EXHIBIT 10.24.2
PANDA-BRANDYWINE, L.P.
LETTER OF CREDIT REIMBURSEMENT AGREEMENT
Dated as of December 18, 1996
GENERAL ELECTRIC CAPITAL CORPORATION
(230 MW Natural Gas-Fired Qualifying Cogeneration Facility
located in Brandywine, Maryland)
TABLE OF CONTENTS
Page
Section 1. DEFINITIONS 2
1.1 Defined Terms 2
1.2 Other Definitional Provisions 2
Section 2. ISSUANCE AND REIMBURSEMENT PROVISIONS 2
2.1 Issuance of Letters of Credit 3
2.2 Reimbursement Obligations 4
2.3 Letter of Credit Fees 5
2.4 Payments 6
2.5 Mandatory Collateralization 6
2.6 Computation of Interest and Fees 6
2.7 Compensation for Increased Costs 7
2.8 Taxes 8
2.9 Evidence of Debt 9
Section 3. REPRESENTATIONS AND WARRANTIES 9
Section 4. CONDITIONS PRECEDENT TO ISSUANCE
OF LETTERS OF CREDIT 9
Section 5. COVENANTS 9
Section 6. REIMBURSEMENT EVENTS OF DEFAULT 9
Section 7. MISCELLANEOUS 10
7.1 Amendments and Waivers 10
7.2 Notices 10
7.3 No Waiver; Cumulative Remedies 11
7.4 Survival 11
7.5 Payment of Expenses 11
7.6 Successors and Assigns 11
7.7 Severability 12
7.8 Headings 12
7.9 Counterparts 12
7.10 GE Capital Sole Beneficiary 12
7.11 GOVERNING LAW 12
7.12 SUBMISSION TO JURISDICTION; WAIVERS 13
7.13 Limitation of Liability 13
7.14 Special Exculpation 14
7.15 Certain Rights of Power Purchaser 14
EXHIBITS
Exhibit A Form of Performance Letter of Credit
Exhibit B Form of O&M Letter of Credit
Exhibit C Form of Interconnection Letter of Credit
LETTER OF CREDIT REIMBURSEMENT AGREEMENT (this
"Agreement"), dated as of December 18, 1996 among PANDA-
BRANDYWINE, L.P., a Delaware limited partnership (the
"Partnership"), PANDA BRANDYWINE CORPORATION, a Delaware
corporation and the sole general partner of the Partnership (the
"General Partner"), and GENERAL ELECTRIC CAPITAL CORPORATION, a
New York corporation ("GE Capital").
W I T N E S S E T H :
WHEREAS, capitalized terms used in these recitals shall
have the respective meanings assigned thereto in Section 1;
WHEREAS, the Partnership, the General Partner and GE
Capital entered into the Construction Loan Agreement and Lease
Commitment dated as of March 30, 1995 (the "Construction Loan
Agreement") pursuant to which GE Capital (i) provided
construction financing for the Project and (ii) agreed to issue
and deliver certain stand-by letters of credit during the Letter
of Credit Commitment Period for the account of the Partnership in
favor of the Power Purchaser to secure the following obligations
of the Partnership under the Power Purchase Agreement: (a) its
obligation to post development security (the "Development
Security Letter of Credit") as required by Section 4.1 of the
Power Purchase Agreement, (b) its obligation to post security in
respect of interconnection costs (the "Interconnection Letter of
Credit") as required by Section 4.2 of the Power Purchase
Agreement, (c) the Partnership's performance obligations under
the Power Purchase Agreement after the Commercial Operation Date
(the "Performance Letter of Credit") as required by Section 4.5
of the Power Purchase Agreement and (d) its obligation to provide
for operating and maintenance cost reserves pursuant to
Section 8.7 of the Power Purchase Agreement (the "O&M Letter of
Credit"; together with the Performance Letter of Credit and the
Interconnection Letter of Credit, the "PEPCO Letters of Credit"
or the "Letters of Credit");
WHEREAS, the construction of the Facility has been
substantially completed and the Date of Substantial Completion
has occurred;
WHEREAS, the Partnership has requested that the Owner
Participant cause the Owner Trustee to purchase the Facility from
the Partnership and lease the same to the Partnership as provided
in the Participation Agreement;
WHEREAS, the Partnership and the Owner Trustee are
entering into the Facility Lease and the other Lease Documents
pursuant to which, among other things, the Owner Trustee will
lease the Facility to the Partnership;
WHEREAS, the Owner Trustee is entering into the
Indenture pursuant to which, among other things, the Owner
Trustee is granting to Indenture Trustee a prior perfected
security interest in all of Owner Trustee's right, title and
interest in the Facility;
WHEREAS, the Development Security Letter of Credit
expired on or prior to December 10, 1996; and
WHEREAS, in connection with the foregoing transactions,
the Construction Loan Agreement is being terminated and the
Partnership and GE Capital are entering into this Reimbursement
Agreement to provide for the issuance by GE Capital to the Power
Purchaser of the PEPCO Letters of Credit and the reimbursement by
the Partnership of any drawings thereunder.
NOW, THEREFORE, in consideration of the premises and to
induce GE Capital to continue to issue and maintain outstanding
the Letters of Credit, the Partnership hereby agrees with GE
Capital as follows:
Section 1. DEFINITIONS
1.1 Defined Terms. Capitalized terms used in this
Agreement shall, unless otherwise defined herein, have the
respective meanings assigned thereto in Annex A to the
Participation Agreement.
1.2 Other Definitional Provisions. (a) All terms
defined in this Agreement shall have the defined meanings when
used in a Letter of Credit or in any certificate or other
document made or delivered pursuant hereto.
(b) As used herein and in any certificate or other
document made or delivered pursuant hereto, accounting terms not
defined in Annex A to the Participation Agreement, and accounting
terms partly defined in Annex A to the Participation Agreement,
to the extent not defined, shall have the respective meanings
given to them under GAAP.
(c) The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision
of this Agreement, and section, schedule and exhibit references
are to this Agreement unless otherwise specified.
(d) Any term defined by reference to an agreement,
instrument or other document shall have the meaning so assigned
to it whether or not such agreement, instrument or document is in
effect.
Section 2. ISSUANCE AND REIMBURSEMENT PROVISIONS
2.1 Issuance of Letters of Credit. (a) Subject to
the terms and conditions of this Agreement, GE Capital agrees to
issue and deliver (or continue to issue or to maintain
outstanding, as the case may be) certain stand-by letters of
credit during the Letter of Credit Commitment Period for the
account of the Partnership in favor of the Power Purchaser to
secure the Partnership's obligations under the Power Purchase
Agreement. The commitment of GE Capital to issue any Letter of
Credit, or increase the stated amount of any Letter of Credit,
shall terminate on the Letter of Credit Issuance Termination
Date.
(b) (i) The Performance Letter of Credit was
initially issued in the form of Exhibit A on the Commercial
Operation Date in the stated amount of $2,000,000 and shall
expire on the earlier to occur of (A) the next succeeding
December 31 and (B) the Letter of Credit Commitment Termination
Date; provided, however, that clause (A) notwithstanding, the
Performance Letter of Credit issued on the Commercial Operation
Date shall expire on December 31, 1997.
(ii) So long as no Reimbursement Default,
Reimbursement Event of Default, Lease Default or Lease Event of
Default shall have occurred and be continuing at such time, the
O&M Letter of Credit shall initially be issued substantially in
the form of Exhibit B hereto on December 31, 1998 in the stated
amount of $1,000,000 and shall expire on the earlier to occur of
(A) the next succeeding December 31 and (B) the Letter of Credit
Commitment Termination Date. So long as no Reimbursement
Default, Reimbursement Event of Default, Lease Default or Lease
Event of Default shall have occurred and be continuing at such
time, the O&M Letter of Credit shall be amended on December 31,
1999 to increase the stated amount to $2,000,000 and shall be
amended on December 31, 2000 to increase the stated amount to
$5,000,000 in accordance with the terms of the Power Purchase
Agreement.
(iii) The Interconnection Letter of Credit was
initially issued in the form of Exhibit C on the Initial Loan
Funding Date in the stated amount of $2,003,460 (which stated
amount was reduced to $330,000 on July 1, 1996) and shall expire
on the earlier to occur of (A) the date occurring 180 days after
the Commercial Operation Date and (B) June 30, 1998.
(c) On or prior to October 31 of each calendar year
after the occurrence of the Commercial Operation Date, the
Partnership shall deliver a certificate to GE Capital confirming
that the Partnership continues to have obligations to the LOC
Beneficiary and requesting GE Capital to renew the Letters of
Credit referred to in paragraphs (b)(i) and (ii) above. So long
as no Reimbursement Default, Reimbursement Event of Default,
Lease Default or Lease Event of Default shall have occurred and
be continuing, on or prior to the November 30 next succeeding the
delivery of the notice specified in the immediately preceding
sentence, GE Capital shall deliver to the LOC Beneficiary a
replacement Letter of Credit in a stated amount equal to the
amount requested and having an effective date on the next
succeeding January 1 and an expiration date the following
December 31 (or GE Capital, at its option, may amend the existing
Letter of Credit to extend its expiration date to the following
December 31). GE Capital's obligation to renew (or extend the
maturity date of Letters of Credit pursuant to this paragraph
(c)) shall expire on the Letter of Credit Commitment Termination
Date.
(d) The Letter of Credit Commitment shall automatically
decrease (on a dollar for dollar basis) with any corresponding
decrease in the stated amount of any Letter of Credit or with any
termination of any Letter of Credit.
(e) The aggregate stated amount of the Letters of Credit
at any time shall not exceed the lesser of (i) $7,330,000 and
(ii) the then applicable Letter of Credit Commitment.
2.2 Reimbursement Obligations. (a) If GE Capital
makes any payment to a LOC Beneficiary with respect to a Letter
of Credit, the Partnership shall reimburse GE Capital for the
amount thereof not later than the close of business on the
Business Day on which payment by GE Capital was made and shall
pay all charges and expenses relating to such payment and, if
such payment is not made when due, shall pay upon demand interest
at a rate equal to the Base Rate plus 2.50% on the amount of such
payment for the period commencing on and including the date of
any such payment and ending on but not including the date
reimbursement is received by GE Capital (after as well as before
judgment). The obligation of the Partnership to reimburse
GE Capital for Letter of Credit payments (such obligation being
herein called the "LOC Reimbursement Obligation") is absolute,
unconditional and irrevocable and shall be observed strictly in
accordance with the terms of this Agreement under all
circumstances whatsoever including, without limitation, the
following circumstances: (i) any lack of legality, validity,
enforceability or regularity of any Letter of Credit, this
Agreement or any other Transaction Document; (ii) any amendment,
waiver of or any consent to or departure from all or any of the
Transaction Documents; (iii) the existence of any claim, set-off,
defense, counterclaim or other right which the Partnership may
have at any time against GE Capital, the Owner Trustee, the
Security Agent, the Indenture Trustee, any LOC Beneficiary or any
other person, whether in connection with this Agreement, any
Letter of Credit, the Lease Documents, the Project Documents or
any unrelated transaction; (iv) any statement or any other
document presented under any Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect whatsoever;
(v) payment by GE Capital under any Letter of Credit against
presentation of a sight draft or certificate that does not comply
with the terms of such Letter of Credit; (vi) the existence of
any dispute between the Partnership and any LOC Beneficiary or
any transferee thereof; (vii) any error, omission, interruption
or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of
Credit; and (viii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing.
(b) Without limiting the effect of paragraph (a)
above, the Partnership agrees with GE Capital that:
(i) GE Capital is authorized to make payments
under each Letter of Credit upon the presentation of the
documents provided for therein and without regard to whether
the Partnership has failed to fulfill any of its obligations
with respect to any Project Document, Lease Document or
other Financing Document or any other default has occurred
thereunder.
(ii) GE Capital is authorized to take such action
on its behalf under the provisions of this Agreement and to
exercise such powers and perform such duties as are
specifically delegated to or required of it by the terms
hereof, together with such powers as are reasonably
incidental thereto.
(iii) GE Capital shall be entitled to rely upon any
certificate, notice, demand or other communication (whether
by cable, telegram, telecopy, telex or other written
communication) believed by it to be genuine and to have been
signed or sent by the proper Person or Persons (and no such
reliance or failure shall place it under any liability to
the Partnership or limit or otherwise affect the
Partnership's obligations under this Agreement).
(iv) Any action, inaction or omission on the part
of GE Capital under or in connection with any Letter of
Credit or the instruments or documents related thereto, if
in good faith and in conformity with such laws, regulations
or customs as GE Capital may reasonably deem to be
applicable, shall be binding upon the Partnership (and shall
not place GE Capital under any liability to the Partnership
or limit or otherwise affect the Partnership's obligations
under this Agreement).
(v) Notwithstanding any change or modification,
with or without the consent of the Partnership, in any
instruments or documents called for in any Letter of Credit,
including waiver of noncompliance of any such instruments or
documents with the terms of any Letter of Credit, this
Agreement shall be binding on the Partnership with regard to
each Letter of Credit and to any action taken by GE Capital
relative thereto.
(vi) The Partnership will indemnify and hold
harmless GE Capital from any loss or expense arising from or
in connection with any Letter of Credit (exclusive of any
loss or expense arising directly from the gross negligence
or wilful misconduct of GE Capital).
2.3 Letter of Credit Fees. (a) On the initial date
of issuance of each Letter of Credit hereunder, the Partnership
agrees to pay to GE Capital a letter of credit issuance fee in an
amount equal to one and three-quarters percent (1.75%) of the
stated amount thereof.
(b) So long as a Letter of Credit shall be
outstanding, the Partnership agrees to pay to GE Capital an
annual letter of credit fee in an amount equal to one and one-
half percent (1.50%) of the stated amount of each Letter of
Credit then outstanding. From the date hereof to and including
the Basic Term Commencement Date, such fee shall be payable in
arrears on the next-to-last Business Day of each March, June,
September and December, commencing with the first such date to
occur following the initial issuance date of a Letter of Credit
hereunder. From the Basic Term Commencement Date to and
including the end of the Basic Term, such fee shall be payable in
arrears on each Rent Payment Date (each such payment date, an
"LOC Fee Payment Date").
(c) During the Letter of Credit Commitment Period, the
Partnership shall pay to GE Capital an annual letter of credit
commitment fee in an amount equal to one-hundred and twenty-five
basis points (1.25%) multiplied by the amount by which the Letter
of Credit Commitment exceeds the aggregate stated amount of the
then outstanding Letter(s) of Credit. The letter of credit
commitment fee shall be payable on each LOC Fee Payment Date.
2.4 Payments. All payments (including prepayments) to
be made by the Partnership on account of principal, interest,
reimbursement obligations and fees shall be made without set-off
or counterclaim and shall be made not later than 12:00 Noon New
York City time on the date when due and shall be sent by wire
transfer to GE Capital's account no. 00-000-000 (GECC Depositary
Account) at Bankers Trust Company, Xxx Xxxx, Xxx Xxxx 00000, ABA
Number: 0000-0000-0 (Re: Panda Brandywine) in lawful money of
the United States of America and in immediately available funds;
provided that so long as the Security Deposit Agreement shall
remain in effect, all payments shall be made to the Security
Agent in accordance with the terms of the Security Deposit
Agreement, including without limitation, with regard to deposits
to the LOC Fee Account as described therein. Subject to the
Security Deposit Agreement, any payment received by GE Capital
after 12:00 Noon shall be deemed to have been paid on the next
succeeding Business Day. If any payment hereunder becomes due
and payable on a day other than a Business Day, such payment
shall be extended to the next succeeding Business Day and, with
respect to payments of principal, interest thereon shall be due
and payable at the then applicable rate during such extension.
2.5 Mandatory Collateralization. If an Event of Loss
shall occur, unless the Project is being repaired in accordance
with Section 9(c)(i) of the Facility Lease, on the earlier of (i)
the date occurring 90 days after the date of such Event of Loss
and (ii) the date on which insurance proceeds are received with
respect to such Event of Loss, the Partnership shall (A) prepay
in full the unpaid principal amount of the then outstanding LOC
Reimbursement Obligations, together with accrued interest thereon
to the date of prepayment, and all fees and other amounts owing
with respect thereto by the Partnership hereunder and (B) cash
collateralize all undrawn and outstanding Letters of Credit in
the manner provided in the introductory paragraph of Section 6.
2.6 Computation of Interest and Fees. (a) All fees
payable hereunder shall be calculated on the basis of a 360-day
year for the actual days elapsed. Interest shall be calculated
on the basis of a year of 365/366 days.
(b) It is the intention of the parties hereto to
conform strictly to applicable usury laws and, anything herein or
elsewhere to the contrary notwithstanding, interest on the LOC
Reimbursement Obligations shall be subject to the limitation that
the Partnership shall not be required to pay, and GE Capital
shall not be entitled to charge or receive, any interest to the
extent that such interest exceeds the maximum rate of interest
which GE Capital is permitted by any applicable law to contract
for, charge or receive and which would not give rise to any claim
or defense of usury. If, as a result of any circumstances
whatsoever, performance of any provision hereof shall, at the
time performance of such provision is due, violate applicable
usury law, then, ipso facto, the obligation to be performed shall
be reduced to the highest lawful rate, and if, from any such
circumstance, GE Capital shall ever receive interest or anything
which might be deemed interest under applicable law which would
exceed the highest lawful rate, the amount of such excess
interest shall be applied to the amounts owing on the LOC
Reimbursement Obligations and not to the payment of interest, or
if such excessive interest exceeds the unpaid balance of the LOC
Reimbursement Obligations, such excess shall be refunded to the
Partnership.
2.7 Compensation for Increased Costs. (a) In the
event that any Law or any change therein or in the interpretation
or application thereof by any Governmental Authority charged with
the administration or interpretation thereof, or compliance by GE
Capital with any request or directive (whether or not having the
force of Law) received from any central bank or monetary
authority or other Governmental Authority:
(i) does or shall subject GE Capital to any tax of any
kind whatsoever or change therein with respect to this
Agreement, or any Letter of Credit issued by GE Capital, or
the performance by GE Capital of its obligations hereunder,
or change the basis of taxation of payments to GE Capital of
principal, interest, or any other amount payable hereunder
(except for changes in the rate of tax on the overall net
income of GE Capital); or
(ii) does or shall impose, modify or hold
applicable or change any reserve (including, without
limitation, basic, supplemental, marginal and emergency
reserves), special deposit, compulsory loan or similar
requirement against assets held by, deposits or other
liabilities in or for the account of, advances or loans
by, or other credit extended by, or any other
acquisition of funds by (including, without limitation,
all eurocurrency funding by and all eurocurrency
liabilities), any office of GE Capital; or
(iii) does or shall impose on GE Capital any other
condition, or change therein;
and the result of any of the foregoing is to increase the cost to
GE Capital (as compared to the Initial Loan Funding Date) of
issuing or maintaining any Letter of Credit or to reduce any
amount receivable by GE Capital hereunder (as compared to the
Initial Loan Funding Date), then, in any such case, the
Partnership shall promptly pay GE Capital, upon its demand, such
additional amount which will compensate GE Capital for such
additional cost or reduced amount receivable.
(b) In the event that the adoption of any Law, rule,
regulation or guideline regarding capital adequacy, or any change
therein or in the interpretation or application thereof by any
Governmental Authority charged with the administration or
interpretation thereof or compliance by GE Capital with any
request or directive regarding capital adequacy (whether or not
having the force of Law) from any central bank or Governmental
Authority including, without limitation, the issuance of any
final rule, regulation or guideline, does or shall have the
effect of reducing the rate of return on GE Capital's capital as
a consequence of its obligations hereunder to a level below that
which GE Capital could have achieved but for such adoption,
change or compliance (taking into consideration GE Capital's
policies with respect to capital adequacy) by any material
amount, then from time to time, upon demand by GE Capital, the
Partnership shall pay to GE Capital such additional amount or
amounts as will compensate GE Capital for such reduction.
(c) If circumstances arise that would entitle GE
Capital to claim any additional amounts pursuant to this
subsection 2.7, GE Capital shall promptly notify the Partnership
thereof and consult in good faith with the Partnership with a
view toward avoiding such circumstance to the extent reasonably
practicable; provided that the failure of GE Capital to so notify
or consult the Partnership shall not act as a waiver of the right
of GE Capital to receive additional amounts pursuant to this
subsection 2.7 when GE Capital provides the required notice to
the Partnership. A certificate as to any additional amounts
payable pursuant to this subsection 2.7 submitted by GE Capital
to the Partnership shall be conclusive absent manifest error.
The provisions of this subsection 2.7 shall accrue to the benefit
of each assignee of GE Capital and shall survive the termination
of this Agreement, payment of the LOC Reimbursement Obligations
and all other amounts payable hereunder.
2.8 Taxes. All payments made by the Partnership under
this Agreement shall be made free and clear of, and without
reduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any
Governmental Authority (all such taxes, levies, imposts,
deductions, charges or withholdings being hereinafter called
"Withholding Taxes"). If any Withholding Taxes are required to
be withheld from any amounts payable to GE Capital hereunder, the
amounts so payable to GE Capital shall be increased to the extent
necessary to yield to GE Capital (after payment of all
Withholding Taxes) interest or any such other amounts payable
hereunder at the rates and in the amounts specified in this
Agreement. Notwithstanding the preceding two sentences, the
Partnership will have no duty to compensate GE Capital for
amounts that the Partnership is required to withhold under
Section 1441 or 1442 of the Code. Whenever any Withholding Taxes
are payable by the Partnership, as promptly as possible
thereafter, the Partnership shall send to GE Capital a certified
copy of an original official receipt received by the Partnership
showing payment thereof. If the Partnership fails to pay any
Withholding Taxes when due to the appropriate taxing authority or
fails to remit to GE Capital the required receipts or other
required documentary evidence, the Partnership shall indemnify GE
Capital for (i) any incremental taxes, interest or penalties that
may become payable by GE Capital as a result of any such failure
and (ii) any expenses incurred by GE Capital arising from or with
respect to such Withholding Taxes. This indemnification shall be
made within 30 days from the date GE Capital makes written demand
therefor. The agreements in this subsection 2.8 shall accrue to
the benefit of each LOC Participant under subsection 7.6 and
shall survive the termination of this Agreement and the payment
of the LOC Reimbursement Obligations and all other amounts
payable hereunder.
2.9 Evidence of Debt. GE Capital shall maintain, in
accordance with its usual practice, an account or accounts
evidencing the indebtedness of the Partnership resulting from
each drawing under any Letter of Credit and the amounts of
principal and interest payable and paid from time to time in
respect thereof hereunder. In any legal action or proceeding in
respect of this Agreement or any Letter of Credit, the entries
made in such account or accounts shall, in the absence of
manifest error, be conclusive evidence of the existence and
amounts of the obligations of the Partnership therein recorded.
Section 3. REPRESENTATIONS AND WARRANTIES
In order to induce GE Capital to enter into this
Agreement, each of the Partnership and the General Partner shall
make (or be deemed to have made) the representations and
warranties set forth in Section 3 of the Participation Agreement.
Section 4. CONDITIONS PRECEDENT TO ISSUANCE
OF LETTERS OF CREDIT
The obligation of GE Capital to execute and deliver
this Agreement is subject to the fulfillment to the satisfaction
in form and substance of, or waiver by, GE Capital, of each of
the conditions precedent set forth in Section 5.1 of the
Participation Agreement.
Section 5. COVENANTS
So long as any Letter of Credit or LOC Reimbursement
Obligation remains outstanding, each of the Partnership and the
General Partner hereby agrees, for the benefit of GE Capital and
the LOC Participants, to comply with the covenants set forth in
Sections 6 and 7 of the Participation Agreement.
Section 6. REIMBURSEMENT EVENTS OF DEFAULT
If any of the Reimbursement Events of Default listed
below shall occur and be continuing, (i) GE Capital or the
Administrative Agent may demand that the Partnership immediately
pay to GE Capital an amount equal to the full amount available to
be drawn under the Letter(s) of Credit whereupon the Partnership
shall immediately make such payment to GE Capital which shall
hold such payment as collateral security for the LOC
Reimbursement Obligations of the Partnership; and/or (ii) the
Security Agent or the Indenture Trustee may foreclose on any or
all of the Collateral in accordance with the Collateral Security
Agreements; and/or (iii) GE Capital, the Security Agent or the
Indenture Trustee may proceed to enforce all other remedies
available to them under Applicable Law. Notwithstanding the
foregoing, if a Reimbursement Event of Default referred to in
paragraph (f) or (g) of Section 14 of the Facility Lease shall
occur with respect to the Partnership, the General Partner, the
Limited Partner, Panda or Holdings, automatically and without
notice the actions described in clause (i) above shall be deemed
to have occurred. The Partnership consents to the provisions of
Section 9.13(b) of the Security Deposit Agreement.
Such Reimbursement Events of Default include the
following:
(a) Any LOC Reimbursement Obligation shall not be paid
when due and shall remain unpaid for five or more days; or
(b) a Lease Event of Default shall have occurred.
Section 7. MISCELLANEOUS
7.1 Amendments and Waivers. This Agreement may not be
changed, waived, discharged or terminated unless such change,
waiver, discharge or termination is in writing signed by the
Partnership, GE Capital, the General Partner and, for so long as
the Indenture shall not have been discharged, the Administrative
Agent and, to the extent required by Subsection 8.9(b) of the
Power Purchase Agreement, consented to by the Power Purchaser.
7.2 Notices. All notices, requests and demands to or
upon the respective parties hereto to be effective shall be in
writing, by telecopier or by telex and, unless otherwise
expressly provided herein, shall be deemed to have been duly
given or made when delivered by hand, or three days after being
deposited in the mail, first class postage prepaid, or, in the
case of a nationally recognized overnight courier service, one
Business Day after delivery to such courier service, or in the
case of transmission by telecopier, when confirmation of receipt
is obtained, or in the case of telex notice, when sent,
answerback received, addressed as follows, or to such other
address as may be hereafter notified by the respective parties
hereto:
The Partnership: Panda-Brandywine, L.P.
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Chairman,
with a copy to the General Counsel
GE Capital: General Electric Capital Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Vice President,
Energy Project Operations.
7.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of GE Capital
(or, pursuant to Section 9.13(b) of the Security Deposit
Agreement, Administrative Agent or Indenture Trustee), any right,
remedy, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of
any rights, remedies, powers and privileges provided by law.
7.4 Survival. All representations and warranties made
hereunder, incorporated by reference herein and in any document,
certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of
this Agreement and the Letters of Credit.
7.5 Payment of Expenses. (a) The Partnership shall
pay all reasonable out-of-pocket expenses incurred by GE Capital
with respect to the negotiation, preparation, execution and
delivery of this Agreement and the Letters of Credit, any and all
transactions contemplated hereby or thereby and the preparation
of any document reasonably required hereunder or thereunder,
including (without limiting the generality of the foregoing) all
reasonable fees and expenses of Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel for GE Capital, recording and filing fees and taxes,
revenue and tax stamp expenses, and reasonable attorneys' fees
and disbursements, and will reimburse to GE Capital all expenses
paid by it of the nature described in this subsection 7.5 which
have been or may be incurred by GE Capital, with respect to any
and all of the transactions contemplated herein.
(b) The Partnership shall pay all reasonable out-of-
pocket costs and expenses in connection with the preservation of
rights under, and enforcement of, this Agreement or any Letter of
Credit or in connection with any restructuring or rescheduling of
the LOC Reimbursement Obligations (including, without limitation,
the reasonable fees and disbursements of counsel).
7.6 Successors and Assigns. (a) This Agreement shall
be binding upon and inure to the benefit of the Partnership,
GE Capital and their respective successors and assigns (including
any LOC Participant, the Administrative Agent and the Indenture
Trustee), except that the Partnership may not assign or transfer
any of its rights or obligations under this Agreement without the
prior written consent of GE Capital. Any assignment or transfer
made by the Partnership without the prior written consent of GE
Capital shall be void and of no effect.
(b) The Partnership acknowledges that GE Capital may,
in the ordinary course of its business and in accordance with
Applicable Law, at any time grant risk participations in all or
any portion of the Letters of Credit or of its right, title and
interest therein or in this Agreement and the Collateral Security
Documents (collectively, "Participations") to one or more banks
or other financial institutions or other entities ("LOC
Participants"); provided that no such Participation shall, at the
time of such Participation, subject the Partnership to any
increased costs or taxes for which the Partnership has agreed to
indemnify GE Capital hereunder.
(c) The Partnership authorizes GE Capital to disclose
to any prospective LOC Participant all financial information in
GE Capital's possession concerning the Partnership, the General
Partner or the Project which has been delivered to GE Capital by
or on behalf of the Partnership pursuant to this Agreement or any
other Transaction Document or which has been delivered to
GE Capital by or on behalf of the Partnership in connection with
GE Capital's credit evaluation of the Partnership and the Project
prior to or after entering into this Agreement; provided,
however, that prior to furnishing any information marked in
writing as being confidential information, GE Capital shall
either (i) obtain Panda's or the Partnership's consent to the
furnishing of such information or (ii) require the prospective
LOC Participant to execute a reasonably satisfactory
confidentiality agreement with respect to such confidential
information in favor of the Partnership.
7.7 Severability. Any provision hereof which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof and without affecting the validity or enforceability of
any provision in any other jurisdiction.
7.8 Headings. The headings of the various sections
and paragraphs of this Agreement are for convenience of reference
only, do not constitute a part hereof and shall not affect the
meaning or construction of any provision hereof.
7.9 Counterparts. This Agreement may be executed by
one or more of the parties hereto on any number of separate
counterparts and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
7.10 GE Capital Sole Beneficiary. All conditions of
the obligations of GE Capital to issue the Letter(s) of Credit
are imposed solely and exclusively for the benefit of GE Capital
and its assigns (including each LOC Participant, the
Administrative Agent and the Indenture Trustee) and no other
Person shall have standing to require satisfaction of such
conditions in accordance with their terms or be entitled to
assume that GE Capital will refuse to issue Letters of Credit in
the absence of strict compliance with any or all thereof and no
Person shall, under any circumstances, be deemed to be a
beneficiary of such conditions, any or all of which may be freely
waived in whole or in part by GE Capital at any time if in its
sole discretion it deems it advisable to do so. GE Capital is
obligated hereunder solely to issue Letters of Credit if and to
the extent required by this Agreement.
7.11 GOVERNING LAW. THIS AGREEMENT AND THE LETTER(S)
OF CREDIT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS AGREEMENT AND THE LETTER(S) OF CREDIT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
7.12 SUBMISSION TO JURISDICTION; WAIVERS. (a) EACH
OF THE PARTNERSHIP AND THE GENERAL PARTNER HEREBY IRREVOCABLY AND
UNCONDITIONALLY:
(i) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR FOR
RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK, THE COURTS OF THE UNITED
STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND
APPELLATE COURTS FROM ANY THEREOF;
(ii) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING
MAY BE BROUGHT IN SUCH COURTS, AND WAIVES ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION
OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES
NOT TO PLEAD OR CLAIM THE SAME;
(iii) AGREES THAT SERVICE OF PROCESS IN ANY SUCH
ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY
THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY
SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID TO IT
AT ITS ADDRESS SPECIFIED IN SUBSECTION 7.2 AND, IF
APPLICABLE, TO GE CAPITAL AT ITS ADDRESS SET FORTH IN
SUBSECTION 7.2 HERETO OR AT SUCH OTHER ADDRESS OF WHICH
GE CAPITAL OR THE PARTNERSHIP OR THE GENERAL PARTNER, IF
APPLICABLE, SHALL HAVE BEEN NOTIFIED PURSUANT HERETO; AND
(iv) AGREES THAT NOTHING HEREIN OR THEREIN SHALL
AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO XXX IN
ANY OTHER JURISDICTION.
(b) EACH OF THE PARTNERSHIP, AND THE GENERAL PARTNER AND
GE CAPITAL HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO OR ARISING OUT
OF THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
7.13 Limitation of Liability. There shall be full
recourse to the Partnership and all of its assets for the
liabilities of the Partnership under this Agreement, but in no
event shall any Partner, Affiliate of any Partner, or any
officer, director or employee of the Partnership, any Partner or
their Affiliates or any holder of any equity interest in any
Partner be personally liable or obligated for such liabilities
and LOC Reimbursement Obligations of the Partnership, except as
may be specifically provided herein or in any other Transaction
Document to which such Partner is a party or in the event of
fraudulent actions, knowing misrepresentations, gross negligence
or willful misconduct by the Partnership, any Partner or any of
their Affiliates in connection with the financing contemplated by
this Agreement. Subject to the foregoing limitation on
liability, GE Capital, Security Agent or Indenture Trustee may
xxx or commence any suit, action or proceeding against any
Partner or any Affiliate thereof in order to obtain jurisdiction
over the Partnership in order to enforce its rights and remedies
hereunder. Nothing herein contained shall limit or be construed
to limit the liabilities and obligations of any Partner or any
Affiliate thereof in accordance with the terms of any other
Transaction Document creating such liabilities and obligations to
which such Partner or Affiliate is a party.
7.14 Special Exculpation. No claim may be made by the
Partnership, the General Partner or any other Person claiming by
or through the Partnership or the General Partner against GE
Capital or any of its successors, assigns (including any LOC
Participant), Affiliates, directors, officers, employees,
attorneys or agents for any special, indirect, consequential or
punitive damages in respect of any claim for breach of contract
or any other theory of liability arising out of or related to the
transactions contemplated by this Agreement, or any act, omission
or event occurring in connection therewith; and the Partnership
hereby waives, releases and agrees not to xxx upon any claim for
any such damages, whether or not accrued and whether or not known
or suspected to exist in its favor.
7.15 Certain Rights of Power Purchaser. Nothing in
this Agreement shall be deemed to limit the provisions of the
Consent of the Power Purchaser, which provisions are solely for
the benefit of the Power Purchaser and not the Partnership.
Without limiting the scope of the foregoing, the parties hereto
agree, for the exclusive benefit of the Power Purchaser and not
the Partnership, that the exercise of remedies or any similar
action under this Agreement is subject to, and shall be conducted
in a manner consistent with, the Power Purchaser's rights under
(i) the Consent of the Power Purchaser and (ii) the Power
Purchase Agreement and the Transfer Agreement (to the extent such
rights under the Power Purchase Agreement and the Transfer
Agreement are not explicitly waived by the Power Purchaser in
accordance with the terms of the Consent of the Power Purchaser).
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
PANDA-BRANDYWINE, L.P.
By: Panda Brandywine Corporation, its
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
PANDA BRANDYWINE CORPORATION, as the
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Manager of Operations
Exhibit A to
Reimbursement Agreement
Irrevocable Letter of Credit No. PAN-003
BENEFICIARY POTOMAC ELECTRIC POWER COMPANY
APPLICANT; PANDA BRANDYWINE, L.P.
October 30, 1996
Potomac Electric Power Company
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Manager, Supply Side Resources
1. General Electric Capital Corporation (the "Issuer")
hereby establishes, at the request and for the account of
Panda-Brandywine, L.P. a Delaware limited partnership
(the "Partnership"), this irrevocable Letter of Credit in
favor of Potomac Electric Power Company, (hereinafter
referred to as the "Beneficiary"), available to be drawn
in an amount not to exceed USD $2,000,000 (Two million US
dollars) (the "Stated amount"). This Letter of Credit is
provided pursuant to the provisions of Section 4.5 of the
Power Purchase Agreement, dated as of August 9, 1991, as
amended from time to time, between the Beneficiary and the
Partnership, (the "Power Purchase Armament,"). Subject to
paragraph 3 below, this Letter of Credit is available to
the Beneficiary from the date hereof through December 31,
1997 (the "Expiration Date").
2. We shall make funds available to you under this
Letter of Credit against your sight draft drawn on
the Issuer in the form of Annex 1 hereto, accompanied
by a certificate in the form of Annex 2 hereto signed
by an authorized officer of the Beneficiary and
presentation of the originally executed copy of this
Letter of Credit for examination and retention by the
Issuer. Such draft and certificate shall be dated
the date of presentation and shall be presented at
our office located at 0000 Xxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, Attention Vice President, Energy
Project Operations. A presentation under this Letter
of Credit may be made only on a day on which such
office is open for business (a "Business Day"). If
we receive your draft and certificate, and the
originally executed copy of this Letter of Credit, at
such office on a Business Day, we will honor the
same, notwithstanding any challenges to such payment
made by any person for any reason (including, but not
limited to, claims of illegality, unenforceability or
fraud in connection with the transaction), by making
payment in accordance with your payment instructions
on the next Business Day following presentment of
such draft and certificate. Payment hereunder shall
be made by transferring the amount thereof, in
accordance with the terms of this Letter of Credit in
immediately available funds to the account specified
in your sight draft. Beneficiary shall not be
required to give any notice to the Partnership and
the prior approval of the Partnership shall not be
required before payment is made under this Letter of
Credit.
3. Unless extended pursuant to amendment to this
Letter of Credit duly executed by us, this Letter of
Credit shall expire upon the earliest to occur of (i)
our receipt of a notice in the form of Annex 3 hereto
signed by an authorized officer of the Beneficiary
surrendering to us this Letter of Credit for
cancellation, (ii) our honoring of a draft presented
hereunder and (iii) our close of business at our
aforesaid office on the Expiration Date. This Letter
of Credit shall be surrendered to us by you upon
expiration.
4. Only you or your successors and assigns permitted
by paragraph 8 may make a drawing under this Letter
of Credit. Upon payment to you of any amount
demanded hereunder, we shall be fully discharged of
our obligation under this Letter of Credit, and we
shall not thereafter be obligated to make any further
payment under this Letter of Credit.
5. By paying you an amount demanded in accordance
with this Letter of Credit, we make no representation
as to the correctness of any representation or
statement made by you in connection with this Letter
of Credit, including but not limited to any made by
you in any certificate in the form of Annex 2 hereto.
6. This Letter of Credit is subject to the Uniform
Customs and Practice for Documentary Credits (1993
Revision), International Chamber of Commerce
Publication No, 500, as amended from time to time (the
"Uniform Customs"). This Letter of Credit shall be
deemed to be a contract made under the law of the
State of New York, and shall, as to matters not
governed by the Uniform Customs, be governed and
construed in accordance with the law of said State.
7. Communications with respect to this Letter of
Credit shall be in writing and shall be addressed to
us at the following address:
General Electric Capital Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Vice President, Energy Project Operations
8. This Letter of Credit is transferable in its
entirety (but not in part) to any transferee who has
succeeded you as successor in interest to receipt of
the benefit of the obligations of the Partnership to
provide Performance Security (as defined in the Power
Purchase Agreement) under the Power Purchase
Agreement (including, but not limited to, your rights
to draw upon such Performance Security under the
Power Purchase Agreement) and such transferred Letter
of Credit may be successively so transferred.
Without limiting the scope of the foregoing sentence,
the Issuer acknowledges and agrees that the
Beneficiary will so transfer this Letter of Credit to
Constellation Energy Corporation effective upon the
merger of the Beneficiary with Constellation Energy
Corporation. If you present to us this Letter of
Credit accompanied by the transfer attached hereto as
Annex 4, appropriately completed, then this Letter of
Credit shall be transferred to the transferee so
designated in Annex 4. This Letter of Credit is not
transferable or assignable in any other manner or to
any other person.
This Letter of Credit sets forth in full our
undertaking, and such undertaking shall not in any
way be modified, amended, amplified or limited by
reference to any document, instrument or agreement
referred to herein, except for Annex 1, Annex 2,
Annex 3, and Annex 4 hereto and to the notices
referred to herein. Any such reference shall not be
deemed to incorporate herein by reference any
document, instrument or agreement except as set forth
above.
This Letter of Credit may not be amended except in
writing signed by the Beneficiary and the Issuer.
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxx X. Xxxxx
Exhibit B to
Reimbursement Agreement
[Form of O&M Letter of Credit]
[To be issued on the date which is the
later of (i) December 31, 1998 and
(ii) the second anniversary of the
Commercial Operation Date]
[Note: This amount to be increased to
$2,000,000 after one year and to
$5,000,000 after two years]
Irrevocable Letter of Credit No. ___________
BENEFICIARY: POTOMAC ELECTRIC POWER COMPANY
APPLICANT: PANDA-BRANDYWINE, L.P.
April __, 1995
Potomac Electric Power Company
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Manager, Supply Side Resources
1. General Electric Capital Corporation (the "Issuer") hereby
establishes, at the request and for the account of Panda-
Brandywine L.P., a Delaware limited partnership (the
"Partnership"), this irrevocable Letter of Credit in favor of
Potomac Electric Power Company, (hereinafter referred to as the
"Beneficiary"), available to be drawn in an amount not to exceed
USD $1,000,000 (One million US dollars) (the "Stated Amount").
This Letter of Credit is provided pursuant to the provisions of
Section 8.7 of the Power Purchase Agreement, dated as of August
9, 1991, as amended from time to time, between the Beneficiary
and the Partnership, (the "Power Purchase Agreement"). Subject
to paragraph 3 below, this Letter of Credit is available to the
Beneficiary from the date hereof through [Insert first anniversary
date of issuance] (the "Expiration Date").
2. We shall make funds available to you from time to time under
this Letter of Credit against your sight draft(s) drawn on the
Issuer in the form of Annex 1 hereto, accompanied by a
certificate in the form of Annex 2 hereto signed by an authorized
officer of the Beneficiary and presentation of the originally
executed copy of this Letter of Credit for examination by the
Issuer, provided that the Beneficiary shall retain such original
executed copy of the Letter of Credit. Such draft and
certificate shall be dated the date of presentation and shall be
presented at our office located at 0000 Xxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000-0000, Attention: Vice President, Energy Project
Operations. A presentation under this Letter of Credit may be
made only on a day on which such office is open for business (a
"Business Day"). If we receive your draft and certificate, and
the originally executed copy of this Letter of Credit, at such
office on a Business Day, we will honor the same, notwithstanding
any challenges to such payment made by any person for any reason
(including, but not limited to, claims of illegality,
unenforceability or fraud in connection with the transaction) by
making payment in accordance with your payment instructions on
the next Business Day following presentment of such draft and
certificate. Payment hereunder shall be made by transferring the
amount thereof, in accordance with the terms of this Letter of
Credit, in immediately available funds to the account specified
in your sight draft. Beneficiary shall not be required to give
any notice to the Partnership and the prior approval of the
Partnership shall not be required before payment is made under
this Letter of Credit.
3. Unless extended pursuant to amendment to this Letter of
Credit duly executed by us, this Letter of Credit shall expire
upon the earliest to occur of (i) our receipt of a notice in the
form of Annex 3 hereto signed by an authorized officer of the
Beneficiary surrendering to us this Letter of Credit for
cancellation and (ii) our close of business at our aforesaid
office on the Expiration Date. This Letter of Credit shall be
surrendered to us by you upon expiration.
4. Only you or your successors and assigns permitted by
paragraph 8 may make a drawing under this Letter of Credit.
Multiple drawings may be made under this Letter of Credit,
provided, however, that each drawing hereunder shall pro tanto
reduce the amount available to be drawn hereunder by the amount
of such drawing, subject to reinstatement (as provided herein),
and provided that no demand for payment hereunder shall exceed
the Maximum Available Amount in effect at such time. This is a
revolving Letter of Credit and following any payment hereunder,
the amount available to be drawn hereunder shall be reinstated as
of such day on which the Beneficiary shall have received from the
Issuer a completed Notice of Reinstatement substantially in the
form of Annex 5 attached hereto, appropriately completed, such
reinstatement to be to the Maximum Available Amount indicated in
such Notice of Reinstatement. A Notice of Reinstatement may be
delivered either personally or by facsimile transmission to the
Beneficiary, at __________ (or such other number as shall be
notified by the Beneficiary to the Issuer) and (b) such
transmission is promptly followed by a hard copy sent by
overnight courier. As used in this Letter of Credit, the term
"Maximum Available Amount" shall mean the Stated Amount prior to
the initial drawing hereunder, and thereafter shall mean the
amount specified as the "Maximum Available Amount" in the most
recent Notice of Reinstatement delivered to the Beneficiary by
the Issuer; provided, that the Maximum Available Amount shall at
no time exceed the Stated Amount of this Letter of Credit then in
effect. Each reduction and increase in the Maximum Available
Amount as a result of a drawing hereunder or a Notice of
Reinstatement shall be deemed to be, and shall be, an amendment
to this Letter of Credit in respect of the amount available to be
drawn hereunder. Upon payment to you of any amount demanded
hereunder, we shall be fully discharged of our obligation under
this Letter of Credit with respect to such demand, and we shall
not thereafter be obligated to make any further payments under
this Letter of Credit in respect of such demand to you or any
other person.
5. By paying you an amount demanded in accordance with this
Letter of Credit, we make no representation as to the correctness
of any representation or statement made by you in connection with
this Letter of Credit, including but not limited to any made by
you in any certificate in the form of Annex 2 hereto.
6. This Letter of Credit is subject to the Uniform Customs and
Practice for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500, as amended from time to
time (the "Uniform Customs"). This Letter of Credit shall be
deemed to be a contract made under the law of the State of New
York, and shall, as to matters not governed by the Uniform
Customs, be governed and construed in accordance with the law of
said State.
7. Communications with respect to this Letter of Credit shall be
in writing and shall be addressed to us at the following address:
General Electric Capital Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attn: Vice President, Energy Project Operations
8. This Letter of Credit is transferable in its entirety (but
not in part) to any transferee who has succeeded you as successor
in interest to receipt of the benefit of the obligations of the
Partnership to provide the Maintenance Reserve (as defined in the
Power Purchase Agreement) under the Power Purchase Agreement
(including, but not limited to, your rights to draw upon the
Maintenance Reserve under the Power Purchase Agreement) and such
transferred Letter of Credit may be successively so transferred.
If you present to us this Letter of Credit accompanied by the
transfer form attached hereto as Annex 4, appropriately
completed, then this Letter of Credit shall be transferred to the
transferee so designated in Annex 4. This Letter of Credit is
not transferable or assignable in any other manner or to any
other person.
This Letter of Credit sets forth in full our undertaking,
and such undertaking shall not in any way be modified, amended,
amplified or limited by reference to any document, instrument or
agreement referred to herein, except for Annex 1, Annex 2, Annex
3 and Annex 4 hereto and the notices referred to herein. Any
such reference shall not be deemed to incorporate herein by
reference any document, instrument or agreement except as set
forth above.
This Letter of Credit may not be amended except in writing
signed by the Beneficiary and the Issuer.
GENERAL ELECTRIC CAPITAL CORPORATION
By: _______________________________
Title:
Exhibit C to
Reimbursement Agreement
July 1, 1996
Xx. Xxxxx X. Xxxxxx
Potomac Electric Company
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Re: Letter of Credit No. PAN002
Dear Xx. Xxxxxx:
This is the General Electric Capital Corporation amendment to
Letter of Credit No. PAN002 held by Potomac Electric Power
Company (the "Letter of Credit") in the amount of $330,000.00.
Per your officers certificate, we are reducing the amount of the
Letter of Credit No. PAN 002 by $1,483,574.08 from $1,813,574.08
to $330,000.00.
This Letter of Credit will remain in full effect until the
earlier to occur of (a) the date occurring 180 days after Actual
Commercial Operation Date, (as defined in the Power Purchase
Agreement) or (b) June 30, 1998 (the "Expiration Date").
All other terms and conditions of the Letter of Credit remain
unchanged.
Sincerely,
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Senior Vice President
JAP:jef
Enclosure
Irrevocable Letter of Credit No. PAN 002
BENEFICIARY: POTOMAC ELECTRIC POWER COMPANY
APPLICANT: PANDA-BRANDYWINE, L.P.
April 10, 1995
Potomac Electric Power Company
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Manager, Supply Side Resources
1. General Electric Capital Corporation (the "Issuer") hereby
establishes, at the request and for the account of Panda-
Brandywine, L.P., a Delaware limited partnership (the
"Partnership"), this irrevocable Letter of Credit in favor of
Potomac Electric Power Company (hereinafter referred to as the
"Beneficiary") available to be drawn in a single drawing in an
amount not to exceed USD $2,003,460 (two million three thousand
four hundred sixty US dollars) (the "Stated Amount"). This
Letter of Credit is provided pursuant to the provision of Section
4.2 of the Power Purchase Agreement, dated as of August 9, 1991,
as amended from time to time, between the Beneficiary and the
Partnership (the "Power Purchase Agreement"). Subject to
paragraph 3 below, this Letter of Credit is available to the
Beneficiary from the date hereof through the earlier to occur of
(a) the date occurring 180 days after the Actual Commercial
Operation Date, (as defined in the Power Purchase Agreement) or
(b) June 30, 1998 (the "Expiration Date").
2. We shall make funds available to you under this Letter of
Credit against your sight draft drawn on the Issuer in the form
of Annex 2 hereto, accompanied by a certificate in the form of
Annex 3 hereto signed by an authorized officer of the Beneficiary
and presentation of the originally executed copy of this Letter
of Credit for examination and retention by the Issuer. Such
draft and certificate shall be dated the date of the presentation
and shall be presented at our office located at 0000 Xxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000-0000, Attention: Vice
President, Energy Project Operation. A presentation under this
Letter of Credit may be made only on a day on which such office
is open for business (a "Business Day"). If we receive your
draft and certificate, and the originally executed copy of the
Letter of Credit, at such office on a Business Day, we will honor
the same, notwithstanding any challenges to such payments made by
any other person for any reason (including, but not limited to,
claims of illegality, uneforceability or fraud in connection with
payment instructions on the next Business Day following
presentation of such draft and certificate. Payment hereunder
shall be made by transferring the amount thereof, in accordance
with the terms of this Letter of Credit, in immediately available
funds to the account specified in your sight draft. Beneficiary
shall not be required to give any notice tot he Partnership and
the prior approval of the Partnership shall not be required
before payment is made under this Letter of Credit.
3. This Letter of Credit shall expire upon the earliest to occur
of (i) our receipt of a notice in the form of Annex 4 hereto
signed by an authorized officer of the Beneficiary surrendering
to us this Letter of Credit for cancellation, (ii) our honoring
of a draft presented hereunder and (iii) our close of business at
our aforesaid office on the Expiration Date. This Letter of
Credit shall be surrendered to us by you upon expiration.
4. Only you or your successors and assigns permitted by
paragraph 8 may make a drawing under this Letter of Credit. If
the Stated Amount shall be partially reduced as a result of a
reduction pursuant to a certificate of the Beneficiary in the
form of Annex 1 hereto, the Issuer shall have the right to either
(a) endorse on this Letter of Credit the amount of such reduction
or (b) issue tot he Beneficiary, in substitution for this Letter
of Credit, a substitute irrevocable letter of credit dated the
date of such substitution, for an amount equal to the amount to
which the Stated Amount shall have been so reduced but otherwise
having terms identical to this Letter of Credit. The Beneficiary
shall surrender this Letter of Credit to the Issuer
simultaneously in exchange for such substitute irrevocable letter
of credit. Upon payment to you of any amount demanded hereunder,
we shall be fully discharged of our obligation under this Letter
of Credit, and we shall not thereafter by obligated to make any
further payments under this Letter of Credit. Notwithstanding
the foregoing, under no circumstances shall the Stated Amount be
reduced below USD $330,000 (three hundred thirty thousand US
dollars).
5. By paying you an amount demanded in accordance with this
Letter of Credit, we make no representation as to the correctness
of any representation or statement made by you in connection with
this Letter of Credit, including but not limited to any made by
you in any certificate in the form of Annex 3 hereto.
6. This Letter of Credit is subject to the Uniform Customs and
Practice for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500, as amended from time to
time (the "Uniform Customs"). This Letter of Credit shall be
deemed to be a contract made under the law of the State of New
York, and shall, as to matters not governed by the Uniform
Customs, be governed and construed in accordance with the law of
said State.
7. Communications with respect to this Letter of Credit shall be
in writing and shall be addressed to us at the following address:
General Electric Capital Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attn: Vice President, Energy Project Operations
8. This Letter of Credit is transferable in its entirety (but
not in part) to any transferee who has succeeded you as successor
in interest to receipt of the benefit of the obligations of the
Partnership to provide the Interconnection Security (as defined
in the Power Purchase Agreement) under the Power Purchase
Agreement (including, but not limited to, your rights to draw
upon such Interconnection Security under the Power Purchase
Agreement) and such transferred Letter of Credit may be
successively so transferred. If you present to us this Letter of
Credit accompanied by the transfer form attached hereto as Annex
5, appropriately completed, then this Letter of Credit shall be
transferred to the transferee so designated in Annex 5. This
Letter of Credit is not transferable or assignable in any other
manner or to any other person.
This Letter of Credit sets forth in full our undertaking,
and such undertaking shall not in any way be modified, amended,
amplified or limited by reference to any document, instrument or
agreement referred to herein, except for Annex 1, Annex 2, Annex
3, Annex 4 and Annex 5 hereto and the notices referred to herein.
Any such reference shall not be deemed to incorporate herein by
reference any document, instrument or agreement except as set
forth above.
This Letter of Credit may not be amended except in writing
signed by the Beneficiary and the Issuer.
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxx
Title:
