Exhibit 10.107
EXECUTION COPY
REIMBURSEMENT AGREEMENT I (this "AGREEMENT") dated as of December 15,
1999 entered into between Bayerische Landesbank International S.A., a banking
institution organized under the laws of Luxembourg (the "BANK") and Midwest
Generation, LLC ("MIDWEST").
WHEREAS, the Xxxxxxx Trust I (the "OWNER LESSOR") and Xxxxxxx Holdings
EME, LLC ("XXXXXXX HOLDINGS") are party to the Facility Lease Agreement (as the
same may be amended, supplemented or otherwise modified from time to time, the
"FACILITY LEASE") dated as of December 15, 1999;
WHEREAS, Xxxxxxx Holdings and Midwest are party to the Facility
Sublease Agreement (as the same may be amended, supplemented or otherwise
modified from time to time, the "FACILITY SUBLEASE") dated as of December 15,
1999;
WHEREAS, the Owner Lessor wishes to obtain additional credit
enhancement from Midwest in order to support the obligations of Midwest to
Xxxxxxx Holdings under the Facility Sublease and, concomitantly, the obligations
of Xxxxxxx Holdings to the Owner Lessor under the Facility Lease;
In consideration of the issuance by the Bank on the Closing Date of an
irrevocable standby letter of credit in the form attached hereto as Exhibit A
(including any substitutions or replacements thereof in accordance with this
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time, the "LETTER OF CREDIT"), in the amount of U.S.$3,870,000.00 and in
favor of the Beneficiary referred to therein (the "BENEFICIARY"), Midwest and
the Bank hereby agree as follows:
1. DEFINITIONS. Capitalized terms used in this Agreement, including the
foregoing Recitals, and not otherwise defined herein shall have the
respective meanings specified in Annex A hereto.
2. PAYMENTS: Midwest agrees to reimburse the Bank on demand, in
immediately available funds by transferring such amounts to First Union
National Bank (Swift ID: PNBPU S3NNYC), Account No.: 200019 0000000 in
favor of Bayerische Landesbank International S.A. Luxembourg (SWIFT ID
BYLAULL), for each payment made by the Bank pursuant to a drawing in
accordance with the terms and conditions of the Letter of Credit
together with interest on such amount in accordance with Section 5
hereof (the "REIMBURSEMENT OBLIGATIONS") until payment in full
hereunder. Each payment by Midwest to the Bank shall be made in lawful
currency of the United States, shall be directed to the attention of
Xxxxxxxx Xxxxxxx, and shall be identified by the number assigned to the
Letter of Credit by the Bank.
3. CANCELLATION: The Letter of Credit may be canceled in accordance with
the terms and conditions of the Letter of Credit.
4. FEES: Midwest will pay the Bank a per annum fee equal to 0.30% of the
daily average of the amount available for drawing under each Letter of
Credit, calculated on the basis of a 365 or 366 day year, in each case
for the actual number of days occurring in the period for which such
fee is payable, payable in United States currency at the location
designated herein, quarterly in arrears on the sixth day of each
January, April, July and October (but if such day is not a Business
Day, on the next succeeding Business Day), (each, a "QUARTERLY PAYMENT
DATE") and on the expiration or termination date of such Letter of
Credit. For each amendment to any Letter of Credit, Midwest will
immediately pay the Bank a charge of $200 in connection therewith.
Midwest agrees to pay all fees and charges which are due pursuant to
the terms of this Agreement by transferring such amounts to First Union
Bank International, New York, FED ABA No. 026.00509.2, Account No. 2000
00000000 0 in favor of Bayerische Landesbank International S.A.
Luxembourg.
5. INTEREST ON PAYMENTS: The Reimbursement Obligations shall accrue
interest at the Alternate Base Rate plus the Applicable Margin PLUS 2%
per annum until the Reimbursement Obligations have been paid in full;
PROVIDED that, upon the occurrence and during the continuance of any
Maturity Event, Midwest shall pay, but only to the extent permitted by
law, interest (after as well as before judgment) on the Reimbursement
Obligations at a rate per annum equal to the Alternate Base Rate plus
the Applicable Margin plus 5% per annum until such Maturity Event is
cured; PROVIDED FURTHER that, in addition to the interest then payable
on amounts paid under the Letter of Credit pursuant to this Section 5,
if after each three month period following the occurrence of the
Maturity Event such Maturity Event shall not have been cured, Midwest
shall pay, but only to the extent permitted by law, interest on the
Reimbursement Obligations at an additional 1% per annum until such
Maturity Event is cured. Interest will be calculated based on the
actual days outstanding and a 365 or, if appropriate, 366 day year.
Actual days outstanding means the period from and including the day of
payment by the Bank to and excluding the day of the Bank's receipt of
funds from Midwest. Interest under this Section 5 shall be paid on
demand (or, if no demand is made, on each Quarterly Payment Date) and
on the date that the Reimbursement Obligations are paid in full.
6. INDEMNITY: Midwest will absolutely, irrevocably and, except as
otherwise provided herein, unconditionally indemnify and hold the Bank
harmless against all loss, cost or expense suffered or incurred by the
Bank howsoever arising from or in connection with the Letter of Credit,
EXCEPT for any loss, cost or expense suffered or incurred as a result
of the gross negligence or willful misconduct of the Bank. Neither the
Bank nor any of the Bank's correspondents or agents shall be
responsible for any of the following contingencies, including, but not
limited to: (a) any acts or omissions of the Beneficiary; (b) the form,
validity, sufficiency, accuracy, genuineness or legal effect of
documents specified in the Letter of Credit, even if it should in fact
be proven to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged, provided that all the documents
appear on their face to be in accordance with the terms and conditions
of the Letter of Credit; (c) errors, omissions, interruptions or delays
in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they may be indecipherable or errors
in translation or errors in interpretation of technical terms; (d) any
loss or delay in the transmission or otherwise of any such document or
draft; (e)
2
consequences of compliance with applicable laws, orders, regulations,
or directives in effect in places of negotiation or payment of the
Letter of Credit; or (f) without limiting the foregoing, any
consequences arising from causes beyond the Bank's control or any act
or omission by the Bank or any of its correspondents, except to the
extent that the occurrence of any of the contingencies specified in
subparagraphs (a) through (f) above is attributable to the gross
negligence or willful misconduct of the Bank or any of its
correspondents. The occurrence of any one or more of the above
contingencies shall not affect or impair the Bank's rights and powers
hereunder or the obligations of Midwest to the Bank of payment,
indemnity or reimbursement hereunder. If payment is not made within 5
Business Days of the date demanded, interest will be charged based on
the calculation in Section 5.
This Section 6 shall survive any payment of the Bank's obligations and
liabilities hereunder and any termination of this Agreement.
7. CHANGE IN CIRCUMSTANCES: If the Bank determines that any change in any
law, regulation, guideline or order or in the interpretation thereof by
any court or administrative or governmental authority charged with the
administration thereof shall either (i) impose, modify or deem
applicable any reserve, special deposit or similar requirement against
the Letter of Credit or require the inclusion of the Letter of Credit
in calculations related to the Bank's capitalization or (ii) impose any
other condition regarding this Agreement or the Letter of Credit,
including, without limitation, any requirement that the Bank pay
assessments for deposit insurance with respect to the Letter of Credit,
and the result of any event referred to in clause (i) or (ii) above
shall be to increase the cost to the Bank of issuing or maintaining the
Letter of Credit or the reimbursement obligations of Midwest or to
reduce the amounts receivable by the Bank upon such reimbursement,
then, upon demand by the Bank, Midwest shall promptly pay to the Bank
from time to time as specified by the Bank additional amounts which
shall be sufficient to compensate the Bank for such increased cost or
reduced receivables. A certificate as to such amounts submitted by the
Bank to Midwest, stating in reasonable detail the basis of computation,
shall be presumptive evidence of additional amounts payable under this
Section 7. Midwest acknowledges that there may be various methods of
allocating to the Letter of Credit reserve, assessment, capitalization
or similar costs referred to above and agrees that the allocation of
the Bank, for purposes of determining such costs, shall be conclusive
and binding upon Midwest, provided that such allocations are made in
good faith by a reasonable method and are absent manifest error. If
payment is not made within 5 Business Days of the date demanded,
interest will be charged based on the calculation in Section 5.
8. LIABILITY OF THE BANK: The Bank shall not be responsible for verifying
the existence of any act, condition or statement made by the
Beneficiary in relation to any drawing or presentment under the Letter
of Credit, for the validity or genuineness of certificates or other
documents delivered under or in connection with the Letter of Credit,
even if such certificates or other documents should in fact prove to be
invalid, fraudulent or forged, for any breach of contract between the
Beneficiary and Midwest, or for any other consequences beyond the
Bank's control, so long as the Bank acts in good faith and in
accordance with applicable law and customary banking procedures. The
Bank may
3
accept certificates or other documents that appear on their face to be
in order without responsibility for further investigation, regardless
of any notice or information to the contrary, unless otherwise ordered
by a court of competent jurisdiction. In furtherance of and not in
limitation of the foregoing, Midwest agrees that any action, inaction
or omission taken or suffered by the Bank in good faith and in
accordance with applicable law and customary banking procedures in
connection with any Letter of Credit or related drafts shall be binding
on Midwest and shall not result in any liability of the Bank to
Midwest.
9. OBLIGATION ABSOLUTE: Midwest's obligation to make each payment 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 Midwest may now or hereafter have
against the Beneficiary, the Bank or any other person for any reason
whatsoever.
10. CONDITIONS PRECEDENT: This Agreement shall become effective upon the
satisfaction of each of the conditions precedent set forth below:
(a) Midwest agrees to deliver to the Bank, a certificate of its
Secretary or an Assistant Secretary as to resolutions of its
Board of Directors authorizing Midwest to enter into and
perform this Agreement and the names and signatures of the
officers or other officials of Midwest who are authorized to
sign this Agreement, together with certified copies of
Midwest's organizational documents and an opinion of counsel
to Midwest in form and substance satisfactory to the Bank.
(b) The Participation Agreement shall have been duly authorized,
executed and delivered by the parties thereto.
(c) Each of the conditions precedent contained in Section 4 of the
Participation Agreement shall have been satisfied in the
opinion of the Bank or waived by the Bank.
(d) The Bank shall have received any other certificates, documents
or information regarding Midwest as the Bank may reasonably
request.
11. RIGHT OF SETOFF: At any time when any Reimbursement Obligation has not
been paid (after demand for payment has been made), the Bank is hereby
authorized at any time and from time to time, without notice to Midwest
(any such notice being expressly waived by Midwest) to set off and
apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any
time owing by the Bank to or for the credit or the account of Midwest
against any and all of the obligations of Midwest now or thereafter
existing under this Agreement, irrespective of whether or not the Bank
shall have made any demand under this Agreement and although such
obligations may be contingent and unmatured. The Bank agrees promptly
to notify Midwest after any such setoff and application, provided that
the failure to give such notice shall not affect the validity of such
setoff and application. The rights of the Bank under this Section 11
are in addition to other rights and remedies which the Bank may have
including, without limitation, other rights of setoff.
4
12. NOTICES: Notices and demands under this Agreement shall be in writing
and will be sufficient if delivered by hand, by United States
registered or certified mail or personal delivery by overnight mail or
courier service or by facsimile receipt of which is confirmed by
telephone. Notices and demands shall be effective when received and
shall be addressed if to Midwest to:
One Financial Place
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Fax No.: (000) 000-0000
if to the Bank to: Bayerische Landesbank International S.A.
Corporate Finance Department
0, Xxx Xxxx Xxxxxx
X-0000 Xxxxxxxxxx
Attn.: Xxxxx Xxxxxxx/Xxxxx Xxxxxxxxxx
Fax No.: (00352) 00000-0000
13. NO WAIVERS, REMEDIES: This Agreement may not be amended, waived or
modified except in writing duly signed by the Bank and Midwest. The
Bank may elect in its sole discretion not to renew the Letter of Credit
for additional periods. This Agreement and the terms, covenants and
conditions hereof shall be binding upon and inure to the benefit of the
Bank and Midwest and their respective successors. No failure on the
Bank's part to exercise, and no delay on the Bank's part in exercising,
any rights, powers or remedies hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such rights,
powers or remedies by the Bank preclude any other or further exercising
thereof or the exercise of any other right, power or remedy. All
remedies hereunder are cumulative and not exclusive of any other
remedies provided by law.
14. SEVERABILITY: Any provision of this Agreement which is prohibited,
unenforceable or not authorized in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent required by law without
invalidating the remaining provisions hereof or affecting the validity,
enforceability or legality of such provision in any other jurisdiction.
15. JURISDICTION/WAIVER OF JURY TRIAL:
(a) Any legal action or proceeding against Midwest or the Bank
with respect to this Agreement, the Letter of Credit or any of
the agreements, documents or instruments delivered in
connection herewith or therewith may be brought in the courts
of the State of New York or of the United States of America
for the Southern District of New York as the party commencing
such action or proceeding may elect. By execution and delivery
hereof, each party accepts and consents to, for itself and in
respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. Nothing herein shall
limit the right of Midwest or the Bank to bring proceedings
against the other party in the courts of any other
jurisdiction.
5
(b) Midwest and the Bank knowingly, voluntarily and intentionally
waive any and all rights Midwest or the Bank, as the case may
be, may have to a trial by jury in respect of any litigation
based on, or arising out of, under or in connection with, this
Agreement, the Letter of Credit or any other documents and
instruments executed in connection herewith.
16. CONSTRUCTION AND INTERPRETATION: This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
Each Letter of Credit shall be subject to the Uniform Customs and
Practice for Documentary Credits (1993 Revision), International Chamber
of Commerce, Paris, France, Publication No. 500 (and any successor
publication).
17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each executed counterpart constituting an original but
all together only one agreement.
6
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered on the date set forth above by the undersigned thereunto
authorized.
BAYERISCHE LANDESBANK
INTERNATIONAL S.A.
By: /s/ H. XXXXX XXXXXXXXXXX
--------------------------------
Name: H. Xxxxx Xxxxxxxxxxx
Title: Directeur - Adjoint
By: /s/ XXXXX XXXX
--------------------------------
Name: Xxxxx Xxxx
Title: Mandataire Commercial
MIDWEST GENERATION, LLC,
By: /s/ XXXX X. XXXXXXXX, XX.
--------------------------------
Name: Xxxx X. Xxxxxxxx, Xx.
Title: Vice President
ANNEX A
TO REIMBURSEMENT AGREEMENT
ARTICLE 1
DEFINITIONS
Section 1.1 DEFINED TERMS. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"AGREEMENT" means, on any date, this Agreement together with all
Annexes, Appendices and Exhibits as originally in effect on the Effective Date
and as thereafter from time to time amended, supplemented, amended and restated,
or otherwise modified and in effect on such date.
"ALTERNATE BASE RATE" means, on any date, a fluctuating rate of
interest per annum equal to the higher of:
(a) the rate of interest in effect for such day as publicly
announced from time to time by the Citibank, N.A. at its principal
office in New York, New York, as its "base rate." The "base rate" is a
rate set by the Citibank, N.A. based upon various factors including the
Bank's cost and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which
may be priced at, above, or below such announced rate; or
(b) the Federal Funds Rate most recently determined by the
Bank plus 1/2 of 1%.
The Alternate Base Rate is not necessarily intended to be the lowest
rate of interest determined by the Bank in connection with extensions of credit.
Changes in the rate of interest on amounts payable under the Agreement will take
effect simultaneously with each change in the Alternate Base Rate. The Bank will
give notice promptly to Midwest of changes in the Alternate Base Rate.
"APA" means the Asset Purchase Agreement dated as of December 15, 1999
(as the same may be amended, supplemented or otherwise modified from time to
time) among Funding LLC, the Securitization Company, Citibank, N.A., as agent,
each of the financial institutions party thereto as "Purchasers" and Citicorp
North America, Inc., as operating agent for the Securitization Company and as
agent for the Purchasers and the Securitization Company with respect to the
residual credit enhancement.
"APPLICABLE MARGIN" means, for any day, the rate per annum in effect
for such day based on the Debt Rating which applies for such day determined as
provided in the Pricing Grid.
"BANK" has the meaning set forth in the Recitals.
"BUSINESS DAY" means any day which is neither a Saturday or Sunday nor
a legal holiday on which banks are authorized or required to be closed in New
York, New York or Luxembourg.
"CLOSING DATE" means the Closing Date, as defined in the Participation
Agreement.
"XXXXXXX HOLDINGS" has the meaning set forth in the Recitals.
"DEBT RATING" means a rating by each of Moody's and S&P of each of (a)
the Funding LLC Loans, (b) the Holdings Tranche A Loans and (c) the Holdings
Tranche B Loans. If Moody's or S&P shall have changed its system of
classifications after the date hereof, a Debt Rating shall be considered to be
at or above a specified level if it is at or above the new rating which most
closely corresponds to the specified level under the old rating system.
"EFFECTIVE DATE" means the date this Agreement becomes effective
pursuant to SECTION 10.
"EME" means Edison Mission Energy, a California corporation.
"FACILITY LEASE " has the meaning set forth in the Recitals.
"FACILITY SUBLEASE " has the meaning set forth in the Recitals.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to:
(a) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Bank from up to three federal funds
brokers of recognized standing selected by the Bank.
"FUNDING LLC" means Midwest Funding LLC.
"FUNDING LLC LOANS" means the Advances under and as defined in Asset
Purchase Agreement dated as of December 15, 1999 among Funding LLC, the
Securitization Company, Citibank, N.A., as agent, each of the financial
institutions party thereto as "Purchasers" and Citicorp North America, Inc., as
operating agent for the Securitization Company and as agent for the Purchasers
and the Securitization Company.
"HEREIN", "HEREOF", "HERETO", "HEREUNDER" and similar terms contained
in this Agreement, any Annex, any Appendix, any Schedule or any Exhibit refer to
this Agreement as a whole and not to any particular Section, paragraph or
provision of this Agreement.
2
"HOLDINGS" means Edison Mission Midwest Holdings Co., a subsidiary of
EME and a corporation organized under the laws of the State of Delaware.
"HOLDINGS CREDIT AGREEMENT" means the Credit Agreement dated as of
December 15, 1999 among Holdings, The Chase Manhattan Bank, as administrative
agent thereunder and the financial institutions who are or may become parties
thereto as "Lenders", as from time to time amended, supplemented, amended and
restated or otherwise, modified and in effect from time to time.
"HOLDINGS TRANCHE A LOANS" has the meaning assigned to the term
"Tranche A Loans" in the Holdings Credit Agreement.
"HOLDINGS TRANCHE B LOANS" has the meaning assigned to the term
"Tranche B Loans" in the Holdings Credit Agreement.
"INCLUDING" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement, the
parties hereto agree that the rule of EJUSDEM GENERIS shall not be applicable to
limit a general statement, which is followed by or referable to an enumeration
of specific matters, to matters similar to the matters specifically mentioned.
"MATURITY EVENT" means, at any time, the amounts of drawings under the
Letter of Credit shall not have been repaid or refinanced in full on or before
the date five years after the Effective Date.
"MIDWEST" has the meaning set forth in the Recitals.
"MOODY'S" means Xxxxx'x Investors Service, a division of Dun &
Bradstreet Corporation, and its successors and assigns.
"OWNER LESSOR" has the meaning set forth in the Recitals.
"PARTICIPATION AGREEMENT" means the Participation Agreement [(T1)]
dated as of December 15, 1999 among Xxxxxxx Holdings EME, LLC, Wilmington Trust
Company, as Owner Trustee of the Owner Lessor, the Owner Lessor, the Owner
Participant named therein, Edison Mission Midwest Holdings Co., Midwest, the
Bank, Bayerische Landesbank Girozentrale, Funding LLC and Citibank, N.A., as
Holder Representative, as the same may be amended, supplemented or otherwise
modified from time to time.
"PERSON" means any natural person, corporation, partnership, limited
liability company, firm, association, trust, government, governmental agency or
any other entity, whether acting in an individual, fiduciary or other capacity.
"PRICING GRID" means the pricing grid attached as ANNEX B.
"REIMBURSEMENT OBLIGATIONS" has the meaning set forth in Section 2 of
the Agreement.
3
"SECURITIZATION COMPANY" means CXC Incorporated.
"S&P" means Standard & Poor's Ratings Services and its successors and
assigns.
"UNITED STATES" or "U.S." means the United States of America.
Section 1.2 USE OF DEFINED TERMS. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this Annex
A shall have such meanings when used in each other Annex, the Agreement and any
other notice and other communication delivered from time to time in connection
with this Agreement.
4
ANNEX B
TO REIMBURSEMENT AGREEMENT
PRICING GRID
-----------------------------------------------------------------------------------------------------------------------------------
BASIS FOR PRICING(1) XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 5 LEVEL 6
DEBT RATING DEBT RATING DEBT RATING DEBT RATING DEBT RATING DEBT RATING
AT LEAST: LESS THAN LESS THAN LESS THAN LESS THAN LOWER THAN
BBB+ BY S&P AND XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 0
Xxx0 BY MOODY'S BUT AT LEAST: BUT AT LEAST: BUT AT LEAST: BUT AT LEAST:
BBB BY S&P AND BBB- BY S&P AND BB+ BY S&P AND BB BY S&P AND
Baa2 BY MOODY'S Baa3 BY MOODY'S Ba1 BY MOODY'S Ba2 BY MOODY'S
-----------------------------------------------------------------------------------------------------------------------------------
BASE RATE APPLICABLE 0 bps 0 bps 15 bps 62.5 bps 87.5 bps 100 bps
MARGIN
-----------------------------------------------------------------------------------------------------------------------------------
LIBOR APPLICABLE MARGIN 100 bps 125 bps 150 bps 225 bps 275 bps 325 bps
-----------------------------------------------------------------------------------------------------------------------------------
bps = basis points per annum
(1) At any time the Debt Ratings are split between S&P and Moody's, the
Pricing Level in which the lower rating falls should govern.
EXHIBIT A
TO REIMBURSEMENT AGREEMENT
FORM OF
IRREVOCABLE LETTER OF CREDIT
No. [______]
BAYERISCHE LANDESBANK INTERNATIONAL S.A.
December 15, 1999
Xxxxxxx Trust I
as Owner Lessor
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Corporate Trust Administration
Ladies and Gentlemen:
1. The Bank hereby establishes, at the request and for the account of
the Account Party, in favor of the Beneficiary to support the certain
obligations of the Account Party to Xxxxxxx Holdings under the Facility Sublease
and the correlative obligations of Xxxxxxx Holdings to Owner Lessor under the
Facility Lease, this Irrevocable Letter of Credit in the maximum amount of three
million eight hundred seventy thousand U.S. Dollars and zero Cents
(U.S.$3,870,000.00), effective immediately and expiring on the Expiration Date.
2. As used herein, the following terms have the following meanings:
A. "ACCOUNT PARTY" means Midwest Generation, LLC.
B. "APA" means the Asset Purchase Agreement dated as of
December 15, 1999 (as the same may be amended, supplemented or
otherwise modified from time to time) among Midwest Funding LLC, CXC
Incorporated (the "SECURITIZATION COMPANY"), Citibank, N.A., as agent,
each of the financial institutions party thereto as "Purchasers" (the
"PURCHASERS") and Citicorp North America, Inc., as operating agent for
the Securitization Company and as RCE Agent.
C. "BANK" means Bayerische Landesbank International S.A.
D. "BENEFICIARY" means (i) initially, the Owner Lessor and
(ii) after giving effect to the transfer and assignment by the Owner
Lessor of all of its right, title and interest in, to and under this
Letter of Credit as collateral security for the obligations of the
Owner Lessor under, and as provided in, the RCE Reimbursement Agreement
on the
2
date hereof to Bayerische Landesbank Girozentrale, Bayerische
Landesbank Girozentrale.
E. "BUSINESS DAY" means any day except a Saturday, Sunday or
legal holiday in New York City, New York or a day on which banks in New
York City, New York, Wilmington, Delaware or Luxembourg are authorized
or required by law or executive order to close.
F. "XXXXXXX HOLDINGS" means Xxxxxxx Holdings EME, LLC.
G. "EXPIRATION DATE" means December 15, 2004.
H. "FACILITY LEASE" means the Facility Lease Agreement (TI),
dated as of December 15, 1999, between the Owner Lessor and Xxxxxxx
Holdings, as the same may be from time to time amended, supplemented,
amended and restated, or otherwise modified and in effect from time to
time.
I. "FACILITY SUBLEASE" means, the Facility Sublease Agreement
(TI), dated as of December 15, 1999 between Xxxxxxx Holdings and the
Account Party, as the same may be from time to time amended,
supplemented, amended and restated, or otherwise modified and in effect
from time to time.
J. "LEASE DEFAULT" means, with respect to the Facility Lease,
any event which with the passage of time or the giving of notice would
become a Lease Event of Default thereunder.
K. "LEASE EVENT OF DEFAULT" means, with respect to the
Facility Lease, a Lease Event of Default as such term is defined
thereunder.
L. "LETTER OF CREDIT" means this Irrevocable Letter of Credit
No. [_________] issued by the Bank.
M. "MAXIMUM AMOUNT" means three million eight hundred seventy
thousand U.S. Dollars and zero Cents (U.S.$3,870,000.00).
N. "OWNER LESSOR" means Xxxxxxx Trust (I), a Delaware business
trust, together with its successor and assigns.
O. "RATING AGENCY" means each of Xxxxx'x Investors Service,
Inc. and Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc.
P. "RCE AGENT" means Citicorp North America, Inc., a Delaware
corporation, in its capacity as agent for the Purchasers and the
Securitization Company.
Q. "RCE REIMBURSEMENT AGREEMENT" means the Reimbursement
Agreement dated as of December 15, 1999 between the Owner Lessor and
Bayerische Landesbank Girozentrale.
R. "RCE LETTER OF CREDIT" shall mean that certain Irrevocable
Letter of Credit issued by Bayerische Landesbank Girozentrale in favor
of the RCE Agent for the account of the Owner Lessor.
3. Partial drawings are permitted hereunder. The Bank hereby
irrevocably authorizes the Beneficiary to draw on the Bank, from time to time,
in accordance with the terms
3
and conditions hereinafter set forth, in amounts not exceeding, in the
aggregate, the Maximum Amount. The Bank shall pay such drawings with its own
funds. Except as expressly stated herein, this undertaking is not subject to any
agreement, condition or qualification.
4. Only the Beneficiary may make drawings under this Letter of Credit.
Upon payment by the Bank of one or more drawings that, in the aggregate, are
equal to the Maximum Amount, the Bank shall be fully discharged from its
obligations under this Letter of Credit, and the Bank shall not thereafter be
obligated to make any further payment under this Letter of Credit to the
Beneficiary or to any other person.
5. Funds under this Letter of Credit will be made available to the
Beneficiary against the Beneficiary's certificate or certificates signed by the
Owner Lessor in the form of Annex 1 hereto, appropriately completed, and may be
delivered by telecopy transmission to telecopy number (00352) 42434-3399, or
delivered in person or by mail or courier to the Bank's offices located at 0,
Xxx Xxxx Xxxxxx, X-0000 Xxxxxxxxxx or at any other office in New York City that
may be designated by the Bank in a written notice delivered to the Beneficiary.
6. Each such certificate referred to in paragraph 5 above shall be
dated on or within three Business Days prior to the date of presentation. Upon
receipt by the Bank of an appropriately completed certificate in conformity with
the terms and conditions of this Letter of Credit, at or before 5:00 p.m., New
York City time, on or before the Expiration Date, the Bank will honor the same
(to the extent required by this Letter of Credit) in accordance with the payment
instructions of the Beneficiary to the Bank by 4:00 p.m., New York City time, on
the Business Day following receipt of such certificate by the Bank; PROVIDED
that if such certificate is received prior to 11:00 a.m., New York City time, on
a Business Day, the Bank shall make its payment in immediately available funds
by 4:00 p.m., New York City time, on such Business Day.
7. This Letter of Credit shall automatically terminate on the
Expiration Date; PROVIDED, HOWEVER, that if the Bank's business is interrupted
or suspended on the Expiration Date for any reason, this Letter of Credit shall
automatically terminate on the date 21 days immediately after the Bank's
resumption of business.
8. THIS LETTER OF CREDIT SHALL BE SUBJECT TO AND GOVERNED BY THE
UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION),
(INTERNATIONAL CHAMBER OF COMMERCE, PARIS, FRANCE PUBLICATION NO. 500) (AND ANY
SUCCESSOR PUBLICATIONS).
9. The right, title and interest of the Beneficiary in, to and under
this Letter of Credit are transferable and assignable in their entirety (but not
in part) to any transferee or assignee designated by the Beneficiary. The Owner
Lessor as original beneficiary has transferred and assigned all of its right,
title and interest in, to and under this Letter of Credit to Bayerische
Landesbank Girozentrale having an address at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX
00000 as collateral security for the Owner Lessor's obligations under the RCE
Reimbursement Agreement.
10. Communications with respect to this Letter of Credit shall be in
writing and shall be addressed to the Bank at 0, Xxx Xxxx Xxxxxx, X-0000
Xxxxxxxxxx (or any other office in New York City which may be designated by the
Bank in a written notice delivered to the Beneficiary, and the Account Party),
specifically referring to the number of this Letter of Credit.
4
11. This Letter of Credit sets forth in full the Bank's undertakings,
and the Bank's undertakings hereunder shall not in any way be modified, amended,
amplified or limited by reference to any document, instrument or agreement
referred to herein except for the certificates referred to herein, and any such
reference shall not be deemed to incorporate herein by reference any document,
instrument or agreement except for such certificates.
Very truly yours,
BAYERISCHE LANDESBANK
INTERNATIONAL S.A.
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
ANNEX 1 TO
LETTER OF CREDIT
BENEFICIARY'S CERTIFICATE
Re: Irrevocable Letter of Credit No. [_______________] (the "Letter of Credit")
dated December 15, 1999, issued by Bayerische Landesbank International S.A. at
the request and for the account of the Account Party identified therein.
Reference is made to the Letter of Credit. Any capitalized term used
herein and not defined herein has its respective meaning as set forth in the
Letter of Credit.
The Beneficiary hereby demands payment in the amount of
U.S.$____________ ([insert amount in words)] U.S. Dollars. This is a drawing
under the Letter of Credit. The Beneficiary hereby certifies to the Bank:
(1) The Beneficiary is entitled to draw under this Letter of
Credit the amount specified in this Certificate because [both
(i) a drawing against the RCE Letter of Credit has been made
in an amount at least equal to the amount of the drawing
requested hereby and (ii) a Lease Default that is a payment or
bankruptcy default has occurred and is continuing.] [or]
[(A)(i) the rating of the unsecured debt securities of
Bayerische Landesbank Girozentrale shall be downgraded below
[P-1 by Moody's or the higher of A-1] or the then current
rating of the Securitization Company's commercial paper by
S&P, or (ii) Bayerische Landesbank Girozentrale has been
mentioned with negative implications in "CreditWatch" by S&P
or a similar publication list by S&P or Moody's and the
Account Party has failed to arrange for the issuance of a
substitute irrevocable letter of credit in the then available
amount under this Letter of Credit by a bank whose unsecured
debt securities are rated by the Rating Agencies as high as
the ratings stated in clause (i) above and which is not a bank
with respect to which clause (ii) above would be applicable
and (B) a drawing against the RCE Letter of Credit has been
made.] *Delete as applicable.
(2) The amount of the drawing made by this Certificate, together
with all other amounts previously drawn by the Beneficiary
under the Letter of Credit, does not exceed the Maximum
Amount.
The Beneficiary hereby requests that payment under the Letter of Credit
by the Bank be made by wire transfer of federal funds to the Beneficiary's
Account No. ______ at [Name of Bank] in [Name of City and State in the United
States].
IN WITNESS WHEREOF, the Beneficiary has executed and delivered this
Certificate as of the ____ day of ___________, _____
[BENEFICIARY]
By:
----------------------------------
Name:
Title:
