Exhibit 10.99
EXECUTION COUNTERPART
AMENDMENT ONE
AMENDMENT ONE (this "AMENDMENT") dated as of May 9, 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,
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 (the "PARTICIPATION
AGREEMENT"), which set forth, INTER ALIA, certain covenants of Holdings;
WHEREAS, Holdings is permitted to incur Indebtedness pursuant
to Section 8.1(d) of the Participation Agreement to finance the acquisition,
construction or improvement of any fixed or capital assets in accordance with
and subject to SCHEDULE 8.2.1(d) to the Holdings Credit Agreement;
WHEREAS, Holdings desires to secure the financing referred to
above with the Holdings Collateral (as such term is defined in the Holdings
Credit Agreement) on a ratable basis with the other Secured Obligations (as such
term is defined in the Holdings Credit Agreement); and
WHEREAS, Holdings has requested that Xxxxxxx Holdings, the
Owner Lessor, Owner Trustee, Owner Participant, Holdings, Midwest, Funding LLC,
the Midwest LC Issuer, the RCE LC Issuer and the Holder Representative amend,
and such parties have agreed to amend, certain provisions of the Participation
Agreement.
AMENDMENT ONE TO PARTICIPATION AGREEMENT (T1)
1
ACCORDINGLY, 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 3 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:
""2000 CAPEX CREDIT AGREEMENT" shall mean the Credit
Agreement dated as of May 9, 2000 by and among
Holdings, Societe Generale and Bayerische Landesbank
Girozentrale.
"2000 CAPEX LOANS" shall mean loans made to Holdings
pursuant to the 2000 Capex Credit Agreement.".
(b) SECTION 7.1(d) of the Participation Agreement shall be
amended by inserting the following phrase after the phrase "within 120 days
after the end of each calendar year,":
" commencing with the 2000 Fiscal Year,".
(c) SECTION 8.1(d) of the Participation Agreement shall be
amended by inserting after, "Subject to SECTION 8.11," at the beginning of
SECTION 8.1(d) of the Participation Agreement, the following phrase:
"the 2000 Capex Credit Agreement and other".
(d) SECTION 8.1(f) of the Participation Agreement shall be
amended by inserting the following phrase at the beginning of clause (y) of
SECTION 8.1(f) of the Participation Agreement and before the phrase "any other
Existing Indebtedness":
"2000 Capex Loans and".
(e) SECTION 8.1(g) of the Participation Agreement shall be
amended by deleting it in its entirety and replacing it with the following:
"(g) Indebtedness (including guarantees thereof by
Midwest) in the form of commercial paper in an amount
which, when added to the sum of (x) the aggregate
outstanding principal amount of Holdings Loans (other
than Holdings Loans borrowed for working capital)
and the 2000 Capex Loans and (y) the outstanding
principal amount of any Indebtedness incurred
pursuant to Section 8.1(f) (or subsequent
refinancings of such Indebtedness) does not exceed
the sum of (A) $1,750,000,000 PLUS (B) the aggregate
principal amount of Funding LLC Refinancings by
Holdings;".
(f) SECTION 8.1(l) of the Participation Agreement shall be
amended by deleting clause (A) in its entirety and replacing it with the
following clause:
"(A) Holdings shall have delivered a PRO FORMA
calculation of the Debt Service Coverage Ratio for
the preceding 12-month period (or, if such
calculation is being delivered prior to the first
anniversary of the Closing Date, for such shorter
period of not less than six months) indicating that,
had such Indebtedness been outstanding, had the
maximum amount of Indebtedness available to be drawn
under the tranche of the Holdings Facility available
for working capital been outstanding during such
period and, if the sum of (x) the aggregate principal
amount of the Tranche A Loans, the Tranche B Loans
and the 2000 Capex Loans, (y) the outstanding
principal amount of any Indebtedness incurred
pursuant to SECTION 8.1(f)(x) PLUS (z) all
Indebtedness of Holdings in the form of commercial
paper is less than $1,750,000,000, had an additional
amount been drawn under the Tranche A Loan
commitments, the Tranche B Loan commitments and
commitments under the 2000 Capex Credit Agreement
such that the sum of subclauses (x), (y) PLUS (z)
above equals $1,750,000,000, the Debt
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Service Coverage Ratio for such period would have
been equal to or greater than 2.50 to 1.00,".
(g) SECTION 8.2(k) of the Participation Agreement shall be
amended by deleting SECTION 8.2(k) of the Participation Agreement in its
entirety and replacing it with the following clause:
"(k) Liens to secure Indebtedness permitted by
SECTION 8.1(c), (d), (f), (g) or (l); provided that
such Indebtedness shall be secured on a pro rata
basis with the Holdings Loans and Holdings'
Guarantee.".
(h) SECTION 8.2(l) of the Participation Agreement shall be
amended by deleting a reference to "clause 8.1(e)" and replacing it with a
reference to "SECTION 8.1(d)".
Section 3. CONDITIONS PRECEDENT. This Amendment shall not
become effective until the date (the "AMENDMENT EFFECTIVE DATE") on which each
of the following condition precedents have been satisfied:
(a) Delivery to the parties hereto of (i) this Amendment duly
executed and delivered by each other party hereto and (ii) Amendment
One To The Intercreditor Agreement duly executed and delivered by each
party thereto.
(b) The representations and warranties of Midwest, Holdings
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 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
(c) 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.
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Section 4. 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
--------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
Date: May __, 2000
XXXXXXX TRUST I
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Date: May __, 2000
WILMINGTON TRUST COMPANY, not in its
individual capacity, except as expressly
provided herein, but solely as Owner Trustee
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Date: May __, 2000
XXXXXXX GENERATION I, LLC
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: President
Date: May __, 2000
EDISON MISSION MIDWEST HOLDINGS CO.,
By: /s/ Xxxx X. Xxxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
Date: May __, 2000
MIDWEST GENERATION, LLC
By: /s/ Xxxx X. Xxxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
Date: May __, 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: May 9, 2000
MIDWEST FUNDING LLC
By: /s/ Xxxxxx Xxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
Date: May 9, 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/ Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
----------------------------------
Title: Head of Department
---------------------------------
Date: May 3, 2000
By: /s/ Xxxxx Xxxx
---------------------------------------
Name: Xxxxx Xxxx
----------------------------------
Title: Senior Manager Corporate Finance
---------------------------------
Date: May 3 , 2000
BAYERISCHE LANDESBANK GIROZENTRALE,
as issuer of the RCE Letter of Credit
By: /s/ X. Xxxxxxxxx
---------------------------------------
Name: X. Xxxxxxxxx
----------------------------------
Title: Vice President
---------------------------------
Date: May 2, 2000
By: /s/ Xxxxxxx Xxxx
---------------------------------------
Name: Xxxxxxx Xxxx
----------------------------------
Title: First Vice President
---------------------------------
Date: May 2, 2000
