EXHIBIT 10.50
EXECUTION COPY
MASTER GUARANTEE AND SUPPORT INSTRUMENT
Dated as of December 23, 1998
among
EDISON MISSION ENERGY
ABN AMRO BANK N.V.
as Administrative Agent
THE CHASE MANHATTAN BANK
as Collateral Agent
and
THE CHASE MANHATTAN BANK
as Depositary Agent
MASTER GUARANTEE AND SUPPORT INSTRUMENT (this "Master Guarantee")
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dated as of December 23, 1998 among EDISON MISSION ENERGY, a corporation duly
organized and validly existing under the laws of the State of California (the
"Guarantor"); ABN AMRO BANK N.V., as Administrative Agent under the Credit
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Agreement (in such capacity, together with its successors in such capacity, the
"Administrative Agent"); THE CHASE MANHATTAN BANK, as Collateral Agent under the
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Intercreditor Agreement (in such capacity, together with its successors in such
capacity, the "Collateral Agent"); and THE CHASE MANHATTAN BANK, as Depositary
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Agent under the Depositary Agreement (in such capacity, together with its
successors in such capacity, the "Depositary Agent").
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ECOELECTRICA, L.P., an exempted limited partnership duly formed and
validly existing under the laws of Bermuda (the "Company"), the lenders and
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issuing banks under the Credit Agreement referred to below, the co-agents under
the Credit Agreement referred to below and the Administrative Agent are parties
to a Credit Agreement dated as of October 31, 1997 (as amended, modified and
supplemented and in effect from time to time, the "Credit Agreement"),
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providing, subject to the terms and conditions thereof, for extensions of credit
(by making of loans and issuing letters of credit) to be made by said lenders
and issuing banks to the Company in an aggregate principal or face amount not
exceeding the amount of Commitments of said lenders and issuing banks as the
same may be adjusted from time to time. In addition, the Company may from time
to time be obligated to certain of said lenders in respect of certain Permitted
Interest Rate Protection Agreements.
The Company, the Administrative Agent, the Collateral Agent, the
Depositary Agent and certain other Secured Parties have entered into that
certain Collateral Agency and Intercreditor Agreement (as amended, modified and
supplemented and in effect from time to time, the "Intercreditor Agreement")
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dated as of October 31, 1997.
To induce the Collateral Agent and the Depositary Agent to release
funds held in certain Accounts under the Depositary Agreement and to permit
certain obligations to qualify as Committed Amounts under and in accordance with
the Credit Agreement and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions. Terms defined in Appendix A to the
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Intercreditor Agreement are used herein and in each Master Guarantee Supplement
(including in the preamble and recitals of this Master Guarantee and each Master
Guarantee Supplement) as defined therein (and the principles of interpretation
set forth in Appendix A to the Intercreditor Agreement shall apply to such
definitions). Unless the context otherwise requires, any reference in this
Master Guarantee or any Master Guarantee Supplement to any agreement shall mean
such agreement and all schedules, exhibits and attachments thereto as amended,
supplemented or modified. Unless otherwise stated, any reference in this Master
Guarantee or any Master Guarantee Supplement to any Person shall include its
permitted successors and assigns and, in the case of any Government Authority,
any Person succeeding to its functions and capacities. In addition, the
following terms shall have the following respective meanings:
"Guaranteed Obligor" shall mean the Company, a Partner or another
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Person specified on a Master Guarantee Supplement as a "Guaranteed Obligor".
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"Master Guaranteed Obligations" shall mean each of the obligations of
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a Guaranteed Obligor specified on a Master Guarantee Supplement as a "Master
Guaranteed Obligation".
"Master Guarantee Supplement" shall mean a Master Guarantee Supplement
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in substantially the form of Exhibit A hereto that establishes a Guaranteed
Obligor and a Master Guaranteed Obligation for purposes of this Master
Guarantee.
"Master Guarantee Termination Date" shall mean the earlier to occur of
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(i) the payment and satisfaction in full of each Master Guaranteed Obligation
and the occurrence of the Debt Termination Date and (ii) the date on which the
Guarantor elects, pursuant to Section 2.08(b) hereof, to terminate this Master
Guarantee.
As used in the Credit Agreement as the same relates to this Master
Guarantee and the relevant Master Guarantee Supplement and the Depositary
Agreement as the same relates to this Master Guarantee and the relevant Master
Guarantee Supplement, the term "ASP Replacement Event" shall mean:
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(a) Any representation or warranty made or deemed made by the
Guarantor (or any of its officers) herein or under or in connection with
any other Project Document to which the Guarantor is a party shall prove to
have been false or misleading in any material respect as of the time made
or deemed made, confirmed or furnished and shall have (or the facts or
circumstances underlying such false or misleading representation or
warranty shall have) resulted in a Material Adverse Effect on the Company,
any Partner or the Guarantor; or
(b) The Guarantor shall default in the performance of any of its
obligations under any of Section 2.01 of this Master Guarantee; or the
Guarantor shall default in the performance of any of its other obligations
in this Master Guarantee or any other Recourse Document to which it is a
party and such default shall continue unremedied for a period of 30 days
after the occurrence of such default; or
(c) A Bankruptcy Event shall occur and be continuing with respect to
the Guarantor; or
(d) (i) In the case of Master Guarantee Supplements that, together
with this Master Guarantee, constitute a Fuel Hedge Interruption Reserve
Support Instrument, the Guarantor shall fail to have outstanding long-term
unsecured indebtedness rated BBB+ or better by S&P and Baal or better by
Xxxxx'x (or an equivalent rating by another nationally recognized
statistical rating organization or similar standing if neither such
corporation is in the business of rating such long-term unsecured
indebtedness or (ii) in the case of any other Master Guarantee Supplement,
the Guarantor shall fail to have outstanding long-term unsecured
indebtedness rated A or better by S&P and A2 or better by Xxxxx'x (or an
equivalent rating by another nationally recognized statistical rating
organization of similar standing if neither such corporation is in the
business of rating
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such long-term unsecured indebtedness or in the case of any other Master
Guarantee Supplement; or
(e) The Guarantor shall default in the payment when due of any
principal of or interest on any of its Indebtedness which is outstanding in
a principal amount of at least $50,000,000 in the aggregate (other than its
Indebtedness hereunder); or any event specified in any note, agreement,
indenture or other document evidencing or relating to any such Indebtedness
shall occur if the effect of such event is to cause, or (with the giving of
notice or the lapse of time or both) to permit the holder or holders of
such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, such Indebtedness to become due, or to be prepaid in
full (whether by redemption, purchase, offer to purchase or otherwise),
prior to its stated maturity or to have the interest rate thereon reset to
a level so that securities evidencing such Indebtedness trade at a level
specified in relation to the par value thereof.
Section 2. The Guarantee.
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2.01 The Guarantee. The Guarantor hereby guarantees to the
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Administrative Agent, the Collateral Agent, the Depositary Agent and each other
Secured Party (or certain of them as set forth in the Depositary Agreement) and
their respective successors and assigns the prompt payment in full when due of
each Master Guaranteed Obligation by the related Guaranteed Obligor. The
Guarantor hereby further agrees that the Guarantor will promptly pay each
Guaranteed Obligation within five Business Days following the Guarantor's
receipt of written notice of demand for payment therefor from the Administrative
Agent, the Collateral Agent or the Depositary Agent, furnished in accordance
with the terms of the Depositary Agreement and that in the case of any extension
of time of payment or renewal of any Master Guaranteed Obligation, the same will
be promptly paid in full when due in accordance with the terms of such extension
or renewal within five Business Days following the Guarantor's receipt of
written notice of demand for payment therefor from the Administrative Agent, the
Collateral Agent or the Depositary Agent, furnished in accordance with the terms
of the Depositary Agreement. Any such payments pursuant to this Section 2.01
shall be made in immediately available funds to the Account (or sub-account
thereof) established in the name of the Company and maintained by the Depositary
Agent at The Chase Manhattan Bank, 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, identified in the related Master Guarantee Supplement with
respect to such Master Guaranteed Obligation, pending transfer in accordance
with the Depositary Agreement (provided, that in the event that no account is
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specified in such Master Guarantee Supplement or in a demand for payment
delivered with respect to any Master Guaranteed Obligation, payments shall be
made in accordance with Payment Instructions to the Project Revenue Account
(account number C23916) and segregated therein pending transfer in accordance
with the terms of the Depositary Agreement). Each payment made in respect of any
Master Guaranteed Obligation shall be accompanied by a written statement from an
Authorized Officer of the Guarantor identifying the Master Guaranteed Obligation
to which such payment relates.
2.02 Obligations Unconditional; Waiver of Defenses. The obligation of
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the Guarantor under Section 2.01 hereof is irrevocable, absolute and
unconditional, irrespective of the value, genuineness, validity, regularity or
enforceability of any of the Credit Agreement, any
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other Basic Document, any other Financing Document, any Project Document or any
other agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of or security for any
Master Guaranteed Obligation or any Secured Obligation, and, to the fullest
extent permitted by applicable Government Rule, irrespective of any other
circumstance whatsoever which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 2.02 that the obligation of the Guarantor hereunder shall be absolute
and unconditional under any and all circumstances. To the fullest extent
permitted by applicable Government Rule, the obligation of the Guarantor under
Section 2.01 hereof shall not be subject to any abatement, reduction,
limitation, impairment, termination, setoff, defense, counterclaim or recoupment
whatsoever or any right to any thereof, and shall not be released or discharged.
Without limiting the generality of the foregoing, it is agreed that, to the
fullest extent permitted by applicable Government Rule, the occurrence of any
one or more of the following (without notice to the Guarantor) shall not alter
or impair the liability of the Guarantor hereunder which shall remain absolute
and unconditional as described above:
(a) at any time or from time to time, the time for any performance of
or compliance with any Master Guaranteed Obligation or any
Secured Obligation shall be extended, or such performance or
compliance shall be waived;
(b) any of the acts mentioned in any of the provisions of any of the
Credit Agreement, any other Basic Document, any other Financing
Document, any Project Document or any other agreement or
instrument referred to herein or therein shall be done or
omitted;
(c) the maturity of any Master Guaranteed Obligation or any Secured
Obligation shall be accelerated, or any Master Guaranteed
Obligation or any Secured Obligation shall be modified,
supplemented or amended in any respect, or any right under any of
the Credit Agreement, any other Basic Document, any other
Financing Document, any Project Document or any other agreement
or instrument referred to herein or therein shall be waived or
any other guarantee of any Master Guaranteed Obligation or any
Secured Obligation or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with;
(d) any lien or security interest granted to, or in favor of, the
Collateral Agent, the Depositary Agent or any Secured Party as
security for any Master Guaranteed Obligation or any Secured
Obligation shall fail to be perfected;
(e) the bankruptcy or insolvency of the Company, the Guarantor, any
Partner or any other Recourse Party or any reorganization,
arrangement, compromise, composition or plan affecting the
Company, the Guarantor, any Partner or any other Recourse Party
shall occur; or
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(f) this Master Guarantee, any Master Guarantee Supplement or any
other Project Document referred to herein or therein shall be
rejected in any bankruptcy, insolvency or similar proceeding
(nothing herein being a concession that any obligation hereunder
or thereunder is properly classifiable as an executory
obligation).
To the fullest extent permitted by applicable Government Rule, the Guarantor
hereby expressly waives, except as specifically provided in Section 2.01 hereof,
diligence, presentment, demand of payment, protest and all notices whatsoever,
and any requirement that the Administrative Agent, the Collateral Agent, the
Depositary Agent or any other Secured Party exhaust any right, power or remedy
or proceed against any Guaranteed Obligor or any other Person under the Credit
Agreement, any other Basic Document, any other Financing Document, any Project
Document or any other agreement or instrument referred to herein or therein, or
against any other Person under any other guarantee of, or security for, any
Master Guaranteed Obligation or any Secured Obligation.
2.03 Reinstatement. The obligation of the Guarantor under this Section
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2 shall be automatically reinstated if, and to the extent that, for any reason
any payment by or on behalf of the Guarantor in respect of any Master Guaranteed
Obligation is rescinded or must be otherwise restored by the Administrative
Agent, the Collateral Agent, the Depositary Agent or any other Secured Party,
whether as a result of any proceedings under bankruptcy, insolvency or similar
laws, reorganization or otherwise, and the Guarantor shall indemnify the
Administrative Agent, the Collateral Agent, the Depositary Agent and each other
Secured Party on demand for all reasonable out-of-pocket costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses of
counsel) incurred by the Administrative Agent, the Collateral Agent, the
Depositary Agent or such other Secured Party in connection with such rescission
or restoration.
2.04 Subrogation. Until the Master Guarantee Termination Date, the
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Guarantor shall not exercise, and hereby irrevocably waives, to the fullest
extent permitted by applicable Government Rule, any claim, right or remedy that
it may now have or may hereafter acquire against any Guaranteed Obligor arising
under or in connection with this Master Guarantee or any Master Guarantee
Supplement, including, without limitation, any claim, right or remedy of
subrogation, contribution, reimbursement, exoneration, indemnification or
participation arising under contract, by Government Rule or otherwise in any
claim, right or remedy of the Administrative Agent, the Collateral Agent, the
Depositary Agent or the other Secured Parties against any Guaranteed Obligor or
any other Person or any Collateral which the Administrative Agent, the
Collateral Agent, the Depositary Agent or any other Secured Party may now have
or may hereafter acquire. If, notwithstanding the preceding sentence, any amount
shall be paid to the Guarantor at any time when any Master Guaranteed Obligation
shall not have been paid in full, such amount shall be held by the Guarantor in
trust for the Collateral Agent and the other Secured Parties, segregated from
other funds of the Guarantor and be turned over to the Collateral Agent (duly
endorsed by the Guarantor to the Collateral Agent, if required), to be applied
against such Master Guaranteed Obligation, whether matured or unmatured, in
accordance with the Depositary Agreement.
2.05 Remedies. The Guarantor agrees that, as between the Guarantor,
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the Administrative Agent, the Collateral Agent, the Depositary Agent and the
other Secured Parties,
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the obligations of each Guaranteed Obligor under the documentation governing its
related Master Guaranteed Obligation may become, or may be declared to be,
forthwith due and payable as provided therein for purposes of Section 2.01
hereof notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against the Company and that, in the event of such declaration (or such
obligations becoming automatically due and payable), such obligations (whether
or not due and payable by the Company) shall forthwith become due and payable by
the Company for purposes of said Section 2.01. The Guarantor further agrees
that, in accordance with the Depositary Agreement, upon the occurrence of a
Master Guarantee ASP Replacement Event amounts payable under this Master
Guarantee and any Master Guarantee Supplement may, notwithstanding that the
obligations of any Guaranteed Obligor are not then due and payable, become
payable in the amounts and at the times set forth in the Depositary Agreement.
2.06 Continuing Guarantee. The guarantee in this Section 2 is a
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continuing guarantee and shall apply to any Master Guaranteed Obligation
whenever arising.
2.07 Pro Tanto Discharge. Any payment made directly to the Depositary
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Agent under this Master Guarantee shall be deemed to be payment by the
Guaranteed Obligor of the related Master Guaranteed Obligation pro tanto
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(subject to Section 2.03 hereof).
2.08 Termination.
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(a) Master Guarantee Supplements. Upon written notice to the
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Administrative Agent, the Collateral Agent and the Depositary Agent, the
Guarantor may, with respect to any Master Guaranteed Supplement, on any date on
which (a) the Master Guaranteed Obligation guaranteed under such Master
Guarantee Supplement is no longer required to be guaranteed under and in
accordance with any of the Basic Documents (including, without limitation, by
reason of such Master Guaranteed Obligation being guaranteed under the
Acceptable Guarantee of an Acceptable Support Party), (b) no Master Guaranteed
Obligation relating to such Master Guaranteed Supplement is outstanding and (c)
no amounts are payable under or in accordance with Section 5.03 hereof with
respect to the Master Guaranteed Obligation relating to such Master Guarantee
Supplement, terminate such Master Guarantee Supplement effective on and as of
such date.
(b) Master Guarantee. Upon written notice to the Administrative Agent,
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the Collateral Agent and the Depositary Agent, the Guarantor may, on any date on
which (a) no Master Guarantee or Master Guarantee Supplement is at such time
required to be in full force and effect under and in accordance with any of the
Basic Documents, (b) no Master Guaranteed Obligation is outstanding and (c) no
amounts are payable under or in accordance with Section 5.03 hereof, terminate
this Master Guarantee effective on and as of such date.
Section 3. Representations and Warranties. The Guarantor represents
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and warrants to the Administrative Agent, the Collateral Agent, the Depositary
Agent and the other Secured Parties that:
3.01 Corporate Existence. The Guarantor is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
California and is duly qualified to do
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business and is in good standing in its jurisdiction of incorporation and all
other places where necessary in light of the business it conducts and the
Property it owns and intends to conduct and own and in light of the transactions
contemplated by this Master Guarantee and each other Project Document to which
it is a party.
3.02 Financial Condition. The audited balance sheet of the Guarantor
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as at December 31, 1997 and the related statements of income, shareholders'
equity and cash flows for the fiscal year of the Guarantor for the fiscal year
of the Guarantor ended on such date, and the unaudited balance sheet of the
Guarantor as at September 30, 1998 and the related statements of income,
shareholders' equity and cash flows of the Guarantor for the nine (9)-month
period ended on such date, heretofore furnished to each of the Secured Parties,
are complete and correct and fairly present the financial condition of the
Guarantor as at said dates and the results of its operations for the fiscal year
and nine (9)-month period ended on said dates (subject, in the case of such
unaudited financial statements as at March 31, 1998, June 30, 1998 and September
30, 1998, to normal year-end audit adjustments), all in accordance with
generally accepted accounting principles and practices applied on a consistent
basis. Since September 30, 1998 there has been no material adverse change in the
financial condition, operations, business or prospects of the Guarantor from
that set forth in said financial statements as at said date.
3.03 Litigation. Except as disclosed in Guarantor's Form 10-K for the
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year ended December 31, 1997 or Guarantor's Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998, as filed with the U.S.
Securities and Exchange Commission, which were delivered to each of the
Administrative Agent, the Collateral Agent, each Lender and each issuing Bank
prior to the date hereof, there is no action, suit or proceeding at law or in
equity or by or before any Government Authority, arbitral tribunal or other body
now pending or, to the best knowledge of the Guarantor, threatened against or
affecting the Guarantor or any of its Property, which has had or could
reasonably be expected to have a Material Adverse Effect on the Guarantor.
3.04 No Breach. The execution, delivery and performance by the
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Guarantor of this Master Guarantee and each other Project Document to which it
is or is intended to be a party and the consummation of the transactions
contemplated hereby and thereby do not and will not: (a) require any consent or
approval of the board of directors or any shareholder of the Guarantor or any
other Person that has not been duly obtained and each such consent or approval
that has been obtained is in full force and effect, (b) violate any provision of
the certificate of incorporation or the by-laws of the Guarantor or any
Government Rule or Government Approval applicable to the Guarantor, (c) conflict
with, result in a breach of or constitute a default under any provision of the
certificate of incorporation, by-laws or any resolution of the board of
directors of the Guarantor or any indenture or loan or credit agreement or any
other material agreement, lease or instrument to which the Guarantor is a party
or by which it or its Properties may be bound or (d) result in, or require, the
creation or imposition of any Lien, upon or with respect to any of the
properties now owned or hereafter acquired by the Guarantor, which, in any of
the circumstances described in the foregoing clauses (a) through (d), could
reasonably be expected to have a Material Adverse Effect on the Company or the
Guarantor. The Guarantor is not in violation of any Government Rule or
Government Approval which violation could reasonably be expected to have a
Material Adverse Effect on the Company or the Guarantor.
ACCEPTABLE GUARANTEE
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3.05 Action. The Guarantor has the full corporate power, authority and
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legal right to execute, deliver and perform its obligations under this Master
Guarantee and any other Project Document to which it is or is intended to be a
party. The execution, delivery and performance by the Guarantor of this Master
Guarantee and any other Project Document to which it is or is intended to be a
party, and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate and shareholder action on the part of
the Guarantor. This Master Guarantee and any other Project Document to which the
Guarantor is or is intended to be a party has been duly executed and delivered
by the Guarantor, has not been amended or otherwise modified, except as
permitted pursuant to Section 8.23 of the Credit Agreement, is in full force and
effect and is the legal, valid and binding obligation of the Guarantor,
enforceable against the Guarantor in accordance with its terms, except as the
enforceability thereof may be limited by (a) applicable bankruptcy, insolvency,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and (b) the application of general principles of equity regardless of
whether such enforceability is considered in a proceeding at law or in equity).
3.06 Approvals. No Government Approval by, and no filing with, any
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Government Authority is required for the execution, delivery or performance by
the Guarantor of this Master Guarantee or any other Project Document to which it
is or is intended to be a party or for the validity or enforceability hereof or
thereof, or for the exercise by the Administrative Agent, the Depositary Agent,
the Collateral Agent or any other Secured Party of their respective rights and
remedies hereunder.
3.07 Taxes. The Guarantor has filed or caused to be filed all tax
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returns that are required to be filed, and has paid all taxes shown to be due
and payable on said returns or on any assessments made against the Guarantor or
any of its Property and all other Taxes, imposed on the Guarantor by any
Government Authority (other than Taxes the payment of which are not yet due or
which are being Contested), and no tax Liens (other than Permitted Liens) have
been filed and no claims are being asserted with respect to such Taxes.
3.08 Regulatory Status. The Guarantor is not an "investment company"
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within the meaning of the Investment Company Act of 1940, as amended.
Section 4. Covenants. The Guarantor agrees that, until the payment and
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satisfaction in full of each Guaranteed Obligation and the occurrence of the
Debt Termination Date:
4.01 Financial Statements. The Guarantor shall deliver to the
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Administrative Agent and the Collateral Agent to the extent not otherwise
delivered pursuant to the Financing Documents:
(a) as soon as available and in any event within 45 days after the
end of each quarterly fiscal period of the Guarantor, unaudited financial
statements of the Guarantor for such period and for the period from the
beginning of the respective fiscal year to the end of such period in the
form that the Guarantor releases to the public;
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(b) as soon as available and in any event within 120 days after the
end of each fiscal year of the Guarantor, audited financial statements of
the Guarantor for such year in the form that the Guarantor releases to the
public;
(c) promptly upon their becoming available, copies of all registration
statements and regular periodic reports, if any, which the Guarantor shall
have filed with the Securities and Exchange Commission or any national
securities exchange;
(d) promptly upon the mailing thereof to the shareholders of the
Guarantor generally, copies of all financial statements, reports and proxy
statements so mailed;
(e) promptly after the Guarantor knows or has reason to believe that
any ASP Replacement Event has occurred, a notice of such ASP Replacement
Event describing the same in reasonable detail and, together with such
notice or as soon thereafter as possible, a description of the action that
the Guarantor has taken or proposes to take with respect thereto; and
(f) from time to time such other information regarding the financial
condition, operations, business or prospects of the Guarantor as the
Collateral Agent or the Administrative Agent (or any Lender through the
Administrative Agent) may reasonably request.
4.02 Litigation. The Guarantor shall promptly upon obtaining knowledge
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of (a) any action, suit or proceeding at law or in equity by or before any
Government Authority, arbitral tribunal or other body pending or threatened
against the Guarantor which could reasonably be expected to result in a Material
Adverse Effect on the Guarantor or (b) any other circumstance, act or condition
(including, without limitation, the adoption, amendment or repeal of any
Government Rule applicable to the Guarantor or the Impairment of any Government
Approval relating to the Guarantor or notice (whether formal or informal,
written or oral) of the failure to comply with the terms and conditions of any
such Government Approval) which could reasonably be expected to result in a
Material Adverse Effect on the Guarantor, furnish to the Administrative Agent
and the Collateral Agent a notice of such event describing the same in
reasonable detail and, together with such notice or as soon thereafter as
possible, a description of the action that the Guarantor has taken and proposes
to take with respect thereto.
4.03 Corporate Existence, Etc. The Guarantor shall preserve and
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maintain (a) its corporate existence and (b) all of its licenses, rights,
privileges and franchises necessary or desirable for (i) the maintenance of its
existence and (ii) the fulfillment of its material obligations and the exercise
of all its material rights under this Master Guarantee and each other Project
Document to which it is or is intended to be a party; provided, however, that
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this Section 4.03 shall not apply to or be breached by any merger or
consolidation of Guarantor with or into any other Person if (a) Guarantor is the
survivor or (b) the surviving Person, if not Guarantor, is organized under the
laws of the United States or a state thereof and assumes all obligations of
Guarantor under this Master Guarantee (provided in each case that immediately
after giving effect to such proposed transaction, no ASP Replacement Event or
event which, with giving of notice or lapse of time or both, would constitute an
ASP Replacement Event, would exist or result).
ACCEPTABLE GUARANTEE
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4.04 Compliance with Government Rules. Etc. The Guarantor shall comply
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with all applicable Government Rules and shall from time to time obtain and
renew, and shall comply with, all Government Approvals as shall now or hereafter
be necessary under applicable Government Rules in connection with this Master
Guarantee and each other Project Document to which the Guarantor is or is
intended to be a party and the transactions contemplated hereby or thereby
(except any thereof the non-compliance with which could not reasonably be
expected to result in a Material Adverse Effect on the Guarantor) and shall
promptly furnish certified copies of each such Government Approval to the
Administrative Agent and the Collateral Agent (together with the application for
and the and associated correspondence regarding such Government Approvals, if
requested by the Administrative Agent) to the extent not theretofore furnished
in accordance with the terms of the Credit Agreement.
4.05 Taxes. The Guarantor shall pay and discharge, or effectively
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provide for, all Taxes now or hereafter imposed on it or on its income or
profits or on any of its Property prior to the date on which penalties attach
thereto (provided that the Guarantor shall have the right to Contest the
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validity or amount of any such Tax, in which event, the Guarantor shall promptly
pay any valid, final judgment enforcing any such Tax and cause the same to be
satisfied of record) unless such failure to pay could not, either individually
or together with all other failures by the Guarantor to pay, reasonably be
expected to result in a Material Adverse Effect on the Guarantor.
4.07 Maintenance of Properties. The Guarantor shall maintain and
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preserve all of its material Properties necessary or useful in the proper
conduct its business in good working order and condition, ordinary wear and tear
excepted and (b) keep insured by financially sound and reputable insurers all
Property of a character usually insured by entities engaged in the same or
similar business similarly situated against loss or damage of the kinds and in
the amounts customarily insured against by such entities and carry such other
insurance as is usually carried by such entities.
Section 5. Miscellaneous.
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5.01 No Waiver. No failure on the part of the Administrative Agent,
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the Collateral Agent, the Depositary Agent, any other Secured Party, or the
Company to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege hereunder or under any Master
Guarantee Supplement shall operate as a waiver thereof, and no single or partial
exercise by the Administrative Agent, the Collateral Agent, the Depositary
Agent, any other Secured Party, or the Company of any right, power or privilege
hereunder or thereunder shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The remedies provided
herein and in any Master Guarantee Supplement are cumulative and not exclusive
of any remedies provided by law.
5.02 Notices. All notices, requests and other communications provided
-------
for herein or in any Master Guarantee Supplement (including, without limitation,
any modifications of, or waivers or consents under, this Master Guarantee or any
Master Guarantee Supplement) shall be given or made in writing (including,
without limitation, by telecopy) delivered to the intended recipient at the
"Address for Notices" specified below its name on the signature pages hereof or,
as to any party, at such other address as shall be designated by such party in a
notice to each
ACCEPTABLE GUARANTEE
--------------------
-11-
other party. Except as otherwise provided in this Master Guarantee or any Master
Guarantee Supplement, all such communications shall be deemed to have been duly
given when received by telex or telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
5.03 Expenses. The Guarantor agrees to pay to the Administrative
--------
Agent, the Collateral Agent and the Depositary Agent all reasonable out-of-
pocket expenses (including reasonable expenses for legal services of every kind)
of, or incident to, the enforcement of any of the provisions of this Master
Guarantee or any Master Guarantee Supplement, and for the defending or asserting
of rights and claims of the Administrative Agent, the Collateral Agent or the
Depositary Agent under such provisions, by litigation or otherwise.
5.04 Waivers. Etc. This Master Guarantee or any Master Guarantee
------------
Supplement may be amended or modified only by an instrument in writing signed by
the Guarantor, the Administrative Agent acting with the consent of the Majority
Lenders as provided in Section 10.09 of the Credit Agreement and Section 23 of
the Intercreditor Agreement and the Collateral Agent acting with the consent of
the Required Creditors as provided in Section 23 of the Intercreditor Agreement,
and any provision of this Master Guarantee or any Master Guarantee Supplement
may be waived by the Administrative Agent acting with consent of the Majority
Lenders as provided in Section 10.09 of the Credit Agreement and Section 23 of
the Intercreditor Agreement and the Collateral Agent acting on the instruction
of the Required Creditors; provided that (a) no amendment, modification or
waiver shall, unless by an instrument in writing signed by all of the Secured
Parties or by the Collateral Agent acting on the instruction of all of the
Secured Parties, alter the terms of this Section 5.04 and (b) no amendment,
modification or waiver shall, unless by an instrument in writing signed by the
Depositary Agent, affect the rights or obligations of the Depositary Agent. Any
waiver shall be effective only in the specific instance and for the specified
purpose for which it was given.
5.05 Successors and Assigns. This Master Guarantee and each Master
----------------------
Guarantee Supplement shall be binding upon and inure to the benefit of the
respective successors and assigns of each of the Guarantor, the Administrative
Agent, the Depositary Agent, the Collateral Agent, the other Secured Parties and
the holder of any Master Guaranteed Obligation (provided, however, that the
--------
Guarantor shall not assign or transfer its rights hereunder (other than pursuant
to a merger or consolidation of the Guarantor with or into any other Person if
(a) the Guarantor is the survivor or (b) the surviving Person, if not Guarantor,
is organized under the laws of the United States or a state thereof and assumes
all obligations of the Guarantor under the Master Guarantee (provided in each
case that immediately after giving effect to such proposed transaction, no ASP
Replacement Event or event which, with the giving of notice or lapse of time or
both, would constitute an ASP Replacement Event, would exist or result)) without
the prior written consent of the Collateral Agent (acting with the consent of
the Required Creditors).
5.06 Counterparts; Integration; Effectiveness. This Master Guarantee
----------------------------------------
and any Master Guarantee Supplement may be executed in any number of
counterparts, all of which when taken together shall constitute one and the same
instrument and any of the parties hereto or to any Master Guarantee Supplement
may execute this Master Guarantee or any Master Guarantee Supplement by signing
any such counterpart. This Master Guarantee, each Master Guarantee Supplement
and the other Project Documents to which the Guarantor is a party
ACCEPTABLE GUARANTEE
--------------------
-12-
constitute the entire agreement and understanding among the parties hereto and
supersede any and all prior agreements and understandings, written or oral,
relating to the subject matter hereof. This Master Guarantee and each Master
Guarantee Supplement shall become effective at such time as the Collateral Agent
shall have received counterparts hereof signed by all of the intended parties
hereto.
5.07 Severability. If any provision hereof or of any Master Guarantee
------------
Supplement is invalid or unenforceable in any jurisdiction, then, to the fullest
extent permitted by applicable Government Rule, (a) the other provisions hereof
shall remain in full force and effect in such jurisdiction and shall be
liberally construed in order to carry out the intentions of the parties hereto
as nearly as may be possible and (b) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
5.08 The Administrative Agent, the Collateral Agent and the
------------------------------------------------------
Depositary Agent. As provided in Section 10 of the Credit Agreement, each
----------------
Lender has appointed ABN AMRO BANK N.V. as its Administrative Agent for purposes
of this Master Guarantee and each Master Guarantee Supplement and as provided in
the Intercreditor Agreement and the Depositary Agreement, the Secured Parties
have appointed (or approved of the appointment of) the Collateral Agent and the
Depositary Agent for the purposes of this Master Guarantee and each Master
Guarantee Supplement.
5.09 Headings. Headings appearing herein or in any Master Guarantee
--------
Supplement are used solely for convenience of reference and are not intended to
affect the interpretation of any provision of this Master Guarantee or any
Master Guarantee Supplement.
5.10 SPECIAL EXCULPATION. NO CLAIM MAY BE MADE BY THE GUARANTOR OR
-------------------
ANY OTHER PERSON AGAINST THE COLLATERAL AGENT, THE DEPOSITARY AGENT, THE
ADMINISTRATIVE AGENT OR ANY OTHER SECURED PARTY OR THE AFFILIATES, DIRECTORS,
OFFICERS, EMPLOYEES, ATTORNEYS OR AGENTS OF ANY OF THEM FOR ANY SPECIAL,
INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM FOR BREACH
OF CONTRACT OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF OR RELATING TO THIS
MASTER GUARANTEE OR ANY OTHER PROJECT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION
THEREWITH AND THE GUARANTOR HEREBY WAIVES, RELEASES AND AGREES NOT TO XXX UPON
ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN
OR SUSPECTED TO EXIST IN ITS FAVOR.
5.11 SUBMISSION TO JURISDICTION. THE GUARANTOR HEREBY SUBMITS TO THE
--------------------------
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY
FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
MASTER GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. THE GUARANTOR HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
ACCEPTABLE GUARANTEE
--------------------
-13-
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT
ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
5.12 NO THIRD PARTY BENEFICIARIES. THE AGREEMENTS OF THE PARTIES
----------------------------
HERETO ARE SOLELY FOR THE BENEFIT OF THE GUARANTOR, THE COMPANY, THE
ADMINISTRATIVE AGENT AND THE OTHER SECURED PARTIES, AND NO PERSON (OTHER THAN
THE PARTIES HERETO, THE SECURED PARTIES AND THEIR SUCCESSORS AND ASSIGNS
PERMITTED HEREUNDER) SHALL HAVE ANY RIGHTS HEREUNDER.
5.13 GOVERNING LAW. THIS MASTER GUARANTEE SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
5.14 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY
--------------------
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS MASTER GUARANTEE
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
ACCEPTABLE GUARANTEE
--------------------
IN WITNESS WHEREOF, the parties hereto have caused this Master
Guarantee to be duly executed and delivered as of the day and year first above
written.
EDISON MISSION ENERGY
By /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxx
Vice President
Address for Notices:
00000 Xxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000-0000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Vice President
With copies to:
Edison Mission Energy
00000 Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000-0000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxxxx Xxxx, Esq.
ACCEPTABLE GUARANTEE
--------------------
ABN AMRO BANK N.V.,
as Administrative Agent
By /s/ Xxxxxxx X. Xxxx
---------------------------
Name: XXXXXXX X. XXXX
Title: SENIOR VICE PRESIDENT
By /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
Address for Notices:
ABN AMRO Bank N.V.
New York Branch
1325 Avenue of the Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Syndications & Placements;
Administrative Services
With copies to:
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Credit Administration
Department
ACCEPTABLE GUARANTEE
--------------------
and
ABN AMRO North America, Inc.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Project Finance
ACCEPTABLE GUARANTEE
--------------------
THE CHASE MANHATTAN BANK,
as Collateral Agent
By /s/ Xxxxx X. Safer
------------------------
Name: XXXXX X. SAFER
Title: VICE PRESIDENT
Address for Notices:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: International Corporate Trust
Telephone: 000-000-0000
Telecopy: 000-000-0000/8
With copies to:
The Chase Manhattan Bank
Hato Rey Headquarters
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxx, Xxxxxx Xxxx 00000
Attention:
Telephone: 000-000-0000
Telecopy: 000-000-0000
ACCEPTABLE GUARANTEE
--------------------
THE CHASE MANHATTAN BANK
as Depositary Agent
By /s/ Xxxxx X. Safer
--------------------
Name: XXXXX X. SAFER
Title: VICE PRESIDENT
Address for Notices:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: International Corporate Trust
Telephone: 000-000-0000
Telecopy: 000-000-0000/8
ACCEPTABLE GUARANTEE
--------------------
