Exhibit 10.60.3
INTERCOMPANY LOAN SUBORDINATION AGREEMENT (this "AGREEMENT"), dated as
of March 18, 1999, among (i) EDISON MISSION HOLDINGS CO., a California
corporation ("EME HOLDINGS"), (ii) EDISON MISSION FINANCE CO., a California
corporation ("EDISON MISSION FINANCE"), (iii) HOMER CITY PROPERTY HOLDINGS,
INC., a California corporation ("HOMER CITY HOLDINGS"), (iv) CHESTNUT RIDGE
ENERGY CO., a California corporation ("CHESTNUT RIDGE"), (v) MISSION ENERGY
WESTSIDE, INC., a California corporation ("MEW"), (vi) EME HOMER CITY GENERATION
L.P., a Pennsylvania limited partnership ("EME HOMER CITY"; and, together with
EME Holdings, Edison Mission Finance, Homer City Holdings, Chestnut Ridge and
MEW, the "LOAN PARTIES"), and (vii) UNITED STATES TRUST COMPANY OF NEW YORK, as
collateral agent for the Secured Parties (as defined below) (in such capacity,
the "COLLATERAL AGENT").
RECITALS
A. EME Holdings has entered into a Credit Agreement, dated as of March
18, 1999 (as the same may be amended, supplemented or otherwise modified from
time to time, the "CREDIT AGREEMENT"), with certain financial institutions
(collectively, the "LENDERS") and Citicorp USA, Inc., as administrative agent
for the Lenders (in such capacity, the "ADMINISTRATIVE AGENT").
B. Pursuant to the Credit Agreement, the Lenders have severally agreed
to make Loans (as defined below) to EME Holdings upon the terms and subject to
the conditions set forth therein.
C. EME Holdings will use the proceeds of the Loans under the Credit
Agreement to make valuable transfers to one or more of the other Loan Parties in
connection with the acquisition by EME Homer City of the Homer City Electric
Generating Station and certain facilities and other assets associated therewith
and ancillary thereto (the "GENERATING STATION"), certain capital expenditures
related to the Generating Station and general working capital purposes.
D. Under the Credit Agreement, EME Holdings is permitted to incur
certain indebtedness for the purpose of refinancing the Loans and other
indebtedness of EME Holdings, the Loan Parties are permitted to incur certain
indebtedness in the form of reimbursement obligations relating to letters of
credit, surety bonds and performance bonds used by the Loan Parties in the
ordinary course of their business, EME Holdings is permitted to incur certain
indebtedness in the form of reimbursement obligations relating to Debt Service
Reserve Letters of Credit, EME Holdings is permitted to incur certain additional
indebtedness and EME Holdings is permitted to incur certain indebtedness under
Interest Rate Hedging Transactions entered into with respect to the Loans.
E. Pursuant to the Collateral Agency and Intercreditor Agreement, dated
as of March 18, 1999 (as amended, supplemented or otherwise modified from time
to time, the "COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT"), among the Loan
Parties, the Administrative
Agent, the Collateral Agent and certain other parties, the Collateral Agent has
agreed to serve as a common collateral agent for all Secured Parties.
F. EME Holdings is a member of an affiliated group of companies that
includes each other Loan Party. EME Holdings and the other Loan Parties are
engaged in related businesses, and each Loan Party will derive substantial
direct and indirect benefit from the making of the Loans and the incurrence of
any Refinancing Indebtedness or Additional Indebtedness.
G. Edison Mission Finance has entered into a Subordinated Loan
Agreement, dated as of March 18, 1999 (the "HOLDINGS LOAN AGREEMENT"), with EME
Holdings, pursuant to which EME Holdings has agreed to make loans ("HOLDINGS
LOANS") to Edison Mission Finance from time to time with the proceeds of the
terms and subject to the conditions contained in the Holdings Loan Agreement.
H. EME Homer City has entered into the Subordinated Loan Agreement,
dated as of March 18, 1999 (the "FINANCE LOAN AGREEMENT"), with Edison Mission
Finance, pursuant to which Edison Mission Finance has agreed to make loans
("FINANCE LOANS") to EME Homer City from time to time with the proceeds of the
Holdings Loans on the terms and subject to the conditions contained in the
Finance Loan Agreement.
I. EME Homer City has entered into the Subordinated Revolving Loan
Agreement, dated as of March 18, 1999 (the "REVOLVING LOAN AGREEMENT"), with
Edison Mission Finance, pursuant to which Edison Mission Finance has agreed to
make loans ("REVOLVING LOANS") to EME Homer City from time to time on the terms
and subject to the conditions contained in the Revolving Loan Agreement.
J. The parties hereto would like to subordinate the Holdings Loans, the
Finance Loans, the Revolving Loans and all other obligations of the Loan Parties
with respect to Intercompany Loans to the Obligations of the Loan Parties under
the Loans and all other Senior Debt.
K. It is a condition precedent to the obligations of the Lenders to
make their respective Loans to EME Holdings under the Credit Agreement that the
Loan Parties shall have executed and delivered this Agreement to the Collateral
Agent for the benefit of the Secured Parties.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, each of the parties hereto hereby agrees as follows:
ARTICLE 1
DEFINITIONS, PRINCIPALS OF CONSTRUCTION
Section 1.1 Definitions.
(a) Unless otherwise expressly provided herein, capitalized
terms used but not defined in this Agreement shall have the meanings given to
such terms in the Collateral Agency and Intercreditor Agreement.
(b) Other Defined Terms. The following terms, when used
herein, shall have the following meanings:
"Intercompany Borrower" shall mean any indebtedness by any Loan Party
in its capacity as borrower under any Intercompany Loan Agreement.
"Intercompany Loans" shall mean any indebtedness by any Loan Party
relating to an Intercompany Loan Agreement.
"Intercompany Loan Agreement" shall means the Holdings Loan Agreement,
the Finance Loan Agreement, the Revolving Loan Agreement and any other loan
agreement to be entered into from time to time by an Intercompany Borrower and a
Subordinated Party.
"Proceeding" shall have the meaning given to such term in Section 3.2.
"Senior Claims" shall have the meaning given to such term in Section
2.1(a).
"Subordinated Claims" shall have the meaning given to such term in
Section 2.1(a).
"Subordinated Notes" shall have the meaning given to such term in
Section 2.1(c).
"Subordinated Party" shall mean any Loan Party in its capacity as
lender under an Intercompany Loan Agreement.
"Section 1.2 Principles of Construction. Unless otherwise expressly
provided herein, the principles of construction set forth in the Collateral
Agency and Intercreditor Agreement shall apply to this Agreement.
ARTICLE II
SUBORDINATION PROVISIONS
Section 2.1 Subordination of Intercompany Loans. Until all Obligations
shall have been indefeasibly paid in full and all Commitments shall have been
terminated:
(a)(i) all principal of, premium, if any, interest and any
other amounts owing on any Intercompany Loan made by any Loan Party, whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred or created ("SUBORDINATED CLAIMS") shall be
subordinate to the prior payment of and junior in right of payment to all
principal of, premium, if any, and interest (including default interest and
interest accruing after the initiation of any Proceeding whether or not allowed
as a claim in such a Proceeding) owing in respect of Senior Debt and all other
Obligations owed by the Loan Parties to the Secured Parties (collectively,
"SENIOR CLAIMS");
(b) no Loan Party shall, directly or indirectly, make any
payment of principal or interest on account of, or transfer any collateral for
any part of, any Subordinated Claims; provided, however, that the Loan Parties
may make regularly scheduled payments of interest and principal on account of
Subordinated Claims so long as at such time Restricted Payments are permitted to
be made pursuant to the terms of Senior Debt:
(c) the Subordinated Parties shall not demand, sue for or
accept any payment or collateral in respect of any Subordinated Claims, or take
any other action to enforce their rights or exercise any remedies in respect of
any Subordinated Claims (whether upon the occurrence or during the continuation
of an event of default under the related Intercompany Loan Agreement or an event
of default under any promissory notes evidencing Subordinated Claims
(collectively, "SUBORDINATED NOTES") or otherwise), or cancel, set-off or
otherwise discharge any part of any Subordinated Claims; and
(d) no Intercompany Borrower or Subordinated Party shall
otherwise take any action prejudicial to or inconsistent with the priority
position of the Secured Parties over the Subordinated Parties created by this
Section 2.1.
Section 2.2 Reliance. All Senior Claims shall conclusively be deemed to
have been created, contracted or incurred in reliance on the subordination
provisions contained in this Agreement and all dealings between Loan Parties and
each of the holders of Senior Claims shall be deemed to have been consummated in
reliance upon the subordination provisions contained herein.
Section 2.3 Other Holders. The subordination provisions set forth in
this Agreement shall be binding upon transferees or assignees of the
Subordinated Parties and upon each other holder of Subordinated Claims and shall
inure to the benefit of transferees or assignees of the Secured Parties and
every other holder of Senior Claims.
ARTICLE III
WRONGFUL COLLECTIONS
Section 3.1 Turnover. Should any payment on account of, or any
collateral for any part of, any Subordinated Claims be received by the
Subordinated Parties in violation of this Agreement, such payment or collateral
shall be delivered forthwith to the Collateral Agent for application in
accordance with the Security Deposit Agreement and the other Security
Documents. The Collateral Agent is irrevocably authorized to supply any required
endorsement or assignment which may have been omitted. Until so delivered, any
such payment or collateral shall be held by the Subordinated Parties in trust
for the Secured Parties and shall not be commingled with other funds or property
of the Subordinated Parties.
Section 3.2 Survival of Obligation. The obligation of the Subordinated
Parties to deliver to the Collateral Agent any payment or collateral received in
connection with any Subordinated Claims, set forth in Section 3.1, shall survive
and shall not be in any way affected by the result of any (a) insolvency,
bankruptcy, receivership, liquidation, reorganization, readjustment, composition
or other similar proceeding relating to any Intercompany Borrower, its property
or its creditors as such, (b) proceeding for any liquidation, dissolution or
other winding-up of any Intercompany Borrower, voluntary or involuntary, whether
or not involving insolvency or bankruptcy proceedings, (c) assignment for the
benefit of creditors, (d) other marshalling of the assets of any Intercompany
Borrower or (e) general meeting of creditors of any Intercompany Borrower, in
each case, under the laws of the United States or any other jurisdiction (any
such event, a "PROCEEDING").
ARTICLE IV
PROCEEDINGS
Section 4.1 Commencement of Proceedings. No Subordinated Party shall
commence, or join with any other creditor or creditors of any Intercompany
Borrower in commencing, any Proceeding against such Intercompany Borrower.
Section 4.2 Payments and Distributions. In the event of any Proceeding,
until all Obligations shall have been indefeasibly paid in full and all
Commitments shall have been terminated, any payment or distribution of any kind
of character, whether in cash, property or securities, which but for the
subordination provisions of this Agreement would otherwise be payable or
deliverable upon or in respect of Subordinated Claims, shall instead be paid
over or delivered to the Collateral Agent in accordance with Article III and no
holder of Subordinated Claims shall receive any such payment or distribution or
any benefit therefrom.
Section 4.3 Enforcement of Subordinated Claims.
(a) Enforcement by the Secured Parties. At any Proceeding,
until all Obligations shall have been indefeasibly paid in full and all
Commitments shall have been terminated, the Secured Parties are hereby
irrevocably authorized (but not required) to:
(i) enforce claims comprising Subordinated Claims in the name of the
Subordinated Parties by proof of debt, proof of claim, suit or otherwise;
(ii) collect any assets of any Intercompany Borrower distributed,
divided or applied way of dividend or payment, and any securities issued, in
each case, on account of Subordinated Claims and apply the same, or the proceeds
of any realization upon the same that the Secured Parties in their discretion
elect to effect, to Senior Claims until all Obligations shall
have been indefeasibly paid in full and all Commitments shall have been
terminated; provided, however, that the Secured Parties shall render any surplus
to the Subordinated Parties or their affiliates, as their interests appear, or
interplead such surplus with any court of competent jurisdiction.
(iii) vote claims comprising Subordinated Claims to accept or reject
any plan of partial or complete liquidation, reorganization, arrangement,
composition or extension; and
(iv) take generally any action in connection with any such Proceeding
which the Subordinated Parties might otherwise take.
(b) Cooperation. The Subordinated Parties shall cooperate
fully with the Secured Parties and perform all acts requested by the Secured
parties to enable the Secured Parties to enforce any Subordinated Claims
pursuant to clause (a) above, including, without limitation, filing appropriate
proofs of claim and executing and delivering all necessary powers of attorney,
assignments or other instruments.
(c) Enforcement by the Subordinated Parties. After the
commencement of any Proceeding, the Subordinated Parties may inquire in writing
of the Secured Parties whether the Secured Parties intend to exercise their
rights set forth in clause (a) above with respect to any Subordinated Claims.
Should the Secured Parties fail, within a reasonable time after receipt of such
inquiry, either to file a proof of claim with respect to any Subordinated Claims
and to furnish a copy thereof to the Subordinated Parties, or to inform the
Subordinated Parties in writing that the Secured Parties intend to exercise
their rights to assert such Subordinated Claims in the manner provided in clause
(a) above, the Subordinated Parties may (but shall not be required to) proceed
to file a proof of claim with respect to such Subordinated Claims and take such
further steps with respect thereto, not inconsistent with this Agreement, as the
Subordinated Parties may deem proper.
(d) Subrogation. The Subordinated Parties shall not have any
subrogation or other rights as holders of Senior Claims, and each Subordinated
Party hereby irrevocably waives all such rights of subrogation and all rights of
reimbursement or indemnity whatsoever and all rights of recourse to any security
for any Senior Claims, until such time as all Obligations shall have been
indefeasibly paid in full and all Commitments shall have been terminated.
Subject to and from and after the indefeasible payment in full of all
Obligations and the termination of all Commitments, the Subordinated Parties
shall have been terminated. Subject to and from and after the indefeasible
payment in full of all Obligations and the termination of all Commitments, the
Subordinated parties shall be subrogated to any rights of the Secured Parties to
receive payments or distributions of cash, property or securities of any
Intercompany Borrower applicable to any Subordinated Claims until all amounts
owing on such Subordinated Claims shall be paid in full.
ARTICLE V
LIMITATION ON ACTIONS
Section 5.1 Actions Prohibited. Until all Obligations shall have been
indefeasibly paid in full and all Commitments shall have been terminated, all
Subordinated Parties shall not, without the prior written consent of the Secured
Parties:
(a) take, obtain or hold (or permit anyone acting on its
behalf to take, obtain or hold) any assets of any Intercompany Borrower, whether
as a result of any administrative, legal or equitable action or otherwise, in
violation of the subordination provisions contained in this Agreement:
(b) accelerate payment of any Subordinated claims or otherwise
require such Subordinated Claims to be paid prior to their stated or scheduled
maturity date;
(c) commence, prosecute or participate in (i) any
administrative, legal or equitable action against or involving any Intercompany
Borrower relating to any Subordinated Claims, including, without limitation, any
Proceeding or (ii) any administrative, legal or equitable action to (a) enforce
or collect any judgment obtained in respect of any Subordinated Claims, (b)
enforce or exercise remedies arising under or pursuant to any Subordinated
Claims, (c) enforce or exercise remedies under or pursuant to any lien or other
security interest securing any Subordinated Claims or (d) enforce or exercise
remedies with respect to any covenant, agreement, representation or other
undertaking contained in any Subordinated Notes; or
(e) exercise any other rights or remedies to enforce any
Subordinated Claims, any collateral security provided with respect to such
Subordinated Claims or any covenant, agreement, representation or other
undertaking contained in any Subordinated Notes.
Section 5.2 Defense in Action. If the Subordinated Parties, in
violation of the provisions herein set forth, shall commence, prosecute or
participate in any suit, action, case or Proceeding referred to in Section 5.1,
the related Intercompany Borrower may interpose as a defense or plea the
provisions set forth herein, and any holder of any Senior Claims may intervene
and interpose such defense or plea in its own name or in the name of such
Intercompany Borrower, and shall, in any event, be entitled to restrain the
enforcement of the provisions of any Subordinated Claims in its own name or in
the name of such Intercompany Borrower, as the case may be, in the same suit,
action, case or Proceeding or in any independent suit, action, case or
Proceeding.
ARTICLE VI
SUBORDINATION ABSOLUTE
Section 6.1 Survival of Rights. The rights under this Agreement of the
holders of Senior Claims as against the Subordinated Parties shall remain in
full force and effect without regard to, and shall not be impaired or affected
by:
(a) any act or failure to act on the part of any Intercompany
Borrower;
(b) any extension or indulgence in respect of any payment or
prepayment of any Senior Claims or any part thereof or in respect to any other
amount payable to any holder of any Senior Claims;
(c) any amendment, modification or waiver of, or addition or
supplement to, or deletion from, or compromise, release, consent or other action
in respect of, any of the terms of any Senior Claims or the Financing Documents;
(d) (i) any exercise or non-exercise by the holder of any
Senior Claims of any right, power, privilege or remedy under or in respect of
such Senior Claims, the Financing Documents or the subordination provisions
contained herein, (ii) any waiver by the holder of any Senior Claims of any
right, power, privilege or remedy or of any default in respect of such Senior
Claims, the Financing Documents or the subordination provisions contained herein
or (iii) any receipt by the holder of any Senior Claims or any failure by such
holder to perfect a security interest in, or any release by such holder of, any
security for the payment of such Senior Claims;
(e) any merger or consolidation of any Intercompany Borrower
or any of its subsidiaries into or with any other Person, or any sale, lease or
transfer of any or all of the assets of any Intercompany Borrower or any of its
subsidiaries to any other Person;
(f) any payment or other distribution to any holder of any
Senior Claims in any Proceeding;
(g) absence of any notice to, or knowledge by, the
Subordinated Parties of the existence or occurrence of any of the matters or
events set forth in the foregoing clauses (a) through (f); or
(h) any other circumstance.
Section 6.2 Waivers.
(a) Waiver of Defenses. Each Subordinated Party hereby
irrevocably waives, in any proceeding by the Secured Parties to enforce their
rights under this Agreement, (i) any defense based on the adequacy of a remedy
at law which might be asserted as a bar to the remedy of specific performance of
this Agreement and (ii) the defense that claims asserted by the Secured Parties
pursuant to this Agreement are res judicata as a result of any decision rendered
in any prior Proceeding.
(b) Other Waivers. Each Subordinated Party hereby irrevocably
waives (i) notice of any of the matters referred to in Section 6.1, (ii) all
notices which may be required, whether by statute, rule of law or otherwise, to
preserve intact any rights of any holder of any Senior Claims against any
Intercompany Borrower, including, without limitation, any demand, presentment
and protest, or any proof of notice of nonpayment under any document evidencing
such Senior Claims or under the Financing Documents, (iii) notice of the
acceptance of or reliance on this Agreement by the Secured Parties, (iv) notice
of any renewal, extension or accrual of any Senior Claims, or any loans made or
other action taken in reliance on this
Agreement, (v) any right to the enforcement, assertion or exercise by any holder
of any Senior Claims of any right, power, privilege or remedy conferred in any
document evidencing such Senior Claims or in the Financing Documents, or
otherwise, (vi) any requirement of diligence on the part of any holder of any
Senior Claims, (vii) any requirement on the part of any holder of any Senior
Claims to mitigate damages resulting from any default under any documents
evidencing such Senior Claims or under the Financing Documents and (viii) any
notice of any sale, transfer or other disposition of any Senior Claims by any
holder thereof.
Section 6.3 Assent. Each Subordinated Party hereby irrevocably assents
to (a) any renewal, extension or postponement of the time of payment of any
Senior Claims or any other indulgence with respect thereto, (b) any increase in
the amount of any Senior Claims, (c) any substitution, exchange or release of
collateral for any Senior Claims, (d) the addition or release of any Person
primarily or secondarily liable for any Senior Claims and (e) the provisions of
any instrument, security or other writing evidencing any Senior Claims.
ARTICLE VII
INTERCOMPANY BORROWER OBLIGATIONS
The provisions of this Agreement are intended solely for the purpose of
defining the relative rights and obligations of the Subordinated Parties and the
Secured Parties. Nothing contained herein (a) is intended to or shall impair, as
among any Intercompany Borrower, its creditors and the related Subordinated
Party, the obligation of such Intercompany Borrower, which is absolute and
unconditional, to pay to such Subordinated Party, as and when the same shall
become due and payable in accordance with its terms, all amounts payable in
respect of any Subordinated Claims, or (b) is intended to affect the relative
rights of such Subordinated Party and creditors of such Intercompany Borrower
other than Secured Parties.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Waivers, Amendments.
(a) The provisions of this Agreement may from time to time be
amended, modified, or waived, if such amendment, modification or waiver in
writing and consented to by each of the parties hereto and each Secured Parties
Representative.
(c) No failure or delay in exercising in any power or right
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to or
demand on any party in any case shall entitle it to any notice or demand in
similar or other circumstances. No waiver or approval under this Agreement
shall, except as may be otherwise stated in such waiver or approval, be
applicable to subsequent transactions. No waiver or approval hereunder shall
require any similar or dissimilar waiver or approval thereafter to be granted
hereunder.
Section 8.2 Notices. Except as otherwise specifically provided herein,
all notices, consents, directions, approvals, instructions, requests and other
communications required or permitted by the terms hereof to be given to any
Person shall be in writing and shall be deemed to have been duly given or made
when delivered if delivered by hand or courier or when received if sent by mail
or telecopy, in each case addressed to the party to which such notice is
required or permitted to be given or made hereunder set forth below its
signature hereto, or such other address as may be specified from time to time by
such party in a notice to the other parties.
Section 8.3 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 8.4 Headings. The various headings of this Agreement are
inserted for convenience only and shall not affect the meaning or interpretation
of this Agreement or any provisions hereof or thereof.
Section 8.5 Execution in Counterparts, Effectiveness. This Agreement
may be executed by the parties hereto in several counterparts, each of which
shall be deemed to be an original and all of which shall constitute together but
one and the same agreement.
Section 8.6 Governing Law; Entire Agreement. THIS AGREEMENT SHALL IN
ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK. This Agreement constitutes the entire understanding among the
parties hereto with respect to the subject matter hereof and supersede any prior
agreements, written or oral, with respect thereto.
Section 8.7 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
Section 8.8 Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF ANY PARTY HERETO SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. EACH PARTY HERETO HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH SUCH LITIGATION. EACH PARTY HERETO FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR
WITHOUT THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY
PARTY HERETO HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OF FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, SUCH PARTY HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT.
Section 8.9 Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. EACH
PARTY ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE OTHER PARTIES ENTERING INTO THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement
to be duly executed by their duly authorized officers, all as of the day and
year first above written.
EDISON MISSION HOLDINGS CO.
By: /s/ Kevin M. Smith
------------------------------------
Name: Kevin M. Smith
Title: Vice President and Treasurer
Address for Notices:
18101 Von Karman Avenue
Suite 1700
Irvine, California 92612-1046
EDISON MISSION FINANCE CO.
By: /s/ Kevin M. Smith
------------------------------------
Name: Kevin M. Smith
Title: Vice President and Treasurer
Address for Notices:
18101 Von Karman Avenue
Suite 1700
Irvine, California 92612-1046
HOMER CITY PROPERTY HOLDINGS, INC.
By: /s/ Kevin M. Smith
------------------------------------
Name: Kevin M. Smith
Title: Vice President and Treasurer
Address for Notices:
18101 Von Karman Avenue
Suite 1700
Irvine, California 92612-1046
CHESTNUT RIDGE ENERGY CO.
By: /s/ Kevin M. Smith
------------------------------------
Name: Kevin M. Smith
Title: Vice President and Treasurer
Address for Notices:
18101 Von Karman Avenue
Suite 1700
Irvine, California 92612-1046
MISSION ENERGY WESTSIDE, INC.
By: /s/ Kevin M. Smith
------------------------------------
Name: Kevin M. Smith
Title: Vice President and Treasurer
Address for Notices:
18101 Von Karman Avenue
Suite 1700
Irvine, California 92612-1046
EME HOMER CITY GENERATION L.P.
By: Mission Energy Westside, Inc.
its General Partner
By: /s/ Kevin M. Smith
------------------------------------
Name: Kevin M. Smith
Title: Vice President and Treasurer
Address for Notices:
18101 Von Karman Avenue
Suite 1700
Irvine, California 92612-1046
UNITED STATES TRUST COMPANY OF NEW
YORK, as Collateral Agent
By: /s/ Christopher J. Grell
------------------------------------
Name: Christopher J. Grell
Title: Assistant Vice President
Address for Notices:
114 West 47th Street
25th Floor
New York, New York 10036