company by you at the rate of $1,000 principal amount of Exchange Notes for each
$1,000 principal amount of Original Notes tendered promptly after notice (such
notice, if given orally, to be promptly confirmed in writing) of acceptance of
such Original Notes by the Company; provided, however, that in all cases,
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Original Notes tendered pursuant to the Exchange Offer will be exchanged only
after timely receipt by you of certificates for such Original Notes (or
confirmation of book-entry transfer into your account at the Book-Entry Transfer
Facility), a properly completed and duly executed Letter of Transmittal (or
facsimile thereof or an agent's message in lieu thereof) with any required
signature guarantees and any other required document. You shall issue Exchange
Notes only in denominations of $1,000 or any integral multiple thereof.
11. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and upon the conditions set forth in the Prospectus
and the Letter of Transmittal, Original Notes tendered pursuant to the Exchange
Offer may be withdrawn at any time prior to the Expiration Date.
12. The Company shall not be required to exchange any Original Notes
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company not to exchange any Original Notes
tendered shall be given (such notice, if given orally, shall be promptly
confirmed in writing) by the Company to you.
13. If, pursuant to the Exchange Offer, the Company does not accept
for exchange all or part of the Original Notes tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "The Exchange Offer - Conditions to the Exchange Offer" or
otherwise, you shall as soon as practicable after the expiration or termination
of the Exchange Offer return those certificates for unaccepted Original Notes
(or effect appropriate book-entry transfer), together with any related required
documents and the Letters of Transmittal relating thereto that are in your
possession, to the persons who deposited them.
14. All certificates for reissued Original Notes, unaccepted Original
Notes or for Exchange Notes shall be forwarded by (a) first-class mail, postage
prepaid under a blanket surety bond protecting you and the Company from loss or
liability arising out of the nonreceipt or nondelivery of such certificates or
(b) by registered mail insured separately for the replacement value of each of
such certificates.
15. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank, trust company or
other persons or to engage or utilize any person to solicit tenders.
16. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness
of any of the certificates or the Original Notes represented thereby
deposited with you pursuant to the Exchange Offer, and will not be
required to and will make no representation as to the validity, value
or genuineness of the Exchange Offer; provided, however, that in no
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way will your general duty to act in good faith be limited by the
foregoing;
(b) shall not be obligated to take any action hereunder which
might in your reasonable judgment involve any expense or liability,
unless you shall have been furnished with reasonable indemnity;
(c) shall not be liable to the Company for any action taken or
omitted by you, or any action suffered by you to be taken or omitted,
without gross negligence, willful misconduct or bad faith on your
part, by reason of or as a result of the administration of your duties
hereunder in accordance with the terms and conditions of this
Agreement or by reason of your compliance with the instructions set
forth herein or with any written or oral instructions delivered to you
pursuant hereto, and may rely on and shall be protected in acting in
good faith in reliance upon any certificate, instrument, opinion,
notice, letter, facsimile or other document or security delivered to
you and reasonably believed by you to be genuine and to have been
signed by the proper party or parties;
(d) may act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also
as to the truth and accuracy of any information contained therein,
which you in good faith reasonably believe to be genuine or to have
been signed or represented by a proper person or persons;
(e) may rely on and shall be protected in acting upon written or
oral instructions from the Chairman of the Board, Chief Executive
Officer, Secretary or any Senior Vice President or other duly
designated officer of the Company with respect to the Exchange Offer;
(f) shall not advise any person tendering Original Notes pursuant
to the Exchange Offer as to the wisdom of making such tender or as to
the market value or decline or appreciation in market value of any
Original
Notes; provided, however, that in no way will your general
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duty to act in good faith be limited by the foregoing;
(g) may consult with your counsel and the written opinion of such
counsel (a copy of which shall be promptly provided to the Company)
shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by you hereunder in good faith
and in accordance with such written opinion of such counsel; and
(h) in no event will you be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not
limited to lost profits) even if you have been advised of the
likelihood of such loss or damage and regardless of the form of
action.
17. You shall take such action as may from time to time be requested
by the Company or its outside counsel (and such other action as you may
reasonably deem necessary) to furnish copies of the Prospectus, the Letter of
Transmittal and the Notice of Guaranteed Delivery, or such other forms as may be
approved from time to time by the Company, to all persons requesting such
documents and to accept and comply with telephone requests for information
relating to the Exchange Offer, provided that such information shall relate only
to the procedures for accepting (or withdrawing from) the Exchange Offer. The
Company will furnish you with copies of such documents as you may request. All
other requests for information relating to the Exchange Offer shall be directed
to the Company, Attention: Secretary.
18. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Xxxxxxx X. Xxxxxx, Esq. of Xxxxxx &
Xxxxxxx, outside counsel for the Company, and such other person or persons as
the Company may request, daily on each business day, and more frequently if
reasonably requested, up to and including the Expiration Date, as to the number
of Original Notes which have been tendered pursuant to the Exchange Offer and
the items received by you pursuant to this Agreement, separately reporting and
giving cumulative totals as to items properly received and items improperly
received; provided, however, that if, on a particular business day, no
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additional Original Notes have been tendered, no additional items have been
received by you and such totals have not changed since you last provided such
information as required above, you need not provide the information referred to
above in this paragraph 18 on such day. In addition, you will also confirm, and
cooperate in making available to, the Company or any such other person or
persons as the Company requests from time to time prior to the Expiration Date
of such other information as it or he or she reasonably requests. Such
cooperation shall include, without limitation, the granting by you to the
Company and such person as the Company may request of access to those persons on
your staff who are responsible for receiving tenders, in order to ensure that
immediately prior to the Expiration Date the Company shall have received
information in sufficient detail to enable it to decide whether to extend the
Exchange
Offer. You shall prepare a final list of all persons whose tenders were
accepted, the aggregate principal amount of Original Notes tendered and the
aggregate principal amount of Original Notes accepted and deliver said list to
the Company.
19. Letters of Transmittal and Notices of Guaranteed Delivery shall
be stamped by you as to the date and the time of receipt and shall, except as
provided in paragraph 13, be preserved by you for a period of time at least
equal to the period of time you preserve other records pertaining to the
transfer of securities (or, if earlier, until such time as such documents are
delivered to the Company upon termination of this Agreement, pursuant to
paragraph 31).
20. You hereby expressly waive any lien, encumbrance or right of set-
off whatsoever that you may have with respect to funds deposited with you for
the payment of transfer taxes by reason of amounts, if any, borrowed by the
Company, or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
21. For services rendered as Exchange Agent hereunder, you shall be
entitled to compensation of $4,500 and you shall be entitled to reimbursement of
your reasonable out-of-pocket expenses (including reasonable attorneys' fees and
expenses of your counsel) incurred in connection with your services hereunder or
under any other agreement.
22. You hereby acknowledge receipt of the Prospectus, the Letter of
Transmittal and the other documents associated with the Exchange Offer attached
hereto and further acknowledge that you have examined each of them to the extent
necessary to perform your duties hereunder. Any inconsistency between this
Agreement, on the one hand, and the Prospectus and the Letter of Transmittal (as
they may be amended from time to time), on the other hand, shall be resolved in
favor of the latter two documents, except with respect to the duties,
liabilities and indemnification of you as Exchange Agent which shall be
controlled by this Agreement.
23. The Company agrees to indemnify and hold harmless you, in your
capacity as Exchange Agent hereunder, against any liability, cost or expense,
including reasonable attorneys' fees, incurred without gross negligence or
willful misconduct on your part, arising out of or in connection with any act,
omission, delay or refusal made by you in reliance upon any signature,
endorsement, assignment, certificate, order, request, notice, instruction or
other instrument or document believed by you in good faith to be valid and
genuine and in accepting any tender or effecting any transfer of Original Notes
believed by you in good faith to be authorized, and in delaying or refusing in
good faith to accept any tenders or effect any transfer of Original Notes or
otherwise arising out of or in connection with your acting as Exchange Agent
hereunder; provided, however, that, anything in this Agreement to the contrary
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notwithstanding, the Company shall not be liable for indemnification or
otherwise for any loss, liability, cost or expense to the extent arising out of
your gross negligence, willful misconduct or bad faith. In no case shall the
Company be liable under this indemnity with respect to any claim against you
unless the Company shall be notified by you, by letter or cable or by facsimile
confirmed by letter, of the written assertion of a claim against you or of any
other action commenced against you, promptly after you shall have received any
such written assertion or written notice of the commencement of any such action.
The Company shall be entitled to participate at its own expense in the defense
of any such claim or other action, and, if the Company so elects, the Company
shall assume the defense of any suit brought to enforce any such claim. In the
event that the Company shall assume the defense of any such suit, the Company
shall not be liable for the fees and expenses of any additional counsel
thereafter retained by you so long as the Company shall retain counsel
reasonably satisfactory to you to defend such suit.
24. You shall arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service.
25. You shall deliver or cause to be delivered, in a timely manner to
each governmental authority to which any transfer taxes are payable in respect
of the exchange of Original Notes, your check in the amount of all transfer
taxes so payable, and the Company shall reimburse you for the amount of any and
all transfer taxes payable in respect of the exchange of Original Notes;
provided, however, that, subject to such reimbursement by the Company, you shall
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reimburse the Company for amounts refunded to you in respect of your payment of
any such transfer taxes, at such time as such refund is received by you.
26. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of New
York applicable to agreements made and to be performed entirely within such
state, and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
27. This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
28. In case any provision of this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be effected or impaired thereby.
29. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
30. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile)
and shall be given to such party, addressed to it, at its address or telecopy
number set forth below:
If to the Company: Mission Energy Holding Company
000 Xxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Secretary
With a copy to: Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.
If to the Exchange Agent: Wilmington Trust Company
0000 X. Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxxx Xxxx
31. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 16(c), 20, 21, 23 and 25 shall survive the termination of
this Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Company any certificates for Notes, funds or property (including,
without limitation, Letters of Transmittal and any other documents relating to
the Exchange Offer) then held by you as Exchange Agent under this Agreement.
32. This Agreement shall be binding and effective as of the date
hereof.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
MISSION ENERGY HOLDING COMPANY
By:_________________________
Name:
Title:
Accepted as of the date
first above written:
WILMINGTON TRUST COMPANY
By:
_____________________
Name:
Title:
