Exhibit 10.85
EXECUTION COPY
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GUARANTEE
DATED AS OF JUNE 23, 2000
IN FAVOR OF
EME/CDL TRUST
AND
MIDWEST GENERATION, LLC
MADE BY
EDISON MISSION ENERGY,
AS GUARANTOR
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GUARANTEE, dated as of June 23, 2000, (this "GUARANTEE") made by
EDISON MISSION ENERGY, a California corporation (the "GUARANTOR") in favor of
EME/CDL Trust, a Delaware business trust and lessor under the Lease referred to
below (the "LESSOR") and Midwest Generation, LLC, a Delaware limited liability
company and lessee under the Lease referred to below (the "LESSEE").
W I T N E S S E T H
WHEREAS, the Lessor and Lessee are party to the Lease Agreement
(as from time to time amended, supplemented, amended and restated or otherwise
modified and in effect from time to time, the "LEASE") dated as of June 23, 2000
providing for the lease by the Lessor to the Lessee of the Leased Equipment.
This Guarantee (i) guarantees the obligations of the Lessee to pay Rent (but
excluding Supplemental Rent related to environmental liability as set forth
herein), including Termination Value, under the Lease for the benefit of the
Lessor and (ii) sets forth the obligations of Guarantor to reimburse the Lessee
for certain payments made by Lessee under the Lease; and
WHEREAS, the Lessor, the Lessee, the Guarantor, the Investor
party to the Trust Agreement (the "INITIAL INVESTOR" and, together with any
other Investors party to the Trust Agreement, the "INVESTORS"), Wilmington Trust
Company (the "TRUSTEE"), the Persons listed as Noteholders on Schedule I thereto
(the "NOTEHOLDERS"), Citicorp North America, Inc., as administrative agent (the
"ADMINISTRATIVE AGENT") and Citicorp North America, Inc., as collateral agent
(the "COLLATERAL AGENT") are party to the Participation Agreement (as from time
to time amended, supplemented, amended and restated, or otherwise modified and
in effect from time to time, the "PARTICIPATION AGREEMENT") dated as of June 23,
2000 which establishes certain rights and obligations of the parties to the
synthetic lease financing of the Leased Equipment contemplated by the Lease; and
WHEREAS, in connection with the Lease, the Lessor, Midwest Peaker
Holdings, Inc., as Tranche A Noteholder, Citicorp Del-Lease, Inc. as Tranche B
Noteholder and Citicorp North America, Inc., as Agent have entered into the
Credit Agreement (as from time to time amended, supplemented, amended and
restated, or otherwise modified and in effect from time to time, the "CREDIT
AGREEMENT") dated as of June 23, 2000 providing for loans (the "LOANS") to be
made by the Noteholders to the Lessor in an aggregate principal amount not to
exceed two
hundred and ninety-one million Dollars $291,000,000. Also in connection with
the Lease, Citicorp Del-Lease, Inc. as Contributor and Investor and
Wilmington Trust Company as Trustee have entered into the Amended and
Restated Trust Agreement (as from time to time amended, supplemented, amended
and restated, or otherwise modified and in effect from time to time, the
"TRUST AGREEMENT") dated as of June 23, 2000 providing for an investment (the
"INVESTOR CONTRIBUTION") to be made by the Initial Investor to the Lessor in
an aggregate principal amount not to exceed nine million Dollars $9,000,000.
Whereas the Lessor has granted to the Collateral Agent for the benefit of the
Noteholders a security interest in the Trust Estate (as defined in the
Participation Agreement and including, without limitation, a collateral
assignment of the Lease and this Guarantee) as security for the Loans and
certain other obligations.
NOW, THEREFORE, for and in consideration of the premises and
mutual covenants herein contained, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto, intending to be legally bound, do hereby covenant and agree as
follows:
ARTICLE 1. DEFINITIONS.
1.01 DEFINED TERMS. Each capitalized term used herein (including
in the preamble and recitals hereto) and not otherwise defined herein shall have
the definition assigned to that term in Appendix 1 to the Participation
Agreement.
1.02 INTERPRETATION. The rules of interpretation set forth in
Appendix 1 to the Participation Agreement shall apply MUTATIS MUTANDIS to this
Guarantee as if set forth in full in this SECTION 1.02.
ARTICLE 2. GUARANTEE.
2.01 THE GUARANTEE. The Guarantor hereby irrevocably guarantees
to Lessor and its successors and assigns the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of Rent, including
Termination Value, strictly in accordance with the terms of the Lease; PROVIDED,
that the Guarantor's obligations hereunder shall not be subject to the
limitation on liability set forth in SECTION 7.2 of the Participation Agreement;
PROVIDED, FURTHER that the
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Guarantor shall not be liable for any Supplemental Rent or otherwise, under
any theory of law, with respect to any actual or potential environmental
liability, including but not limited to, any actual or potential liability
arising under or related to Environmental Laws or Hazardous Materials,
whether past, present or future, from the ownership, operation or use of the
Leased Equipment (such obligations being herein called the "GUARANTEED
OBLIGATIONS"). The Guarantor hereby further agrees that if the Lessee shall
fail to pay in full when due (whether at stated maturity, by acceleration or
otherwise) any Guaranteed Obligation payable by it, the Guarantor will
promptly pay the same, without any demand or notice whatsoever, and that 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 (whether at
extended maturity, by acceleration or otherwise) in accordance with the terms
of such extension or renewal.
2.02 OBLIGATIONS UNCONDITIONAL. The obligations of the Guarantor
under SECTION 2.01 are absolute and unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of the obligations of the
Lessee under the Lease or any other agreement or instrument referred to therein,
or any substitution, release or exchange of any other guarantee of or security
for the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever that 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 obligations of the
Guarantor hereunder shall be absolute and unconditional, under any and all
circumstances. Without limiting the generality of the foregoing, it is agreed
that the occurrence of any one or more of the following shall not alter or
impair the liability of the Guarantor hereunder, which shall remain absolute and
unconditional as described above:
(i) at any time or from time to time, without notice to
the Guarantor, the time for any performance of or
compliance with any of the Guaranteed Obligations
shall be extended, or such performance or compliance
shall be waived;
(ii) any of the acts mentioned in any of the provisions of
the Basic Documents or any other agreement or
instrument referred to therein shall be done or
omitted;
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(iii) the maturity of any of the Guaranteed Obligations
shall be accelerated, or any of the Guaranteed
Obligations shall be modified, supplemented or
amended in any respect, or any right under the Basic
Documents or any other agreement or instrument
referred to therein shall be waived or any other
guarantee of a Guaranteed Obligation or any security
therefor shall be released or exchanged in whole or
in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor
of, the Lessor or any other Person as security for
any of the Guaranteed Obligations shall fail to be
perfected.
The Guarantor hereby expressly waives diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Lessor or any
other Person exhaust any right, power or remedy or proceed against the Lessee
under the Lease or any other agreement or instrument referred to therein, or
against any other Person under any other guarantee of, or security for, the
Guaranteed Obligations.
2.03 REINSTATEMENT. The obligations of the Guarantor under this
Article 2 shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of the Lessee in respect of any of the
Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of a Guaranteed Obligation, whether as a result of any proceedings in bankruptcy
or reorganization or otherwise, and the Guarantor agrees that it will indemnify
the Lessor on demand for all reasonable costs and expenses (including fees of
counsel) incurred by the Lessor in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
2.04 SUBROGATION. The Guarantor hereby agrees that until the
payment and satisfaction in full of the Guaranteed Obligations it shall not
exercise any right or remedy arising by reason of any performance by it of its
guarantee in SECTION 2.01, whether by subrogation or otherwise, against the
Lessee or any other guarantor of the Guaranteed Obligations or any security for
the Guaranteed Obligations.
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2.05 REMEDIES. The Guarantor agrees that, as between the
Guarantor, on the one hand and the Lessee and the Lessor, on the other hand, the
obligations of the Lessee under the Lease may be declared to be forthwith due
and payable as provided in SECTION 15 of the Lease (and shall be deemed to have
become automatically due and payable in the circumstances provided in said
Section) for purposes of SECTION 2.01 notwithstanding any stay, injunction or
other prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against the Lessee and that, in the event of
such declaration (or such obligations being deemed to have become automatically
due and payable), such obligations (whether or not due and payable by Lessee)
shall forthwith become due and payable by the Guarantor for purposes of SECTION
2.01.
2.06. INSTRUMENT FOR THE PAYMENT OF MONEY. The Guarantor hereby
acknowledges that the guarantee in this Article 2 constitutes an instrument for
the payment of money, and consents and agrees that the Lessor, at its sole
option, in the event of a dispute by the Guarantor in the payment of any moneys
due hereunder, shall have the right to bring motion-action under New York CPLR
Section 3213.
2.07 CONTINUING GUARANTEE. The guarantee in this Article is a
continuing guarantee, and shall apply to all of the Guaranteed Obligations
whenever arising.
ARTICLE 3. ASSIGNMENT, ETC.
3.01 PAYMENTS UNDER ASSIGNMENT. The Lessor hereby irrevocably
directs (it being understood and agreed that such direction shall be deemed to
have been revoked after the Lien over the Trust Estate created under the
Assignment Agreement shall have been fully discharged in accordance with its
terms) the Guarantor, and the Guarantor agrees, to make all payments pursuant
to, and in the manner set forth in, SECTION 2.01 hereof to the Lessor Account.
ARTICLE 4. ADDITIONAL GUARANTOR PROVISIONS
4.01 OBLIGATION TO REIMBURSE LESSEE. Within 5 Business Days of
the last day of each Fiscal Quarter (the "FISCAL QUARTER END"), the Guarantor
shall pay to the Lessee an amount equal to the excess of (i) Rent payments
(other than
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Supplemental Rent payable by the Lessee pursuant to SECTION 6.7 of the
Participation Agreement) actually made by the Lessee during such Fiscal
Quarter LESS (ii) Excess Cashflow for the prior Fiscal Quarter calculated as
of such date; PROVIDED, that Excess Cashflow shall be zero in the event that
any of the conditions to Restricted Payments set forth in SECTION 8.2.7(b) of
the Holdings Credit Agreement (or the correlative section of any credit
facility that refinances or replaces the Holdings Credit Agreement) have not
been satisfied as of such date.
4.02 PREPAYMENT UNDER INTERCOMPANY NOTE. The Guarantor covenants
that it will not elect to prepay the principal amount of the Loan (as defined in
the Intercompany Note), in whole or in part, prior to the Lease Expiration Date.
The Guarantor further covenants that, after the Lease Expiration Date, it will
not elect to prepay the Loan if the Lessee does not own the Leased Equipment.
ARTICLE 5. MISCELLANEOUS.
5.01 NO WAIVER. No failure on the part of the Lessor or the
Guarantor 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 Lessor or the Guarantor 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 are not exclusive of any remedies provided by
applicable law.
5.02 NOTICES. All notices, requests and other communications
provided for herein (including, without limitation, any modifications of, or
waivers under, this 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 Guarantee,
all such communications shall be deemed to have been duly given (a) when
received by certified mail or by an international courier, such as Federal
Express, by such Person, at said address of such Person or (b) when transmitted
by facsimile to the number specified below and the receipt confirmed
telephonically by recipient, PROVIDED that such facsimile is promptly followed
by a copy of such notice delivered to such Person by postage-prepaid certified
mail, or by an international courier, such as Federal Express.
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5.03 EXPENSES. The Guarantor agrees to pay to the Lessor all
reasonable out-of-pocket expenses (including reasonable expenses for legal
services of every kind) of, or incident to, the enforcement of any of the
provisions of this Guarantee, and for the defending or asserting of rights and
claims of the Lessor in respect thereof, by litigation or otherwise.
5.04 WAIVERS; ETC. The terms of this Guarantee may be waived,
altered or amended only by an instrument in writing duly executed by the Lessor
and the Guarantor. Any such amendment or waiver shall be binding upon the
Lessor, the Lessee and the Guarantor.
5.05 SUCCESSORS AND ASSIGNS. This Guarantee shall be binding upon
and inure to the benefit of the respective successors and assigns of each of the
Lessor and the Guarantor.
5.06 COUNTERPARTS; INTEGRATION: EFFECTIVENESS. This Guarantee may
be executed in any number of counterparts, all of which when taken together
shall constitute one and the same instrument, and any of the parties hereto may
execute this Guarantee by signing any such counterpart. This Guarantee
constitutes the entire agreement and understanding among the parties hereto and
supersedes any and all prior agreements and understandings, written or oral,
relating to the subject matter hereof.
5.07 SEVERABILITY. If any provision hereof is invalid or
unenforceable in any jurisdiction, then, to the fullest extent permitted by
applicable law, (a) the other provisions hereof shall remain in full force and
effect in such jurisdiction and shall be liberally construed in order to carry
out the intentions of the parties hereto as nearly as may be possible and (b)
the invalidity or unenforceability of any provision hereof in any jurisdiction
shall not affect the validity or enforceability of such provision in any other
jurisdiction.
5.08 HEADINGS. Headings appearing herein are used solely for
convenience of reference and are not intended to affect the interpretation of
any provision of this Guarantee.
5.09 SPECIAL EXCULPATION. NO CLAIM MAY BE MADE BY ANY PARTY
HERETO OR ANY OTHER PERSON AGAINST THE OTHER PARTY HERETO, THE LESSOR (OR ANY
PERSON FOR
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WHOSE BENEFIT THE LESSOR ACTS) 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
GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY, OR ANY ACT, OMISSION OR
EVENT OCCURRING IN CONNECTION THEREWITH AND EACH PARTY HERETO HEREBY WAIVES,
RELEASES AND AGREES, FOR ITSELF AND THOSE WHO CLAIM THROUGH IT, NOT TO XXX
UPON ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR
NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
5.10 WAIVER OF JURY TRIAL. EACH OF THE LESSOR (FOR ITSELF AND ON
BEHALF OF EACH PERSON WHO CLAIMS THROUGH THE LESSOR) AND THE GUARANTOR HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
5.11 NO THIRD PARTY BENEFICIARIES. THE AGREEMENTS OF THE PARTIES
HERETO ARE SOLELY FOR THE BENEFIT OF THE LESSOR (AND EACH PERSON WHO CLAIMS
THROUGH THE LESSOR), AND NO PERSON (OTHER THAN THE PARTIES HERETO AND THEIR
SUCCESSORS AND ASSIGNS PERMITTED HEREUNDER) SHALL HAVE ANY RIGHTS HEREUNDER.
5.12 GOVERNING LAW; SUBMISSION TO JURISDICTION. This Guarantee
shall be governed by, and construed in accordance with, the law of the State of
New York. The Guarantor hereby submits to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York and of the
Supreme Court of the State of New York sitting in New York County (including its
Appellate Division) and of any other appellate court in the State of New York
for the purposes of all legal proceedings arising out of or relating to this
Guarantee or the transactions contemplated hereby. The Guarantor hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
objection that it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim
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that any such proceeding brought in such a court has been brought in an
inconvenient forum.
5.13 LIMITATIONS OF LIABILITY OF TRUSTEE. It is expressly
understood and agreed by the parties hereto that this Guaranty is executed by
Wilmington Trust Company, not individually or personally, but solely as Trustee
under the Trust Agreement in the exercise of the power and authority conferred
and vested in it as such Trustee, that each and all of the representations,
undertakings and agreements herein made on the part of the Trustee or the Lessor
are intended not as personal representations, undertakings and agreements by
Wilmington Trust Company, or for the purpose or with the intention of binding
Wilmington Trust Company, personally, but are made and intended for the purpose
of binding only the Trust Estate, that nothing herein contained shall be
construed as creating any liability of Wilmington Trust Company, or any
incorporator or any past, present or future subscriber to the capital stock of,
or stockholder, officer or director of Wilmington Trust Company, to perform any
covenant either express or implied contained herein or in the other Basic
Documents to which the Trustee or the Lessor is a party, and that so far as
Wilmington Trust Company is concerned, any Person shall look solely to the Trust
Estate for the performance of any obligation hereunder or thereunder or under
any of the instruments referred to herein or therein; PROVIDED, that nothing
contained in this SECTION shall be construed to limit in scope or substance any
general corporate liability of Wilmington Trust Company as expressly provided in
the Trust Agreement or in the Participation Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Guarantee
to be duly executed and delivered as of the day and year first above written.
EDISON MISSION ENERGY,
as Guarantor
By: /s/ Xxxx X. Xxxxxxxx, Xx.
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Name: Xxxx X. Xxxxxxxx, Xx.
Title: Vice President
Address for Notices:
00000 Xxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention:
Telecopier No.:
EME/CDL TRUST, as Lessor
BY WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as trustee for the
EME/CDL Trust
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Administrative Account
Manager
Address for Notices:
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust
Administration
Telecopier No.: (000) 000-0000
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MIDWEST GENERATION, LLC, as
Lessee
By: /s/ Xxxx X. Xxxxxxxx, Xx.
---------------------------
Name: Xxxx X. Xxxxxxxx, Xx.
Title: Vice President
Address for Notices:
One Financial Place
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
WITH A COPY TO:
Edison Mission Midwest Holdings Co.
00000 Xxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention:
Telecopier No.:
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