Exhibit 99.4
CONSENT SOLICITATION AGREEMENT
EDISON MISSION HOLDINGS CO.
EME HOMER CITY GENERATION L.P.
November 16, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Dear Ladies and Gentlemen:
1. THE CONSENT SOLICITATION. Edison Mission Holdings Co., a California
corporation ("EMH"), intends to engage in a registered solicitation (together
with any amendments and extensions thereof, the "SOLICITATION") of consents (the
"CONSENTS") of the holders (the "HOLDERS") of EMH's 8.137% Senior Secured Bonds
due 2019 (the "2019 BONDS") and EMH's 8.734% Senior Secured Bonds due 2026 (the
"2026 BONDS," and together with the 2019 Bonds, the "BONDS") to (i) certain
amendments to and waivers of the Indenture, dated as of May 27, 1999, between
EMH and The Bank of New York (as successor to United States Trust Company of New
York), as trustee (the "TRUSTEE"), relating to the Bonds (the "INDENTURE"), (ii)
an authorization of the Trustee to give its consent, as the representative of
the Holders under the Collateral Agency and Intercreditor Agreement (the
"COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT"), dated as of March 18, 1999,
among EMH, Edison Mission Finance Co. ("FINANCECO"), ▇▇▇▇▇ City Property
Holdings, Inc. ("PROPERTYCO"), EME Homer City Generation L.P., a Pennsylvania
limited partnership ("EME HOMER CITY"), Mission Energy Westside, Inc. ("ME
WESTSIDE"), Chestnut Ridge Energy Company ("CHESTNUT RIDGE" and, collectively
with EME Homer City, FinanceCo, PropertyCo and ME Westside, the "SUBSIDIARY
GUARANTORS"), the Trustee and Citicorp USA, Inc., as Administrative Agent, to
amend certain security documents entered into in connection with the Bonds and
(iii) upon receipt of Consents in respect of at least a majority in aggregate
principal amount of the Bonds (the "REQUISITE CONSENTS"), a registered exchange
offer by EME Homer City under the Securities Act of 1933, as amended, whereby
the Bonds will become pass-through bonds (the "PASS-THROUGH BONDS") issued by
Newco (as defined below) entitled to receive payments made in respect of secured
lease obligation notes, in each case on the terms and subject to the conditions
set forth in the consent solicitation statement, a form of which forms a part of
the Registration Statement (as defined below), and related consent form (as the
same may be amended or supplemented from time to time, the "CONSENT FORM"), a
form of which is attached as Exhibit 99.1 to the Registration Statement. Holders
who validly deliver Consents before the Expiration Date (as defined in the
Statement) will be entitled to receive a fee in consideration of their Consent,
as set forth in the Statement (the "CONSENT PAYMENT"). The final consent
solicitation statement included in the Registration Statement (i) including (A)
any documents incorporated by reference
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therein and (B) any exhibits or annexes thereto and (ii) as the same may be
amended or supplemented from time to time, is referred to herein as the
"STATEMENT," except that if the final consent solicitation statement furnished
to the Solicitation Agents (as defined below) for use in connection with the
Solicitation differs from any consent solicitation statement set forth in the
Registration Statement (whether or not such consent solicitation statement is
required to be filed pursuant to Rule 424(b) under the Securities Act of 1933,
as amended), the term "Statement" shall refer to the final consent solicitation
statement furnished to the Solicitation Agents for such use, (i) including (A)
any documents incorporated by reference therein and (B) any exhibits or annexes
thereto and (ii) as the same may be amended or supplemented from time to time.
The Statement, the Consent Form, the Registration Statement, the related letters
from the Solicitation Agents to securities brokers, dealers, commercial banks,
trust companies and other nominees, the related letters to beneficial owners of
the Bonds, all statements and other documents filed or to be filed with any
federal, state or local governmental or regulatory agency or authority and such
other documents (including, but not limited to, any advertisements, press
releases or summaries relating to the Solicitation) as EMH, EME Homer City or
Edison Mission Energy, a Delaware corporation, the parent of EMH ("EME"), may
authorize for use in connection with the Solicitation, as amended or
supplemented from time to time and in their final form, are collectively
referred to as the "SOLICITATION MATERIALS."
Payment of principal of, premium, if any, and interest on the Bonds have
been unconditionally guaranteed (the "SUBSIDIARY GUARANTEES"), jointly and
severally, together with certain other senior indebtedness of EMH, on a senior
secured basis by each of the Subsidiary Guarantors. EMH and the Subsidiary
Guarantors pledged substantially all of their assets and cash flow as collateral
for the Bonds. In addition, EME (collectively with the Subsidiary Guarantors,
the "GUARANTORS") entered into a credit support guarantee, dated as of March 18,
1999, as amended by Amendment No. 1 thereto, dated as of May 27, 1999, pursuant
to which EME has guaranteed, up to a maximum of $42 million, the payment of debt
service on the Bonds and certain other senior debt under certain conditions
until December 31, 2001. EMH, EME Homer City, Newco (as defined below) and the
Guarantors are collectively referred to herein as the "EME PARTIES."
In connection with the Solicitation, EMH and EME Homer City intend to
restructure the existing ownership of the three coal-fired electric generating
units and related facilities (the "FACILITIES") currently owned by EME Homer
City by entering into a sale-leaseback transaction, subject to, among other
things, receiving the Requisite Consents, as follows: (i) EME Homer City will
assume EMH's obligations under the Bonds pursuant to an assumption agreement,
(ii) the obligations of EMH, FinanceCo, PropertyCo, ME Westside, Chestnut Ridge
and EME Homer City under the Bonds will be released; (iii) EME Homer City will
sell a percentage of an undivided interest in the Facilities (each, an
"UNDIVIDED INTEREST") to each of eight newly formed special purpose Delaware
limited liability companies (each, an "OWNER LESSOR") to be established pursuant
to a limited liability company agreement among each of the respective
independent managers and each of eight beneficiaries (each, an "OWNER
PARTICIPANT"), in exchange for cash consideration and the agreement to assume on
a non-recourse basis by each Owner Lessor of its pro rata share of EME Homer
City's obligations under the Bonds, with the cash portion of the purchase price
of each Undivided Interest being contributed to each Owner Lessor as an equity
investment by the Owner Participant; (iv) each Owner Lessor will lease its
Undivided Interest back to EME Homer City pursuant to a facility lease (each, a
"LEASE"), with
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the Undivided Interests being sold by and leased back to EME Homer City
aggregating 100% of the Facilities; (v) on behalf of each Owner ▇▇▇▇▇▇, ▇▇▇▇▇
City Funding LLC, a new stand-alone, single-purpose, bankruptcy remote Delaware
limited liability company ("NEWCO"), will assume such Owner Lessor's obligations
to assume the Bonds in exchange for an aggregate principal amount of lessor
notes (equal in amount to the aggregate principal amount of Bonds outstanding)
(the "LESSOR NOTES") to be issued on a non-recourse basis by each Owner Lessor,
which will be issued pursuant to an indenture (each, a "LEASE INDENTURE"),
between the Owner Lessor and The Bank of New York, not in its individual
capacity but solely as holder representative under the Lease Indenture (the
"LEASE INDENTURE TRUSTEE"); (vi) the Lessor Notes will be payable from and
secured by, among other things, a first mortgage lien on and a security interest
in the Owner Lessor's Undivided Interest and the Owner Lessor's rights under its
Lease, including the right to all payments of basic rent and a security interest
in a debt service reserve account for the benefit of the holders of the
Pass-Through Bonds to be funded by a letter of credit from a credit provider
with a combined capital surplus of at least $1 billion and whose long-term
unsecured debt is rated "A" or higher by Standard & Poor's Rating Services
("S&P") or "A2" or higher by ▇▇▇▇▇'▇ Investors Services, Inc. ("MOODY'S") (an
"ACCEPTABLE CREDIT PROVIDER") (all of the foregoing constituting a "LEASE
INDENTURE ESTATE"); (vii) Newco will grant a security interest in its rights as
the holder of the Lessor Notes to the Trustee for the benefit of the holders of
the Pass-Through Bonds; and (viii) each Lease will be structured so that basic
rent payments made by EME Homer City will be in such amounts and at such times
as will be sufficient to provide for the payment of all principal of, premium,
if any, and interest, as scheduled, on the Lessor Notes to be issued and
outstanding under the applicable Lease Indenture, and the Lessor Notes will
require that payments be made by each Owner Lessor in such amounts and at such
times as will be sufficient, in the aggregate, to provide for the payment of all
principal, premium, if any, and interest on the Pass-Through Bonds. EME Homer
City will use the net proceeds from the sale of the Undivided Interests to repay
existing bank indebtedness of EMH in full, with the excess to be transferred to
EME. In connection with these transactions, eight separate participation
agreements will be entered into by EME Homer City, the applicable Owner Lessor,
the applicable Owner Manager, the applicable Owner Participant, Newco, the Lease
Indenture Trustee, the Trustee and The Bank of New York, as Security Agent (the
"SECURITY AGENT") (collectively, the "PARTICIPATION AGREEMENTS").
2. APPOINTMENT AS SOLICITATION AGENTS. EMH and EME Homer City hereby
engage and appoint Credit Suisse First Boston Corporation ("CSFB") and ▇▇▇▇▇▇
Brothers Inc. ("▇▇▇▇▇▇ BROTHERS") as exclusive financial advisors and
solicitation agents in connection with the Solicitation (in such capacities,
each a "SOLICITATION AGENT"), and EMH and EME Homer City hereby authorize CSFB
and ▇▇▇▇▇▇ Brothers to act as such in connection with the Solicitation. Nothing
in this Consent Solicitation Agreement (the "AGREEMENT") shall constitute either
Solicitation Agent a partner or joint venturer with EMH or any of its
subsidiaries. On the basis of the representations and warranties and agreements
of EMH and EME Homer City contained in this Agreement and subject to and in
accordance with the terms and conditions hereof, each of CSFB and ▇▇▇▇▇▇
Brothers, severally and not jointly, agrees in accordance with its customary
practice to perform those services in connection with the Solicitation as are
customarily performed by investment banking concerns in connection with
transactions of a like nature, including, but not limited to: using its
reasonable best efforts to solicit delivery of Consents pursuant to the
Solicitation, communicating with brokers, dealers, banks, trust companies,
nominees and other persons, including Holders of the Bonds, with respect to the
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Solicitation, and providing certain financial advisory services to EMH and EME
Homer City in connection with the Solicitation.
3. NO LIABILITY FOR ACTS OF BROKERS, DEALERS, BANKS, TRUST COMPANIES,
NOMINEES AND OTHERS. Neither CSFB nor ▇▇▇▇▇▇ Brothers shall have any liability
for any loss, claim, damage, liability or expense (each, a "LOSS") owed to EMH,
EME Homer City or any of EMH's or EME Homer City's affiliates or subsidiaries
for any act or omission on the part of any broker or dealer in securities (other
than CSFB, in the case of CSFB, and ▇▇▇▇▇▇ Brothers, in the case of ▇▇▇▇▇▇
Brothers), bank, trust company, nominee or any other person, and neither CSFB
nor ▇▇▇▇▇▇ Brothers shall be liable for any Losses arising from its own acts or
omissions in performing its obligations as Solicitation Agent except for any
Loss determined in a final judgment by a court of competent jurisdiction to have
resulted directly from any such acts or omissions undertaken or omitted to be
taken by CSFB or ▇▇▇▇▇▇ Brothers, as the case may be, through its bad faith,
fraud, gross negligence or willful misconduct. In soliciting or obtaining
deliveries of Consents, each of EMH and EME Homer City hereby acknowledges that
each of CSFB, as Solicitation Agent, and ▇▇▇▇▇▇ Brothers, as Solicitation Agent,
is acting as an independent contractor and shall not be deemed to be acting as
the agent of EMH or EME Homer City or as the agent of any broker, dealer, bank,
trust company, nominee or other person and no broker, dealer, bank, trust
company, nominee or other person shall be deemed to be acting as the agent of
CSFB, ▇▇▇▇▇▇ Brothers, EMH, EME Homer City or any of EMH's or EME Homer City's
affiliates or subsidiaries. In addition, neither EMH nor EME Homer City or any
of their respective affiliates or subsidiaries shall be deemed agents of CSFB,
as Solicitation Agent, or ▇▇▇▇▇▇ Brothers, as Solicitation Agent. The
obligations of the Solicitation Agents under this Agreement are several and not
joint. No Solicitation Agent shall be liable for any acts or omissions of the
other Solicitation Agent.
4. THE SOLICITATION MATERIALS; COMMENCEMENT; WITHDRAWAL.
(a) Each of EMH and EME Homer City hereby (i) agrees to furnish each
Solicitation Agent with as many copies as such Solicitation Agent may reasonably
request of the final forms of the Solicitation Materials, any amendments to the
Registration Statement or the other Solicitation Materials, the preliminary
consent solicitation statement, if any, and, upon the request of either
Solicitation Agent, any other documents filed or to be filed with any federal,
state or local governmental or regulatory agency or authority, any stock
exchange or any court in connection with the Solicitation or the other
Transactions (as defined below), (ii) authorizes each Solicitation Agent to use
copies of the Solicitation Materials in connection with the Solicitation and
(iii) acknowledges that the Solicitation Materials have been, or will be,
prepared and approved by EMH and EME Homer City and are EMH's and EME Homer
City's sole responsibility with respect to their accuracy and completeness. Each
of CSFB and ▇▇▇▇▇▇ Brothers hereby agrees that it will not disseminate any
written materials in connection with the Solicitation other than the
Solicitation Materials or information otherwise authorized by EMH or EME Homer
City and will provide no oral information that is not contained in, or
consistent with, the Solicitation Materials.
(b) EMH hereby represents and warrants that it will commence the
Solicitation as soon as practicable after the Effective Date (as defined below)
by publicly announcing its commencement and by distributing, mailing, or causing
to be mailed on its behalf, copies of the
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Statement, the Consent Form and related materials to the Holders of record for
delivery and, where necessary, to the beneficial holders of the Bonds known or
identified to EMH or EME Homer City (the date of such announcement and of the
commencement of such distribution, the "COMMENCEMENT DATE").
(c) Each of EMH and EME Homer City hereby represents and agrees that no
solicitation material in addition to the Solicitation Materials, each of which
shall be in the form which has been approved by CSFB and ▇▇▇▇▇▇ Brothers, will
be used in connection with the Solicitation or filed with any federal, state or
local governmental or regulatory agency or authority, including the Securities
and Exchange Commission (the "COMMISSION"), by or on behalf of EMH or EME Homer
City without CSFB's and ▇▇▇▇▇▇ Brothers' prior approval, which approval will not
be unreasonably withheld or delayed. In the event that (i) EMH or EME Homer City
uses or permits the use of any such solicitation material in connection with the
Solicitation or files any such solicitation material with any such federal,
state or local governmental or regulatory agency or authority without CSFB's and
▇▇▇▇▇▇ Brothers' prior approval which approval shall not be unreasonably
withheld or delayed, (ii) EMH or EME Homer City withdraws, terminates or cancels
the Solicitation or (iii) if at any time CSFB or ▇▇▇▇▇▇ Brothers shall determine
that any condition set forth in Section 9 shall not be satisfied in any material
respect, then CSFB and ▇▇▇▇▇▇ Brothers (A) shall have a reasonable period of
time after discovering or being informed of such event to elect whether to
continue to act as Solicitation Agent and shall be entitled to withdraw as
Solicitation Agent in connection with the Solicitation without any liability or
penalty to CSFB, ▇▇▇▇▇▇ Brothers or any other person defined in Section 11 as an
"Indemnified Person," (B) shall be entitled promptly to receive the payment of
all fees and expenses payable to it under this Agreement which have accrued to
the date of such withdrawal or which otherwise thereafter become payable and (C)
shall continue to be entitled to the indemnification and contribution provisions
contained in Section 11. If a Solicitation Agent shall withdraw pursuant to the
foregoing, the other Solicitation Agent shall have the right, but not the
obligation, exercisable in its sole discretion, to continue as a Solicitation
Agent hereunder, in which event this Agreement shall remain in full force and
effect with respect to such Solicitation Agent and all fees payable hereunder
accruing after the date of such withdrawal shall be payable solely to such
Solicitation Agent.
(d) EMH expressly reserves the right to amend, with the prior consent of
the Solicitation Agents, or terminate the Solicitation and not to accept any
Consent Form not theretofore accepted in accordance with the conditions of the
Solicitation set forth in the Statement under the caption "The Consent
Solicitation." EMH or EME Homer City, as the case may be, will give oral
(confirmed by writing) or written notice of any amendment, termination or
nonacceptance to the Solicitation Agents as promptly as practicable.
5. COMPENSATION. Subject to the provisions of Section 4, EMH and EME Homer
City hereby jointly and severally agree to pay, or cause to be paid, to each of
CSFB and ▇▇▇▇▇▇ Brothers as compensation for its respective services as
Solicitation Agent, a fee equal to $4,000,000 total ($2,000,000 each), with such
fee being payable on the date on which the closing of the Transactions occurs
(the "CLOSING DATE").
6. REIMBURSEMENT OF EXPENSES AND PAYMENT OF OTHER COSTS. (a) EMH and EME
Homer City hereby jointly and severally agree (i) to pay all expenses in
connection with
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the preparation, printing, filing, mailing and publishing of the Solicitation
Materials, (ii) to reimburse each Solicitation Agent in connection with its
services as Solicitation Agent for any reasonable expenses incurred by such
Solicitation Agent in connection with the preparation, printing, filing, mailing
and publishing of the Solicitation Materials and for all reasonable
out-of-pocket and internal expenses incurred by such Solicitation Agent, as
Solicitation Agent, including, without limitation, the fees and disbursements of
the Solicitation Agents' legal counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, (iii) to
pay, or cause to be paid, all Consent Payments to the Holders, (iv) to pay all
fees and expenses of the Depositary (as defined below) and the Information Agent
(as defined below), in each case, in connection with the Solicitation, (v) to
pay all fees and expenses of the Lease Indenture Trustee and the Trustee, (vi)
to pay any fees payable to brokers, dealers, banks, trust companies and nominees
as reimbursement for their customary mailing and handling expenses incurred in
forwarding the Solicitation Materials to their customers, if any, (vii) to pay
all fees and expenses of any accountants, (viii) to pay or reimburse each
Solicitation Agent for any reasonable marketing expenses in connection with the
transactions contemplated by this Agreement and the other Operative Documents
(as defined in each Participation Agreement), including, without limitation, all
travel expenses of the Solicitation Agents and EMH's and EME Homer City's
officers and employees and other expenses of EMH, EME Homer City and the
Solicitation Agents in connection with attending and hosting meetings with
Holders and making sales force calls and all expenses incurred in connection
with the preparation of Bloomberg presentations, (ix) to pay all expenses in
connection with distributing the preliminary Statement and the Statement
(including any amendments or supplements thereto) to the Solicitation Agents and
the Holders, (x) to pay any fees charged by investment rating agencies for the
reaffirmation of the ratings of the Bonds and the Pass-Through Bonds and the
ratings of the debt securities of EME after giving effect to the Transactions,
(xi) to pay any filing fees and other expenses (including fees and disbursements
of counsel) incurred in connection with the qualification of the Pass-Through
Bonds and the determination of their eligibility for investment under the laws
of such jurisdictions as any Solicitation Agent designates and the printing of
memoranda relating thereto, (xii) to pay any advertising and public relations
charges pertaining to the Solicitation and the related transactions and (xiii)
to pay all other expenses incidental to the Solicitation and the performance of
their obligations under this Agreement, except as set forth in Section 6(b)
below. EMH and EME Homer City shall promptly reimburse each Solicitation Agent
for all amounts owing under clauses (ii) and (viii) of this Section after such
expenses have been made or have accrued and an invoice therefor has been sent by
such Solicitation Agent to EMH or EME Homer City, which may be sent from time to
time as such expenses are made or accrued, whether or not the Solicitation is
consummated and in addition to the amounts owing to such Solicitation Agent
under Section 5. EMH and EME Homer City shall pay, or cause to be paid, the
Consent Payment on the Expiration Date or within five Business Days thereafter
to the Holders who consent in the manner as described in the Statement.
(b) Without limiting Section 6 of this Agreement, the Solicitation Agents,
with the prior written consent of EMH, which consent shall not be unreasonably
withheld or delayed, and at the Solicitation Agents' expense, may place an
"image tombstone" announcement in any newspapers and periodicals as they may
choose, after the completion of the Transactions, stating that CSFB and ▇▇▇▇▇▇
Brothers acted as Solicitation Agents in connection with the Solicitation.
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7. THE DEPOSITARY; THE INFORMATION AGENT; NOTEHOLDER LISTS. (a) EMH (i)
has arranged for The Bank of New York to serve as depositary in connection with
the Solicitation (the "DEPOSITARY"), (ii) will arrange for the Depositary to
advise CSFB and ▇▇▇▇▇▇ Brothers daily as to such matters as CSFB or ▇▇▇▇▇▇
Brothers may reasonably request, including the aggregate principal amount of
Bonds in connection with which Consents have been delivered pursuant to the
Solicitation and (iii) will arrange for the Depositary to be responsible for the
payment of the Consent Payment at the direction of EMH and EME Homer City to the
Holders in connection with the Solicitation pursuant and subject to the
Statement.
(b) EMH has arranged for ▇.▇. ▇▇▇▇ & Co., Inc. to serve as information
agent in connection with the Solicitation (the "INFORMATION AGENT") and to
perform services in connection with the Solicitation that are customary for an
information agent.
(c) EMH and EME Homer City will provide, or will cause the Information
Agent to provide (to the extent such information has been provided to, has been
obtained by or is available to the Information Agent), CSFB and ▇▇▇▇▇▇ Brothers
with the security listing position (or other available cards or lists)
containing the names and addresses of, and the aggregate principal amount of
Bonds held by, the Holders as of a recent date and will use its reasonable best
efforts to cause CSFB and ▇▇▇▇▇▇ Brothers to be advised, from time to time as
CSFB or ▇▇▇▇▇▇ Brothers may request, during the period of the Solicitation as to
any transfers of record of Bonds. In addition, EMH and EME Homer City hereby
authorize CSFB and ▇▇▇▇▇▇ Brothers to communicate with the Trustee, the
Depositary and the Information Agent with respect to matters relating to the
Solicitation and to cause the Information Agent or the Depositary, as the case
may be, to advise CSFB and ▇▇▇▇▇▇ Brothers daily as to such matters as CSFB or
▇▇▇▇▇▇ Brothers may reasonably request, including, to the extent available, the
aggregate principal amount of Bonds in connection with which Consents have been
delivered pursuant to the Solicitation.
8. REPRESENTATIONS AND WARRANTIES OF EMH AND EME HOMER CITY. Each of EMH
and EME Homer City jointly and severally represents and warrants to and jointly
and severally agrees with each of CSFB and ▇▇▇▇▇▇ Brothers, that:
(a) A registration statement on Form S-4 (File No. 333-70068) with respect
to the Pass-Through Bonds, of which a form of the Statement forms a part, (i)
has been prepared by EMH and EME Homer City in conformity with the requirements
of the Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "SECURITIES ACT") and (ii) has been
filed with the Commission under the Securities Act. EMH and EME Homer City shall
request acceleration of the effectiveness of the Registration Statement and
shall use their reasonable best efforts to have the Registration Statement
declared effective under the Securities Act as promptly as practicable. The date
on which the Commission shall declare the Registration Statement effective shall
be referred to as the "EFFECTIVE DATE." Such registration statement, including
any amendments or supplements thereto and all documents incorporated by
reference therein, is hereinafter referred to as the "REGISTRATION Statement."
(b) The Registration Statement and the Statement conform and any further
amendments or supplements to the Registration Statement or the Statement will
conform, in each
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case, on the respective dates thereof and at all times from the Commencement
Date through and including the later of the Closing Date and the Expiration
Date, in all material respects to the requirements of the Securities Act and the
Trust Indenture Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "TRUST INDENTURE ACT"), and the
Registration Statement, the Statement and all other Solicitation Materials
(including any documents incorporated therein by reference) and any further
amendments or supplements to the Registration Statement, the Statement or any
other Solicitation Materials, on the respective dates thereof and at all times
from the Commencement Date through and including the later of the Closing Date
and the Expiration Date do not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; PROVIDED, HOWEVER, that no representation
is made as to statements contained in the Registration Statement, the Statement
or the other Solicitation Materials furnished in writing by or on behalf of CSFB
or ▇▇▇▇▇▇ Brothers relating to CSFB or ▇▇▇▇▇▇ Brothers as Solicitation Agent
specifically for inclusion therein.
(c) Each EME Party is a corporation, limited partnership or limited
liability company, as the case may be, duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization, with all
requisite power and authority (corporate or other) to own, lease and operate its
respective properties and to conduct its respective business as presently
conducted, and each EME Party is duly registered and qualified to conduct its
business and is in good standing as a foreign corporation, limited partnership
or limited liability company, as the case may be, in each jurisdiction where the
nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure to so register or
qualify or to be in good standing would not have a material adverse effect on
(i) the condition (financial or other), business, properties or results of
operations of EME Homer City and its subsidiaries, taken as a whole, (ii) on the
ability of any EME Party to perform its obligations under this Agreement, each
of the Operative Documents or any other material document to be entered into in
connection with the Transactions (as defined below) (collectively, the
"TRANSACTION DOCUMENTS") to which it is or will be a party, or (iii) on the
ability of EMH and EME Homer City to perform their respective obligations
hereunder or on the ability of any EME Party to effectuate the Transactions (a
"MATERIAL ADVERSE EFFECT"). All of the issued and outstanding shares of capital
stock, other equity interests or partnership interests of each EME Party have
been duly authorized and validly issued and are fully paid and nonassessable;
and the capital stock or other equity interests of each subsidiary of EMH are
wholly owned by EMH, directly or through subsidiaries, free and clear from
liens, adverse claims, security interests, encumbrances and defects except (i)
as set forth on any UCC lien searches provided to the Solicitation Agents on or
prior to the date hereof, (ii) the pledges made to secure the Bonds in
connection with the original issuance thereof and (iii) defects which will not
have a Material Adverse Effect.
(d) Each of EMH and EME Homer City has all necessary power and authority
to execute, deliver and perform this Agreement and, on the Closing Date, each
EME Party will have all necessary power and authority to execute, deliver and
perform their obligations under the Operative Documents and the Transaction
Documents to which it is or will be a party, and on the Commencement Date, each
of EMH and EME Homer City will have all necessary power and authority to
commence the Solicitation and on the Closing Date, will have all necessary power
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and authority to consummate the Solicitation, including, but not limited to,
effecting the proposed amendments to the Indenture as set forth in the Statement
by the execution and delivery by Newco of a first amended and restated indenture
between Newco and the Trustee amending and restating the Indenture (the "AMENDED
AND RESTATED INDENTURE"), by amending the Security Documents (as defined in each
Participation Agreement), as set forth in the Statement and by paying, or
causing to be paid, the Consent Payment in connection with the Solicitation, in
each case, pursuant to the Solicitation Materials, and to consummate the other
transactions contemplated by this Agreement and by the Statement and the other
Solicitation Materials, including, without limitation, the exchange of the Bonds
for the Pass-Through Bonds and the execution, delivery and performance of the
Operative Documents and the Transaction Documents to which it is or will be a
party (collectively, the "TRANSACTIONS"); and on the Closing Date, all necessary
action will have been duly taken by each EME Party to authorize the making,
execution, delivery, performance and consummation, as the case may be, of the
Operative Documents and the Transactions.
(e) This Agreement has been duly authorized, executed and delivered by
each of EMH and EME Homer City, is a valid and legally binding agreement of EMH
and EME Homer City and, assuming that this Agreement is the valid and legally
binding obligation of CSFB and ▇▇▇▇▇▇ Brothers, is enforceable against EMH and
EME Homer City in accordance with its terms, except to the extent that
enforceability may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws of general applicability
relating to or affecting the enforcement of creditors' rights, (ii) the effect
of general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law) and (iii) an implied covenant of
good faith and fair dealing.
(f) On the Closing Date, each Operative Document and each Transaction
Document will have been duly authorized by each EME Party that will be a party
thereto and will be duly executed and delivered by each EME Party that is or
will be a party thereto, and assuming that such Operative Document or
Transaction Document is the valid and legally binding obligation of the parties
thereto (other than any EME Party), will be a valid and legally obligation of
such EME Party, enforceable against such EME Party in accordance with its terms,
except in each case to the extent that enforceability may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws of general applicability relating to or affecting the enforcement
of creditors' rights, (ii) the effect of general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or
at law) and (iii) an implied covenant of good faith and fair dealing.
(g) The documents incorporated by reference in the Statement or the
Registration Statement, as of each of their respective filing dates, complied as
to form, and any further documents so filed and incorporated by reference in the
Statement or the Registration Statement or any further amendment or supplement
thereto, when such documents become effective or are filed with the Commission,
as the case may be, will comply as to form, in each case in all material
respects with the Securities Exchange Act of 1934 and the rules and regulations
of the Commission thereunder (collectively, the "EXCHANGE ACT") and the
Securities Act, as the case may be.
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(h) The execution, delivery, performance, making and consummation, as the
case may be, of the Transactions will comply in all material respects with all
applicable requirements of law, including the Securities Act, the Exchange Act,
the Trust Indenture Act and any applicable rules or regulations of any
governmental or regulatory agency or authority, including, without limitation,
those of the Commission.
(i) The execution, delivery, performance, making and consummation, as
the case may be, of the Transactions will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute an
event of default (or an event which, with or without notice or lapse of time,
or both, as the case may be would constitute an event of default) under, (i)
the certificate of incorporation, by-laws, limited partnership agreement,
limited liability company agreement or similar organizational documents of
any EME Party, (ii) any material loan or credit agreement, indenture,
including, without limitation, the Indenture (provided the Requisite Consents
are executed with respect to the proposed amendments to and waivers of the
Indenture on or prior to the Closing Date), mortgage, note, deed of trust or
other material agreement or instrument of EME, Mission Energy Holding Company
("MISSION Energy") or any EME Party or to which any of its or their
respective assets or properties is subject (provided in all cases, other than
in the case of the execution, delivery or performance of this Agreement and
the commencement of the Solicitation, that the necessary amendments, consents
or waivers have been received on or prior to the Closing Date, other than
amendments, consents or waivers, which, if not received, would not have a
Material Adverse Effect, and the proceeds from the sale of the Facilities are
used as set forth in "Use of Proceeds" in the Statement), (iii) any judgment,
order, decree, law, statute, rule or regulation of any court, governmental or
regulatory agency or authority to which EME, Mission Energy or any EME Party
is a party or by which EME, Mission Energy or any EME Party or any of its
assets or properties is bound or (iv) result in the creation or imposition of
any lien, charge, claim or encumbrance on any material asset or property of
EME, Mission Energy or any EME Party (a "MATERIAL ASSET"), except, in the
cases of clauses (ii), (iii) and (iv) above, where such violation, breach or
conflict could not reasonably be expected to have a Material Adverse Effect.
(j) No EME Party is (i) in violation of its certificate of incorporation,
by-laws, limited partnership agreement, limited liability company agreement or
similar organizational documents, (ii) in default, and no event has occurred
which, with notice or lapse of time or both, would constitute a default under
any material loan or credit agreement, indenture, including, without limitation,
the Indenture, mortgage, note, deed of trust or other material agreement or
instrument of any EME Party or to which any of its or their respective assets or
properties is subject, which default would have a Material Adverse Effect or
(iii) in violation of any judgment, order, decree, law, statute, rule or
regulation of any court, governmental or regulatory agency or authority to which
any EME Party is a party or by which any EME Party or any Material Asset is
subject or bound, which violation would have a Material Adverse Effect.
(k) There are no amendments, consents or waivers necessary for the
commencement of the Solicitation or the execution, delivery or performance of
this Agreement, and on the Closing Date, all necessary amendments, consents
or waivers with respect to the execution, delivery, performance, making and
consummation of the rest of the Transactions will have been received and will
be in full force and effect, other than amendments, consents or waivers,
which, if not received, would not have a Material Adverse Effect.
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(l) No consent, authorization or approval, or filing with (other than the
filing of the Statement pursuant to Rule 424(b) of the Securities Act),
exemption, registration, qualification or other action with any federal, state
or local governmental or regulatory agency, court or authority is required in
connection with the execution, delivery, performance, making and consummation,
as the case may be, by EME, Mission Energy or any EME Party of the Transactions,
other than (i) those which shall have been made or obtained on or prior to the
Commencement Date with respect to the commencement of the Solicitation and the
execution, delivery or performance of this Agreement, and (ii) with respect to
the execution, delivery, performance, making and consummation of the rest of the
Transactions, as applicable, those which shall have been made or obtained on or
prior to the Closing Date, those that are set forth in the Statement, those
which could not reasonably be expected to have a Material Adverse Effect and
those set forth in the Participation Agreements, including the schedules
thereto.
(m) There are no actions, lawsuits, claims or governmental or
administrative proceedings or investigations pending (including any stop order,
restraining order or denial of an application for approval), or to the best
knowledge of EMH and EME Homer City, threatened against EME, Mission Energy or
any EME Party or to which any Material Assets are subject, including, without
limitation, any audit by the Internal Revenue Service, which would, if adversely
determined, affect or impair the execution, delivery, performance, making or
consummation, as the case may be, of the Transactions or which would be
reasonably likely to have a Material Adverse Effect, other than as set forth in,
or incorporated by reference into, the Statement.
(n) The Indenture has been duly authorized, executed and delivered by EMH
and, assuming that the Indenture is the valid and legally binding obligation of
the Trustee, constitutes a valid and legally binding obligation of EMH,
enforceable against EMH in accordance with its terms except as that
enforceability may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws of general applicability
relating to or affecting the enforcement of creditors' rights, (ii) the effect
of general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law) and (iii) an implied covenant of
good faith and fair dealing.
(o) The security interests purported to be created by the Security
Documents in favor of the holders of the Lessor Notes will, on the Closing Date,
constitute valid, legally binding and enforceable liens and security interests
in the collateral described therein.
(p) The security interests purported to be created by the Security
Documents in favor of the Owner Lessors will, on the Closing Date, constitute
valid, legally binding and enforceable liens and security interests in the
collateral described therein.
(q) The security interests purported to be created by the Security
Documents in favor of the holders of the Pass-Through Bonds will, on the Closing
Date, constitute valid, legally binding and enforceable liens and security
interests in the collateral described therein.
(r) Each Lessor Note when duly authorized and duly executed and delivered
by the applicable Owner Lessor, and when duly authenticated by the Lease
Indenture Trustee, all in accordance with the terms of the related Lease
Indenture, will be duly issued under such related
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Lease Indenture and, when delivered to Newco in accordance with the terms of
such Lease Indenture, will constitute a valid and legally binding obligation of
the applicable Owner Lessor, enforceable against the applicable Owner Lessor in
accordance with its terms except as that enforceability may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws of general applicability relating to or affecting the enforcement
of creditors' rights, (ii) the effect of general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or
at law) and (iii) an implied covenant of good faith and fair dealing; and Newco,
as the holder of each such Lessor Note, will be entitled to the benefits of the
related Lease Indenture (assuming the due execution and delivery thereof by the
Owner Lessor, the Lease Indenture Trustee and the Security Agent and assuming
the truth and accuracy of the representations, if any, of each Owner Lessor as
set forth in the Participation Agreements (other than with respect to the
representations made in this Section 8(r))).
(s) Each Pass-Through Bond when duly authorized, executed and delivered by
Newco and when duly authenticated by the Trustee in accordance with the terms of
the Amended and Restated Indenture, will be duly issued under the Amended and
Restated Indenture and, when exchanged for a Bond in like principal amount in
accordance with the terms of the Solicitation, will constitute a valid and
legally binding obligation of Newco, enforceable against Newco in accordance
with its terms, except as that enforceability may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other similar
laws of general applicability relating to or affecting the enforcement of
creditors' rights, (ii) the effect of general principles of equity (regardless
of whether enforceability is considered in a proceeding in equity or at law) and
(iii) an implied covenant of good faith and fair dealing; and each Pass-Through
Bond will be entitled to the benefits and security as provided for in the
Amended and Restated Indenture (assuming the due execution and delivery thereof
by the Trustee).
(t) Upon the due authorization, execution and delivery of the assumption
agreement by and among EME Homer City, the Owner Lessors, The Bank of New York,
as Trustee, and Newco, to be dated the Closing Date, the Bonds, as amended by
the Proposals (as defined in the Statement) will constitute valid and legally
binding obligations of Newco entitled to the benefits of the Amended and
Restated Indenture, enforceable against Newco in accordance with their terms,
except in each case as that enforceability may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other similar
laws of general applicability relating to or affecting the enforcement of
creditors' rights, (ii) the effect of general principles of equity (regardless
of whether enforceability is considered in a proceeding in equity or at law) and
(iii) an implied covenant of good faith and fair dealing.
(u) Upon execution and delivery of the assumption agreement by and among
EMH, FinanceCo, The Bank of New York, as Trustee, The Bank of New York, as
Collateral Agent, and EME Homer City, to be dated the Closing Date, relating to
the assumption of the Bonds by EME Homer City, the Bonds will constitute valid
and legally binding obligations of EME Homer City entitled to the benefits of
the Indenture, enforceable against EME Homer City in accordance with their
terms, except in each case as that enforceability may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws of general applicability relating to or affecting the enforcement
of creditors' rights, (ii) the effect of
13
general principles of equity (regardless of whether enforceability is considered
in a proceeding in equity or at law) and (iii) an implied covenant of good faith
and fair dealing.
(v) The Indenture, the Amended and Restated Indenture, the Bonds, the
Pass-Through Bonds and all other Operative Documents and Transaction Documents
conform in all material respects to the descriptions thereof contained in the
Statement, and the Indenture complies and the Amended and Restated Indenture
will comply in all material respects with the Trust Indenture Act.
(w) All of the representations and warranties of each EME Party contained
in each Participation Agreement, which are being given on the Closing Date, are
incorporated by reference in this Agreement as if set forth herein, and will be
true and correct as if made by such EME Party on and as of the date of such
agreements.
(x) There are no contracts or other documents which are required to be
described in the Statement or filed as exhibits to the Registration Statement by
the Securities Act or by the rules and regulations of the Commission thereunder,
which have not been described in the Statement or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by the
rules and regulations of the Commission.
(y) The accountants, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, whose report is included or
incorporated by reference in the Registration Statement and who have certified
certain financial statements of EMH, EME Homer City and their subsidiaries, are
and were, during the period covered by its report, independent public
accountants as required by the Securities Act.
(z) The financial statements and information included in or incorporated
by reference into the Statement present fairly the financial position of EMH,
EME Homer City and their consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with the generally
accepted accounting principles in the United States applied on a consistent
basis and comply as to form with the applicable accounting requirements of the
Securities Act; and the schedules incorporated by reference into the Statement
present fairly the information required to be stated therein; and the other
historical financial information and data included in or incorporated by
reference into the Statement are, in all material respects, accurately presented
and prepared on a basis consistent with such financial statements and the books
and records of EMH, EME Homer City and their subsidiaries and present fairly, on
the basis stated in the Registration Statement and the Statement, the
information shown therein; and the information contained in the Statement that
constitutes "forward-looking statements" within the meaning of Section 21E(i)(l)
of the Exchange Act has been prepared on the basis of EMH's and EME Homer City's
best current judgments and estimations as to future operating plans and results;
and with respect to any pro forma financial information included in the
Registration Statement and Statement, such pro forma financial information
complies as to form in all material respects with Regulation S-X under the
Securities Act; and the assumptions used in preparing the pro forma financial
information included in the Statement, if any, provide a reasonable basis for
presenting the significant effects directly attributable to the transactions or
events described therein, the related pro forma adjustments give appropriate
effect to those assumptions, and the pro forma
14
columns therein reflect the proper application of those adjustments to the
corresponding historical financial statement amounts.
(aa) Except as disclosed in the Statement, including the financial
statements incorporated by reference into the Statement, since the date of the
latest audited financial statements of EMH, EME Homer City and any of EMH's
other subsidiaries, neither EMH, EME Homer City or any such subsidiary has
incurred any liability or obligation, direct or contingent, or entered into any
transaction, in each case not in the ordinary course of business, that is
material to EME Homer City and there has been no Material Adverse Effect, nor,
to EMH's or EME Homer City's knowledge, any development or event involving a
prospective Material Adverse Effect, and, except as disclosed in or contemplated
by the Statement, including the financial statements incorporated by reference
into the Statement, since the date of such financial statements there has been
no (i) dividend or distribution of any kind declared, paid or made by EMH or EME
Homer City on any class of its equity capital, (ii) issuance of securities by
EMH or EME Homer City or (iii) material increase in short-term or long-term debt
of EMH or EME Homer City.
9. CONDITIONS TO COMMENCEMENT AND THE SOLICITATION AGENT'S OBLIGATIONS.
Each of CSFB's and ▇▇▇▇▇▇ Brothers' obligation to act as Solicitation Agent
shall at all times be subject to the performance by EMH and EME Homer City of
their obligations herein and to the following additional conditions, it being
understood that each Solicitation Agent may determine in its sole discretion
whether such conditions have been satisfied and may exercise any rights or
remedies with respect thereto without regard to whether the other Solicitation
Agent has exercised its rights or remedies:
(a) At all times from the Commencement Date, to and including the later of
the Closing Date and the Expiration Date, EMH's and EME Homer City's
representations and warranties contained herein shall be true and correct and
each of EME and EME Homer City shall have performed all of its respective
agreements contained in this Agreement and as set forth in the Solicitation
Materials theretofore required by it to have been performed; and the
Solicitation Agents shall have received certificates to those effects, dated the
Commencement Date, signed by the Chief Executive Officer or President and the
Chief Financial Officer or Treasurer of EMH and the Chief Executive Officer or
President and the Chief Financial Officer or Treasurer of EME Homer City. Each
of EMH and EME Homer City acknowledges that each of CSFB's and ▇▇▇▇▇▇ Brothers'
agreement to act, or to continue to act, as Solicitation Agent at a time when it
knows or is in a position to know that any such representation, warranty and
agreement is or may be untrue or incorrect or not performed, as the case may be,
shall be without prejudice to its right subsequently to cease so to act by
reason of such untruth, incorrectness or nonperformance, as the case may be.
(b) At all times from the Commencement Date, to and including the later of
the Closing Date and the Expiration Date, no stop order or restraining order
shall have been issued and no action, lawsuit, claim or governmental or
administrative proceeding shall have been commenced or, to the best of EMH's or
EME Homer City's knowledge, threatened with respect to the Solicitation or the
other Transactions before any court, agency or other governmental regulatory
body of any jurisdiction that either CSFB or ▇▇▇▇▇▇ Brothers, in good faith
after
15
consultation with counsel, believes renders it inadvisable for CSFB or ▇▇▇▇▇▇
Brothers to continue to act hereunder as Solicitation Agent.
(c) The Registration Statement shall have been declared effective under
the Securities Act and at all times from the Commencement Date, to and including
the later of the Closing Date and the Expiration Date, no stop order suspending
the effectiveness of the Registration Statement or any post-effective amendment
thereto shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission.
(d) EMH will furnish to CSFB and ▇▇▇▇▇▇ Brothers on the Commencement Date
(i) an opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, LLP, counsel to EMH and
EME Homer City, addressed to CSFB and ▇▇▇▇▇▇ Brothers, in form and substance
satisfactory to the Solicitation Agents, (ii) an opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ &
Bockius LLP, Pennsylvania counsel to EME Homer City, addressed to CSFB and
▇▇▇▇▇▇ Brothers, in form and substance satisfactory to the Solicitation Agents,
and (iii) an opinion of the in-house counsel of EMH and EME Homer City,
addressed to CSFB and ▇▇▇▇▇▇ Brothers, in form and substance satisfactory to the
Solicitation Agents, in each case with customary exceptions and qualifications
in form and substance satisfactory to the Solicitation Agents.
(e) At all times from the Commencement Date, to and including the later of
the Closing Date and the Expiration Date, there shall exist no conditions that
would constitute an Event of Default under the Indenture and on the Closing
Date, there shall exist no conditions that would constitute a Lease Event of
Default under any Lease or a Lease Indenture Event of Default under any Lease
Indenture (or an event that with notice or the lapse of time, or both, would
constitute an Event of Default, Lease Event of Default or Lease Indenture Event
of Default).
(f) No Solicitation Agent shall have discovered and disclosed to EMH or
EME Homer City on or at any time from the Commencement Date, to and including
the later of the Closing Date and the Expiration Date that the Registration
Statement, or any amendment or supplement thereto, contains an untrue statement
of a fact which, in the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the
Solicitation Agents, is material or omits to state a fact which, in the opinion
of such counsel, is material and is necessary to make the statements, in light
of the circumstances under which they were made, not misleading.
(g) On or prior to the Commencement Date, (i) S&P shall have delivered to
EMH and EME Homer City a preliminary ratings indication, setting forth a rating
of "BBB-" with respect to the Pass-Through Bonds, (ii) ▇▇▇▇▇'▇ shall have
delivered to EMH and EME Homer City a preliminary ratings indication, setting
forth a rating of "Baa3" with respect to the Pass-Through Bonds and (iii)
neither of S&P nor ▇▇▇▇▇'▇ shall have announced that it has under surveillance
or review, with possible negative implications, its rating of the Bonds or the
debt securities of EME.
(h) On the Commencement Date, each of EMH and EME Homer City shall have
furnished to the Solicitation Agents (i) a copy of the resolutions of its
governing board or committees thereof, certified by the Secretary or Assistant
Secretary of such entity, duly authorizing the execution, delivery and
performance of the Transactions, this Agreement and each other Operative
Document and Transaction Document to which it is or will be a party and
16
any other documents executed by or on behalf of it in connection with the
transactions contemplated thereby; (ii) certified copies of its organizational
documents; and (iii), if applicable, certified copies of powers-of-attorney, if
any, pursuant to which officers of such entity shall execute this Agreement and
each other Operative Document or Transaction Document to which it is or will be
a party and any other documents executed by or on behalf of it in connection
with the transactions contemplated thereby.
(i) On the Commencement Date, the Solicitation Agents shall have received
a letter, addressed to the Solicitation Agents and dated the Commencement Date,
of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance satisfactory to the Solicitation
Agents concerning the financial information with respect to EMH and EME Homer
City set forth or incorporated by reference in the Statement and confirming that
they are independent public accountants with respect to EMH and EME Homer City
as required by the Securities Act.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Solicitation Agents.
10. ADDITIONAL AGREEMENTS. In addition to the other agreements of EMH and
EME Homer City contained elsewhere in this Agreement, each of EMH and EME Homer
City hereby agrees and acknowledges, as applicable, that:
(a) Until the later of the Closing Date and the Expiration Date, it will
advise CSFB and ▇▇▇▇▇▇ Brothers promptly of any of the following upon knowledge
thereof: (i) the occurrence of any event which may cause EMH and EME Homer City
to withdraw, terminate or cancel the Solicitation or would permit EMH and EME
Homer City to exercise any right not to pay for Consents validly delivered
pursuant to the Solicitation, (ii) the occurrence of any event or the discovery
of any fact, the occurrence or existence of which it believes would require the
making of any material change in the Solicitation Materials then being used or
would cause any statement, representation or warranty contained in this
Agreement or in any of the Solicitation Materials to be untrue or inaccurate in
any material respect, (iii) any proposal or requirement to amend or supplement
the Solicitation Materials or to make any other filing pursuant to any
applicable law, regulation or other rule, (iv) the effectiveness of the
Registration Statement and of the issuance by the Commission of any stop order
with respect to the Registration Statement or the institution by the Commission
of any stop order proceedings in respect of the Registration Statement, and it
will use its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued, (v) the date on which the
Statement shall have been filed with the Commission pursuant to Rule 424(b),
(vi) the issuance by the Commission or any other governmental or regulatory
agency or authority of any comment or order concerning the Solicitation, (vii)
any material development in connection with the Solicitation or the other
transactions contemplated by the Statement, (viii) the receipt by EMH or EME
Homer City of any notification with respect to the suspension of the
qualification of the Bonds or the Pass-Through Bonds for sale in any
jurisdiction or the institution or threatening of a proceeding for such purpose
or (ix) any other information relating to the Solicitation which CSFB or ▇▇▇▇▇▇
Brothers may from time to time reasonably request.
17
(b) In the event that EMH or EME Homer City is required, or considers it
advisable, to amend or supplement the Solicitation Materials or make any
additional filings with any governmental or regulatory agency or authority, it
shall not make such amendment or supplement or filing without CSFB's and ▇▇▇▇▇▇
Brothers' prior approval, which shall not be unreasonably withheld or delayed.
(c) It will, at its own expense, file and disseminate, as required, any
necessary amendments or supplements to the Solicitation Materials and other
documents that are filed with any governmental or regulatory agency or authority
relating to the Solicitation, and it will promptly furnish to CSFB and ▇▇▇▇▇▇
Brothers an accurate and complete copy of each such amendment or supplement upon
the filing thereof.
(d) It will arrange for the qualification of the Pass-Through Bonds for
sale and the determination of their eligibility for investment under the laws of
such jurisdictions as the Solicitation Agents may designate and will maintain
such qualifications in effect so long as required.
(e) It will comply with the Securities Act and the Exchange Act relating
to the Solicitation to the extent applicable.
(f) It will perform its agreements and obligations set forth in or
contemplated by the Solicitation Materials, including, but not limited to,
paying the Consent Payment in accordance with and subject to the terms and
conditions of the Solicitation if all conditions precedent thereto have been met
and furnishing the Trustee any officers' certificates or other documents
required or reasonably requested by the Trustee in connection with the execution
and delivery of the Amended and Restated Indenture by the Trustee.
(g) In performing the services contemplated by this Agreement, CSFB and
▇▇▇▇▇▇ Brothers will be relying on the information furnished by EMH, EME Homer
City, its respective officers, attorneys and other agents and information
available from generally recognized public sources without independent
verification.
(h) Each of EMH and EME Homer City hereby jointly and severally agrees
that it will pay, or cause to be paid, promptly, in accordance with the terms
and subject to the conditions of the Solicitation as set forth in the
Solicitation Materials and this Agreement, the Consent Payment relating to the
Solicitation and EMH and EME Homer City will pay, or will cause to be paid, all
related fees and expenses they are obligated to pay under the Transaction
Documents, including, but not limited to, fees and expenses payable hereunder.
(i) Neither EMH nor EME Homer City will take any action (or permit any of
its subsidiaries or cause any of its affiliates to take any action and will use
its reasonable best efforts to ensure that its affiliates do not take any
action) to cause Newco to be subject to an entity-level tax.
(j) Each of EMH and EME Homer City (i) shall provide to the Solicitation
Agents on the Closing Date each of the Closing Date Documents (as defined below)
and (ii) agrees that they will not consummate the Transactions unless and until
all of the following conditions are satisfied:
18
(1) On the Closing Date, (i) all of EMH's and EME Homer City's
representations and warranties contained herein shall be true and correct
and each of EME and EME Homer City shall have performed all of the
agreements contained in this Agreement and as set forth in the
Solicitation Materials theretofore required by it to have been performed
and (ii) all of EMH's and EME Homer City's representations and warranties
contained in each Participation Agreement shall be true and correct and
each of EMH and EME Homer City shall have performed all of the agreements
contained in each Participation Agreement theretofore required by it to
have been performed, and with respect to (i) and (ii) the Solicitation
Agents shall have received certificates to those effects, dated the
Closing Date, signed by the Chief Executive Officer or President and the
Chief Financial Officer or Treasurer of EMH and the Chief Executive
Officer or President and the Chief Financial Officer or Treasurer of EME
Homer City.
(2) On the Closing Date, no stop order or restraining order shall have
been issued and no action, lawsuit, claim or governmental or
administrative proceeding shall have been commenced or, to the best of
EMH's or EME Homer City's knowledge, threatened with respect to the
Solicitation or the other Transactions before any court, agency or other
governmental regulatory body of any jurisdiction that CSFB or ▇▇▇▇▇▇
Brothers, in good faith after consultation with counsel, believes renders
it inadvisable for CSFB or ▇▇▇▇▇▇ Brothers to continue to act hereunder as
Solicitation Agent.
(3) On the Closing Date, no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto shall have
been issued and no proceeding for that purpose shall have been initiated
or threatened by the Commission.
(4) On the Closing Date, EMH shall have furnished to CSFB and ▇▇▇▇▇▇
Brothers, (i) an opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, LLP,
counsel to EMH and EME Homer City, which shall also cover certain matters
with respect to Newco, addressed to CSFB and ▇▇▇▇▇▇ Brothers, in form and
substance satisfactory to the Solicitation Agents, (ii) an opinion of
▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, Pennsylvania counsel to EME Homer City,
addressed to CSFB and ▇▇▇▇▇▇ Brothers, in form and substance satisfactory
to the Solicitation Agents, and (iii) an opinion of the in-house counsel
of EMH and EME Homer City, addressed to CSFB and ▇▇▇▇▇▇ Brothers, in form
and substance satisfactory to the Solicitation Agents.
(5) On the Closing Date, CSFB and ▇▇▇▇▇▇ Brothers shall have received the
opinions of counsel described in each Participation Agreement to be
delivered to EME Homer City or delivered by counsel to EME Homer City, in
each case addressed to CSFB and ▇▇▇▇▇▇ Brothers.
(6) On the Closing Date, there shall exist no conditions that would
constitute an Event of Default under the Amended and Restated Indenture, a
Lease Event of Default under any Lease or a Lease Indenture Event of
Default under any Lease
19
Indenture (or an event that with notice or the lapse of time, or both,
would constitute an Event of Default, Lease Event of Default or Lease
Indenture Event of Default).
(7) No Solicitation Agent shall have discovered and disclosed to EMH or
EME Homer City on or prior to the Closing Date that the Registration
Statement, or any amendment or supplement thereto, contains an untrue
statement of a fact which, in the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel to the Solicitation Agents, is material or omits to state a fact
which, in the opinion of such counsel, is material and is necessary to
make the statements, in light of the circumstances under which they were
made, not misleading.
(8) The Solicitation Agents shall have received a copy of the mortgagee's
title insurance policy (or policies) or marked up conditional title binder
(or binders) for such insurance dated the Closing Date and in favor of the
Security Agent.
(9) With respect to the letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP delivered to the
Solicitation Agents pursuant to Section 9(i) (the "INITIAL LETTER"), the
Solicitation Agents shall have received a letter (as used in this
paragraph, the "BRING-DOWN letter") of such accountants, addressed to the
Solicitation Agents and dated as of the Closing Date (i) confirming that
they are independent public accountants with respect to EMH and EME Homer
City as required by the Securities Act, (ii) stating, as of the date of
the bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Statement, as of a date not more than two days
prior to the date of the bring-down letter), the conclusions and findings
of such firm with respect to the financial information and other matters
covered by the initial letter and (iii) confirming in all material
respects the conclusions and findings set forth in the initial letter.
(10) On the Closing Date, (i)(A) S&P shall have delivered to EMH and EME
Homer City a final rating letter, setting forth a rating of "BBB-" with
respect to the Pass-Through Bonds and (B) ▇▇▇▇▇'▇ shall have delivered to
EMH and EME Homer a final rating letter, setting forth a rating of "Baa3"
with respect to the Pass-Through Bonds, (ii) each of ▇▇▇▇▇'▇ and S&P shall
have delivered to EMH and EME Homer City a letter confirming the ratings
of the debt securities of EME after giving effect to the Transactions and
(iii) neither of ▇▇▇▇▇'▇ nor S&P shall have announced that it has under
surveillance or review, with possible negative implications, its rating of
the Pass-Through Bonds or the debt securities of EME.
(11) All Operative Documents, Transaction Documents and any other
documents to be entered into in connection with the Transactions shall
have been entered into by the parties thereto on the Closing Date, except
for any OP Guarantee or any agreement with respect to Support Arrangements
(as defined in each Participation Agreement) and the Solicitation Agents
shall have been provided with counterparts, conformed as executed,
thereof.
20
(12) On the Closing Date, each EME Party shall have furnished to the
Solicitation Agents (other than to the extent already provided pursuant to
Section 9(h)) (i) a copy of the resolutions of its governing board or
committees thereof, certified by the Secretary or Assistant Secretary of
such entity, duly authorizing the execution, delivery and performance of
the Transactions and each other Operative Document and Transaction
Document to which it is or will be a party and any other documents
executed by or on behalf of it in connection with the transactions
contemplated thereby; (ii) certified copies of its organizational
documents; and (iii), if applicable, certified copies of
powers-of-attorney, if any, pursuant to which officers of such entity
shall execute each Operative Document or Transaction Document to which it
is or will be a party and any other documents executed by or on behalf of
it in connection with the transactions contemplated thereby.
(13) On the Closing Date, all amendments, waivers or consents as set forth
on Schedule I attached hereto shall have been received and shall be in
full force and effect.
The documents described in clauses (1), (4), (5), (8), (9), (10) and (12) are
referred to in this Agreement as the "CLOSING DATE DOCUMENTS."
11. INDEMNIFICATION AND CONTRIBUTION.
(a) EMH and EME Homer City hereby jointly and severally agree to hold
harmless and indemnify each Solicitation Agent and its affiliates and any
officer, director, employee or agent of any Solicitation Agent or any such
affiliates and any person controlling (within the meaning of Section 15 of the
Securities Act and Section 20(a) of the Exchange Act) any Solicitation Agent or
any such affiliates (collectively, the "INDEMNIFIED PERSONS") from and against
any loss, claim, damage, liability and expense whatsoever (as incurred or
suffered, and including, but not limited to, any and all legal or other expenses
incurred in connection with investigating, preparing to defend or defending any
lawsuit, claim or other proceeding, commenced or threatened, whether or not
resulting in any liability, which legal or other expenses shall be reimbursed by
EMH and EME Homer City promptly after receipt of any invoices therefor from any
Solicitation Agent or such other Indemnified Person), (i) arising out of or
based upon (a) any untrue statement or alleged untrue statement of a material
fact contained in the Solicitation Materials or in any other solicitation
material used by EMH or EME Homer City or authorized by EMH or EME Homer City
for use in connection with the Solicitation, or arising out of or based upon the
omission or alleged omission to state in any such document a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading (other than statements or omissions
made in reliance upon and in conformity with information relating to such
Solicitation Agent, furnished by that Solicitation Agent in writing to EMH and
EME Homer City expressly for use therein), (b) any withdrawal, termination or
cancellation by EMH or EME Homer City of, or failure by EMH or EME Homer City to
make or consummate, the Solicitation, (c) any actions taken or omitted to be
taken by an Indemnified Person pursuant to this Agreement or with the consent of
EMH or EME Homer City or in conformity with actions taken or omitted to be taken
by EMH or EME Homer City or (d) any breach by EMH or EME Homer City of any
representation or warranty, or any failure by
21
EMH or EME Homer City to comply with any agreement, contained in this Agreement
or (ii) arising out of, relating to or in connection with or alleged to arise
out of, relate to or be in connection with the Solicitation, any of the other
Transactions or the performance of any Solicitation Agent's services as
Solicitation Agent. However, EMH and EME Homer City will not be obligated to
indemnify an Indemnified Person for any loss, claim, damage, liability or
expense pursuant to clause (ii) of the preceding sentence, which has been
determined in a final judgment by a court of competent jurisdiction to have
resulted directly from the willful misconduct or gross negligence on the part of
such Indemnified Person. The foregoing indemnity agreement is in addition to any
liability which EMH or EME Homer City may otherwise have to the Indemnified
Person or to any officer, employee or controlling person of the Indemnified
Person.
(b) If any lawsuit, claim or proceeding is brought against any Indemnified
Person in respect of which indemnification may be sought against EMH or EME
Homer City pursuant to this Section 11, such Indemnified Person shall promptly
notify EMH or EME Homer City, as applicable, of the commencement of such
lawsuit, claim or proceeding after receipt by such Indemnified Person of notice
of such lawsuit, claim or proceeding; PROVIDED, HOWEVER, that the failure to so
notify EMH and EME Homer City shall not relieve EMH or EME Homer City from any
obligation or liability which it may have under this Section 11 except to the
extent that it has been prejudiced in any material respect by such failure and
in any event shall not relieve EMH or EME Homer City from any other obligation
or liability which it may have to such Indemnified Person otherwise than under
this Section 11. In case any such lawsuit, claim or proceeding shall be brought
against any Indemnified Person and such Indemnified Person shall notify EMH or
EME Homer City, as applicable, of the commencement of such lawsuit, claim or
proceeding, EMH or EME Homer City, as applicable, shall be entitled to
participate in such lawsuit, claim or proceeding, and, after written notice from
EMH and EME Homer City to such Indemnified Person, to assume the defense of such
lawsuit, claim or proceeding with counsel of its choice at its expense;
PROVIDED, HOWEVER, that such counsel shall be satisfactory to the Indemnified
Person in the exercise of its reasonable judgment. Notwithstanding the election
of EMH or EME Homer City, as applicable, to assume the defense of such lawsuit,
claim or proceeding, such Indemnified Person shall have the right to employ
separate counsel and to participate in the defense of such lawsuit, claim or
proceeding, and EMH and EME Homer City shall bear the fees, costs and expenses
of such separate counsel (and shall pay such fees, costs and expenses promptly
after receipt of any invoice therefor from any Solicitation Agent) if (i) the
use of counsel chosen by EMH or EME Homer City to represent such Indemnified
Person would present such counsel with a conflict of interest; (ii) the
defendants in, or targets of, any such lawsuit, claim or proceeding include both
an Indemnified Person and EMH or EME Homer City, and such Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it
or to other Indemnified Persons which are different from or in addition to those
available to EMH or EME Homer City (in which case EMH and EME Homer City shall
not have the right to direct the defense of such action on behalf of the
Indemnified Person); (iii) EMH or EME Homer City shall not have employed counsel
satisfactory to such Indemnified Person, in the exercise of such Indemnified
Person's reasonable judgment, to represent such Indemnified Person within a
reasonable time after notice of the institution of any such lawsuit, claim or
proceeding; or (iv) EMH or EME Homer City shall authorize such Indemnified
Person to employ separate counsel at the expense of EMH and EME Homer City. The
foregoing indemnification commitments shall apply whether or not the Indemnified
Person is a formal party to any such lawsuit, claim or
22
proceeding. Neither EMH nor EME Homer City shall be liable for any settlement of
any lawsuit, claim or proceeding effected without its consent (which consent
will not be unreasonably withheld), but if settled with such consent, each of
EMH and EME Homer City jointly and severally agrees, subject to the provisions
of this Section 11, to indemnify the Indemnified Person from and against any
loss, damage or liability by reason of such settlement. EMH and EME Homer City
agree to notify the Solicitation Agents promptly, or cause the Solicitation
Agents to be notified promptly, of the assertion of any lawsuit, claim or
proceeding against EMH or EME Homer City, any of its officers or directors or
any person who controls any of the foregoing within the meaning of Section 15 of
the Securities Act and Section 20(a) of the Exchange Act, arising out of or
relating to the Solicitation. EMH and EME Homer City further agree that any
settlement of a lawsuit, claim or proceeding against it arising out of or
relating to the Solicitation or the consent to the entry of any judgment with
respect to any pending or threatened lawsuit, claim or proceeding in respect of
which indemnification or contribution may be sought under this Agreement
(whether or not the Indemnified Person is an actual or potential party to such
claim or action) shall include an explicit and unconditional release from the
parties bringing such lawsuit, claim or proceeding of all Indemnified Persons
who are or could have been a party to such lawsuit, claim or proceeding if such
Indemnified Persons could have sought indemnification hereunder, which release
shall be satisfactory to the Solicitation Agents and shall not contain a
statement as to the fault, culpability or failure to act by or on behalf of an
Indemnified Person.
(c) EMH, EME Homer City and each Solicitation Agent agree that if any
indemnification sought by any Indemnified Person which is or is related to such
Solicitation Agent pursuant to this Section 11 is unavailable or is insufficient
for any reason, other than that specified in the second sentence of Section
11(a), then (whether or not such Solicitation Agent is the Indemnified Person)
EMH and EME Homer City, on the one hand, and such Solicitation Agent, on the
other hand, shall contribute to the losses, claims, damages, liabilities and
expenses for which such indemnification is held unavailable (i) in such
proportion as is appropriate to reflect the relative benefits to EMH and EME
Homer City, on one hand, and such Solicitation Agent, on the other hand, in
connection with the matter giving rise to such losses, claims, damages,
liabilities and expenses, or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in the
foregoing clause (i) but also the relative faults of EMH and EME Homer City, on
the one hand, and such Solicitation Agent, on the other, in connection with the
matter giving rise to such losses, claims, damages, liabilities and expenses,
and other equitable considerations, subject to the limitation that in any event
such Solicitation Agent's aggregate contribution to all losses, claims, damages,
liabilities and expenses with respect to which contribution is available
hereunder shall not exceed the amount of fees actually received by such
Solicitation Agent pursuant to this Agreement. It is hereby agreed by the
parties hereto that the relative benefits to EMH and EME Homer City, on the one
hand, and such Solicitation Agent, on the other hand, with respect to the
Solicitation and the other Transactions shall be deemed to be in the same
proportion as (i) the aggregate principal amount of the Bonds outstanding on the
Commencement Date bears to (ii) the fees paid to such Solicitation Agent with
respect to the Solicitation and the other Transactions pursuant to Section 5. It
is further agreed that the relative faults of EMH and EME Homer City, on the one
hand, and such Solicitation Agent, on the other hand, (i) in the case of an
untrue or alleged untrue statement of a material fact or an omission or alleged
omission to state a material fact, shall be determined by
23
reference to, among other things, whether such statement or omission relates to
information supplied by EMH or EME Homer City, on the one hand, or by such
Solicitation Agent, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission and (ii) in the case of any other action or omission,
shall be determined by reference to, among other things, whether such action or
omission was taken or omitted to be taken by EMH or EME Homer City, on the one
hand, or such Solicitation Agent, on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to prevent such action
or omission. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages, liabilities or expenses referred to in this Section
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such Indemnified Person in
connection with investigating, preparing to defend or defending any such action
or claim. The obligations of the Solicitation Agents to contribute hereunder are
several and not joint and no Solicitation Agent (together with its related
Indemnified Persons) shall be obligated to contribute an amount in excess of the
fees paid to such Solicitation Agent hereunder.
(d) In the event an Indemnified Person appears as a witness in any action
brought by or on behalf of or against EMH or EME Homer City (other than an
action brought by EMH or EME Homer City against any Indemnified Person or an
action brought by an Indemnified Person against EMH or EME Homer City) in which
such Indemnified Person is not named as defendant, EMH and EME Homer City
jointly and severally agree to reimburse such Indemnified Person for all
reasonable expenses incurred by it in connection with such Indemnified Person's
appearing and preparing to appear as such a witness, including, without
limitation, the reasonable fees and disbursements of its legal counsel.
(e) EMH and EME Homer City also agree that no Indemnified Person shall
have any liability to EMH, EME Homer City or any person asserting claims on
behalf of or in right of EMH or EME Homer City in connection with this Agreement
or ▇▇▇▇▇▇ Brothers' and CSFB's acting as Solicitation Agents hereunder, except
for liabilities determined in a final judgment by a court of competent
jurisdiction to have resulted directly from any acts or omissions undertaken or
omitted to be taken by such Indemnified Person through its or his, as the case
may be, gross negligence or willful misconduct.
(f) The foregoing rights to indemnification and contribution shall be in
addition to any other rights which CSFB, ▇▇▇▇▇▇ Brothers and the other
Indemnified Persons may have against EMH or EME Homer City under common law or
otherwise.
12. INDEMNIFICATION, REPRESENTATIONS AND WARRANTIES TO REMAIN
OPERATIVE. The rights to indemnification and contribution contained in
Section 11 and the representations, warranties and agreements of EMH and EME
Homer City set forth in this Agreement shall survive and remain operative and
in full force and effect regardless of (a) the failure to commence the
Solicitation, the consummation of the Solicitation, any withdrawal,
termination or cancellation of the Solicitation for any reason whatsoever or
any withdrawal by CSFB or ▇▇▇▇▇▇ Brothers pursuant to Section 4, (b) any
investigation made by or on behalf of any party hereto or any person
controlling any party hereto within the meaning of Section 15 of the
Securities Act and Section 20(a) of the Exchange Act and (c) the completion
of CSFB's and ▇▇▇▇▇▇ Brothers' services under this Agreement.
24
13. TERMINATION. (a) This Agreement shall terminate upon the earliest to
occur of (i) the consummation, termination, withdrawal or cancellation of the
Solicitation by EMH, (ii) the withdrawal by both CSFB and ▇▇▇▇▇▇ Brothers as the
Solicitation Agents pursuant to Section 4 hereof and (iii) the date that is one
year from the date hereof; PROVIDED that, Sections 3, 5, 6, 8, 10(b), 10(c),
10(e), 10(f), 11, 12, 13, 16-22 hereof shall survive the termination of this
Agreement.
(b) Each of EMH and EME Homer City jointly and severally agrees that (i)
if, at any time during the period beginning on the termination of this Agreement
for any reason (other than pursuant to the consummation of the Solicitation
where the fees set forth in Section 5 have been paid by EMH or EME Homer City to
each Solicitation Agent) and ending twelve (12) months after the Expiration
Date, EMH, EME Homer City or any of their respective affiliates or subsidiaries
consummate a sale-leaseback or similar transaction relating to the Facilities or
(ii) if at any time prior to twelve months after the Expiration Date, EMH, EME
Homer City or any of their respective affiliates or subsidiaries otherwise
consummate a sale-leaseback or similar transaction relating to the Facilities
and the fees set forth in Section 5 have not been paid by EMH or EME Homer City
to the Solicitation Agents, EMH and EME Homer City shall jointly and severally
pay to each of the Solicitation Agents an amount equal to the fees specified in
Section 5 above at the time of the consummation of such other transaction,
PROVIDED that no such fees shall be payable to a particular Solicitation Agent
if such Solicitation Agent shall decline to participate in such transaction
after having been afforded an opportunity to do so on terms substantially
equivalent to those set forth in this Agreement as reasonably determined by such
Solicitation Agent.
14. NOTICES. All notices and other communications required or permitted to
be provided under this Agreement shall be in writing and shall be deemed to have
been duly given if (a) delivered personally, (b) sent by facsimile with
immediate telephonic confirmation or (c) sent by registered or certified mail,
return receipt requested, postage prepaid, to the parties hereto as follows:
(a) if to CSFB:
Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Transactions Advisory
Group
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
25
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to ▇▇▇▇▇▇ Brothers:
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Liability Management Group
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to EMH or EME Homer City:
Edison Mission Holdings Co.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may alter the address or fax number to which communications or
copies are to be sent by giving notice of such change of address or fax number
in conformity with the provisions of this section for the giving of notice.
15. MODIFICATIONS. This Agreement may not be amended or modified except in
writing signed by each of the parties hereto.
26
16. WAIVER OF JURY TRIAL. ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY
ACTION, LAWSUIT, CLAIM OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE SERVICES TO BE RENDERED BY CSFB OR ▇▇▇▇▇▇ BROTHERS HEREUNDER IS
EXPRESSLY AND IRREVOCABLY WAIVED BY ALL PARTIES HERETO.
17. GOVERNING LAW. THE TERMS OF THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each of
such counterparts, when so executed and delivered, shall be deemed to be an
original, and all of such counterparts, taken together, shall constitute one and
the same Agreement.
19. SEVERABILITY. If any term or provision of this Agreement is deemed or
rendered invalid or unenforceable in any jurisdiction, then such term or
provision shall, as to such jurisdiction, be ineffective to the extent of such
invalidity or unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any other
jurisdiction.
20. SUCCESSORS. This Agreement is made solely for the benefit of CSFB,
▇▇▇▇▇▇ Brothers, EMH and EME Homer City and, to the extent expressed, the
Indemnified Persons and, in each case, their executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement.
21. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement by
and among the parties hereto with respect to the subject matter thereof and
supersedes all prior agreements and undertakings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof.
22. HEADINGS. The headings to sections contained in this Agreement are
included for ease of reference only, and the parties hereto agree that they are
not to be given substantive meaning or otherwise affect each party's rights and
duties hereunder.
23. JOINT OBLIGATIONS. The obligations of the Solicitation Agents
hereunder are several and not joint.
[THE REST OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY; THE SIGNATURE
PAGE FOLLOWS.]
27
Please indicate each of ▇▇▇▇▇▇ Brothers' and CSFB's willingness to act as
Solicitation Agent and each of ▇▇▇▇▇▇ Brothers' and CSFB's acceptance of the
foregoing provisions by signing in the space provided below for that purpose and
returning to us a copy of this letter so signed, whereupon this letter and
CSFB's and ▇▇▇▇▇▇ Brothers' acceptance shall constitute a valid and legally
binding agreement between us.
Very truly yours,
EDISON MISSION HOLDINGS CO.
By:
------------------------------------
Name:
Title:
EME HOMER CITY GENERATION L.P.
By: MISSION ENERGY WESTSIDE, INC., its
General Partner
By:
------------------------------------
Name:
Title:
Accepted and agreed as of the date
first above written:
CREDIT SUISSE FIRST BOSTON
CORPORATION
By:
------------------------------------
Authorized Representative
▇▇▇▇▇▇ BROTHERS INC.
By:
------------------------------------
Authorized Representative