EXHIBIT 1.1
MIDWEST GENERATION PASS THROUGH TRUSTS
$1,147,000,000
PASS THROUGH CERTIFICATES, SERIES A AND SERIES B
PURCHASE AGREEMENT
August 17, 2000
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX BROTHERS INC.,
as representatives of the several Purchasers
c/o Credit Suisse First Boston Corporation,
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
c/x Xxxxxx Brothers Inc.
Three World Financial Center
Xxx Xxxx, XX 00000
Dear Sirs:
1. INTRODUCTORY. Edison Mission Energy, a California corporation
("EME"), and its indirect wholly-owned subsidiary Midwest Generation, LLC, a
Delaware limited liability company (the "COMPANY"), propose, subject to the
terms and conditions stated herein, that United States Trust Company of New
York, acting not in its individual capacity but solely as trustee (in its
individual capacity, "US TRUST" and in its capacity as such trustee, the "PASS
THROUGH TRUSTEE") under each of the Pass Through Trust Agreements (the "PASS
THROUGH TRUST AGREEMENTS"), dated as of August 24, 2000, among the Company and
the Pass Through Trustee, will issue and sell to Credit Suisse First Boston
Corporation ("CSFB"), Xxxxxx Brothers Inc. ("XXXXXX"), Chase Securities Inc.
("CSI"), Xxxxxxx Xxxxx Xxxxxx Inc. ("SSB") and XX Xxxxx Securities Corp.
("COWEN" and, together with CSFB, Xxxxxx, CSI and SSB, the several "PURCHASERS")
8.30% Midwest Generation Pass Through Certificates, Series A in the aggregate
amount of $333,500,000 and 8.56% Midwest Generation Pass Through Certificates,
Series B in the aggregate amount of $813,500,000 (such Pass Through Certificates
are herein referred to as the "OFFERED SECURITIES"), which will represent
fractional undivided interests in the Midwest Generation Series A Pass Through
Trust and the Midwest Generation Series B Pass Through Trust, respectively
(collectively, the "PASS THROUGH TRUSTS") for resale by you in reliance upon
Rule 144A (as such term is defined below) as described herein. Each such Pass
Through Trust will be formed pursuant to a separate Pass Through Trust
Agreement, in each case among the Company and the Pass Through Trustee. The term
"you" shall mean CSFB and Xxxxxx as representatives of the several Purchasers.
The United States Securities Act of 1933 is herein referred to as the
"SECURITIES ACT."
The property of the Pass Through Trusts will initially consist of
secured notes (the "LESSOR NOTES") which will be issued on a nonrecourse basis
by Wilmington Trust Company, a Delaware banking corporation, acting not in its
individual capacity but solely as owner trustee (with respect to each owner
trust hereinafter referred to, the
"OWNER TRUSTEE") of each of four separate owner trusts (collectively, the "OWNER
TRUSTS"). The Lessor Notes are to be issued under four separate lease indentures
(as amended or supplemented, the "INDENTURES"), each dated as of August 17,
2000, between each Owner Trust and US Trust, as indenture trustee (in such
capacity, the "INDENTURE TRUSTEE").
The proceeds from the sale of the Lessor Notes will be used to finance
a portion of the purchase price paid by the Owner Trusts for the purchase of
interests in the Powerton electric generating facility and Xxxx Xx. 0 xxx Xxxx
Xx. 0 of the Joliet electric generating facility in accordance with the
provisions of four separate Participation Agreements, each dated as of August
17, 2000 (collectively, the "PARTICIPATION AGREEMENTS"). Pursuant to the
Guarantees each dated as of August 17, 2000 (collectively, the "EME GUARANTEES")
made by EME with respect to each related lease agreement, EME has
unconditionally guaranteed the payment when due of each and every obligation for
the payment of money to each Owner Trust under the related Lease (as such term
is defined in each EME Guarantee).
Unless otherwise defined in this Agreement, capitalized terms have the
meanings specified or referred to in the Pass Through Trust Agreements or the
Participation Agreements, whether expressly referred to therein or by reference
to another document.
The Company and EME each hereby agree with the several Purchasers as
follows:
2. REPRESENTATIONS AND WARRANTIES OF EME AND THE COMPANY. EME and
the Company jointly and severally represent and warrant to, and agree with, the
several Purchasers that:
(a) A preliminary offering circular dated August 9, 2000
(the "PRELIMINARY OFFERING CIRCULAR") and an offering circular dated
August 17, 2000 (the "OFFERING CIRCULAR") relating to the Offered
Securities to be offered by the Purchasers have been prepared by the
Company. For purposes of this Agreement the Preliminary Offering
Circular and Offering Circular shall include any documents or portions
thereof incorporated by reference therein as set forth under
"Incorporation of Documents by Reference" included therein. Copies of
the Preliminary Offering Circular and the Offering Circular have been
delivered by the Company to the Purchasers. The Preliminary Offering
Circular was on the date thereof accurate in all material respects and
did not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and the Offering Circular is as of its date (and any
amendment or supplement thereto will be as of its date) accurate in all
material respects and does not (and, as of the Closing Date (as defined
below), will not) contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED that neither the Company nor EME
makes any representation or warranty as to information in or omissions
from the Offering Circular in reliance upon and in conformity with
written information furnished to the Company or EME by any Purchaser
through you specifically for use therein, it being understood and
agreed that the only such information is that described as such in
Section 7(b) hereof. Except as disclosed in the Offering Circular, on
the date of this Agreement, EME's Annual Report on Form 10-K most
recently filed with the Securities and Exchange Commission (the
"COMMISSION") and all subsequent reports (collectively, the "EXCHANGE
ACT REPORTS") which have been filed by EME with the Commission or sent
to shareholders pursuant to the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT") do not include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. Such documents, when they were filed with
the Commission, conformed in all material respects to the requirements
of the Exchange Act and the rules and regulations of the Commission
thereunder.
(b) EME has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of California, is duly qualified to do business as a foreign
corporation, and is a corporation in good standing in each jurisdiction
in which its ownership or lease of property or the conduct of its
business requires such qualification (except where the failure to so
qualify would not have a material adverse effect on the condition
(financial or other), business, properties or results of operations of
EME and its subsidiaries, taken as a whole, or on the ability of EME or
the Company to perform its obligations under each of the Operative
Documents (as defined in each Participation Agreement) to which it is
or will be a
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party (a "MATERIAL ADVERSE EFFECT"). Each subsidiary of EME has been
duly organized and is validly existing as a corporation, general
partnership, limited partnership, limited liability company or other
entity, as the case may be, in good standing under the laws of the
jurisdiction of its organization, is duly qualified to do business as a
foreign corporation, general partnership, limited partnership, limited
liability company or other entity, as the case may be, and is a
corporation, general partnership, limited partnership, limited
liability company or other entity, as the case may be, in good standing
in each jurisdiction in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to so qualify would not have a Material Adverse Effect. EME and
each subsidiary of EME have all necessary power and authority
(corporate and other) to own or lease their respective properties and
to conduct the respective businesses in which they are engaged as
described in the Offering Circular. All of the outstanding shares of
capital stock of EME have been duly authorized and validly issued and
are fully paid and nonassessable. All of the issued and outstanding
capital stock of each subsidiary of EME has been duly authorized and
validly issued and is fully paid and nonassessable; and the capital
stock of each subsidiary owned by EME, directly or through
subsidiaries, is owned free and clear from liens, encumbrances and
defects.
(c) The Company has been duly organized and is an
existing limited liability company in good standing under the laws of
the State of Delaware, with power and authority (corporate and other)
to own or lease its properties and conduct its business as described in
the Offering Circular; and the Company is duly qualified to do business
as a foreign limited liability company in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification.
(d) Each of EME and the Company has all power and
authority necessary to execute and deliver this Agreement, the
Registration Rights Agreement and, as of the Closing Date, each of the
other Operative Documents to which it is or will be a party and to
perform its obligations hereunder and thereunder. The execution,
delivery and performance by each of EME and the Company of this
Agreement and the other Operative Documents to which it is or will be a
party and its compliance with the provisions hereof and thereof will
not breach or (except as contemplated by the Operative Documents)
result in the creation or imposition of any lien, charge or encumbrance
upon any material asset of EME or the Company or any subsidiary thereof
(a "MATERIAL ASSET") pursuant to the terms of, or constitute a breach
of, or default under, the corporate charter, limited liability company
agreement or by-laws of EME or the Company or similar organizational
documents of any subsidiary thereof or as of the Closing Date any
agreement, indenture or other instrument to which EME or the Company or
any subsidiary thereof is a party or by which EME or the Company or any
subsidiary thereof is bound (in each case which is material to EME or
the Company or any subsidiary thereof) or to which any Material Asset
is subject in each case as amended as of the Closing Date, or any law,
order, rule, regulation, judgment or decree of any court or
governmental agency domestic or foreign having jurisdiction over EME or
the Company or any subsidiary thereof or any Material Asset of EME or
the Company or any subsidiary thereof; and, except as completed on or
prior to the Closing Date or as required by applicable state securities
laws, no consent, authorization or order of, or filing or registration
by EME or the Company with, any court, governmental agency or body or
third party is required in connection with the issuance and sale of the
Offered Securities or the execution, delivery and performance by EME or
the Company of this Agreement or the other Operative Documents to which
either is a party, except for the order of the Commission declaring the
Exchange Offer Registration Statement or the Shelf Registration
Statement (each as defined in the Registration Rights Agreement)
effective.
(e) Neither EME nor the Company nor any subsidiary
thereof is in violation of its corporate charter, by-laws or other
organizational documents. None of EME or the Company or any of their
subsidiaries (i) is in default, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in
the due performance and observance of any material term,
representation, covenant or condition contained in any material lease,
license, indenture, mortgage, deed of trust, note, bank loan or other
evidence of indebtedness or any other agreement, understanding or
instrument to which EME or the Company or any of their subsidiaries is
a party or by which EME or the Company or any of their subsidiaries or
any Material Asset may be bound or affected, which default would have a
Material Adverse Effect, or (ii) is in violation of any law, ordinance,
governmental rule or regulation or court decree to which it may be
subject, which violation would have a Material Adverse Effect.
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(f) Except as described in or contemplated by the
Offering Circular, each of EME and its subsidiaries and the Company (i)
has properly obtained each consent, license, approval, registration,
permit, certification, determination or other authorization of any
governmental authority (each a "GOVERNMENTAL APPROVAL") necessary to
the ownership of its property or to the conduct of its business as
described in the Offering Circular, and (ii) is in compliance with all
terms and conditions of each such Governmental Approval and has not
received any notice of any proceedings relating to the revocation or
modification thereof except (x) in either case where the failure to do
so would not have a Material Adverse Effect and (y) such as may be
required for operating activities which are ordinarily deemed to be
ministerial in nature and which are anticipated to be obtained in the
ordinary course.
(g) Except as described in or contemplated by the
Offering Circular, each of EME and its subsidiaries and the Company
holds, as applicable, good, legal and valid title to, or valid and
enforceable leasehold or contractual interests in, all items of real
and personal property and all other properties and assets owned by them
which are material to the business of EME and its subsidiaries taken as
a whole, or the Company, free and clear of all liens, encumbrances and
claims which would materially interfere with the conduct of the
business of EME and its subsidiaries taken as a whole, or the Company,
as described in the Offering Circular. Each of EME and its subsidiaries
and the Company is presently conducting its businesses as described in
the Offering Circular and in compliance with all applicable rules,
regulations and laws, except where such failure would not result in a
Material Adverse Effect. Each of EME and its subsidiaries and the
Company carries insurance in such amounts and covering such risks as is
adequate for the conduct of its business and the value of its
properties and which is consistent with what is customarily carried by
similar companies engaged in similar businesses. Each of such insurance
policies is valid and in full force and effect.
(h) Xxxxxx Xxxxxxxx LLP, whose report is included in or
incorporated by reference into the Offering Circular, is and was,
during the period covered by its report, independent with respect to
EME and its subsidiaries and the Company within the meaning of the
Exchange Act.
(i) The Registration Rights Agreement has been validly
authorized by each of EME and the Company and, when executed by the
proper officers of EME and the Company (assuming the due authorization,
execution and delivery thereof by the other parties thereto) and
delivered by EME and the Company, will constitute the legal, valid and
binding obligation of each of EME and the Company, enforceable in
accordance with its terms, (x) except as the enforceability thereof may
be limited by (i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and (ii) by general equitable
principles, including without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether in a
proceeding in equity or at law and (y) subject to the unenforceability
in certain circumstances under law or court decisions of provisions for
indemnification or contribution to a party with respect to a liability
where such indemnification or contribution is contrary to public
policy.
(j) This Agreement has been duly authorized, executed and
delivered by each of EME and the Company and, assuming due
authorization, execution and delivery by the Purchasers, constitutes
the legal, valid and binding obligation of each of EME and the Company,
enforceable against each of EME and the Company in accordance with its
terms, (x) except as the enforceability thereof may be limited by (i)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally and (ii) by general equitable principles, including without
limitation, concepts of materiality, reasonableness, good faith and
fair dealing, regardless of whether in a proceeding in equity or at law
and (y) subject to the unenforceability in certain circumstances under
law or court decisions of provisions for indemnification or
contribution to a party with respect to a liability where such
indemnification or contribution is contrary to public policy.
(k) At the time the Offered Securities are delivered
pursuant to each Pass Through Trust Agreement, each Pass Through Trust
Agreement will be duly executed and delivered by the Company and,
assuming due authorization, execution and delivery by the Pass-Through
Trustee and assuming the representations of the Pass-Through Trustee in
the Participation Agreements are true and correct, will constitute the
legal, valid and binding agreement of the Company; each Offered
Security, when duly executed, authenticated and delivered by the Pass
Through Trustee in accordance with the terms of the
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related Pass Through Trust Agreement, will be duly issued under the
related Pass Through Trust Agreement and, when sold to the several
Purchasers in accordance with the terms of this Agreement, will,
assuming due authentication, execution and delivery by the Pass Through
Trustee, constitute a legal, valid and binding obligation of the Pass
Through Trustee on behalf of the related Pass Through Trust; and the
holder of each Offered Security will be entitled to the benefits of the
related Pass Through Trust Agreement.
(l) Each Lessor Note, when duly executed and delivered by
the Owner Trustee, and when duly authenticated by the Indenture
Trustee, all in accordance with the terms of the related Indenture will
be duly issued under such related Indenture and, when sold to the Pass
Through Trustee in accordance with the terms of the applicable Pass
Through Trust Agreement and the applicable Participation Agreement,
will constitute a legal, valid and binding obligation of the Owner
Trustee on behalf of the related Owner Trust; and the holder of each
such Lessor Note will be entitled to the benefits of the related
Indenture (assuming the due execution and delivery thereof by the
Indenture Trustee and the Owner Trustee and assuming the accuracy of
the representations of the Owner Trust in the Participation
Agreements).
(m) Except as described in the Offering Circular, there
is no litigation, or investigation pending before or by any court or
governmental agency or any arbitrator or otherwise or, to the knowledge
of EME and the Company, threatened, against EME or any of its
subsidiaries or the Company or to which any of their Material Assets is
subject, including, without limitation, any audit by the Internal
Revenue Service, which, if an adverse decision were reached, would be
reasonably likely to have a Material Adverse Effect.
(n) The consolidated financial statements (including the
related notes) of EME included in the Offering Circular or incorporated
by reference therein present fairly in all material respects the
financial condition, results of operations and changes in financial
position of EME, at the dates and for the periods indicated, and,
except as otherwise described in the Offering Circular, have been
prepared in conformity with generally accepted accounting principles in
the United States applied on a consistent basis throughout the periods
involved; the capitalization of EME, as set forth in the column labeled
"Actual" under the caption "Capitalization" in the Offering Circular,
is accurately described as of the date presented therein.
(o) The financial statements of the Company included in
the Offering Circular present fairly the financial position of the
Company at the dates shown and its results of operations and cash flows
for the periods shown, and, except as otherwise disclosed in the
Offering Circular, such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis.
(p) Except as disclosed in the Offering Circular, since
the date of the latest audited financial statements of EME or the
Company included in the Offering Circular or incorporated by reference
therein, there has been no Material Adverse Effect, nor, to EME's or
the Company's knowledge, any development or event involving a
prospective Material Adverse Effect, and, except as disclosed in or
contemplated by the Offering Circular, since the date of such financial
statements there has been no dividend or distribution of any kind
declared, paid or made by EME or the Company on any class of its equity
capital.
(q) Neither EME nor the Company nor any of their
affiliates (as defined in Rule 501(b) of Regulation D under the
Securities Act) nor (assuming the accuracy of the representations of
the Purchasers set forth herein) any person acting on EME's or the
Company's behalf has made offers or sales of securities under
circumstances that would require the registration of the Offered
Securities under the Securities Act.
(r) Neither EME nor the Company nor, assuming the
accuracy of the representations of the Pass-Through Trusts in the
Participation Agreements, any of the Pass Through Trusts is an open-end
investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the
United States Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT"), nor is either EME, the Company or any of the
Pass Through Trusts a closed-end investment company required to be
registered, but not registered thereunder, and none of EME, the Company
nor, assuming the accuracy of the representations of the Pass-Through
Trusts in the Participation Agreements, any of the Pass Through Trusts
is and, after giving effect to the offering and sale of Offered
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Securities and the application of the proceeds thereof as described in
the Offering Circular under the caption "Use of Proceeds", will be an
investment company as defined in the Investment Company Act.
(s) No securities of the same class (within the meaning
of Rule 144A(d)(3) under the Securities Act) as the Offered Securities
are listed on any national securities exchange registered under Section
6 of the Exchange Act or quoted in a U.S. automated inter-dealer
quotation System.
(t) Assuming (i) the accuracy of the representations and
warranties of the Purchasers set forth herein, (ii) the compliance by
the Purchasers with their agreements herein and (iii) the Offered
Securities are offered and sold in the manner contemplated by the
Offering Circular, the offer and sale of the Offered Securities in the
manner contemplated by this Agreement will be exempt from the
registration requirements of the Securities Act by reason of Section
4(2) thereof and Regulation S thereunder; and it is not necessary to
qualify the Pass Through Trust Agreements or an indenture in respect of
the Offered Securities under the Trust Indenture Act of 1939, as
amended (the "TRUST INDENTURE ACT").
(u) Neither EME or the Company nor any of their
affiliates, nor (assuming the accuracy of the representations and
warranties of the Purchasers set forth herein) any person acting on
behalf of EME or the Company (i) has, within the six-month period prior
to the date hereof, offered or sold in the United States or to any U.S.
person (as such terms are defined in Regulation S under the Securities
Act ("REGULATION S")) the Offered Securities or any security of the
same class or series as the Offered Securities or (ii) has offered or
will offer or sell the Offered Securities (A) in the United States by
means of any form of general solicitation or general advertising within
the meaning of Rule 502(c) of Regulation D under the Securities Act or
(B) with respect to any such securities sold in reliance on Rule 903 of
Regulation S by means of any directed selling efforts within the
meaning of Rule 902(b) of Regulation S. Each of EME and the Company,
their affiliates and (assuming the accuracy of the representations and
warranties of the Purchasers set forth herein) any person acting on
their behalf have complied and will comply with the offering
restriction requirements of Regulation S in connection with the
offering of Offered Securities outside the United States. Neither EME
nor the Company has entered or will enter into any contractual
relationship with respect to the distribution of the Offered Securities
except for this Agreement.
(v) The proceeds to EME and the Company from the sale of
the Offered Securities will not be used in a manner which would violate
Regulations T, U or X of the Federal Reserve Board.
(w) HOLDING COMPANY ACT.
(i) The Company is an "exempt wholesale
generator" under the Public Utility Holding Company Act of
1935 ("PUHCA"), is interconnected with the high voltage
network and has access to transmission services and ancillary
services to sell wholesale electric power, and has the
authority to sell wholesale electric power at market-based
rates.
(ii) The Company is not subject to (A) regulation
as a "holding company", a "public utility company" or a
"subsidiary company" or an "affiliate" of a "holding company"
required to register under PUHCA or (B) public utility
regulation or regulation as an alternative retail electric
supplier under the laws of the State of Illinois.
(iii) EME is not subject to regulation as a
"holding company", a "public utility company", or a
"subsidiary company" or an "affiliate" of a "holding company"
required to register under PUHCA except that it is a
"subsidiary company" of Edison International which is a
"holding company" that is exempt from all regulation under
PUHCA (except Section 9(a)(2) thereof) pursuant to Section
3(a) thereof.
(iv) In addition, none of the Purchasers will,
solely as a result of purchasing and/or reselling the Offered
Securities pursuant to this Agreement, be a "public utility,"
an "electric utility," a "gas utility," a "holding company," a
"subsidiary" or an "affiliate" under PUHCA, or otherwise
subject to regulation under PUHCA or the Federal Power Act of
1920.
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(x) (i) All tax returns, declarations of estimated tax
and tax reports (collectively, the "TAX RETURNS") required to be filed
on or before (after consideration of any allowable extensions of time
to file) the Closing Date with respect to all federal, state or local
income, gross receipts, severance, property, productions, sales, use,
license, excise, franchise, employment, withholding or similar taxes,
together with any interest, additions or penalties with respect thereto
and any interest in respect of such additions or penalties
(collectively, the "TAXES") by EME and the Company have been or will be
duly filed, (ii) all Taxes due on the Tax Returns referred to in clause
(i) that are required to be paid or withheld by EME and the Company
(the "COMPANY TAXES") have been or will be paid or withheld in full,
(iii) all deficiencies asserted or assessments made against EME and the
Company with respect to Tax Returns as a result of an examination of
such Tax Returns referred to in clause (i) have been or will be paid in
full, (iv) no issues that have been raised with respect to Company
Taxes by the relevant taxing authority in connection with an
examination of Tax Returns are currently pending and (v) no waivers of
statutes of limitations have been given or requested by or with respect
to any Company Taxes, except in each case for any Company Taxes which
are being diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with U.S. generally
accepted accounting principles have been set aside on EME's and the
Company's books.
(y) Except as disclosed in the Offering Circular, neither
the EME nor any of its subsidiaries nor the Company is in violation of
any statute, rule, regulation, decision or order of any governmental
agency or body or any court, domestic or foreign, relating to the use,
disposal or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "ENVIRONMENTAL LAWS"),
owns or operates any real property contaminated with any substance that
is subject to any Environmental Laws, is liable for any off-site
disposal or contamination pursuant to any Environmental Laws, or is
subject to any claim relating to any Environmental Laws, which
violation, contamination, liability or claim could individually or in
the aggregate reasonably be expected to have a Material Adverse Effect;
and neither EME nor the Company has knowledge of any pending
investigation which might lend to such a claim.
(z) Each of EME and its subsidiaries and the Company own,
possess or can acquire on reasonable terms adequate trademarks, trade
names and other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property (collectively,
"INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the business now
operated by them, or presently employed by them and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any Intellectual Property Rights that, if
determined adversely to EME or any of its subsidiaries or the Company,
would individually or in the aggregate have a Material Adverse Effect.
(aa) During the consecutive twelve-month period prior to
each date as of which the following representations are made or deemed
made, (i) no steps have been taken to terminate any "pension plan," as
defined in Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended, together with any successor statute of similar
import and together with the regulations thereunder ("ERISA"), to which
EME or the Company, any subsidiary thereof or any member of a
controlled group of corporations treated as a single employer together
with EME or the Company or any subsidiary thereof under Section 414(b)
or 414(c) of the Internal Revenue Code of 1986, as amended (the "CODE")
or Section 4001 of ERISA (the "CONTROLLED GROUP") sponsors, contributed
to or under which any such entity may incur any liability (each a
"PENSION PLAN"), (ii) no contribution failure has occurred with respect
to any Pension Plan sufficient to give rise to a lien under Section
302(f) of ERISA or Section 412 of the Code and (iii) no condition
exists or event or transaction has occurred with respect to any Pension
Plan which could reasonably be expected to result in the incurrence by
EME or the Company, any subsidiary thereof or any member of the
Controlled Group of any material liability (other than liabilities
incurred in the ordinary course of maintaining the Pension Plan), fine
or penalty and none of the following events or conditions, either
individually or in the aggregate, has resulted or is reasonably likely
to result in a material liability to EME or the Company, any subsidiary
thereof or any member of the Controlled Group: (w) any of the events
set forth in Section 4043(b) of ERISA, other than those events as to
which the thirty-day notice period is waived under subsections .22,
.23, .25, .27 or .28 of Pension Benefit Guaranty Corporation Reg.
Section 4043; (x) a complete or partial withdrawal from any
"multiemployer plan," as defined in Section 4001(a)(3) of ERISA (the
"MULTIEMPLOYER PLAN"), by EME or the Company, any subsidiary thereof or
any
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member of the Controlled Group; (y) any liability of EME or the
Company, any subsidiary thereof or any member of the Controlled Group
were to withdraw completely from all Multiemployer Plans as of the
annual valuation date most closely preceding the date on which this
representation is made or deemed made; or (z) the "reorganization"
(within the meaning of Section 4241 of ERISA) or "insolvency" (within
the meaning of Section 4245 of ERISA) or any Multiemployer Plan. None
of EME or the Company, any subsidiary thereof or any member of the
Controlled Group has any contingent liability with respect to any
post-retirement benefit under a "welfare plan" (as defined in Section
3(1) of ERISA) which could reasonably be expected to have a Material
Adverse Effect other than liability for continuation coverage described
in Part 6 of Title I of ERISA.
(bb) The proceeds from the sale of Offered Securities will
be utilized by EME and the Company as described under the section of
the Offering Circular entitled "Use of Proceeds."
(cc) All of the representations and warranties of EME and
the Company contained in the Participation Agreements are incorporated
by reference in this Agreement as if set forth herein, and are true and
correct as if made by EME and the Company on and as of the date of such
agreements.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On
the basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set forth,
upon satisfaction of the conditions precedent in each Pass Through
Trust Agreement, the Company agrees to deliver an authentication order
pursuant to Section 2.1 of each Pass-Through Trust Agreement and to
cause the Pass Through Trustee to sell to the Purchasers, and the
Purchasers agree, severally and not jointly, to purchase from the Pass
Through Trustee, at a purchase price of 100% of the face amount
thereof, 8.30% Midwest Generation Pass-Through Certificates, Series A
in the aggregate amount of $333,500,000 and 8.56% Midwest Generation
Pass-Through Certificates, Series B in the aggregate amount of
$813,500,000 in the respective face amounts of the Offered Securities
set forth opposite the names of the several Purchasers in Schedule A
hereto. As compensation to the Purchasers for their agreements and
obligations hereunder in respect of the Offered Securities, EME shall
pay (or cause to be paid), to each Purchaser an amount equal to .650%
of the aggregate face amount of the Midwest Generation Pass-Through
Certificates, Series A and .875% of the aggregate face amount of the
Midwest Generation Pass-Through Certificates, Series B purchased by
such Purchaser. Such payment shall be made simultaneously with the
payment by the Purchasers of the purchase price of the Offered
Securities and shall be made by wire transfer of immediately available
funds.
The Company will cause the Pass Through Trustee to deliver against
payment of the purchase price the Offered Securities in the form of one or more
permanent global securities in definitive form (the "GLOBAL SECURITIES")
deposited with the Pass Through Trustee as custodian for The Depository Trust
Company (the "DTC") and registered in the name of Cede & Co., as nominee for
DTC. Interests in any permanent Global Securities will be held only in
book-entry form through DTC, except in the limited circumstances described in
the Offering Circular. Payment for the Offered Securities shall be made by the
Purchasers in Federal (same day) funds by official check or checks or wire
transfer to an account at a bank acceptable to you at the office of Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP ("SASMF") at 10:00 A.M. (New York time), on
August 24 , 2000 or at such other time not later than seven full business days
thereafter as you, EME and the Company determine, such time being herein
referred to as the "CLOSING DATE," against delivery to the Pass Through Trustee
as custodian for DTC of (i) the Regulation S Global Securities representing all
of the Regulation S Securities for the respective accounts of the DTC
participants for Euroclear and Clearstream and (ii) the Restricted Global
Securities representing all of the 144A Securities. The Regulation S Global
Securities and the Restricted Global Securities will be made available for
checking at the above office of SASMF at least 24 hours prior to the Closing
Date.
The Company will cause the Pass Through Trustee to deliver against
payment of the purchase price the Offered Securities to be offered and sold by
the Purchasers in reliance on Regulation S (the "REGULATION S SECURITIES") in
the form of one or more permanent Global Securities in registered form without
interest coupons (the "REGULATION S GLOBAL SECURITIES") which will be deposited
with the Pass Through Trustee as custodian for DTC for the respective accounts
of the DTC participants for Xxxxxx Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear System ("EUROCLEAR"), and Clearstream
Banking SOCIETE ANONYME ("CLEARSTREAM, LUXEMBOURG") and registered in the name
of Cede & Co., as nominee for DTC. The Company will cause the Pass Through
Trustee to deliver against payment of the purchase price the Offered Securities
to be purchased by each
8
Purchaser hereunder and to be offered and sold by each Purchaser in reliance on
Rule 144A under the Securities Act (the "144A SECURITIES") in the form of one
permanent global security in definitive form without interest coupons (the
"RESTRICTED GLOBAL SECURITIES") deposited with the Pass Through Trustee as
custodian for DTC and registered in the name of Cede & Co., as nominee for DTC.
The Regulation S Global Securities and the Restricted Global Securities shall be
assigned separate CUSIP numbers. The Restricted Global Securities shall include
the legend regarding restrictions on transfer set forth under "Transfer
Restrictions" in the Offering Circular. Until the termination of the restricted
period (as defined in Regulation S) with respect to the offering of the Offered
Securities, interests in the Regulation S Global Securities may only be held by
DTC participants for Euroclear and Clearstream, Luxembourg. Interests in any
permanent Global Securities will be held only in book-entry form through
Euroclear, Clearstream, Luxembourg or DTC, as the case may be, except in the
limited circumstances described in the Offering Circular.
Notwithstanding the foregoing, any Offered Securities sold to
Institutional Accredited Investors (as hereinafter defined) pursuant to SECTION
4(c) shall be issued in definitive, fully registered form and shall bear the
legend relating thereto set forth under the caption "Transfer Restrictions" in
the Offering Circular, but shall be paid for in the same manner as any Offered
Securities to be purchased by the Purchasers hereunder and to be offered and
sold by it in reliance on Rule 144A under the Securities Act.
4. REPRESENTATIONS BY PURCHASERS; RESALE BY PURCHASERS. (a) Each
Purchaser severally represents and warrants to EME and the Company that it is an
"accredited investor" within the meaning of Regulation D.
(b) Each Purchaser severally acknowledges that the Offered
Securities have not been registered under the Securities Act and may not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. persons except in accordance with Regulation S or pursuant to an
exemption from the registration requirements of the Securities Act. Each
Purchaser severally represents and agrees that it has offered and sold the
Offered Securities and will offer and sell the Offered Securities only in
accordance with Rule 903 or Rule 144A under the Securities Act ("RULE 144A") or
to a limited number of Institutional Accredited Investors (as defined below) in
accordance with subsection (c). Accordingly, neither such Purchaser nor its
affiliates, nor any persons acting on its or their behalf, have engaged or will
engage in any directed selling efforts with respect to the Offered Securities
and such Purchaser, its affiliates and all persons acting on its or their behalf
have complied and will comply with the offering restrictions requirement of
Regulation S and Rule 144A.
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) Each Purchaser severally agrees that it may offer and sell
Offered Securities in definitive, fully registered form to a limited number of
institutions, each of which is reasonably believed by such Purchaser to be an
"accredited investor" within the meaning of Rule 501(a)(1), (2) or (3) under the
Securities Act or an entity in which all of the equity owners are accredited
investors within the meaning of Rule 501(a)(1), (2) or (3) of Regulation D under
the Securities Act (each, an "INSTITUTIONAL ACCREDITED INVESTOR"); PROVIDED that
each such Institutional Accredited Investor executes and delivers to such
Purchaser and the Company, prior to the consummation of any sale of Offered
Securities to such Institutional Accredited Investor, a letter to be delivered
by Institutional Accredited Investors in substantially the form included in the
Offering Circular as Annex A (a "PURCHASER'S LETTER").
(d) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual arrangement
with respect to the distribution of the Offered Securities except for any such
arrangements with the other Purchasers or affiliates of the other Purchasers or
with the prior written consent of the Company.
(e) Each Purchaser severally agrees that it and each of its
affiliates will not offer or sell the Offered Securities in the United States by
means of any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act, including, but not limited to
(i) any advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio, or
(ii) any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. Each Purchaser severally agrees, with
respect to resales made in reliance on Rule 144A of any of the Offered
Securities, to deliver either with the confirmation of such resale or otherwise
prior to settlement of such
9
resale a notice to the effect that the resale of such Offered Securities has
been made in reliance upon the exemption from the registration requirements of
the Securities Act provided by Rule 144A.
(f) Each of the Purchasers severally represents and agrees that
(i) it has not offered or sold and prior to the date six months after the date
of issue of the Offered Securities will not offer or sell any Offered Securities
to persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has complied and will comply with all
applicable provisions of the Financial Services Xxx 0000 with respect to
anything done by it in relation to the Offered Securities in, from or otherwise
involving the United Kingdom; and (iii) it has only issued or passed on and will
only issue or pass on in the United Kingdom any document received by it in
connection with the issue of the Offered Securities to a person who is of a kind
described in Article 11(3) of the Financial Services Xxx 0000 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom such document may
otherwise lawfully be issued or passed on.
5. CERTAIN AGREEMENTS OF EME AND THE COMPANY. Each of EME and the
Company jointly and severally agrees with the several Purchasers that:
(a) EME and the Company will advise you promptly of any
proposal to amend or supplement the Offering Circular and will not
effect such amendment or supplementation without your consent. If, at
any time prior to the completion of the resale of the Offered
Securities by the Purchasers, any event occurs as a result of which in
the reasonable judgment of the Company, EME, the Purchasers or counsel
to the Purchasers, the Offering Circular as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any such time to
amend or supplement the Offering Circular to comply with any applicable
law, EME and the Company promptly will notify you of such event and
promptly will prepare, at EME's expense, an amendment or supplement
which will correct such statement or omission or effect such
compliance. Neither your consent to, nor the Purchasers' delivery to
offerees or investors of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(b) EME and the Company will furnish to you copies of the
Preliminary Offering Circular, the Offering Circular and all amendments
and supplements to such documents, in each case as soon as available
and in such quantities as you request, and EME and the Company will
furnish to you on the date hereof three copies of the Offering Circular
certified as being true, complete and correct by a duly authorized
officer of each of EME and the Company, together with certified copies
of the independent accountants consents with respect to the
incorporation by reference of their reports therein. At any time when
EME or the Company is not subject to Section 13 or 15(d) of the
Exchange Act, and for so long as the sale of the Offered Securities is
reliant on Rule 144A, EME and/or the Company, as the case may be, will
promptly furnish or cause to be furnished to you (and, upon request, to
each of the other Purchasers) and, upon request of holders and
prospective purchasers of the Offered Securities, to such holders and
purchasers, copies of the information required to be delivered to
holders and prospective purchasers of the Offered Securities pursuant
to Rule 144A(d)(4) under the Securities Act (or any successor provision
thereto) in order to permit compliance with Rule 144A in connection
with resales by such holders of the Offered Securities. EME will pay
the expenses of printing and distributing to such holders and the
Purchasers all such documents.
(c) EME and the Company will arrange for the
qualification of the Offered Securities for sale and the determination
of their eligibility for investment under the laws of such
jurisdictions in the United States and Canada as you designate and will
continue such qualifications in effect so long as required for the
resale of the Offered Securities by the Purchasers, PROVIDED that
neither EME nor the Company will be required to qualify as a foreign
corporation in any jurisdiction in which it is not now qualified to
file a general consent to service of process in any such jurisdiction.
(d) During the period of three years hereafter, each of
EME and the Company will furnish to you and, upon request, to each of
the other Purchasers, as soon as practicable after the end of each
fiscal year, a copy of its annual report to shareholders for such year;
and each of EME and the Company will furnish to
10
you and, upon request, to each of the other Purchasers (i) as soon as
available, a copy of each report and any definitive proxy statement of
EME or the Company filed with the Commission under the Exchange Act or
mailed to shareholders, (ii) a copy of any information EME and the
Company are required to provide the Pass Through Trustee pursuant to
the Pass Through Trust Agreement or the Participation Agreement, and
(iii) from time to time, such other information concerning EME and/or
the Company as you may reasonably request.
(e) During the period of two years after the Closing
Date, each of EME and the Company will, upon request, furnish to you,
each of the other Purchasers and any holder of Offered Securities a
copy of the restrictions on transfer applicable to the Offered
Securities.
(f) During the period of two years after the Closing Date
(or such other period as the Commission may specify for the
unrestricted sale of the Offered Securities which constitute
"restricted securities" under Rule 144), the Company will not, and will
not permit any of its affiliates (as defined in Rule 144 under the
Securities Act) to, resell any of the Offered Securities that have been
reacquired by any of them which constitute "restricted securities"
under Rule 144.
(g) During the period of two years after the Closing
Date, neither EME nor the Company will be or become, an open-end
investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act and neither EME nor the Company is or will
become a closed-end investment company required to be registered, but
not registered, under the Investment Company Act.
(h) EME will pay all expenses incidental to the
performance by EME, the Company and the Pass Through Trusts of their
obligations under this Agreement, the Pass Through Trust Agreements,
the Registration Rights Agreement and the other Operative Documents,
including (i) the fees and expenses of the Pass Through Trustee, the
Indenture Trustee and their respective counsel; (ii) all expenses in
connection with the execution, issue, authentication, packaging and
initial delivery of the Offered Securities and, as applicable, the
Exchange Securities (as defined in the Registration Rights Agreement),
the preparation and printing of this Agreement, the Registration Rights
Agreement, the Offered Securities, the Pass Through Trust Agreements,
the Offering Circular and amendments and supplements thereto, and any
other document relating to the issuance, offer, sale and delivery of
the Offered Securities and as applicable, the Exchange Securities;
(iii) the cost of any advertising approved by EME or the Company in
connection with the issue of the Offered Securities; (iv) for any
reasonable expenses (including fees and disbursements of counsel)
incurred in connection with qualification of the Offered Securities or
the Exchange Securities for sale under the laws of such jurisdictions
in the United States and Canada as you designate and the printing of
memoranda relating thereto; (v) for any fees charged by investment
rating agencies for the rating of the Offered Securities or the
Exchange Securities; (vi) for expenses incurred in distributing the
Preliminary Offering Circulars and the Offering Circular (including any
amendments and supplements thereto) to the Purchasers and (vii) all
reasonable fees and expenses of counsel to the Purchasers. EME will
also pay or reimburse the Purchasers (to the extent incurred by them)
for all reasonable travel expenses of the Purchasers and EME's or the
Company's officers and employees and any other reasonable expenses of
the Purchasers in connection with the transactions contemplated by this
Agreement and the other Operative Documents.
(i) In connection with the offering of the Offered
Securities, until the earlier of (x) 180 days following the Closing
Date and (y) the date you shall have notified the Company and the other
Purchasers of the completion of the resale of the Offered Securities,
neither EME nor the Company nor any of their affiliates has or will,
either alone or with one or more other persons, bid for or purchase for
any account in which it or any of its affiliates has a beneficial
interest in any Offered Securities or attempt to induce any person to
purchase any Offered Securities; and neither of them nor any of their
affiliates will make bids or purchases for the purpose of creating
actual, or apparent, active trading in, or of raising the price of, the
Offered Securities.
(j) For a period of 30 days after the date of the initial
offering of the Offered Securities by the Purchasers, neither EME nor
the Company without the prior written consent of CSFB and Xxxxxx, which
consent shall not be unreasonably withheld, pursuant to Rule 144A,
Regulation S or an offering registered under the Securities Act, will
offer, sell, contract to sell, pledge or otherwise dispose of, directly
or indirectly, any United States dollar-denominated debt securities
issued or guaranteed by EME or the Company and having a maturity of
more than one year from the date of issue. Neither EME nor the Company
will at any time offer, sell, contract to sell, pledge or otherwise
dispose of, directly or
11
indirectly, any securities under circumstances where such offer, sale,
pledge, contract or disposition would cause the exemption afforded by
Section 4(2) of the Securities Act or the safe harbor of Regulation S
thereunder to cease to be applicable to the offer and sale of the
Offered Securities.
6. CONDITIONS OF THE OBLIGATIONS OF THE PURCHASERS. The
obligations of the several Purchasers to purchase and pay for the Offered
Securities on the Closing Date will be subject to the accuracy of the
representations and warranties on the part of EME and the Company herein (except
for those representations and warranties expressly stated to relate to an
earlier specified date, which must be accurate as of such earlier specified
date), to the accuracy of the statements of officers of EME and the Company made
pursuant to the provisions hereof, to the performance by EME and the Company of
their respective obligations hereunder and to the following additional
conditions precedent:
(a) The Purchasers shall have received a letter, dated
the date of this Agreement, of Xxxxxx Xxxxxxxx LLP in form and
substance satisfactory to the Purchasers concerning the financial
information with respect to EME and the Company set forth in the
Offering Circular and confirming that they are independent certified
public accountants with respect to EME and the Company under Rule 101
of the Code of Professional Conduct of the American Institute of
Certified Public Accountants and its interpretations and rulings.
(b) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) a change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls as, in your judgment, is material
and adverse and makes it inadvisable to proceed with completion of the
offering or sale of and payment for the Offered Securities as
contemplated in the Offering Circular; or (ii) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
EME or its subsidiaries, taken as a whole or the Company which, in the
judgment of a majority in interest of the Purchasers including you,
materially impairs the investment quality of the Offered Securities or
is material and adverse and makes it inadvisable to proceed with
completion of the offering or the sale of and payment for the Offered
Securities as contemplated in the Offering Circular; (iii) any
downgrading in the rating of any debt securities of EME or the Company
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Securities Act), or any
public announcement that any such organization has under surveillance
or review its rating of any debt securities of EME or the Company
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such
rating); (iv) any material suspension or material limitation of trading
in securities generally on the New York Stock Exchange, or any setting
of minimum prices for trading on such exchange, or any suspension of
trading of any securities of EME, the Company or Edison International,
Inc. on any exchange or in the over-the-counter market; (v) any banking
moratorium declared by U.S. Federal or New York State authorities; or
(vi) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by Congress of the
United States or any other substantial national or international
calamity or emergency if, in the judgment of a majority in interest of
the Purchasers including you, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the offering or sale of and
payment for the Offered Securities as contemplated in the Offering
Circular.
(c) The Purchasers shall have received an opinion, dated
the Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special
counsel for the Company, addressed to the Purchasers, in form and
substance reasonably satisfactory to the Purchasers.
(d) The Purchasers shall have received from Milbank,
Tweed, Xxxxxx & XxXxxx LLP, special counsel for the Purchasers, such
opinion or opinions, dated the Closing Date, with respect to the
validity of the Offered Securities, the Offering Circular, the
exemption from registration for the offer and sale of the Offered
Securities to the several Purchasers and the resales by the several
Purchasers as contemplated hereby and other related matters as you may
require, and each of EME and the Company shall have
12
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters with reference to
same in the Offering Circular.
(e) The Purchasers shall have received opinions addressed
to the Purchasers in form and substance reasonably satisfactory to the
Purchasers, from Sonnenschein, Nath and Xxxxxxxxx, special Illinois
regulatory counsel to the Company, EME Xxx Xxxx Xxxxxxx, special
federal regulatory counsel to the Company and EME; Hunton & Xxxxxxxx,
special New York counsel to the Owner Participants and the Equity
Investors; Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner
Lessors, the Trust Companies and the Owner Trustees; and the in-house
counsels to the Owner Participants.
(f) In-house counsel to EME and the Company reasonably
acceptable to the Purchasers shall have furnished to the Purchasers a
written opinion, addressed to the Purchasers and dated as of the
Closing Date, in form and substance reasonably satisfactory to the
Purchasers.
(g) Stadtmauer Bailkin, LLP shall have furnished to the
Purchasers its written opinions, both as counsel to the Pass Through
Trustees and the Pass Through Companies and as counsel to the Lease
Indenture Trustees and the Lease Indenture Companies, addressed to the
Purchasers and dated as of the Closing Date, in form and substance
reasonably satisfactory to the Purchasers.
(h) No Purchaser shall have discovered and disclosed to
EME or the Company on or prior to the Closing Date that the Offering
Circular or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of Milbank, Tweed, Xxxxxx &
XxXxxx LLP, special counsel for the Purchasers, is material or omits to
state a fact which, in the opinion of such counsel, is material and is
necessary to make the statements, in light of the circumstances under
which they were made, not misleading.
(i) EME, the Company and you shall have entered into the
Registration Rights Agreement and the Purchasers shall have received
counterparts, conformed as executed, thereof and each Operative
Document or other document entered into by EME and the Company in
connection with the transactions contemplated by this Agreement.
(j) Each of EME and the Company shall have furnished to
the Purchasers a certificate, dated as of the Closing Date, of its
Chief Executive Officer or President and its Chief Financial Officer or
Treasurer stating that the representations and warranties of EME or the
Company, as the case may be, contained in this Agreement and each
Participation Agreement are true and correct as of such Closing Date
and after giving effect to the consummation of the transactions
contemplated by this Agreement (except representations and warranties
expressly stated to relate to a specific earlier date, in which case
such representations and warranties are true and correct in all
material respects as of such earlier date), EME or the Company, as the
case may be, has complied with all its agreements to be performed or
satisfied at or prior to the Closing Date contained herein, and the
conditions set forth in Section 4 of each Participation Agreement to be
performed or satisfied at or prior to the Closing Date have been
fulfilled.
(k) There shall exist at and as of the Closing Date no
conditions that would constitute an Event of Default under any Pass
Through Trust Agreement, a Lease Event
13
of Default under any Lease or a Lease Indenture Event of Default under
any Lease Indenture (or an event that with notice or the lapse of time,
or both, would constitute an Event of Default, Lease Event of Default
or Lease Indenture Event of Default) under the Indenture.
(l) (i)(A) Xxxxx'x Investors Services, Inc. ("MOODY'S")
shall have delivered to EME and the Company and the Purchasers a final
rating letter, setting forth a rating of Baa1 with respect to the
Offered Securities, (B) Standard & Poor's Ratings Services ("S&P")
shall have delivered to EME and the Company and the Purchasers a final
rating letter, setting forth a rating of A- with respect to the Offered
Securities, (ii) each of Moody's and S&P shall have delivered to EME
and the Company a letter confirming the ratings with respect to the
debt securities of EME and Edison Mission Midwest Holdings Co.
("Midwest Holdings") after giving effect to the transactions
contemplated in this Agreement and the Participation Agreements and
(iii) neither of Moody's nor S&P shall have announced that it has under
surveillance or review, with possible negative implications, its rating
of the Offered Securities or the debt securities of EME or Midwest
Holdings.
(m) The Offered Securities shall have been accepted for
settlement through the facilities of DTC, Clearstream, and Euroclear,
as applicable.
(n) Each of EME and the Company shall have furnished to
the Purchasers (i) a copy of the resolutions of its Board of Directors
or committees thereof, certified by the Secretary or Assistant
Secretary of such entity as of the Closing Date, duly authorizing the
execution, delivery and performance of this Agreement and each other
Operative Document to which it is or will be a party and any other
documents executed by or on behalf of it in connection with the
transactions contemplated thereby; (ii) certified copies of its
organizational documents; and (iii), if applicable, certified copies of
powers-of-attorney, if any, pursuant to which officers of such entity
shall execute this Agreement and each other Operative Document to which
it is or will be a party and any other documents executed by or on
behalf of it in connection with the transactions contemplated thereby.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Purchasers.
7. INDEMNIFICATION AND CONTRIBUTION. (a) EME will indemnify and
hold harmless each Purchaser, its partners, directors and officers and each
person, if any, who controls such Purchaser within the meaning of Section 15 of
the Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such Purchaser may become subject, under the Securities Act or
the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
breach of any of the representations and warranties of EME or the Company
contained herein or any untrue statement or alleged untrue statement of any
material fact contained in the Offering Circular, or any amendment or supplement
thereto, or any related Preliminary Offering Circular, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, including any losses,
claims, damages or liabilities arising out of or based upon EME's or the
Company's failure to perform its obligations under Section 5(a) of this
Agreement, and will reimburse each Purchaser for any legal or other expenses
reasonably incurred by such Purchaser in connection with
14
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; PROVIDED, HOWEVER, that EME will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
in or omission or alleged omission from any of such documents in reliance upon
and in conformity with written information furnished to the Company by any
Purchaser through you specifically for use therein, it being understood and
agreed that the only such information consists of the information described as
such in subsection (b) below; and PROVIDED FURTHER that, with respect to any
untrue statement or omission in the Preliminary Offering Circular, this
indemnity agreement shall not inure to the benefit of a Purchaser on account of
any loss, claim, damage, liability or action arising from the sale of any
Offered Securities to any person by such Purchaser to the extent such sale was
an initial resale by such Purchaser, if such Purchaser failed to send or give a
copy of the Offering Circular, as the same may be amended or supplemented, to
that person and the untrue statement or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact in the Preliminary
Offering Circular was corrected in the Offering Circular and the Offering
Circular was made available to such Purchaser prior to the sale of the Offered
Securities.
(b) Each Purchaser will severally and not jointly indemnify and
hold harmless each of EME and the Company, its directors and officers, if any,
and each person, if any, who controls EME or the Company within the meaning of
Section 15 of the Securities Act, against any losses, claims, damages or
liabilities to which EME or the Company may become subject, under the Securities
Act or the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Offering Circular, or any amendment or supplement thereto, or any related
Preliminary Offering Circular, or arise out of or are based upon the omission or
the alleged omission to state therein a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Purchaser through you specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
EME or the Company in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any Purchaser
consists of the following information in the Offering Circular furnished on
behalf of each Purchaser: under the caption "Plan of Distribution" the third
paragraph, the second sentence of the fourth paragraph, the second sentence of
the seventh paragraph, the eighth paragraph, the ninth paragraph and the tenth
paragraph; PROVIDED, HOWEVER, that the Purchasers shall not be liable for any
losses, claims, damages or liabilities arising out of or based upon EME's or the
Company's failure to perform its respective obligations under Section 5(a) of
this Agreement.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, that
the indemnified party shall have the right to employ counsel to represent the
indemnified party and their respective controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
by the indemnified party against the indemnifying party under this SECTION 6 (i)
if the employment of such counsel shall have been authorized in writing by the
indemnifying party in connection with the defense of such action, (ii) if, in
the written opinion of counsel to either the indemnified party or the
indemnifying party, representation of both parties by the same counsel would be
inappropriate due to actual or likely conflicts of interest between them, and in
that event the fees and expenses of one firm of separate counsel (in addition to
the fees and expenses of local counsel) shall be paid by the indemnifying party,
or (iii) if the indemnifying party shall have failed to appoint acceptable
counsel within a reasonable period of time. No indemnifying party shall, without
the prior written consent of the indemnified party (which consent shall not be
unreasonably withheld), effect any
15
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action and does not include a statement as
to or an admission of fault, culpability or failure to act by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
EME and the Company on the one hand and the Purchasers on the other from the
offering of the Offered Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of EME and the Company on the one hand and the
Purchasers on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by EME and the
Company on the one hand and the Purchasers on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering (before
deducting expenses) received by EME and the Company (as described in the
Offering Circular) bear to the total discounts and commissions received by the
Purchasers from EME and the Company under this Agreement. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by EME or the Company
or the Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered Securities purchased by it were resold exceeds the amount of any
damages which such Purchaser has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. The
Purchasers' obligations in this subsection (d) to contribute are several in
proportion to their respective purchase obligations and not joint.
(e) The obligations of EME under this Section shall be in addition
to any liability which EME and the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Purchaser within the meaning of the Securities Act or the Exchange Act; and the
obligations of the Purchasers under this Section shall be in addition to any
liability which the respective Purchasers may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls EME or
the Company within the meaning of the Securities Act or the Exchange Act.
8. DEFAULT OF PURCHASERS. If any Purchaser or Purchasers default
in its or their obligations to purchase Offered Securities hereunder and the
aggregate principal amount of Offered Securities that such defaulting Purchaser
or Purchasers agreed but failed to purchase does not exceed 10% of the total
principal amount of Offered Securities, you may make arrangements satisfactory
to EME and the Company for the purchase of such Offered Securities by other
persons, including any of the Purchasers, but if no such arrangements are made
by the Closing Date, the non-defaulting Purchasers shall be obligated severally,
in proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the aggregate principal amount of Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of Offered Securities and arrangements satisfactory
to you, EME and the Company for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Purchaser, EME or
the Company, except as provided in Section 9. As used in this Agreement, the
term "Purchaser" includes any person substituted for a Purchaser under this
Section. Nothing herein will relieve a defaulting Purchaser from liability for
its default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of EME and the Company and their respective officers and of the
16
several Purchasers set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of any Purchaser, EME, the Company or
any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Offered
Securities. If this Agreement is terminated pursuant to Section 8 or if for any
reason the purchase of the Offered Securities by the Purchasers is not
consummated, EME and the Company shall remain responsible for the expenses to be
paid or reimbursed by them pursuant to Section 5 and the respective obligations
of EME, the Company and the Purchasers pursuant to Section 7 shall remain in
effect. If the purchase of the Offered Securities by the Purchasers is not
consummated for any reason, EME and the Company will reimburse the Purchasers
for all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered
Securities.
10. NOTICES. All communications hereunder will be in writing and,
if sent to the Purchasers will be mailed, delivered or telegraphed and confirmed
to the Purchasers, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking
Department--Transactions Advisory Group (Fax: 000-000-0000), and c/x Xxxxxx
Brothers Inc., Three World Financial Center, New York, New York 10285,
Attention: Syndicate Department (Fax: 000-000-0000) and Xxxxxx Brothers Inc.,
Three World Financial Center, New York, New York 10285, Attention: Xxxxxx
Xxxxxxxxxx, Esq. - Legal Department (Fax: 000-000-0000); or, if sent to EME,
will be mailed, delivered or telegraphed and confirmed to it at 00000 Xxx Xxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx 00000 (Fax: (000) 000-0000), Attention:
Chief Financial Officer, or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at One Financial Place, 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, (Fax: (000) 000-0000), Attention:
President, provided, however, that any notice to a Purchaser pursuant to Section
7 will be mailed, delivered or telegraphed and confirmed to such Purchaser.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against EME and the Company as if
such holders were parties thereto.
12. REPRESENTATION OF PURCHASERS. You will act for the several
Purchasers in connection with this purchase, and any action under this Agreement
taken by you jointly or by CSFB or Xxxxxx individually will be binding upon all
the Purchasers.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to principles of conflicts of laws. Each of EME and the Company hereby submits
to the non-exclusive jurisdiction of the Federal and state courts in the Borough
of Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
17
If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement among EME, the Company and the
several Purchasers in accordance with its terms.
Very truly yours,
EDISON MISSION ENERGY
By: /s/ Xxx Xxxxx
------------------------
Name: Xxx Xxxxx
Title: Vice President
MIDWEST GENERATION, LLC
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX BROTHERS INC.
acting on behalf of themselves and as
representatives of the several Purchasers
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Director
By: XXXXXX BROTHERS INC.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director
18
SCHEDULE A
MANAGER PRINCIPAL AMOUNT OF
------- OFFERED SECURITIES
-------------------------------
SERIES A SERIES B
-------------- --------------
Credit Suisse First Boston Corporation ........... $ 116,725,000 $ 284,725,000
Xxxxxx Brothers Inc. ............................. 116,725,000 284,725,000
Chase Securities Inc. ............................ 33,350,000 81,350,000
Xxxxxxx Xxxxx Xxxxxx Inc. ........................ 33,350,000 81,350,000
XX Xxxxx Securities Corp. ........................ 33,350,000 81,350,000
-------------- --------------
Total .................. $ 333,500,000 $ 813,500,000
