Exhibit 10.16.4
================================================================================
AMENDED AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT
made by
EME HOMER CITY GENERATION L.P.
in favor of
THE BANK OF NEW YORK
as successor to
UNITED STATES TRUST COMPANY OF NEW YORK,
as Collateral Agent
Dated as of December __, 2001
================================================================================
TABLE OF CONTENTS
PAGE
----
SECTION 1. DEFINED TERMS..........................................................................................2
1.1 DEFINITIONS.....................................................................................2
1.2 OTHER DEFINITIONAL PROVISIONS...................................................................3
SECTION 2. PLEDGE; GRANT OF SECURITY INTEREST.....................................................................3
SECTION 3. REPRESENTATIONS AND WARRANTIES.........................................................................4
3.1 TITLE; NO OTHER LIENS...........................................................................4
3.2 PERFECTED FIRST PRIORITY LIENS..................................................................4
3.3 CHIEF EXECUTIVE OFFICE..........................................................................4
SECTION 4. COVENANTS..............................................................................................4
4.1 DELIVERY OF INSTRUMENTS, CERTIFICATED SECURITIES AND CHATTEL
PAPER...........................................................................................4
4.2 MAINTENANCE OF PERFECTED SECURITY INTEREST FURTHER DOCUMENTATION................................5
4.3 CHANGES IN LOCATIONS, NAME, ETC.................................................................5
4.4 NOTICES.........................................................................................5
SECTION 5. REMEDIAL PROVISIONS....................................................................................6
5.1 PROCEEDS TO BE TURNED OVER TO COLLATERAL AGENT..................................................6
5.2 DEPOSITS; APPLICATION OF PROCEEDS...............................................................6
5.3 DIRECTION OF SECURED PARTIES....................................................................7
5.4 CODE AND OTHER REMEDIES.........................................................................7
5.5 WAIVER; DEFICIENCY..............................................................................8
SECTION 6. THE COLLATERAL AGENT...................................................................................8
6.1 COLLATERAL AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT, ETC.........................................8
6.2 DUTY OF COLLATERAL AGENT........................................................................9
6.3 EXECUTION OF FINANCING STATEMENTS..............................................................10
6.4 AUTHORITY OF COLLATERAL AGENT..................................................................10
6.5 RESIGNATION OF COLLATERAL AGENT................................................................10
SECTION 7. MISCELLANEOUS.........................................................................................11
7.1 AMENDMENTS IN WRITING..........................................................................11
7.2 NOTICES........................................................................................11
7.3 NO WAIVER BY COURSE OF CONDUCT; CUMULATIVE REMEDIES............................................11
7.4 SUCCESSORS AND ASSIGNS.........................................................................11
7.5 SET-OFF........................................................................................12
7.6 COUNTERPARTS...................................................................................12
7.7 SEVERABILITY...................................................................................12
7.8 SECTION HEADINGS...............................................................................13
7.9 INTEGRATION....................................................................................13
7.10 GOVERNING LAW..................................................................................13
7.11 SUBMISSION TO JURISDICTION; WAIVERS............................................................13
7.12 ACKNOWLEDGEMENTS...............................................................................14
7.13 RELEASES.......................................................................................14
7.14 SECURITY INTEREST ABSOLUTE.....................................................................14
7.15 WAIVER OF JURY TRIAL...........................................................................16
SCHEDULES
Schedule 1........Notice Addresses
Schedule 2........Perfection Matters
Schedule 3........Jurisdictions of Organization and Chief Executive Offices
Schedule 4........Participation Agreements
AMENDED AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT, dated
as of December __, 2001, made by EME HOMER CITY GENERATION L.P., a Pennsylvania
limited partnership (the "PLEDGOR") in favor of THE BANK OF NEW YORK, as
successor to UNITED STATES TRUST COMPANY OF NEW YORK, as collateral agent for
the Secured Parties (as defined below) (in such capacity, the "COLLATERAL
AGENT").
RECITALS
A. Contemporaneously herewith, EME Homer City will enter into
a transaction pursuant to the Participation Agreements listed on SCHEDULE 4 by
and among EME Homer City, the Owner Lessor, ▇▇▇▇▇ Fargo Bank Northwest, National
Association, not in its individual capacity but solely as Owner Manager, the
Owner Participant, ▇▇▇▇▇ City Funding LLC, as Lender, the Lease Indenture
Trustee, the Security Agent and The Bank of New York, not in its individual
capacity but solely as Bondholder Trustee (as amended, modified and supplemented
and in effect from time to time, collectively, the "PARTICIPATION AGREEMENTS")
whereby EME Homer City will sell undivided interests in its generating assets to
the Owner Lessors and the Owner Lessors will lease such undivided interests in
its generating assets to EME Homer City under the Facility Leases.
B. In consideration of the transactions contemplated by the
Participation Agreements, the Pledgor will be obligated to pay to the Secured
Parties the aggregate amount of all obligations owed by the Pledgor to the
Secured Parties under the Operative Documents related thereto (the "LEVERAGED
LEASE OBLIGATIONS").
C. In satisfaction of the requirements of the Secured Parties,
the Pledgor desires by this Agreement and the other Security Documents (as
defined below) to provide collateral as security for its obligations under each
Participation Agreement and the other Operative Documents related thereto.
D. In order to simplify administration of such collateral and
to provide for the orderly enforcement of their respective rights, the Secured
Parties (as defined below) have appointed the Collateral Agent to serve as their
common representative, to be the beneficiary under any pledge intended to
benefit the Secured Parties, and to hold the liens created, or to be created,
under the Operative Documents.
E. It is a condition precedent to the approval by the Secured
Parties of the transactions contemplated by the Operative Documents that the
Pledgor shall have executed and delivered this Agreement to the Collateral Agent
for the benefit of the Secured Parties.
NOW, THEREFORE, in consideration of the premises, the Pledgor
hereby agrees with the Collateral Agent, for the benefit of the Secured Parties,
to amend and restate the Guarantee and Collateral Agreement, dated as of March
18, 1999 (the "GUARANTEE AND COLLATERAL AGREEMENT"), among Edison Mission
Holdings, Co., Edison Mission Finance Co., ▇▇▇▇▇ City Property Holdings, Inc.,
Chestnut Ridge Energy Co., Mission Energy Westside, Inc., EME Homer City
Generation, L.P. and Edison Mission Energy (the "EME PARTIES"), in favor of
United
States Trust Company of New York, in its entirety and terminate the guarantee
and pledge under the Guarantee and Collateral Agreement and release the EME
Parties from their obligations thereunder (except as set forth hereunder with
respect to the Pledgor):
SECTION 1. DEFINED TERMS
1.1 DEFINITIONS. (a) Unless otherwise defined herein, terms
defined in the Participation Agreement and used herein shall have the meanings
given to them in each Participation Agreement.
(b) The following terms shall have the following meanings:
"AGREEMENT": this Amended and Restated Guarantee and
Collateral Agreement, as the same may be amended, supplemented or otherwise
modified from time to time.
"CERTIFICATED SECURITY": the collective reference to (i) any
"certificated security" as defined in Section 8-102(a)(4) of the New York UCC
and (ii) all limited liability company certificates, partnership interest
certificates and certificated options therefor that may be issued or granted by
any issuer.
"COLLATERAL": as defined in SECTION 2.
"COLLATERAL ACCOUNT": any collateral account established by
the Collateral Agent as provided in SECTION 5.1.
"FACILITY LEASE": as defined in each Participation Agreement.
"GENERAL INTANGIBLES": all "general intangibles" as such term
is defined in Section 9-102(a)(42) of the New York UCC excluding the following:
all emissions allowances and credits allocated by the DEP to the extent credited
to an account in the Partnership's name prior to termination of the Facility
Lease, all insurance policies, and all contracts, agreements, instruments and
indentures in any form, and portions thereof, to which the Pledgor is a party or
under which the Pledgor has any right, title or interest or to which the Pledgor
or any property of the Pledgor is subject, as the same may from time to time be
amended, supplemented or otherwise modified.
"LEASE EVENT OF DEFAULT": as defined in each Participation
Agreement.
"LEASE INDENTURE TRUSTEE": as defined in each Participation
Agreement.
"LEVERAGED LEASE OBLIGATIONS": as defined in the recitals.
"LEASE SUBORDINATION AGREEMENT": the Lease Subordination
Agreement, dated as of December __, 2001, among the Owner Lessors, the Owner
Participant and the Lease Indenture Trustee.
"MAJORITY IN INTEREST OF OWNER LESSORS": the holders of at
least 51% of all Undivided Interests (as defined in any Participation Agreement)
still subject to a Facility Lease.
2
"NEW YORK UCC": the Uniform Commercial Code as from time to
time in effect in the ▇▇▇▇ of New York.
"PERSON": any natural person, corporation, partnership,
limited liability company, firm, association, trust, government, governmental
agency or other entity, whether acting in an individual, fiduciary or other
capacity.
"PLEDGOR": as defined in the PREAMBLE.
"PROCEEDS": all "proceeds" as such term is defined in Section
9-102(a)(64) of the New York UCC.
"SECURED PARTIES": the Collateral Agent, the Owner Lessors and
the Owner Participant.
"SECURITIES ACT": the Securities Act of 1933, as amended.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) The words "hereof",
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and section, schedule, appendix and exhibit references are to
this Agreement unless otherwise specified.
(b) Each reference in this Agreement to a Operative Document
or other agreement shall be deemed to refer to such Operative Document or other
agreement as the same may be amended, supplemented or otherwise modified from
time to time.
(c) Any term defined by reference to an agreement, instrument
or other document shall have the meaning so assigned to it whether or not such
agreement, instrument or document is in effect.
(d) Each reference in this Agreement to a Person shall be
deemed to include such Person's successors and assigns.
(e) Each reference in this Agreement to a Requirement of Law
shall be deemed to refer to such Requirement of Law as the same may be amended,
supplemented or otherwise modified from time to time.
(f) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. PLEDGE; GRANT OF SECURITY INTEREST
The Pledgor hereby pledges and grants to the Collateral Agent,
for the benefit of the Secured Parties, a security interest in all of the
General Intangibles now owned or at any time hereafter acquired by the Pledgor
or in which the Pledgor now has or at any time in the future may acquire any
right, title or interest together with all Proceeds thereof (collectively, the
"COLLATERAL"), as collateral security for the prompt and complete payment and
performance when
3
due (whether at the stated maturity, by acceleration or otherwise) of the
Leveraged Lease Obligations.
SECTION 3. REPRESENTATIONS AND WARRANTIES
The Pledgor hereby represents and warrants, with respect to
itself and its Collateral, to the Collateral Agent and each Secured Party that:
3.1 TITLE; NO OTHER LIENS. Except for the security interest
granted to the Collateral Agent pursuant to this Agreement, the Pledgor owns
each item of the Collateral free and clear of any and all Liens or claims of
others except as are permitted by the Operative Documents. No financing
statement or other public notice with respect to all or any part of the
Collateral is on file or of record in any public office, except such as have
been filed in favor of the Collateral Agent pursuant to this Agreement or as are
permitted by the Operative Documents.
3.2 PERFECTED FIRST PRIORITY LIENS. The security interests
granted pursuant to this Agreement upon completion of the filings and other
actions specified on SCHEDULE 2 (which, in the case of all filings and other
documents referred to on said SCHEDULE, have been delivered to the Collateral
Agent in completed and duly executed form) will (a) constitute valid and
enforceable perfected security interests in all of the Collateral in favor of
the Collateral Agent as collateral security for the Leveraged Lease Obligations
to the extent that a security interest may be perfected by filing and/or the
other actions specified on SCHEDULE 2, and (b) are prior to all other Liens on
the Collateral in existence on the date hereof except for Liens permitted by the
Operative Documents and which have priority over the Liens on the Collateral by
operation of law.
3.3 CHIEF EXECUTIVE OFFICE. On the date hereof, the Pledgor's
jurisdiction of organization and the location of the Pledgor's chief executive
office or sole place of business are specified on SCHEDULE 3.
SECTION 4. COVENANTS
The Pledgor covenants and agrees with the Collateral Agent and
the Secured Parties that, from and after the date of this Agreement until the
Leveraged Lease Obligations shall have been paid in full:
4.1 DELIVERY OF INSTRUMENTS, CERTIFICATED SECURITIES AND
CHATTEL PAPER. If any amount payable under or in connection with any of the
Collateral shall be or become evidenced by any Instrument, Certificated Security
or Chattel Paper, such Instrument, Certificated Security or Chattel Paper shall
be immediately delivered to the Collateral Agent, duly indorsed in a manner
satisfactory to the Collateral Agent, to be held as Collateral pursuant to this
Agreement.
4.2 MAINTENANCE OF PERFECTED SECURITY INTEREST FURTHER
DOCUMENTATION. (a) The Pledgor shall take any and all actions that may be
necessary or, in the reasonable discretion of the Collateral Agent, prudent to
maintain the security interest created by this Agreement as a perfected security
interest having at least the priority described in SECTION 3.2 and shall defend
such security interest against the claims and demands of all Persons whomsoever.
4
(b) The Pledgor will furnish to the Collateral Agent and the
Secured Parties from time to time statements and schedules further identifying
and describing the Collateral and such other reports in connection therewith as
the Collateral Agent may reasonably request, all in reasonable detail.
(c) At any time and from time to time, upon the written
request of the Collateral Agent, and at the sole expense of the Pledgor, the
Pledgor will promptly and duly execute and deliver, and have recorded, such
further instruments and documents and take such further actions as the
Collateral Agent may reasonably request for the purpose of obtaining or
preserving the full benefits of this Agreement and of the rights and powers
herein granted, including (i) filing any financing or continuation statements
under the Uniform Commercial Code (or other similar laws) in effect in any
jurisdiction with respect to the security interests created hereby and (ii)
taking any actions necessary to enable the Collateral Agent to obtain "control"
(within the meaning of the applicable Uniform Commercial Code) with respect
thereto.
4.3 CHANGES IN LOCATIONS, NAME, ETC. The Pledgor will not,
except upon 30 days' prior written notice to the Collateral Agent and delivery
to the Collateral Agent of all additional executed financing statements and
other documents reasonably requested by the Collateral Agent to maintain the
validity, perfection and priority of the security interests provided for herein:
(i) change its jurisdiction of organization or the
location of its chief executive office or sole place of business
from that referred to in SECTION 3.3; or
(ii) change its name, identity or corporate structure to
such an extent that any financing statement flied by the Collateral
Agent in connection with this Agreement would become misleading.
4.4 NOTICES. The Pledgor will advise the Collateral Agent
promptly, in reasonable detail, of:
(a) any Lien (other than security interests created hereby or
Liens permitted under the Operative Documents) on any of the Collateral which
could reasonably be expected to have a material adverse effect on the ability of
the Collateral Agent to exercise any of its remedies hereunder; and
(b) of the occurrence of any other event which could
reasonably be expected to have a material adverse effect on the aggregate value
of the Collateral or on the security interests created hereby.
SECTION 5. REMEDIAL PROVISIONS
5.1 PROCEEDS TO BE TURNED OVER TO COLLATERAL AGENT. If a Lease
Event of Default shall occur and be continuing, all Proceeds received by the
Pledgor consisting of cash, checks and other near-cash items shall be held by
the Pledgor in trust for the Collateral Agent, segregated from other funds of
the Pledgor, and shall, forthwith upon receipt by the Pledgor, be turned over to
the Collateral Agent in the exact form received by the Pledgor (duly indorsed by
5
the Pledgor to the Collateral Agent, if required). All Proceeds received by the
Collateral Agent hereunder shall be held by the Collateral Agent in a Collateral
Account maintained under its sole dominion and control. All Proceeds while held
by the Collateral Agent in a Collateral Account (or by the Pledgor in trust for
the Collateral Agent and the Secured Parties) shall continue to be held as
collateral security for all the Leveraged Lease Obligations and shall not
constitute payment thereof until applied as provided in SECTION 5.2.
5.2 DEPOSITS; APPLICATION OF PROCEEDS. Upon the creation of
any Collateral Account, the Collateral Agent shall also establish 8 subaccounts
of such Collateral Account, one subaccount with respect to each Facility Lease
and the other Operative Documents related thereto. All deposits into the
Collateral Account shall be credited to each subaccount based upon such Owner
Lessor's Percentage of such deposited amount. If a Lease Event of Default shall
have occurred and be continuing, at any time thereafter at the Collateral
Agent's election, the Collateral Agent may apply all or any part of Proceeds
held in the applicable subaccount of any Collateral Account in payment of the
Leveraged Lease Obligations in accordance with the applicable Participation
Agreement and the other applicable Operative Documents, and any part of such
funds which the Collateral Agent elects not so to apply and deems not required
as collateral security for any Leveraged Lease Obligations shall be paid over
from time to time by the Collateral Agent to the Pledgor or to whomsoever may be
lawfully entitled to receive the same. Any balance of such Proceeds in a
subaccount remaining after applicable Leveraged Lease Obligations shall have
been paid in full shall be paid over to the Pledgor or to whomsoever may be
lawfully entitled to receive the same. It is acknowledged and agreed that sums
on deposit in any subaccount of the Collateral Account shall be held for the
benefit of the applicable Owner Lessor (as collateral for the Leveraged Lease
Obligations under the applicable Facility Lease and the applicable Operative
Documents and shall not constitute collateral for, and shall not be applied to
the repayment of, any obligations of the Facility Lessee owing to any other
Owner Lessor under any other Facility Lease (or other applicable Operative
Documents).
5.3 DIRECTION OF SECURED PARTIES. The Majority in Interest of
Owner Lessors shall be entitled to give and refrain from giving consents and
directions to the Collateral Agent on behalf of all the Secured Parties (and all
Secured Parties shall be bound by such action).
5.4 CODE AND OTHER REMEDIES. Subject to Article XIV of each
Participation Agreement, if a Lease Event of Default shall occur and be
continuing, the Collateral Agent, on behalf of the Secured Parties, may
exercise, in addition to all other rights and remedies granted to them in this
Agreement and in any other instrument or agreement securing, evidencing or
relating to the applicable Leveraged Lease Obligations, all rights and remedies
of a secured party under the New York UCC or any other applicable law. Without
limiting the generality of the foregoing, the Collateral Agent, without demand
of performance or other demand, presentment, protest, advertisement or notice of
any kind (except any notice required by law referred to below) to or upon the
Pledgor or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, lease, assign, give option or options
to purchase, or otherwise dispose of and deliver the Collateral or any part
thereof (or contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, at any exchange, broker's board or office of
the Collateral Agent or any Secured Party or elsewhere upon such terms and
conditions as it may deem advisable and
6
at such prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. The Collateral Agent or any Secured Party
shall have the right upon any such public sale or sales, and, to the extent
permitted by law, upon any such private sale or sales, to purchase the whole or
any part of the Collateral so sold, free of any right or equity of redemption in
the Pledgor, which right or equity is hereby waived and released. The Pledgor
further agrees, at the Collateral Agent's request, to assemble the Collateral
and make it available to the Collateral Agent at places which the Collateral
Agent shall reasonably select, whether at the Pledgor's premises or elsewhere.
The Collateral Agent shall apply the net proceeds of any action taken by it
pursuant to this SECTION 5.4, after deducting all reasonable costs and expenses
of every kind incurred in connection therewith or incidental to the care or
safekeeping of any of the Collateral or in any way relating to the Collateral or
the rights of the Collateral Agent and the Secured Parties hereunder (including,
without limitation, reasonable attorneys' fees and disbursements) and after
crediting such proceeds to the subaccounts of the Collateral Account in
accordance with SECTION 5.2, to the payment in whole or in part of the
applicable Leveraged Lease Obligations, in such order as the Collateral Agent
may elect, and only after such application and after the payment by the
Collateral Agent of any other amount required by any provision of law,
including, without limitation, Section 9-615(a)(3) of the New York UCC, need the
Collateral Agent account for the surplus, if any, to the Pledgor. To the extent
permitted by applicable law, the Pledgor waives all claims, damages and demands
it may acquire against the Collateral Agent or any Secured Party arising out of
the exercise by them of any rights hereunder. If any notice of a proposed sale
or other disposition of Collateral shall be required by law, such notice shall
be deemed reasonable and proper if given at least 10 days before such sale or
other disposition.
5.5 WAIVER; DEFICIENCY. The Pledgor waives and agrees not to
assert any rights or privileges which it may acquire under Section 9-112 of the
New York UCC.
SECTION 6. THE COLLATERAL AGENT
6.1 COLLATERAL AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT, ETC.
(a) The Pledgor hereby irrevocably constitutes and appoints the Collateral Agent
and any officer or agent thereof, with full power of substitution, as its true
and lawful attorney-in-fact with full irrevocable power and authority in the
place and stead of the Pledgor and in the name of the Pledgor or in its own
name, for the purpose of carrying out the terms of this Agreement, to take any
and all appropriate action and to execute any and all documents and instruments
which may be necessary or desirable to accomplish the purposes of this
Agreement, and, without limiting the generality of the foregoing, the Pledgor
hereby gives the Collateral Agent the power and right, on behalf of the Pledgor,
without notice to or assent by the Pledgor, to do any or all of the following:
(i) in the name of the Pledgor or its own name, or
otherwise, take possession of and indorse and collect any checks,
drafts, notes, acceptances or other instruments for the payment of
moneys due under any Collateral and file any claim or take any other
action or proceeding in any court of law or equity or otherwise
deemed appropriate by the Collateral Agent for the purpose of
collecting any and all such moneys due under any Collateral whenever
payable;
7
(ii) pay or discharge taxes and Liens levied or placed
on or threatened against the Collateral, effect any repairs or any
insurance called for by the terms of this Agreement and pay all or
any part of the premiums therefor and the costs thereof,
(iii) execute, in connection with any sale provided for
in SECTION 5.3 or 5.4, any indorsements, assignments or other
instruments of conveyance or transfer with respect to the
Collateral; and
(iv) (1) direct any party liable for any payment under
any of the Collateral to make payment of any and all moneys due or
to become due thereunder directly to the Collateral Agent or as the
Collateral Agent shall direct; (2) ask or demand for, collect, and
receive payment of and receipt for, any and all moneys, claims and
other amounts due or to become due at any time in respect of or
arising out of any Collateral; (3) sign and indorse any invoices,
freight or express bills, bills of lading, storage or warehouse
receipts, drafts against debtors, assignments, verifications,
notices and other documents in connection with any of the
Collateral; (4) commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent
jurisdiction to collect the Collateral or any portion thereof and to
enforce any other right in respect of any Collateral; (5) defend any
suit, action or proceeding brought against the Pledgor with respect
to any Collateral; (6) settle, compromise or adjust any such suit,
action or proceeding and, in connection therewith, give such
discharges or releases as the Collateral Agent may deem appropriate;
and (7) generally, sell, transfer, pledge and make any agreement
with respect to or otherwise deal with any of the Collateral as
fully and completely as though the Collateral Agent were the
absolute owner thereof for all purposes, and do, at the Collateral
Agent's option and the Pledgor's expense, at any time, or from time
to time, all acts and things which the Collateral Agent deems
necessary to protect, preserve or realize upon the Collateral and
the Collateral Agent's and the Secured Parties' security interests
therein and to effect the intent of this Agreement, all as fully and
effectively as the Pledgor might do.
Anything in this SECTION 6.1(a) to the contrary
notwithstanding, the Collateral Agent agrees that it will not exercise any
rights under the power of attorney provided for in this SECTION 6.1(a) unless a
Lease Event of Default shall have occurred and be continuing.
(b) If a Lease Event of Default shall have occurred and be
continuing, if the Pledgor fails to perform or comply with any of its agreements
contained herein, the Collateral Agent, at its option, but without any
obligation so to do, may perform or comply, or otherwise cause performance or
compliance, with such agreement.
(c) The expenses of the Collateral Agent incurred in
connection with actions undertaken as provided in this SECTION 6.1, together
with interest thereon at a rate per annum equal to the highest rate per annum at
which interest would then be payable on any category of past due Leveraged Lease
Obligations under the Participation Agreement and the other Operative
8
Documents, from the date of payment by the Collateral Agent to the date
reimbursed by the Pledgor, shall be payable by the Pledgor to the Collateral
Agent on demand.
(d) The Pledgor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
6.2 DUTY OF COLLATERAL AGENT. The Collateral Agent's sole duty
with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the New York UCC or
otherwise, shall be to deal with it with the same degree of care as the
Collateral Agent deals with similar property for its own account. Neither the
Collateral Agent, any Secured Party nor any of their respective officers,
directors, employees or agents shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of the Pledgor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Collateral Agent and the Secured Parties hereunder are solely
to protect the Collateral Agents and the Secured Parties' interests in the
Collateral and shall not impose any duty upon the Collateral Agent or any
Secured Party to exercise any such powers. The Collateral Agent and the Secured
Parties shall be accountable only for amounts that they actually receive as a
result of the exercise of such powers, and neither they nor any of their
officers, directors, employees or agents shall be responsible to the Pledgor for
any act or failure to act hereunder, except for (i) their own gross negligence
or willful misconduct or (ii) breach of their obligations under this Agreement.
6.3 EXECUTION OF FINANCING STATEMENTS. Pursuant to Section
9-402 of the New York UCC and any other applicable law, the Pledgor authorizes
the Collateral Agent to file or record financing statements and other filing or
recording documents or instruments with respect to the Collateral without the
signature of the Pledgor in such form and in such offices as the Collateral
Agent determines appropriate to perfect the security interests of the Collateral
Agent under this Agreement. A photographic or other reproduction of this
Agreement shall be sufficient as a financing statement or other filing or
recording document or instrument for filing or recording in any jurisdiction.
6.4 AUTHORITY OF COLLATERAL AGENT. The Pledgor and each
Secured Party by accepting the benefits of this Agreement acknowledges that the
rights and responsibilities of the Collateral Agent under this Agreement with
respect to any action taken by the Collateral Agent or the exercise or
non-exercise by the Collateral Agent of any option, voting right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Agreement shall, as between the Collateral Agent and the Secured
Parties, be governed by the Operative Documents and by such other agreements
with respect thereto as may exist from time to time among them, but, as between
the Collateral Agent and the Pledgor, the Collateral Agent shall be conclusively
presumed to be acting as agent for the Secured Parties with full and valid
authority so to act or refrain from acting, and the Pledgor shall not be under
any obligation, or entitlement, to make any inquiry respecting such authority.
9
6.5 RESIGNATION OF COLLATERAL AGENT. The Collateral Agent may
resign at any time by giving ninety (90) days prior written notice thereof to
the Pledgor and the Owner Lessors; PROVIDED that such resignation may not in any
event take effect until a successor Collateral Agent accepts an appointment as
set forth in this SECTION 6.5. Upon any such notice of resignation, the Pledgor
and the Owner Lessors shall have the right, upon ten (10) days prior written
notice to the Pledgor and the Owner Lessors, to appoint a successor Collateral
Agent. Collateral Agent may be removed at any time with or without cause, by an
instrument in writing delivered to Collateral Agent by the Pledgor and the Owner
Lessors pursuant to the terms of this Agreement. Upon the acceptance of any
appointment as Collateral Agent hereunder by a successor Collateral Agent, such
successor Collateral Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring or removed Collateral
Agent (and the retiring or removed Collateral Agent shall reasonably cooperate
in the transferring of such rights, powers and privileges to such successor
Collateral Agent) and the retiring or removed Collateral Agent shall be
discharged from its duties and obligations under this Agreement. If no successor
Collateral Agent shall have been so appointed and shall have accepted such
appointment within sixty (60) days after the retiring or removed Collateral
Agent s giving of notice of resignation, then, upon five (5) days prior written
notice to the Secured Parties and the Pledgor, the retiring or removed
Collateral Agent may, on behalf of the Secured Parties, appoint a successor
Collateral Agent. Any successor Collateral Agent shall be a bank, a banking
cooperative or trust company organized under the laws of the United States of
America or of any State thereof, or any Affiliate of such bank, having a
combined capital and surplus of at least $100,000,000. After any retiring
Collateral Agent s resignation or removal hereunder as Collateral Agent, the
provisions of this Agreement shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Collateral Agent under this Agreement
and the other Operative Documents.
SECTION 7. MISCELLANEOUS
7.1 AMENDMENTS IN WRITING. None of the terms or provisions of
this Agreement may be waived, amended, supplemented or otherwise modified except
in writing and in accordance with the Participation Agreement.
7.2 NOTICES. All notices and other communications to any party
hereto shall be in writing or by facsimile and addressed, delivered or
transmitted to such party at its address or facsimile number set forth on
Schedule 1 or at such other address or facsimile number as may be designated by
such party in a notice to the other parties.
10
7.3 NO WAIVER BY COURSE OF CONDUCT; CUMULATIVE REMEDIES.
Neither the Collateral Agent nor any Secured Party shall by any act (except by a
written instrument pursuant to SECTION 7.1), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Lease Event of Default. No failure to exercise, nor any delay
in exercising, on the part of the Collateral Agent or any Secured Party, any
right, power or privilege hereunder shall operate as a waiver thereof. No single
or partial exercise 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. A waiver by the Collateral Agent or any Secured Party of any right
or remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Collateral Agent or such Secured Party would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
7.4 SUCCESSORS AND ASSIGNS. (a) This Agreement shall be
binding upon the successors and assigns of the Pledgor and shall inure to the
benefit of the Collateral Agent and the Secured Parties and their successors and
assigns; PROVIDED that the Pledgor may not assign, transfer or delegate any of
its rights or obligations under this Agreement without the prior written consent
of the Collateral Agent.
(b) In order to secure the Lessor Notes of each Owner Lessor,
such Owner Lessor will assign and grant a first priority security interest in
favor of its applicable Lease Indenture Trustee in and to all of such Owner
Lessor's right, title and interest in, to and under this Agreement (other than
to the extent relating to Excepted Payments and the rights to enforce and
collect the same). The Facility Lessee hereby consents to such assignment and to
the creation of such Lien and security interest and acknowledges receipt of
copies of the Lease Indenture, it being understood that such consent shall not
affect any requirement or the absence of any requirement for any consent of the
Facility Lessee under any other circumstances. Unless and until the Collateral
Agent shall have received written notice from the Lease Indenture Trustee that
the Lien of the applicable Lease Indenture has been fully discharged, the
applicable Lease Indenture Trustee shall have the right to exercise the rights
of such Owner Lessor under this Agreement (other than with respect to Excepted
Payments and the rights to enforce and collect the same) to the extent set forth
in and subject in each case to the exceptions set forth in the applicable Lease
Indenture.
7.5 SET-OFF. The Pledgor hereby irrevocably authorizes the
Collateral Agent and each Secured Party at any time and from time to time (i)
upon the occurrence of a Lease Event of Default of the kind described in clauses
(a), (b), (g) and (h) of Article XVI of the Facility Lease or (ii) upon the
occurrence and continuance beyond the applicable grace period, if any, of any
other Lease Event of Default and with the consent of the Secured Parties,
without notice to the Pledgor, any such notice being expressly waived by the
Pledgor, to set-off and appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Collateral Agent or such Secured Party to or for the credit or the
account of the Pledgor, or any part thereof in such amounts as the Collateral
Agent or such Secured Party may elect, against and on account of the obligations
and liabilities of the Pledgor to the Collateral Agent or such Secured Party
hereunder and claims of every nature and description of the
11
Collateral Agent or such Secured Party against the Pledgor, in any currency,
whether arising hereunder, under the Participation Agreement, any other
Operative Document or otherwise, as the Collateral Agent or such Secured Party
may elect, whether or not the Collateral Agent or any Secured Party has made any
demand for payment and although such obligations, liabilities and claims may be
contingent or unmatured. The Collateral Agent and each Secured Party shall
notify the Pledgor promptly of any such set-off and the application made by the
Collateral Agent or such Secured Party of the proceeds thereof, PROVIDED that
the failure to give such notice shall not affect the validity of such set-off
and application. The rights of the Collateral Agent and each Secured Party under
this SECTION 7.5 are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which the Collateral Agent or such
Secured Party may have.
7.6 COUNTERPARTS. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
7.7 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
7.8 SECTION HEADINGS. The Section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
7.9 INTEGRATION. The Security Documents represent the
agreement of the Pledgors, the Collateral Agent and the Secured Parties with
respect to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Collateral Agent or any
Secured Party relative to subject matter hereof and thereof not expressly set
forth or referred to in the Security Documents. The Security Documents supersede
any and all prior agreements and understandings, oral or written, relative or
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Collateral Agent or any
Secured Party relative to the subject matter hereof not expressly set forth or
referred to herein or in the other Security Documents.
7.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
7.11 SUBMISSION TO JURISDICTION; WAIVERS. The Pledgor (and,
with respect to paragraph (e) below only, the Collateral Agent and each of the
Secured Parties) hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to the Operative Documents to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State of
12
New York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Pledgor at its address referred to in SECTION 7.2 or at such other address of
which the Collateral Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding referred
to in this Section any special, exemplary, punitive or consequential damages.
7.12 ACKNOWLEDGEMENTS. The Pledgor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of the Security Documents to which it is a party;
(b) neither the Collateral Agent nor any Secured Party has any
fiduciary relationship with or duty to the Pledgor arising out of or in
connection with any Security Documents, and the relationship between the
Pledgor, on the one hand, and the Collateral Agent and Secured Parties, on the
other hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created by any Security Document or
otherwise exists by virtue of the transactions contemplated hereby among the
Secured Parties or among the Pledgor and the Secured Parties.
7.13 RELEASES. (a) At such time as the Obligations shall have
been paid in full, the Collateral shall automatically be released from the Liens
created hereby, and this Agreement and all obligations (other than those
expressly stated to survive such termination) of the Collateral Agent and the
Pledgor hereunder shall terminate, all without delivery of any instrument or
performance of any act by any party, and all rights to the Collateral shall
revert to the Pledgors. At the request and sole expense of the Pledgor following
any such termination, the Collateral Agent shall deliver to the Pledgor any
Collateral held by the Collateral Agent hereunder, and execute and deliver to
the Pledgor such documents as the Pledgor shall reasonably request to evidence
such termination.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by the Pledgor in a transaction permitted by the
Participation Agreement, then the Collateral Agent, at the request and
reasonable and sole expense of the Pledgor, shall execute and deliver to
13
the Pledgor all releases or other documents reasonably necessary or desirable
for the release of the Liens created hereby on such Collateral.
7.14 SECURITY INTEREST ABSOLUTE.
(a) The obligations of the Pledgor under this Agreement are
independent of the Obligations and a separate action or actions may be brought
and prosecuted against the Pledgor to enforce this Agreement, irrespective of
whether any action is brought against another pledgor or any guarantor of the
Obligations or whether another pledgor or any guarantor of the Obligations is
joined in any such action or actions. All rights of the Owner Lessor and the
pledge, hypothecation and security interest hereunder, and all obligations of
the Pledgor hereunder, shall be absolute and unconditional, to the extent
permitted by Requirements of Law, irrespective of:
(i) any lack of validity or enforceability of any
Operative Document or any other agreement or instrument relating
thereto;
(ii) any change in the time, manner or place of payment
of or in any other term of, all or any of the Obligations, or any
other amendment or waiver of or any consent to any departure from
any Operative Document, including, without limitation, any increase
in the Obligations resulting from the extension of additional credit
to the Pledgor;
(iii) any taking, exchange, release or non-perfection of
any other collateral, or any taking, release or amendment or waiver
of, or consent to departure from any guaranty, for all or any of the
Obligations;
(iv) any manner of application of the Collateral, or
proceeds thereof, to all or any of the Obligations, or any manner of
sale or other disposition of any other collateral for all or any of
the Obligations;
(v) any change, restructuring or termination of the
structure or existence of the Pledgor; or
(vi) any other circumstances which might otherwise
constitute a defense available to, or a discharge of, the Pledgor or
a third party grantor of a security interest.
The Pledgor hereby waives, to the maximum extent permitted by
law (i) all rights under any law limiting remedies, including recovery of a
deficiency, under an obligation secured by a mortgage or deed of trust on real
property if the real property is sold under a power of sale contained in the
mortgage, and all defenses based on any loss whether as a result of any such
sale or otherwise, of Pledgor's right to recover any amount, whether by right of
subrogation or otherwise; (ii) all rights under any law to require the Owner
Lessor to pursue the Pledgor, or any
14
other Person, any security which Owner Lessor may hold, or any other remedy
before proceeding against the Pledgor; (iii) all rights of reimbursement or
subrogation, all rights to enforce any remedy that the Owner Lessor may have
against the Pledgor, and all rights to participate in any security held by the
Owner Lessor until the Obligations have been paid and performed in full; (iv)
all rights to require the Owner Lessor to give any notices of any kind,
including, without limitation, notices of nonpayment, nonperformance, protest,
dishonor, default, delinquency or acceleration, or to make any presentments,
demands or protests, except as set forth herein or expressly provided in the
Participation Agreement; (v) all rights to assert the bankruptcy or insolvency
of the Pledgor as a defense hereunder or as the basis for rescission hereof;
(vi) all rights under any law purporting to reduce the Pledgor's obligations
hereunder if the Obligations are reduced; (vii) all defenses based on the
disability or lack of authority of the Pledgor or any Person, the repudiation of
the Operative Documents by the Pledgor or any Person, the failure by the Owner
Lessor to enforce any claim against the Pledgor, or the unenforceability in
whole or in part of any Operative Documents; (viii) all suretyship and
guarantor's defenses generally; (ix) all rights to insist upon, plead or in any
manner whatever claim or take the benefit or advantage of, any appraisal,
valuation, stay, extension, marshalling of assets, redemption or similar law, or
exemption, whether now or at any time hereafter in force, which may delay,
prevent or otherwise affect the performance by the Pledgor of its obligations
under, or the enforcement by the Owner Lessor of, this Agreement; (x) any
requirement on the part of the Owner Lessor to mitigate the damages resulting
from any default; and (xi) except as otherwise specifically set forth herein,
all rights of notice and hearing of any kind prior to the exercise of rights by
the Owner Lessor upon the occurrence and during the continuation of a Lease
Event of Default to repossess with judicial process or to replevy, attach or
levy upon the Collateral. To the extent permitted by law, the Pledgor waives the
posting of any bond otherwise required of the Owner Lessor in connection with
any judicial process or proceeding to obtain possession of, replevy, attach, or
levy upon the Collateral, to enforce any judgment or other security for the
Obligations, to enforce any judgment or other court order entered in favor of
Owner Lessor, or to enforce by specific performance, temporary restraining
order, preliminary or permanent injunction, this Agreement or any other
agreement or document between the Pledgor and the Owner Lessor. The Pledgor
further agrees that upon the occurrence and during the continuation of a Lease
Event of Default, the Collateral Agent may elect to nonjudicially or judicially
foreclose against any real or personal property security it holds for the
Obligations or any part thereof, or to exercise any other remedy against the
Pledgor, any security or any guarantor, even if the effect of that action is to
deprive the Pledgor of the right to collect reimbursement for any sums paid by
the Pledgor to the Collateral Agent.
7.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER OPERATIVE DOCUMENT AND FOR
ANY COUNTERCLAIM THEREIN.
15
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be duly executed and delivered as of the date first above written.
EME HOMER CITY GENERATION L.P.,
By: MISSION ENERGY WESTSIDE, INC.,
its General Partner
By:
---------------------------
Name:
Title:
Acknowledged and Agreed as of the date hereof:
THE BANK OF NEW YORK, as successor to
UNITED STATES TRUST COMPANY OF
NEW YORK, as Collateral Agent
By:
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signer
16
SCHEDULE 1 to
AMENDED AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT
NOTICE ADDRESSES
EME HOMER CITY GENERATION L.P.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: TreasurerTelephone: 949-752-5588 Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
17
SCHEDULE 2 to
AMENDED AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
UNIFORM COMMERCIAL CODE FILINGS
PLEDGOR UCC FILING OFFICES
------- ------------------
EME Homer City Generation L.P. California Secretary of State
Pennsylvania Secretary of State
Indiana County, PA
18
SCHEDULE 3 to
AMENDED AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE
PLEDGOR JURISDICTION LOCATION
------- ------------ --------
EME Homer City Generation L.P. PA ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇
19
SCHEDULE 4 to
AMENDED AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT
1. The Participation Agreement dated as of December __, 2001 by and among EME
Homer City Generation, L.P., a Pennsylvania limited partnership, as
Facility Lessee; ▇▇▇▇▇ City OL1, a Delaware limited liability company, as
Owner Lessor; ▇▇▇▇▇ Fargo Bank Northwest, National Association, both in
its individual capacity and solely as Owner Manager; General Electric
Capital Corporation, a Delaware corporation, as Owner Participant; ▇▇▇▇▇
City Funding LLC, a Delaware limited liability company, as Lender; The
Bank of New York (as successor to United States Trust Company of New
York), both in its individual capacity and solely as Lease Indenture
Trustee; The Bank of New York (as successor to United States Trust Company
of New York), both in its individual capacity and solely as Security
Agent; and The Bank of New York (as successor to United States Trust
Company of New York), both in its individual capacity and solely as
Bondholder Trustee.
2. The Participation Agreement dated as of December __, 2001 by and among EME
Homer City Generation, L.P., a Pennsylvania limited partnership, as
Facility Lessee; ▇▇▇▇▇ City OL2, a Delaware limited liability company, as
Owner Lessor; ▇▇▇▇▇ Fargo Bank Northwest, National Association, both in
its individual capacity and solely as Owner Manager; General Electric
Capital Corporation, a Delaware corporation, as Owner Participant; ▇▇▇▇▇
City Funding LLC, a Delaware limited liability company, as Lender; The
Bank of New York (as successor to United States Trust Company of New
York), both in its individual capacity and solely as Lease Indenture
Trustee; The Bank of New York (as successor to United States Trust Company
of New York), both in its individual capacity and solely as Security
Agent; and The Bank of New York (as successor to United States Trust
Company of New York), both in its individual capacity and solely as
Bondholder Trustee.
3. The Participation Agreement dated as of December __, 2001 by and among EME
Homer City Generation, L.P., a Pennsylvania limited partnership, as
Facility Lessee; ▇▇▇▇▇ City OL3, a Delaware limited liability company, as
Owner Lessor; ▇▇▇▇▇ Fargo Bank Northwest, National Association, both in
its individual capacity and solely as Owner Manager; General Electric
Capital Corporation, a Delaware corporation, as Owner Participant; ▇▇▇▇▇
City Funding LLC, a Delaware limited liability company, as Lender; The
Bank of New York (as successor to United States Trust Company of New
York), both in its individual capacity and solely as Lease Indenture
Trustee; The Bank of New York (as successor to United States Trust Company
of New York), both in its individual capacity and solely as Security
Agent; and The Bank of New York (as successor to United States Trust
Company of New York), both in its individual capacity and solely as
Bondholder Trustee.
4. The Participation Agreement dated as of December __, 2001 by and among EME
Homer City Generation, L.P., a Pennsylvania limited partnership, as
Facility Lessee; ▇▇▇▇▇ City OL4, a Delaware limited liability company, as
Owner Lessor; ▇▇▇▇▇ Fargo Bank Northwest, National Association, both in
its individual capacity and solely as Owner Manager; General Electric
Capital Corporation, a Delaware corporation, as Owner
20
Participant; ▇▇▇▇▇ City Funding LLC, a Delaware limited liability company,
as Lender; The Bank of New York (as successor to United States Trust
Company of New York), both in its individual capacity and solely as Lease
Indenture Trustee; The Bank of New York (as successor to United States
Trust Company of New York), both in its individual capacity and solely as
Security Agent; and The Bank of New York (as successor to United States
Trust Company of New York), both in its individual capacity and solely as
Bondholder Trustee.
5. The Participation Agreement dated as of December __, 2001 by and among EME
Homer City Generation, L.P., a Pennsylvania limited partnership, as
Facility Lessee; ▇▇▇▇▇ City OL5, a Delaware limited liability company, as
Owner Lessor; ▇▇▇▇▇ Fargo Bank Northwest, National Association, both in
its individual capacity and solely as Owner Manager; General Electric
Capital Corporation, a Delaware corporation, as Owner Participant; ▇▇▇▇▇
City Funding LLC, a Delaware limited liability company, as Lender; The
Bank of New York (as successor to United States Trust Company of New
York), both in its individual capacity and solely as Lease Indenture
Trustee; The Bank of New York (as successor to United States Trust Company
of New York), both in its individual capacity and solely as Security
Agent; and The Bank of New York (as successor to United States Trust
Company of New York), both in its individual capacity and solely as
Bondholder Trustee.
6. The Participation Agreement dated as of December __, 2001 by and among EME
Homer City Generation, L.P., a Pennsylvania limited partnership, as
Facility Lessee; ▇▇▇▇▇ City OL6, a Delaware limited liability company, as
Owner Lessor; ▇▇▇▇▇ Fargo Bank Northwest, National Association, both in
its individual capacity and solely as Owner Manager; General Electric
Capital Corporation, a Delaware corporation, as Owner Participant; ▇▇▇▇▇
City Funding LLC, a Delaware limited liability company, as Lender; The
Bank of New York (as successor to United States Trust Company of New
York), both in its individual capacity and solely as Lease Indenture
Trustee; The Bank of New York (as successor to United States Trust Company
of New York), both in its individual capacity and solely as Security
Agent; and The Bank of New York (as successor to United States Trust
Company of New York), both in its individual capacity and solely as
Bondholder Trustee.
7. The Participation Agreement dated as of December __, 2001 by and among EME
Homer City Generation, L.P., a Pennsylvania limited partnership, as
Facility Lessee; ▇▇▇▇▇ City OL7, a Delaware limited liability company, as
Owner Lessor; ▇▇▇▇▇ Fargo Bank Northwest, National Association, both in
its individual capacity and solely as Owner Manager; General Electric
Capital Corporation, a Delaware corporation, as Owner Participant; ▇▇▇▇▇
City Funding LLC, a Delaware limited liability company, as Lender; The
Bank of New York (as successor to United States Trust Company of New
York), both in its individual capacity and solely as Lease Indenture
Trustee; The Bank of New York (as successor to United States Trust Company
of New York), both in its individual capacity and solely as Security
Agent; and The Bank of New York (as successor to United States Trust
Company of New York), both in its individual capacity and solely as
Bondholder Trustee.
21
8. The Participation Agreement dated as of December __, 2001 by and among EME
Homer City Generation, L.P., a Pennsylvania limited partnership, as
Facility Lessee; ▇▇▇▇▇ City OL8, a Delaware limited liability company, as
Owner Lessor; ▇▇▇▇▇ Fargo Bank Northwest, National Association, both in
its individual capacity and solely as Owner Manager; General Electric
Capital Corporation, a Delaware corporation, as Owner Participant; ▇▇▇▇▇
City Funding LLC, a Delaware limited liability company, as Lender; The
Bank of New York (as successor to United States Trust Company of New
York), both in its individual capacity and solely as Lease Indenture
Trustee; The Bank of New York (as successor to United States Trust Company
of New York), both in its individual capacity and solely as Security
Agent; and The Bank of New York (as successor to United States Trust
Company of New York), both in its individual capacity and solely as
Bondholder Trustee.
22