EXHIBIT 10.49
EXECUTION COPY
EQUITY SUPPORT GUARANTEE
Dated as of December 23, 1998
among
EDISON MISSION ENERGY
ABN AMRO BANK N.V.
as Administrative Agent
THE CHASE MANHATTAN BANK
as Collateral Agent
and
THE CHASE MANHATTAN BANK
as Depositary Agent
EQUITY SUPPORT GUARANTEE
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EQUITY SUPPORT GUARANTEE (this "Equity Support Guarantee") dated as of
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December 23, 1998 among EDISON MISSION ENERGY, a corporation duly organized and
validly existing under the laws of the State of California (the "Sponsor"); ABN
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AMRO BANK N.V., as Administrative Agent under the Credit Agreement (in such
capacity, together with its successors in such capacity, the "Administrative
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Agent"); THE CHASE MANHATTAN BANK, as Collateral Agent under the Intercreditor
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Agreement (in such capacity, together with its successors in such capacity, the
"Collateral Agent"); and THE CHASE MANHATTAN BANK, a New York State banking
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institution, as Depositary Agent under the Depositary Agreement (in such
capacity, together with its successors in such capacity, the "Depositary
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Agent").
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ECOELECTRICA, L.P., an exempted limited partnership duly formed and
validly existing under the laws of Bermuda (the "Company"), the lenders and
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issuing banks under the Credit Agreement referred to below, the co-agents under
the Credit Agreement referred to below and the Administrative Agent are parties
to a Credit Agreement dated as of October 31, 1997 (as amended, modified and
supplemented and in effect from time to time, the "Credit Agreement"),
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providing, subject to the terms and conditions thereof, for extensions of credit
(by making of loans and issuing letters of credit) to be made by said lenders
and issuing banks to the Company in an aggregate principal or face amount not
exceeding the amount of Commitments of said lenders and issuing banks as the
same may be adjusted from time to time. In addition, the Company may from time
to time be obligated to certain of said lenders in respect of certain Permitted
Interest Rate Protection Agreements.
The Company, the Administrative Agent, the Collateral Agent, the
Depositary Agent and certain other Secured Parties have entered into that
certain Collateral Agency and Intercreditor Agreement (as amended, modified and
supplemented and in effect from time to time, the "Intercreditor Agreement")
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dated as of October 31, 1997. This is the Equity Support Guarantee referred to
in the Intercreditor Agreement and the Depositary Agreement.
ECOELECTRICA, LTD., a company limited by shares duly formed and
validly existing under the laws of the Cayman Islands and ECOELECTRICA HOLDINGS,
LTD., a company limited by shares duly formed and validly existing under the
laws of the Cayman Islands (the "Subject Affiliate Partners") are each party to
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an Equity Funding Agreement dated as of October 31, 1997 (the "Subject Equity
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Funding Agreements") among the Company, such Subject Affiliate Partner, the
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Administrative Agent, the Collateral Agent and the Depositary Agent pursuant to
which such Subject Affiliate Partner has agreed to make an Equity Funding
Payment to the Company.
To induce the Lenders (including, without limitation, the Sponsor
Construction Lenders) and the Issuing Banks to enter into the Credit Agreement
and to extend credit thereunder and to induce certain of the Lenders to extend
credit to the Company as contemplated by the Permitted Interest Rate Protection
Agreements, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
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Section 1. Definitions. Terms defined in Appendix A to the
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Intercreditor Agreement are used herein (including in the preamble and recitals
of this Equity Support Agreement) as defined therein (and the principles of
interpretation set forth in Appendix A to the Intercreditor Agreement shall
apply to such definitions). Unless the context otherwise requires, any reference
in this Equity Support Guarantee to any agreement shall mean such agreement and
all schedules, exhibits and attachments thereto as amended, supplemented or
modified. Unless otherwise stated, any reference in this Equity Support
Guarantee to any Person shall include its permitted successors and assigns and,
in the case of any Government Authority, any Person succeeding to its functions
and capacities. In addition, the following terms shall have the following
meaning:
"Applicable Equity Percentage" shall mean fifty per cent (50%).
As used in the Credit Agreement as the same relates to this Equity
Support Guarantee and the Depositary Agreement as the same relates to this
Equity Support Guarantee, the term "ESG Replacement Event" shall mean:
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(a) Any representation or warranty made or deemed made by the Sponsor
(or any of its officers) herein or under or in connection with any other
Project Document to which the Sponsor is a party shall prove to have been
false or misleading in any material respect as of the time made or deemed
made, confirmed or furnished and shall have (or the facts or circumstances
underlying such false or misleading representation or warranty shall have)
resulted in a Material Adverse Effect on the Company, any Partner or the
Sponsor; or
(b) The Sponsor shall default in the performance of any of its
obligations under any of Section 2.01 of this Equity Support Guarantee; or
the Sponsor shall default in the performance of any of its other
obligations in this Equity Support Guarantee or any other Recourse Document
to which it is a party and such default shall continue unremedied for a
period of 30 days after the occurrence of such default; or
(c) A Bankruptcy Event shall occur and be continuing with respect to
the Sponsor; or
(d) The Sponsor shall fail to have outstanding long-term unsecured
indebtedness rated BBB+ or better by S&P and Baal or better by Xxxxx'x (or
an equivalent rating by another nationally recognized statistical rating
organization of similar standing if neither such corporation is in the
business of rating such long-term unsecured indebtedness; or
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(e) The Sponsor shall default in the payment when due of any
principal of or interest on any of its Indebtedness which is outstanding in
a principal amount of at least $50,000,000 in the aggregate (other than its
Indebtedness hereunder); or any event specified in any note, agreement,
indenture or other document evidencing or relating to any such Indebtedness
shall occur if the effect of such event is to cause, or (with the giving of
notice or the lapse of time or both) to permit the holder or holders of
such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, such Indebtedness to become due, or to be prepaid in
full (whether by redemption, purchase, offer to purchase or otherwise),
prior to its stated maturity or to have the interest rate thereon reset to
a level so that securities evidencing such Indebtedness trade at a level
specified in relation to the par value thereof.
Section 2. The Guarantee.
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2.01 The Guarantee. The Sponsor hereby guarantees to each Sponsor
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Construction Lender, each Issuing Bank with respect to Sponsor Construction
Letters of Credit, the Administrative Agent, the Collateral Agent and the
Depositary Agent and their respective successors and assigns the prompt payment
in full when due by each Subject Affiliate Partner of the Equity Funding Payment
payable by such Subject Affiliate Partner to the Depositary Agent on behalf of
the Company under the terms and conditions of the relevant Subject Equity
Funding Agreement as and when the same shall become due and payable in
accordance with the terms and conditions of such Equity Funding Agreement (such
obligations being herein called the "Guaranteed Obligations"), subject to the
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last sentence of this paragraph. The Sponsor hereby further agrees that if
either Subject Affiliate Partner shall fail to pay in full when due any
Guaranteed Obligation, (i) the Sponsor will promptly pay the same within five
Business Days following the Sponsor's receipt of written notice of demand for
payment therefor from the Administrative Agent or the Depositary Agent,
furnished in accordance with the terms of the Depositary Agreement, and (ii) in
the case of any extension of time of payment or renewal of any Guaranteed
Obligation, the same will be promptly paid in full when due in accordance with
the terms of such extension or renewal within five Business Days following the
Sponsor's receipt of written notice of demand for payment therefor from the
Administrative Agent or the Depositary Agent, furnished in accordance with the
terms of the Depositary Agreement, in each case subject to the last sentence of
this paragraph. Anything in the foregoing to the contrary notwithstanding, in no
event shall the obligation of the Sponsor under this Section 2 with respect to
any Guaranteed Obligation arising in respect of any Equity Funding Payment
exceed an amount equal to the product of (a) the Applicable Equity Percentage
times (b) the amount of such Equity Funding Payment (together with accrued
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interest and fees thereon).
Any such payments pursuant to this Section 2.01 shall be made to the
Depositary Agent in immediately available funds in accordance with Payment
Instructions for account number C23922B (the Equity Sub-Account) at The Chase
Manhattan Bank, 450 West 33rd
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Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, pending transfer in accordance
with the Depositary Agreement.
2.02 Obligations Unconditional, Waiver of Defenses. The obligation of
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the Sponsor under Section 2.01 hereof is irrevocable, absolute and
unconditional, irrespective of the value, genuineness, validity, regularity or
enforceability of any of the Equity Funding Agreements, the other Equity Support
Arrangements, the Credit Agreement, any other Basic Document, any other
Financing Document, any Project Document or any other agreement or instrument
referred to herein or therein, or any substitution, release or exchange of any
other guarantee of or security for any Guaranteed Obligation or any Secured
Obligation, and, to the fullest extent permitted by applicable Government Rule,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 2.02 that the obligation of the Sponsor
hereunder shall be absolute and unconditional under any and all circumstances.
To the fullest extent permitted by applicable Government Rule, the obligation of
the Sponsor under Section 2.01 hereof shall not be subject to any abatement,
reduction, limitation, impairment, termination, setoff, defense, counterclaim or
recoupment whatsoever or any right to any thereof, and shall not be released or
discharged. Without limiting the generality of the foregoing, it is agreed that,
to the fullest extent permitted by applicable Government Rule, the occurrence of
any one or more of the following (without notice to the Sponsor) shall not alter
or impair the liability of the Sponsor hereunder which shall remain absolute and
unconditional as described above:
(a) at any time or from time to time, the time for any performance of
or compliance with any Guaranteed Obligation or any Secured
Obligation shall be extended, or such performance or compliance
shall be waived;
(b) any of the acts mentioned in any of the provisions of any of the
Equity Funding Agreements, the other Equity Support Arrangements,
the Credit Agreement, any other Basic Document, any other
Financing Document, any Project Document or any other agreement
or instrument referred to herein or therein shall be done or
omitted;
(c) the maturity of any Guaranteed Obligation or any Secured
Obligation shall be accelerated, or any Guaranteed Obligation or
any Secured Obligation shall be modified, supplemented or amended
in any respect, or any right under any of the Equity Funding
Agreements, the other Equity Support Arrangements, the Credit
Agreement, any other Basic Document, any other Financing
Document, any Project Document or any other agreement or
instrument referred to herein or therein shall be waived or any
other guarantee of any Guaranteed Obligation or any Secured
Obligation or any
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security therefor shall be released or exchanged in whole or in
part or otherwise dealt with;
(d) any lien or security interest granted to, or in favor of, the
Collateral Agent, the Depositary Agent or any other Secured Party
as security for any Guaranteed Obligation or any Secured
Obligation shall fail to be perfected;
(e) the bankruptcy or insolvency of the Company, the Sponsor, any
Partner or any other Recourse Party or any reorganization,
arrangement, compromise, composition or plan affecting the
Company, the Sponsor, any Partner or any other Recourse Party
shall occur; or
(f) this Equity Support Guarantee or any other Project Document
referred to herein or therein shall be rejected in any
bankruptcy, insolvency or similar proceeding (nothing herein
being a concession that any obligation hereunder or thereunder is
properly classifiable as an executory obligation).
To the fullest extent permitted by applicable Government Rule, the Sponsor
hereby expressly waives, except as specifically provided in Section 2.01 hereof,
diligence, presentment, demand of payment, protest and all notices whatsoever,
and any requirement that the Administrative Agent, the Collateral Agent, the
Depositary Agent, any Sponsor Construction Lender or any Issuing Bank with
respect to any Sponsor Construction Letter of Credit exhaust any right, power or
remedy or proceed against either Subject Affiliate Partner under the relevant
Subject Equity Funding Agreement or any Recourse Party or the Company or any
other Person under the Credit Agreement, any other Basic Document, any other
Financing Document, any Project Document or any other agreement or instrument
referred to herein or therein, or against any other Person under any other
guarantee of, or security for, any Guaranteed Obligation or any Secured
Obligation.
2.03 Reinstatement. The obligation of the Sponsor under this Section 2
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shall be automatically reinstated if, and to the extent that, for any reason any
payment by or on behalf of the Sponsor in respect of any Guaranteed Obligation
is rescinded or must be otherwise restored by the Administrative Agent, the
Collateral Agent, the Depositary Agent, any Sponsor Construction Lender or any
Issuing Bank with respect to any Sponsor Construction Letter of Credit or the
Company, whether as a result of any proceedings under bankruptcy, insolvency or
similar laws, reorganization or otherwise, and the Sponsor shall indemnify the
Administrative Agent, the Collateral Agent, the Depositary Agent, each Sponsor
Construction Lender and each Issuing Bank with respect to Sponsor Construction
Letters of Credit on demand for all reasonable out-of-pocket costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses)
incurred by the Administrative Agent, the Collateral Agent, the Depositary
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Agent or such Sponsor Construction Lender and such Issuing Bank with respect to
Sponsor Construction Letters of Credit in connection with such rescission or
restoration.
2.04 Subrogation. Until the satisfaction and payment in full of each
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Guaranteed Obligation, the Sponsor shall not exercise, and hereby irrevocably
waives, to the fullest extent permitted by applicable Government Rule, any
claim, right or remedy that it may now have or may hereafter acquire against
either Subject Affiliate Partner or the Company arising under or in connection
with this Equity Support Guarantee, including, without limitation, any claim,
right or remedy of subrogation, contribution, reimbursement, exoneration,
indemnification or participation arising under contract, by Government Rule or
otherwise in any claim, right or remedy of the Administrative Agent, the
Collateral Agent, the Depositary Agent, any Sponsor Construction Lender or any
Issuing Bank with respect to any Sponsor Construction Letter of Credit against
the Company or either Subject Affiliate Partner or any other Person or any
Collateral which the Administrative Agent, the Collateral Agent, the Depositary
Agent, any Sponsor Construction Lender or any Issuing Bank with respect to any
Sponsor Construction Letter of Credit may now have or may hereafter acquire. If,
notwithstanding the preceding sentence, any amount shall be paid to the Sponsor
at any time when any Guaranteed Obligation shall not have been paid in full,
such amount shall be held by the Sponsor in trust for the Depositary Agent,
segregated from other funds of the Sponsor and be turned over to the Depositary
Agent (duly endorsed by the Sponsor to the Depositary Agent, if required), to be
applied against such Guaranteed Obligation, whether matured or unmatured, in
accordance with the Depositary Agreement.
2.05 Remedies. The Sponsor agrees that, as between the Sponsor, the
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Administrative Agent, the Collateral Agent, the Depositary Agent, each Sponsor
Construction Lender and each Issuing Bank with respect to any Sponsor
Construction Letter of Credit the obligations of each Subject Affiliate Partner
under its Subject Equity Funding Agreement may become, or may be declared to be,
forthwith due and payable as provided in its Subject Equity Funding Agreement
for purposes of Section 2.01 hereof notwithstanding any stay, injunction or
other prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against such Subject Affiliate Partner and
that, in the event of such declaration (or such obligations becoming
automatically due and payable), such obligations (whether or not due and payable
by the Subject Affiliate Partner) shall forthwith become due and payable by such
Subject Affiliate Partner for purposes of said Section 2.01. The Sponsor further
agrees that, in accordance with the Depositary Agreement, upon the occurrence of
an ESG Replacement Event amounts payable under this Equity Support Guarantee
may, notwithstanding that the obligations of any Subject Affiliate Partner are
not then due and payable, become payable in the amounts and at the times set
forth in the Depositary Agreement.
2.06 Continuing Guarantee. The guarantee in this Section 2 is a
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continuing guarantee and shall apply to any Guaranteed Obligation whenever
arising.
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2.07 Pro Tanto Discharge. Any payment made directly to the Depositary
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Agent under this Equity Support Guarantee shall be deemed to be payment of the
Guaranteed Obligation of the relevant Subject Affiliate Partner and shall
satisfy the obligation of such Subject Affiliate Partner to the Company and the
Depositary Agent under the relevant Subject Equity Funding Agreement pro tanto
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(subject to Section 2.03 hereof).
Section 3. Representations and Warranties. The Sponsor represents and
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warrants to the Sponsor Construction Lenders, the Issuing Banks with respect to
Sponsor Construction Letters of Credit, the Administrative Agent, the Collateral
Agent and the Depositary Agent that:
3.01 Corporate Existence. The Sponsor is a corporation duly organized,
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validly existing and in good standing under the laws of the State of California
and is duly qualified to do business and is in good standing in its jurisdiction
of incorporation and all other places where necessary in light of the business
it conducts and the Property it owns and intends to conduct and own and in light
of the transactions contemplated by this Equity Support Guarantee and each other
Project Document to which it is a party.
3.02 Financial Condition. The audited balance sheet of the Sponsor as
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at December 31, 1997 and the related statements of income, shareholders' equity
and cash flows for the fiscal year of the Sponsor ended on such date, and the
unaudited balance sheet of the Sponsor as at September 30, 1998 and the related
statements of income, shareholders' equity and cash flows of the Sponsor for the
9-month period ended on such date, heretofore furnished to each of the Secured
Parties, are complete and correct and fairly present the financial condition of
the Sponsor as at said dates and the results of its operations for the fiscal
year and 9-month period ended on said dates (subject, in the case of such
unaudited financial statements as at March 31, 1998, June 30, 1998 and September
30, 1998, to normal year-end audit adjustments), all in accordance with
generally accepted accounting principles and practices applied on a consistent
basis. Since September 30, 1998 there has been no material adverse change in the
financial condition, operations, business or prospects of the Sponsor from that
set forth in said financial statements as at said date.
3.03 Litigation. Except as disclosed in Sponsor's Form 10-K for the
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year ended December 31, 1997 or Sponsor's Form 10-Q for the quarters ended March
31, 1998, June 30, 1998 and September 30, 1998, as filed with the U.S.
Securities and Exchange Commission, which were delivered to each of the
Administrative Agent, the Collateral Agent, each Sponsor Construction Lender and
each Issuing Bank with respect to Sponsor Construction Letters of Credit prior
to the date hereof, there is no action, suit or proceeding at law or in equity
or by or before any Government Authority, arbitral tribunal or other body now
pending or, to the best knowledge of the Sponsor, threatened against or
affecting the Sponsor or any of its Property,
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which has had or could reasonably be expected to have a Material Adverse Effect
on the Sponsor.
3.04 No Breach. The execution, delivery and performance by the Sponsor
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of this Equity Support Guarantee and each other Project Document to which it is
or is intended to be a party and the consummation of the transactions
contemplated hereby and thereby do not and will not: (a) require any consent or
approval of the board of directors or any shareholder of the Sponsor or any
other Person that has not been duly obtained and each such consent or approval
that has been obtained is in full force and effect, (b) violate any provision of
the certificate of incorporation or the by-laws of the Sponsor or any Government
Rule or Government Approval applicable to the Sponsor, (c) conflict with, result
in a breach of or constitute a default under any provision of the certificate of
incorporation, by-laws or any resolution of the board of directors of the
Sponsor or any indenture or loan or credit agreement or any other material
agreement, lease or instrument to which the Sponsor is a party or by which it or
its Properties may be bound or (d) result in, or require, the creation or
imposition of any Lien, upon or with respect to any of the properties now owned
or hereafter acquired by the Sponsor, which, in any of the circumstances
described in the foregoing clauses (a) through (d), could reasonably be expected
to have a Material Adverse Effect on the Company or the Sponsor. The Sponsor is
not in violation of any Government Rule or Government Approval which violation
could reasonably be expected to have a Material Adverse Effect on the Company or
the Sponsor.
3.05 Action. The Sponsor has the full corporate power, authority and
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legal right to execute, deliver and perform its obligations under this Equity
Support Guarantee and any other Project Document to which it is or is intended
to be a party. The execution, delivery and performance by the Sponsor of this
Equity Support Guarantee and any other Project Document to which it is or is
intended to be a party, and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate and shareholder
action on the part of the Sponsor. This Equity Support Guarantee and any other
Project Document to which the Sponsor is or is intended to be a party has been
duly executed and delivered by the Sponsor, has not been amended or otherwise
modified, except as permitted pursuant to Section 8.23 of the Credit Agreement,
is in full force and effect and is the legal, valid and binding obligation of
the Sponsor, enforceable against the Sponsor in accordance with its terms,
except as the enforceability thereof may be limited by (a) applicable
bankruptcy, insolvency, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and (b) the application of general
principles of equity regardless of whether such enforceability is considered in
a proceeding at law or in equity).
3.06 Approvals. No Government Approval by, and no filing with, any
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Government Authority is required for the execution, delivery or performance by
the Sponsor of this Equity Support Guarantee or any other Project Document to
which it is or is intended to be a party or for the validity or enforceability
hereof or thereof, or for the exercise by the
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Administrative Agent, the Depositary Agent, the Collateral Agent or any other
Secured Party of their respective rights and remedies hereunder.
3.07 Taxes. The Sponsor has filed or caused to be filed all tax
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returns that are required to be filed, and has paid all taxes shown to be due
and payable on said returns or on any assessments made against the Sponsor or
any of its Property and all other Taxes, imposed on the Sponsor by any
Government Authority (other than Taxes the payment of which are not yet due or
which are being Contested), and no tax Liens (other than Permitted Liens) have
been filed and no claims are being asserted with respect to such Taxes.
3.08 Regulatory Status. The Sponsor is not an "investment company"
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within the meaning of the Investment Company Act of 1940, as amended.
Section 4. Covenants. The Sponsor agrees that, until the payment and
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satisfaction in full of each Guaranteed Obligation:
4.01 Financial Statements. The Sponsor shall deliver to the
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Administrative Agent and the Collateral Agent to the extent not otherwise
delivered pursuant to the Financing Documents:
(a) as soon as available and in any event within 45 days after the
end of each quarterly fiscal period of the Sponsor, unaudited financial
statements of the Sponsor for such period and for the period from the
beginning of the respective fiscal year to the end of such period in the
form that the Sponsor releases to the public;
(b) as soon as available and in any event within 120 days after the
end of each fiscal year of the Sponsor, audited financial statements of the
Sponsor for such year in the form that the Sponsor releases to the public;
(c) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, which the
Sponsor shall have filed with the Securities and Exchange Commission or any
national securities exchange;
(d) promptly upon the mailing thereof to the shareholders of the
Sponsor generally, copies of all financial statements, reports and proxy
statements so mailed;
(e) promptly after the Sponsor knows or has reason to believe that
any ESG Replacement Event has occurred, a notice of such ESG Replacement
Event describing the same in reasonable detail and, together with such
notice or as soon thereafter as possible, a description of the action that
the Sponsor has taken or proposes to take with respect thereto; and
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(f) from time to time such other information regarding the financial
condition, operations, business or prospects of the Sponsor as the
Administrative Agent (or any Sponsor Construction Lender or Issuing Bank
with respect to Sponsor Construction Letters of Credit through the
Administrative Agent) may reasonably request.
4.02 Litigation. The Sponsor shall promptly upon obtaining knowledge
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of (a) any action, suit or proceeding at law or in equity by or before any
Government Authority, arbitral tribunal or other body pending or threatened
against the Sponsor which could reasonably be expected to result in a Material
Adverse Effect on the Sponsor or (b) any other circumstance, act or condition
(including, without limitation, the adoption, amendment or repeal of any
Government Rule applicable to the Sponsor or the Impairment of any Government
Approval relating to the Sponsor or notice (whether formal or informal, written
or oral) of the failure to comply with the terms and conditions of any such
Government Approval) which could reasonably be expected to result in a Material
Adverse Effect on the Sponsor, furnish to the Administrative Agent and the
Collateral Agent a notice of such event describing the same in reasonable detail
and, together with such notice or as soon thereafter as possible, a description
of the action that the Sponsor has taken and proposes to take with respect
thereto.
4.03 Corporate Existence, Etc. The Sponsor shall preserve and
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maintain (a) its corporate existence and (b) all of its licenses, rights,
privileges and franchises necessary or desirable for (i) the maintenance of its
existence and (ii) the fulfillment of its material obligations and the exercise
of all its material rights under this Equity Support Guarantee and each other
Project Document to which it is or is intended to be a party; provided, however,
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that this Section 4.03 shall not apply to or be breached by any merger or
consolidation of Sponsor with or into any other Person if (a) Sponsor is the
survivor or (b) the surviving Person, if not Sponsor, is organized under the
laws of the United States or a state thereof and assumes all obligations of
Sponsor under this Equity Support Guarantee (provided in each case that
immediately after giving effect to such proposed transaction, no ESG Replacement
Event or event which, with giving of notice or lapse of time or both, would
constitute an ESG Replacement Event, would exist or result).
4.04 Compliance with Government Rules, Etc. The Sponsor shall comply
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with all applicable Government Rules and shall from time to time obtain and
renew, and shall comply with, all Government Approvals as shall now or hereafter
be necessary under applicable Government Rules in connection with this Equity
Support Guarantee and each other Project Document to which the Sponsor is or is
intended to be a party and the transactions contemplated hereby or thereby
(except any thereof the non-compliance with which could not reasonably be
expected to result in a Material Adverse Effect on the Sponsor) and shall
promptly furnish certified copies of each such Government Approval to the
Administrative Agent and the Collateral Agent (together with the application for
and the and associated correspondence
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regarding such Government Approvals, if requested by the Administrative Agent)
to the extent not theretofore furnished in accordance with the terms of the
Credit Agreement.
4.05 Taxes. The Sponsor shall pay and discharge, or effectively
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provide for, all Taxes now or hereafter imposed on it or on its income or
profits or on any of its Property prior to the date on which penalties attach
thereto (provided that the Sponsor shall have the right to Contest the validity
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or amount of any such Tax, in which event, the Sponsor shall promptly pay any
valid, final judgment enforcing any such Tax and cause the same to be satisfied
of record) unless such failure to pay could not, either individually or together
with all other failures by the Sponsor to pay, reasonably be expected to result
in a Material Adverse Effect on the Sponsor.
4.07 Maintenance of Properties. The Sponsor shall (a) maintain and
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preserve all of its material Properties necessary or useful in the proper
conduct its business in good working order and condition, ordinary wear and tear
excepted and (b) keep insured by financially sound and reputable insurers all
Property of a character usually insured by entities engaged in the same or
similar business similarly situated against loss or damage of the kinds and in
the amounts customarily insured against by such entities and carry such other
insurance as is usually carried by such entities.
Section 5. Miscellaneous.
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5.01 No Waiver. No failure on the part of the Administrative Agent,
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the Collateral Agent, the Depositary Agent, any Sponsor Construction Lender or
any Issuing Bank with respect to Sponsor Construction Letters of Credit or the
Company to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege hereunder shall operate as a waiver
thereof, and no single or partial exercise by the Administrative Agent, the
Collateral Agent, the Depositary Agent, any Sponsor Construction Lender or any
Issuing Bank with respect to Sponsor Construction Letters of Credit or the
Company of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
5.02 Notices. All notices, requests and other communications
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provided for herein (including, without limitation, any modifications of, or
waivers or consents under, this Equity Support Guarantee) shall be given or made
in writing (including, without limitation, by telecopy) delivered to the
intended recipient at the "Address for Notices" specified below its name on the
signature pages hereof or, as to any party, at such other address as shall be
designated by such party in a notice to each other party. Except as otherwise
provided in this Equity Support Guarantee, all such communications shall be
deemed to have been duly given when transmitted by telecopier or personally
delivered or, in the case of a mailed notice, upon receipt, in each case given
or addressed as aforesaid.
EQUITY SUPPORT GUARANTEE
------------------------
-12-
5.03 Expenses. The Sponsor agrees to pay to the Administrative
--------
Agent, the Collateral Agent and the Depositary Agent all reasonable out-of-
pocket expenses actually incurred (including reasonable expenses for legal
services of every kind) of, or incident to, the enforcement of any of the
provisions of this Equity Support Guarantee, and for the defending or asserting
of rights and claims of the Administrative Agent, the Collateral Agent or the
Depositary Agent in respect thereof, by litigation or otherwise.
5.04 Waivers, Etc. This Equity Support Guarantee may be amended or
------------
modified only by an instrument in writing signed by the Sponsor and the
Administrative Agent acting with the consent of the Majority Sponsor
Construction Lenders or the Majority Lenders as provided in Section 10.09 of the
Credit Agreement and Section 23 of the Intercreditor Agreement, and any
provision of this Equity Support Guarantee may be waived by the Administrative
Agent acting with consent of the Majority Sponsor Construction Lenders and the
Majority Lenders as provided in Section 10.09 of the Credit Agreement and
Section 23 of the Intercreditor Agreement; provided that (a) no amendment,
modification or waiver shall, unless by an instrument in writing signed by all
of the Sponsor Construction Lenders and all of the Issuing banks with respect to
Sponsor Construction Letters of Credit or by the Administrative Agent acting
with the consent of all of the Lenders, alter the terms of this Section 5.04 and
(b) no amendment, modification or waiver shall, unless by an instrument in
writing signed by the Collateral Agent and the Depositary Agent, affect the
rights or obligations of the Collateral Agent or the Depositary Agent. Any
waiver shall be effective only in the specific instance and for the specified
purpose for which it was given.
5.05 Successors and Assigns. This Equity Support Guarantee shall be
----------------------
binding upon and inure to the benefit of the respective successors and assigns
of each of the Sponsor, the Administrative Agent, the Depositary Agent, the
Collateral Agent, each Sponsor Construction Letter and each Issuing Bank with
respect to Sponsor Construction Letters of Credit and any holder of any
Guaranteed Obligation (provided, however, that the Sponsor shall not assign or
transfer its rights hereunder (other than pursuant to a merger or consolidation
of the Sponsor with or into any other Person if (a) the Sponsor is the survivor
or (b) the surviving Person, if not Sponsor, is organized under the laws of the
United States or a state thereof and assumes all obligations of the Sponsor
under the Equity Support Agreement (provided in each case that immediately after
giving effect to such proposed transaction, no ESG Replacement Event or event
which, with the giving of notice or lapse of time or both, would constitute an
ESG Replacement Event, would exist or result) without the prior written consent
of the Administrative Agent (acting with the consent of the Majority Lenders and
Majority Sponsor Construction Lenders).
5.06 Counterparts; Integration; Effectiveness. This Equity Support
----------------------------------------
Guarantee may be executed in any number of counterparts, all of which when taken
together shall constitute
EQUITY SUPPORT GUARANTEE
------------------------
-13-
one and the same instrument and any of the parties hereto may execute this
Equity Support Guarantee by signing any such counterpart. This Equity Support
Guarantee, the other Equity Documents and the other Recourse Documents to which
the Sponsor is a party constitute the entire agreement and understanding among
the parties hereto and supersede any and all prior agreements and
understandings, written or oral, relating to the subject matter hereof. This
Equity Support Guarantee shall become effective at such time as the
Administrative Agent shall have received counterparts hereof signed by all of
the intended parties hereto.
5.07 Severability. If any provision hereof is invalid or
------------
unenforceable in any jurisdiction, then, to the fullest extent permitted by
applicable Government Rule, (a) the other provisions hereof shall remain in full
force and effect in such jurisdiction and shall be liberally construed in order
to carry out the intentions of the parties hereto as nearly as may be possible
and (b) the invalidity or unenforceability of any provision hereof in any
jurisdiction shall not affect the validity or enforceability of such provision
in any other jurisdiction.
5.08 The Administrative Agent, the Collateral Agent and the
------------------------------------------------------
Depositary Agent. As provided in Section 10 of the Credit Agreement, each Lender
----------------
and each Issuing Bank has appointed ABN AMRO BANK N.V. as its Administrative
Agent for purposes of this Equity Support Guarantee and as provided in the
Intercreditor Agreement and the Depositary Agreement, the Secured Parties have
appointed (or have approved of the appointment of) the Collateral Agent and the
Depositary Agent for the purposes of this Equity Support Guarantee.
5.09 Headings. Headings appearing herein are used solely for
--------
convenience of reference and are not intended to affect the interpretation of
any provision of this Equity Support Guarantee.
5.10 SPECIAL EXCULPATION. NO CLAIM MAY BE MADE BY THE SPONSOR OR ANY
-------------------
OTHER PERSON AGAINST THE COLLATERAL AGENT, THE DEPOSITARY AGENT, THE
ADMINISTRATIVE AGENT OR ANY OTHER SECURED PARTY OR THE AFFILIATES, DIRECTORS,
OFFICERS, EMPLOYEES, ATTORNEYS OR AGENTS OF ANY OF THEM FOR ANY SPECIAL,
INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM FOR BREACH
OF CONTRACT OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF OR RELATING TO THIS
EQUITY SUPPORT GUARANTEE OR ANY OTHER PROJECT DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, OR ANY ACT, OMISSION OR EVENT OCCURRING IN
CONNECTION THEREWITH AND THE SPONSOR HEREBY WAIVES, RELEASES AND AGREES NOT TO
XXX UPON ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR
NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
EQUITY SUPPORT GUARANTEE
------------------------
-14-
5.11 SUBMISSION TO JURISDICTION. THE SPONSOR HEREBY SUBMITS TO THE
--------------------------
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY
FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
EQUITY SUPPORT GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. THE SPONSOR
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
5.12 NO THIRD PARTY BENEFICIARIES. THE AGREEMENTS OF THE PARTIES
----------------------------
HERETO ARE SOLELY FOR THE BENEFIT OF THE SPONSOR, THE COMPANY, THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE DEPOSITARY AGENT, THE SPONSOR
CONSTRUCTION LENDERS AND THE ISSUING BANKS WITH RESPECT TO SPONSOR CONSTRUCTION
LETTERS OF CREDIT, AND NO PERSON (OTHER THAN THE PARTIES HERETO, THE SPONSOR
CONSTRUCTION LENDERS AND THE ISSUING BANKS WITH RESPECT TO SPONSOR CONSTRUCTION
LETTERS OF CREDIT AND THEIR SUCCESSORS AND ASSIGNS PERMITTED HEREUNDER) SHALL
HAVE ANY RIGHTS HEREUNDER.
5.13 GOVERNING LAW. THIS EQUITY SUPPORT GUARANTEE SHALL BE GOVERNED
-------------
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
5.14 WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY IRREVOCABLY
--------------------
WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS EQUITY SUPPORT
GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
EQUITY SUPPORT GUARANTEE
------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Equity Support
Guarantee to be duly executed and delivered as of the day and year first above
written.
EDISON MISSION ENERGY
By /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxxx
Vice President
Address for Notices:
Edison Mission Energy
00000 Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000-0000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Vice President
With copies to:
Edison Mission Energy
00000 Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000-0000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxxxx Xxxx, Esq.
EQUITY SUPPORT GUARANTEE
------------------------
ABN AMRO BANK N.V.
as Administrative Agent
By /s/ Xxxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
By /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
Address for Notices:
ABN AMRO Bank N.V.
New York Branch
1325 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: 212-3l4-1712
Telephone No.: 000-000-0000
Attention: Syndications & Placements;
Administrative Services
With copies to:
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Credit Administration
Department
and
ABN AMRO North America, Inc.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Project Finance
EQUITY SUPPORT GUARANTEE
------------------------
THE CHASE MANHATTAN BANK,
as Collateral Agent
By /s/ Xxxxx X. Safer
----------------------
Name: XXXXX X. SAFER
Title: VICE PRESIDENT
Address for Notices:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: International
Corporate Trust
Telephone: 000-000-0000
Telecopy: 000-000-0000/8
With copies to:
The Chase Manhattan Bank
Hato Rey Headquarters
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxx, Xxxxxx Xxxx 00000
Attention:
Telephone: 000-000-0000
Telecopy: 000-000-0000
EQUITY SUPPORT GUARANTEE
------------------------
