Exhibit 10.90
REIMBURSEMENT AGREEMENT (this "AGREEMENT"), dated as of
August 17, 2000, entered into between Edison Mission Energy, a California
corporation ("EME") and Midwest Generation, LLC, a Delaware limited liability
company ("MIDWEST").
WHEREAS, Midwest is a wholly owned subsidiary of Edison
Mission Midwest Holdings Co. ("Holdings"), and is subject to the certain
covenants set forth in (A) the Credit Agreement, dated as of December 15,
1999 (as amended, modified or supplemented and in effect from time to time
and together with any refinancing or replacement thereof, the "HOLDINGS
CREDIT AGREEMENT"), among Holdings and certain commercial lending
institutions party thereto (the "LENDERS") and The Chase Manhattan Bank, as
the Administrative Agent; (B) the Participation Agreement, dated as of
December 15, 1999 (as heretofore amended, modified and supplemented, the
"PARTICIPATION AGREEMENT (T1)") among Xxxxxxx Holdings EME, LLC ("XXXXXXX
HOLDINGS"), Wilmington Trust Company, as the Owner Trustee, Xxxxxxx Trust I,
as the Owner Lessor, Xxxxxxx Generation I, LLC, as Owner Participant,
Holdings, Midwest, Funding LLC, Bayerische Landesbank International S.A. (the
"MIDWEST LC ISSUER"), Bayerische Landesbank Girozentrale ("RCE LC ISSUER")
and the Holder Representative (as such term is defined therein); (C) the
Participation Agreement, dated as of December 15, 1999 (as heretofore
amended, modified and supplemented, the "PARTICIPATION AGREEMENT (T2)") among
Xxxxxxx Holdings, Wilmington Trust Company, as the Owner Trustee, Xxxxxxx
Trust II, as the Owner Lessor, Xxxxxxx Generation II, LLC, as Owner
Participant, Holdings, Midwest, Funding LLC, the Midwest LC Issuer, the RCE
LC Issuer and the Holder Representative (as such term is defined therein);
(D) the Participation Agreement, dated as of December 15, 1999 (as heretofore
amended, modified and supplemented, the "PARTICIPATION AGREEMENT (T3)") among
Xxxxxxx Holdings, Wilmington Trust Company, as the Owner Trustee, Xxxxxxx
Trust III, as the Owner Lessor, Xxxxxxx Generation III, LLC, as Owner
Participant, Holdings, Midwest, Funding LLC, the Midwest LC Issuer, the RCE
LC Issuer and the Holder Representative (as such term is defined therein);
(E) the Participation Agreement, dated as of December 15, 1999 (as heretofore
amended, modified and supplemented, the "PARTICIPATION AGREEMENT (T4)",
together with Participation Agreement (T1), Participation Agreement (T2) and
Participation Agreement (T3), "XXXXXXX PARTICIPATION AGREEMENTS") among
Xxxxxxx Holdings, Wilmington Trust Company, as the Owner Trustee, Xxxxxxx
Trust IV, as the Owner Lessor, Xxxxxxx Generation IV, LLC, as Owner
Participant, Holdings,
REIMBURSEMENT AGREEMENT
Midwest, Funding LLC, the Midwest LC Issuer, the RCE LC Issuer and the Holder
Representative (as such term is defined therein); and (F) the Credit
Agreement, dated as of May 9, 2000 (as amended, modified or supplemented and
in effect from time to time, the "CAPEX CREDIT AGREEMENT", together with the
Holdings Credit Agreement and Xxxxxxx Participation Agreements (and related
Operative Documents defined therein), the "HOLDINGS CREDIT FACILITIES") among
Holdings, Societe Generale and Bayerische Landesbank Girozentrale ("CAPEX
LENDERS", and together with the Lenders and Lease Financing Parties under the
Xxxxxxx Participation Agreements, the "CREDITOR PARTIES");
WHEREAS, contemporaneously herewith Midwest intends to
enter into a transaction pursuant to the Powerton/Joliet Lease Participation
Agreements (as defined below) whereby Midwest would sell certain of its
generating assets to Powerton Trust I, Powerton Trust II, Joliet Trust I and
Joliet Trust II (the "OWNER Lessors") and the Owner Lessors would lease such
generating assets to Midwest;
WHEREAS, Midwest will loan to EME of the proceeds of the
sale of the generating assets to the Owner Lessor (the "INTERCOMPANY LOAN");
WHEREAS, in connection with the transactions contemplated
by the Participation Agreements (as defined below), Holdings and Midwest
requested the Creditor Parties to approve such sale and lease-back of
generating assets;
NOW, THEREFORE, for and in consideration for the Creditor
Parties' approval of the transactions contemplated by the Participation
Agreements (as defined below) and the Intercompany Loan, and mutual covenants
herein contained, and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto, intending
to be legally bound, do hereby covenant and agree as follows:
1. DEFINITIONS. Unless otherwise expressly provided herein, capitalized terms
used in this Agreement but not defined herein shall have meanings given to
such terms in Appendix A to each of the Participation Agreements. The
following terms, when used herein, shall have the following meanings:
"COMBINED RENT" means, collectively, Powerton Rent (T1),
Powerton Rent (T2), Joliet Rent (T1) and Joliet Rent (T2).
REIMBURSEMENT AGREEMENT
2
"JOLIET LEASE INTERCOMPANY NOTE (T1)" means the EME Note (as
defined in the Joliet Lease Participation Agreement (T1))
dated the Closing Date (as defined in the Joliet Lease
Participation Agreement (T1)) evidencing the loan by Midwest
to EME of the proceeds of the Joliet Lease Transaction (T1).
"JOLIET LEASE INTERCOMPANY NOTE (T2)" means the EME Note (as
defined in the Joliet Lease Participation Agreement (T2))
dated the Closing Date (as defined in the Joliet Lease
Participation Agreement (T2)) evidencing the loan by Midwest
to EME of the proceeds of the Joliet Lease Transaction (T2).
"JOLIET LEASE INTERCOMPANY NOTES" means, collectively, the
Joliet Lease Intercompany Note (T1) and the Joliet
Intercompany Note (T2).
"JOLIET LEASE OPERATIVE DOCUMENTS" means, collectively, the
Joliet Lease Operative Documents (T1) and the Joliet Lease
Operative Documents (T2).
"JOLIET LEASE OPERATIVE DOCUMENTS (T1)" means, collectively,
the Operative Documents as defined in the Joliet Lease
Participation Agreement (T1).
"JOLIET LEASE OPERATIVE DOCUMENTS (T2)" means, collectively,
the Operative Documents as defined in the Joliet Lease
Participation Agreement (T2).
"JOLIET LEASE PARTICIPATION AGREEMENT (T1)" means the
Participation Agreement (T1) dated as of August 17, 2000 by
and among Midwest, EME, Joliet Trust I, Wilmington Trust
Company, Joliet Generation I, the Lease Indenture Trustee
named therein and the Pass Through Trustees named therein.
"JOLIET LEASE PARTICIPATION AGREEMENT (T2)" means the
Participation Agreement (T2) dated as of August 17, 2000 by
and among Midwest, EME, Joliet Trust II, Wilmington Trust
Company, Joliet Generation II, the Lease Indenture Trustee
named therein and the Pass Through Trustees named therein.
REIMBURSEMENT AGREEMENT
3
"JOLIET LEASE PARTICIPATION AGREEMENTS" means, collectively,
the Joliet Lease Participation Agreement (T1) and the Joliet
Lease Participation Agreement (T2).
"JOLIET RENT (T1)" means Rent as defined in the Joliet Lease
Participation Agreement (T1).
"JOLIET RENT (T2)" means Rent as defined in the Joliet Lease
Participation Agreement (T2).
"JOLIET SUBORDINATION AGREEMENT (T1)" means the
Subordination Agreement dated as of August 17, 2000 between
Joliet Trust I, the Owner Participant (as defined in the
Joliet Participation Agreement (T1)), the Lease Indenture
Trustee (as defined in the Joliet Participation Agreement
(T1)) and the Holdings Collateral Agent.
"JOLIET SUBORDINATION AGREEMENT (T2)" means the
Subordination Agreement dated as of August 17, 2000 between
Joliet Trust II, the Owner Participant (as defined in the
Joliet Participation Agreement (T2)), the Lease Indenture
Trustee (as defined in the Joliet Participation Agreement
(T2)) and the Holdings Collateral Agent.
"JOLIET TRUST I" means Joliet Trust I, a Delaware business
trust.
"JOLIET TRUST II" means Joliet Trust II, a Delaware business
trust.
"LEASE FINANCING PARTIES" shall mean, as the context shall
require, all or any of the parties to Powerton/Joliet Lease
Operative Documents, including the Wilmington Trust Company
and excluding ComEd and the Holdings Collateral Agent.
"PARTICIPATION AGREEMENTS" means, collectively, the Powerton
Lease Participation Agreements and the Joliet Lease
Participation Agreements.
"POWERTON LEASE INTERCOMPANY NOTE (T1)" means the EME Note
(as defined in the Powerton Lease Participation Agreement
(T1)) dated the Closing Date (as defined in the Powerton
Lease Participation
REIMBURSEMENT AGREEMENT
4
Agreement (T1)) evidencing the loan by Midwest to EME of
the proceeds of the Powerton Lease Transaction (T1).
"POWERTON LEASE INTERCOMPANY NOTE (T2)" means the EME Note
(as defined in the Powerton Lease Participation Agreement
(T2)) dated the Closing Date (as defined in the Powerton
Lease Participation Agreement (T2)) evidencing the loan by
Midwest to EME of the proceeds of the Powerton Lease
Transaction (T2).
"POWERTON LEASE INTERCOMPANY NOTES" means, collectively, the
Powerton Lease Intercompany Note (T1) and the Powerton Lease
Intercompany Note (T2).
"POWERTON LEASE OPERATIVE DOCUMENTS" means, collectively,
the Powerton Lease Operative Documents (T1) and the Powerton
Lease Operative Documents (T2).
"POWERTON LEASE OPERATIVE DOCUMENTS (T1)" means,
collectively, the Operative Documents as defined in the
Powerton Lease Participation Agreement (T1).
"POWERTON LEASE OPERATIVE DOCUMENTS (T2)" means,
collectively, the Operative Documents as defined in the
Powerton Lease Participation Agreement (T2).
"POWERTON LEASE PARTICIPATION AGREEMENT (T1)" means the
Participation Agreement (T1) dated as of August 17, 2000 by
and among Midwest, EME, Powerton Trust I, Wilmington Trust
Company, Powerton Generation I, the Lease Indenture Trustee
named therein and the Pass Through Trustees named therein.
"POWERTON LEASE PARTICIPATION AGREEMENT (T2)" means the
Participation Agreement (T2) dated as of August 17, 2000 by
and among Midwest, EME, Powerton Trust II, Wilmington Trust
Company, Powerton Generation II, the Lease Indenture Trustee
named therein and the Pass Through Trustees named therein.
REIMBURSEMENT AGREEMENT
5
"POWERTON LEASE PARTICIPATION AGREEMENTS" means,
collectively, the Powerton Lease Participation Agreement
(T1) and the Powerton Lease Participation Agreement (T2).
"POWERTON RENT (T1)" means Rent as defined in the Powerton
Lease Participation Agreement (T1).
"POWERTON RENT (T2)" means Rent as defined in the Powerton
Lease Participation Agreement (T2).
"POWERTON SUBORDINATION AGREEMENT (T1)" means the
Subordination Agreement dated as of August 17, 2000 between
Powerton Trust I, the Owner Participant (as defined in the
Powerton Participation Agreement (T1)), the Lease Indenture
Trustee (as defined in the Powerton Participation Agreement
(T1)) and the Holdings Collateral Agent.
"POWERTON SUBORDINATION AGREEMENT (T2)" means the
Subordination Agreement dated as of August 17, 2000 between
Powerton Trust II, the Owner Participant (as defined in the
Powerton Participation Agreement (T2)), the Lease Indenture
Trustee (as defined in the Powerton Participation Agreement
(T2)) and the Holdings Collateral Agent.
"POWERTON TRUST I" means Powerton Trust I, a Delaware
business trust.
"POWERTON TRUST II" means Powerton Trust II, a Delaware
business trust.
"POWERTON/JOLIET LEASE INTERCOMPANY NOTES" means,
collectively, the Powerton Lease Intercompany Notes and the
Joliet Lease Intercompany Notes.
"POWERTON/JOLIET LEASE OPERATIVE DOCUMENTS" means,
collectively, the Powerton Lease Operative Documents and the
Joliet Lease Operative Documents.
REIMBURSEMENT AGREEMENT
6
"POWERTON/JOLIET LEASE PARTICIPATION AGREEMENTS" means,
collectively, the Powerton Lease Participation Agreement
(T1), Powerton Lease Participation Agreement (T2), Joliet
Lease Participation Agreement (T1) and Joliet Lease
Participation Agreement (T2).
"POWERTON/JOLIET SUBORDINATION AGREEMENTS" means,
collectively, the Powerton Subordination Agreement (T1), the
Powerton Subordination Agreement (T2), the Joliet
Subordination Agreement (T1) and the Joliet Subordination
Agreement (T2).
2. OBLIGATION TO REIMBURSE MIDWEST. Within 5 Business Days after the last day
of each Fiscal Quarter, EME shall pay to Midwest an amount equal to the
excess of (i) Combined Rent and all amounts paid by Midwest under or in
respect of the Powerton/Joliet Lease Operative Documents (including,
without limitation, payments made by Midwest to the Lease Financing Parties
in violation of the Powerton/Joliet Subordination Agreements or SECTION
18.19 of each of the Participation Agreements) during such Fiscal Quarter
OVER (ii) Free Cashflow for such Fiscal Quarter calculated as of such date
(without deduction for Combined Leveraged Lease Liabilities paid by Midwest
during such period); PROVIDED, that Base Free Cashflow for such Fiscal
Quarter shall be zero in the event that any of the conditions to Restricted
Payments set forth in the Holdings Credit Facilities (or the correlative
conditions set forth in any credit facility that refinances or replaces any
Holdings Credit Facility) have not been satisfied as of such date.
3. OBLIGATION ABSOLUTE. EME's obligation under this Agreement shall be
absolute and unconditional and shall not be subject to any defense or be
affected by any right of setoff, counterclaim or recoupment which EME may
now or hereafter have against Midwest or any other person for any reason
whatsoever.
4. NOTICES. All notices, requests and other communications provided for herein
(including, without limitation, any modifications of, or waivers under,
this Agreement) 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 other party. Except as otherwise provided
in this Agreement, all such commu-
REIMBURSEMENT AGREEMENT
7
nications shall be deemed to have been duly given (a) when received by
certified mail or by an international courier, such as Federal Express, by
such Person, at said address of such Person or (b) when transmitted by
facsimile to the number specified below and the receipt confirmed
telephonically by recipient, PROVIDED that such facsimile is promptly
followed by a copy of such notice delivered to such Person by postage-
prepaid certified mail, or by an international courier, such as Federal
Express.
5. WAIVERS; ETC. The terms of this Agreement may be waived, altered or amended
only by an instrument in writing duly executed by EME and Midwest. Any such
amendment or waiver shall be binding upon EME and Midwest.
6. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of each of EME and
Midwest.
7. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement 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 may
execute this Agreement by signing any such counterpart. This Agreement
constitutes the entire agreement and understanding among the parties hereto
and supersedes any and all prior agreements and understandings, written or
oral, relating to the subject matter hereof.
8. SEVERABILITY. If any provision hereof is invalid or unenforceable in any
jurisdiction, then, to the fullest extent permitted by applicable law, (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.
9. HEADINGS. Headings appearing herein are used solely for convenience of
reference and are not intended to affect the interpretation of any
provision of this Agreement.
REIMBURSEMENT AGREEMENT
8
10. WAIVER OF JURY TRIAL. EACH OF EME AND MIDWEST HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
11. NO THIRD PARTY BENEFICIARIES. THE AGREEMENTS OF THE PARTIES HERETO ARE
SOLELY FOR THE BENEFIT OF MIDWEST (AND EACH PERSON WHO CLAIMS THROUGH
MIDWEST), AND NO PERSON (OTHER THAN THE PARTIES HERETO AND THEIR SUCCESSORS
AND ASSIGNS PERMITTED HEREUNDER) SHALL HAVE ANY RIGHTS HEREUNDER.
12. GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement shall be governed
by, and construed in accordance with, the law of the State of New York. EME
hereby submits to the non-exclusive jurisdiction of the United States
District Court for the Southern District of New York and of the Supreme
Court of the State of New York sitting in New York County (including its
Appellate Division) and of any other appellate court in the State of New
York for the purposes of all legal proceedings arising out of or relating
to this Agreement or the transactions contemplated hereby. EME hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
objection that 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.
REIMBURSEMENT AGREEMENT
9
IN WITNESS WHEREOF, the parties have cause this Agreement to
be duly executed and delivered as of the day and year above written.
EDISON MISSION ENERGY
By: /s/ Xxxx X. Xxxxxxxx, Xx.
------------------------------
Name: Xxxx X. Xxxxxxxx, Xx.
Title: Vice President
Address for Notices:
00000 Xxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: General Counsel
Telecopier No.: (000) 000-0000
REIMBURSEMENT AGREEMENT
MIDWEST GENERATION, LLC
By: /s/ Xxxx Xxxxxx
---------------------------
Name: Xxxx Xxxxxx
Title: Vice President
Address for Notices:
One Financial Place
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: President
Telecopier No.: (000) 000-0000
with a copy to:
Edison Mission Midwest Holdings Co.
00000 Xxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: General Counsel
Telecopier No.: (000) 000-0000
REIMBURSEMENT AGREEMENT
