Exhibit 10.59
CREDIT SUPPORT GUARANTEE, dated as of March 18, 1999, made by EDISON
MISSION ENERGY, a California corporation (the "Guarantor"), in favor of UNITED
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STATES TRUST COMPANY OF NEW YORK, as Collateral Agent for the Secured Parties
(as defined below) (in such capacity, the "Collateral Agent").
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RECITALS
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A. The Borrower has entered into a Credit Agreement, dated as of
March 18, 1999 (as the same may be amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), with certain financial institutions
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(collectively, the "Lenders") and Citicorp USA, Inc., as administrative agent
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for the Lenders (in such capacity, the "Administrative Agent").
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B. Pursuant to the Credit Agreement, the Lenders have severally
agreed to make loans (the "Loans") to the Borrower upon the terms and subject
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to the conditions set forth therein.
C. The Borrower will use the proceeds of the Loans under the Credit
Agreement to make valuable transfers to one or more indirect subsidiaries of the
Guarantor in connection with the acquisition of the ▇▇▇▇▇ City Electric
Generating Station (the "Generating Station"), certain capital expenditures
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related to the Generating Station and general working capital purposes.
D. Under Section 8.2.1(e) of the Credit Agreement, the Borrower is
permitted to incur certain indebtedness for the purpose of refinancing the Loans
and other indebtedness of the Borrower ("Refinancing Indebtedness"); under
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Section 8.2.1(d)(i) of the Credit Agreement, the Loan Parties are permitted to
incur certain indebtedness in the form of reimbursement obligations relating to
letters of credit, surety bonds and performance bonds used by the Loan Parties
in the ordinary course of their business ("Ordinary Course Letter of Credit
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Indebtedness"); under Section 8.2.1(d)(ii) of the Credit Agreement, the Borrower
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is permitted to incur certain indebtedness in the form of reimbursement
obligations relating to Debt Service Reserve Letters of Credit (as defined
below) ("DSR Letter of Credit Indebtedness"); under Section 8.2.1(c) of the
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Credit Agreement, the Borrower is permitted to incur certain additional
indebtedness ("Additional Indebtedness"); and, under Section 8.2.1(b) of the
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Credit Agreement, the Borrower is permitted to incur certain indebtedness under
Interest Rate Hedging Transactions entered into with respect to the Loans ("Swap
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Indebtedness").
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E. In satisfaction of the requirements of the Lenders and the Persons
providing any Refinancing Indebtedness, Ordinary Course Letter of Credit
Indebtedness, DSR Letter of Credit Indebtedness, Additional Indebtedness or Swap
Indebtedness, the Guarantor desires by this Guarantee (as defined below) to
provide a guarantee for the Borrower's obligations under the Credit Agreement
and the other Financing Documents (as defined below).
F. In order to simplify administration of the Financing Documents and
to provide for the orderly enforcement of their respective rights, the
Administrative Agent, the Lenders and
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the other Secured Parties have appointed the Collateral Agent to serve as their
common representative, to be the beneficiary under any guarantee intended to
benefit the Secured Parties and to hold the liens created, or to be created,
under the Financing Documents.
G. Pursuant to the Collateral Agency and Intercreditor Agreement,
dated as of March 18, 1999 (as amended, supplemented or otherwise modified from
time to time, the "Collateral Agency and Intercreditor Agreement"), among the
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Borrower, the Administrative Agent, the Collateral Agent and certain other
parties, the Collateral Agent has agreed to serve as a common collateral agent
for all Secured Parties.
H. The Borrower is a direct wholly-owned Subsidiary of the Guarantor.
The Borrower and the Guarantor are engaged in related businesses, and Guarantor
will derive substantial direct and indirect benefit from the making of the Loans
and the incurrence of any Refinancing Indebtedness, Ordinary Course Letter of
Credit Indebtedness, DSR Letter of Credit Indebtedness, Additional Indebtedness
or Swap Indebtedness.
I. It is a condition precedent to the obligation of the Lenders to
make their respective Loans to the Borrower under the Credit Agreement that the
Guarantor shall have executed and delivered this Guarantee to the Collateral
Agent for the benefit of the Secured Parties.
NOW, THEREFORE, in consideration of the premises, the Guarantor hereby
agrees with the Collateral Agent, for the benefit of the Secured Parties, as
follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms defined
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in the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
(b) The following terms shall have the following meanings:
"Additional Indebtedness" has the meaning set forth in the recitals.
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"Debt Service Reserve Letter of Credit" has the meaning set forth in the
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Security Deposit Agreement.
"DSR Letter of Credit Indebtedness" has the meaning set forth in the
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recitals.
"Financing Documents" means the Loan Documents and each indenture, loan
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agreement, underwriting agreement, security purchase agreement or other document
entered into in connection with any Senior Debt.
"Guarantee" means this Credit Support Guarantee.
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"Guarantee Cap" means thirty-five million U.S. Dollars (U.S.$35,000,000).
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"Guarantee Termination Date" means the earlier of (i) the date when all
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amounts owing to the Collateral Agent and the Secured Parties by the Borrower on
account of the Obligations are paid in full and the Commitments are terminated,
(ii) December 31, 2001 and (iii) the date that the aggregate amount paid by or
collected from the Guarantor under this Guarantee equals the Guarantee Cap.
"Guarantor" has the meaning set forth in the preamble.
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"Obligations" means the collective reference to (a) the unpaid principal of
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and interest on the Loans, (b) the unpaid principal of and interest on the
Refinancing Indebtedness, if any, (c) the unpaid principal of and interest on
the Ordinary Letter of Credit Indebtedness, if any, (d) the unpaid principal of
and interest on the DSR Letter of Credit Indebtedness, if any, (e) the unpaid
principal of and interest on the Additional Indebtedness, if any, (f) the unpaid
amount of the Swap Indebtedness, if any, and (g) all other obligations and
liabilities of the Borrower (including interest accruing at the then applicable
rate or rates provided in the Financing Documents after the maturity of the
Loans, Refinancing Indebtedness, Ordinary Course Letter of Credit Indebtedness,
DSR Letter of Credit Indebtedness, Additional Indebtedness and/or Swap
Indebtedness, as applicable, and interest accruing at the then applicable rate
or rates provided in the Financing Documents after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) to the Secured Parties,
whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, any Financing Document or any other document made, delivered or given in
connection with any of the foregoing, in each case whether on account of
principal, interest, reimbursement obligations, guarantee obligations, fees,
indemnities, costs, expenses or otherwise (including all fees and disbursements
of counsel to the Collateral Agent or to the Secured Parties that are required
to be paid by the Borrower pursuant to the terms of any Financing Document).
"Ordinary Course Letter of Credit Indebtedness" has the meaning set forth
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in the recitals.
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"Refinancing Indebtedness" has the meaning set forth in the recitals.
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"Required Secured Parties" has the meaning set forth in the Collateral
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Agency and Intercreditor Agreement.
"Secured Parties" means the Collateral Agent, the Administrative Agent, the
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Lenders, each Person that provides any Senior Debt and each Person that serves
as indenture trustee, collateral agent, lenders' representative or in any
similar capacity for Persons that provide any Senior Debt.
"Security Deposit Agreement" means the Security Deposit Agreement, dated as
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of March 18, 1999, among the Borrower, the Collateral Agent and certain other
parties.
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"Senior Debt" means the Loans, any Refinancing Indebtedness, any Ordinary
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Course Letter of Credit Indebtedness, any DSR Letter of Credit Indebtedness, any
Additional Indebtedness and any Swap Indebtedness.
"Swap Indebtedness" has the meaning set forth in the recitals.
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(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Guarantee shall refer to this Guarantee as a whole and
not to any particular provision of this Guarantee, and section and paragraph
references are to this Guarantee unless otherwise specified.
(d) Each reference in this Guarantee to a Financing Document or other
agreement shall be deemed to refer to such Financing Document or other agreement
as the same may be amended, supplemented or otherwise modified from time to
time.
(e) 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.
(f) Each reference in this Guarantee to a Person shall refer to such
Person and its successors and assigns.
(g) Each reference in this Guarantee 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.
(h) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
2. Guarantee. (a) The Guarantor hereby unconditionally and
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irrevocably guarantees to the Collateral Agent, for the benefit of the Secured
Parties, the prompt and complete payment and performance by the Borrower when
due (whether at the stated maturity, by acceleration or otherwise) of the
Obligations. Notwithstanding the aggregate amount of the Obligations at any time
or from time to time payable or to be payable by the Borrower to the Collateral
Agent or to any Secured Party, the aggregate maximum liability of the Guarantor
to the Collateral Agent and the Secured Parties hereunder shall in no event
exceed the Guarantee Cap.
(b) Notwithstanding the Guarantee Cap, the Guarantor further agrees to pay
or reimburse each Secured Party and the Collateral Agent for all its costs and
expenses incurred in collecting against the Guarantor under this Guarantee or
otherwise enforcing or preserving any rights under this Guarantee, including,
without limitation, the fees and disbursements of counsel to each Secured Party
and of counsel to the Collateral Agent. This Guarantee shall remain in full
force and effect until the Guarantee Termination Date.
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(c) No payment made by the Borrower or any other Person or received or
collected by the Collateral Agent or any Secured Party from the Borrower or any
other Person by virtue of any action or proceeding or any set-off or
appropriation or application, at any time or from time to time, in reduction of
or in payment of the Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of the Guarantor hereunder which shall,
notwithstanding any such payment (other than any payment made by or collected
from the Guarantor in respect of the Obligations), remain liable for the
Obligations up to the Guarantee Cap until the Guarantee Termination Date.
(d) The Guarantor agrees that, upon the occurrence of any event specified
in Section 4.1(c) of the Security Deposit Agreement, the Collateral Agent shall
be entitled to demand payment, and the Guarantor shall promptly pay, an amount
or amounts which in the aggregate do not exceed the Guarantee Cap, for
application as specified therein.
3. Right of Set-off . The Guarantor hereby irrevocably authorizes the
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Collateral Agent and each Secured Party at any time and from time to time (i)
upon the occurrence of an Event of Default of the kind described in clauses (a)
or (b) of Section 9.1.6 of the Credit Agreement, (ii) upon the occurrence of any
Default of the kind described in clauses (c) or (d) of Section 9.1.6 of the
Credit Agreement with respect to the Borrower, or (iii) upon the occurrence and
continuance beyond the applicable grace period, if any, of any other Event of
Default and with the consent of the Required Secured Parties, without notice to
the Guarantor, any such notice being expressly waived by the Guarantor, 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 Guarantor, 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 Guarantor to the Collateral Agent or such Secured Party
hereunder and claims of every nature and description of the Collateral Agent or
such Secured Party against the Guarantor, in any currency, whether arising
hereunder, under the Credit Agreement, any other Financing 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
Guarantor promptly of any such set-off and the application made by the
Collateral Agent or such Secured Party of the proceeds thereof, provided that
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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 paragraph 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.
4. No Subrogation. Notwithstanding any payment or payments made by the
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Guarantor hereunder, or any set-off or application of funds of the Guarantor by
the Collateral Agent or any Secured Party, the Guarantor shall not be entitled
to be subrogated to any of the rights of the Collateral Agent or any Secured
Party against the Borrower or against any collateral security or
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guarantee or right of offset held by the Collateral Agent or any Secured Party
for the payment of the Obligations, nor shall the Guarantor seek or be entitled
to seek any contribution or reimbursement from the Borrower in respect of
payments made by the Guarantor hereunder, until the Guarantee Termination Date.
If any amount shall be paid to the Guarantor on account of such subrogation
rights at any time prior to the Guarantee Termination Date, such amount shall be
held by the Guarantor in trust for the Collateral Agent and the Secured Parties,
segregated from other funds of the Guarantor, and shall, forthwith upon receipt
by the Guarantor, be turned over to the Collateral Agent in the exact form
received by the Guarantor (duly indorsed by the Guarantor to the Collateral
Agent, if required), to be applied against the Obligations, whether matured or
unmatured, in such order as the Collateral Agent may determine.
5. Amendments, etc. with respect to the Obligations; Waiver of Rights.
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The Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against the Guarantor and without notice to or further
assent by the Guarantor, any demand for payment of any of the Obligations made
by the Collateral Agent or any Secured Party may be rescinded by the Collateral
Agent or such Secured Party and any of the Obligations continued, and the
Obligations, or the liability of any other party upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
the Collateral Agent or any Secured Party, and the Financing Documents and any
other documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, and any collateral
security, guarantee or right of offset at any time held by the Collateral Agent
or any Secured Party for the payment of the Obligations may be sold, exchanged,
waived, surrendered or released. Neither the Collateral Agent nor any Secured
Party shall have any obligation to protect, secure, perfect or insure any Lien
at any time held by it as security for the Obligations or for this Guarantee or
any property subject thereto. When making any demand hereunder against the
Guarantor, the Collateral Agent or any Secured Party may, but shall be under no
obligation to, make a similar demand on the Borrower or any other guarantor, and
any failure by the Collateral Agent or any Secured Party to make any such demand
or to collect any payments from the Borrower or any such other guarantor or any
release of the Borrower or such other guarantor shall not relieve the Guarantor
of its obligations or liabilities hereunder, and shall not impair or affect the
rights and remedies, express or implied, or as a matter of law, of the
Collateral Agent or any Secured Party against the Guarantor. For the purposes
hereof "demand" shall include the commencement and continuance of any legal
proceedings.
6. Guarantee Absolute and Unconditional. The Guarantor waives any and
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all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Collateral Agent or any
Secured Party upon this Guarantee or acceptance of this Guarantee; the
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this Guarantee; and all dealings between the Borrower or the Guarantor, on
the one hand, and the Collateral Agent and the Secured Parties, on the other,
shall likewise be conclusively presumed to have been had or consummated in
reliance upon this Guarantee. The Guarantor waives diligence,
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presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Borrower or the Guarantor with respect to the Obligations. This
Guarantee shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity, regularity or
enforceability of any Financing Document, any of the Obligations or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Collateral Agent or any
Secured Party, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by
the Borrower against the Collateral Agent or any Secured Party, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of the Borrower
or the Guarantor) which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Borrower for the Obligations, or of the
Guarantor under this Guarantee, in bankruptcy or in any other instance. When
pursuing its rights and remedies hereunder against the Guarantor, the Collateral
Agent and any Secured Party may, but shall be under no obligation to, pursue
such rights and remedies as it may have against the Borrower or any other Person
or against any collateral security or guarantee for the Obligations or any right
of offset with respect thereto, and any failure by the Collateral Agent or any
Secured Party to pursue such other rights or remedies or to collect any payment
from the Borrower or any such other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of the Borrower or any such other Person or of any such collateral
security, guarantee or right of offset, shall not relieve the Guarantor of any
liability hereunder, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the Collateral
Agent or any Secured Party against the Guarantor. This Guarantee shall remain in
full force and effect and be binding in accordance with and to the extent of its
terms upon the Guarantor and shall inure to the benefit of the Collateral Agent
and the Secured Parties until the Guarantee Termination Date.
7. Reinstatement. This Guarantee shall continue to be effective, or be
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reinstated, as the case may be, if, at any time prior to the Guarantee
Termination Date, payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the Collateral Agent or
any Secured Party upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrower or any substantial part of its property, or otherwise, all as though
such payments had not been made.
8. Payments. The Guarantor hereby agrees that the Obligations will be
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paid to the Collateral Agent without set-off or counterclaim in Dollars at the
office of the Collateral Agent or to such other place as the Collateral Agent
may specify in writing.
9. Representations and Warranties. The Guarantor represents and
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warrants to the Collateral Agent and the Secured Parties that:
(a) The Guarantor (i) is a corporation validly organized and existing
and in good standing under the laws of the state of its incorporation, (ii)
is duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction where the nature of its
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business requires such qualification and (iii) has all requisite corporate
power and authority and holds all material requisite Governmental Approvals
to enter into and perform its obligations under this Guarantee and to
conduct its business substantially as currently conducted by it, except,
with respect to clauses (ii) and (iii) above, where the failure to be so
qualified or be in good standing or the failure to obtain such Governmental
Approvals would not, individually or in the aggregate, cause a material
adverse effect;
(b) The execution, delivery and performance by the Guarantor of this
Guarantee are within the Guarantor's corporate powers, have been duly
authorized by all necessary corporate action, and do not:
(i) contravene the Guarantor's Organic Documents;
(ii) contravene any material Requirement of Law or Contractual
Obligation, binding on or affecting the Guarantor; or
(iii) result in, or require the creation or imposition of, any
Lien on any of the Guarantor's properties;
(c) No Governmental Approval is required for the Guarantor to execute
and perform its obligations under this Guarantee, except for those which
have been duly obtained or effected. No material Governmental Approval is
required for the Guarantor to carry on its business, except for those which
have been duly obtained or effected;
(d) The Guarantor is in compliance with all Requirements of Law and
Contractual Obligations applicable to it, except to the extent that the
failure to comply therewith would not have a material adverse effect; and
(e) This Guarantee constitutes the legal, valid and binding
obligation of the Guarantor enforceable in accordance with its terms
(except as may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally and general
principles of equity).
10. Authority of Collateral Agent. The Guarantor acknowledges that the
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rights and responsibilities of the Collateral Agent under this Guarantee with
respect to any action taken by the Collateral Agent or the exercise or non-
exercise by the Collateral Agent of any option, right, request, judgment or
other right or remedy provided for herein or resulting or arising out of this
Guarantee shall, as between the Collateral Agent and the Secured Parties, be
governed by the Collateral Agency and Intercreditor Agreement 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 Guarantor, 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 Guarantor shall
not be under any obligation, or entitlement, to make any inquiry respecting such
authority.
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11. Notices. All notices, requests and demands to or upon the
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Collateral Agent or the Guarantor to be effective shall be in writing (or by
telex, fax or similar electronic transfer confirmed in writing) and shall be
deemed to have been duly given or made (i) when delivered by hand or (ii) if
given by mail, when deposited in the mails by certified mail, return receipt
requested, or (iii) if by telex, fax or similar electronic transfer, when sent
and receipt has been confirmed, addressed as follows:
(a) if to the Collateral Agent, at its address or transmission
number for notices provided in the Collateral Agency and Intercreditor
Agreement; and
(b) if to the Guarantor, at its address or transmission number for
notices set forth under its signature below.
The Collateral Agent and the Guarantor may change its address and
transmission numbers for notices by notice in the manner provided in this
Section.
12. Severability. Any provision of this Guarantee which is prohibited
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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.
13. Integration. This Guarantee represents the agreement of the
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Guarantor 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 subject matter hereof not expressly set forth or
referred to in this Guarantee. This Guarantee supersedes 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.
14. Amendments; No Waiver; Cumulative Remedies. (a) None of the terms
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or provisions of this Guarantee may be waived, amended, supplemented or
otherwise modified except in accordance with the Collateral Agency and
Intercreditor Agreement.
(b) Neither the Collateral Agent nor any Secured Party shall by any
act (except pursuant to paragraph (a)), delay, indulgence, omission or otherwise
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be deemed to have waived any right or remedy hereunder or to have acquiesced in
any Default or Event of Default or in any breach of any of the terms and
conditions hereof. 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
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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.
(c) 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.
15. Section Headings. The section headings used in this Guarantee are
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for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
16. Governing Law. This Guarantee shall be governed by, and construed
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and interpreted in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be duly
executed and delivered by its duly authorized officer as of the day and year
first above written.
EDISON MISSION ENERGY
By:_______________________________
Name:
Title:
Address for Notices:
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Telex: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇