EXHIBIT 10.20
CONSENT
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Niagara Mohawk Power Corporation (the "Undersigned"), acknowledges that
nothing contained in the Power Put Agreement (as amended, the "Power Put
Agreement") dated as of September 19, 1986 between the Undersigned and Project
Orange Associates, L.P., a Delaware limited partnership (the "Company") or the
agreement consisting of the ISDA Master Agreement and the related Confirmation,
each dated as of June 30, 1998 (the "Indexed Swap Agreement" and collectively
with the Power Put Agreement, the "Amended Power Purchase Agreement") between
the Undersigned and the Company which were entered into pursuant to the Master
Restructuring Agreement, dated as of July 9, 1997 among the Undersigned and the
independent power producers party thereto, to replace and amend and restate the
Power Purchase Agreement dated September 19, 1989 between the Undersigned and
the Company precludes assignment of the Amended Power Purchase Agreement from
the Company to U.S. Bank Trust National Association, as collateral agent (the
"Agent") on behalf of certain financing parties and further acknowledges that
the Amended Power Purchase Agreement has been assigned by the Company to the
Agent pursuant to a Security Agreement, dated as of December 6, 1999, between
the Company and the Agent, the foregoing assignment being hereby consented to by
the Undersigned.
The Undersigned further agrees as follows:
1. The Undersigned will not terminate the Amended Power Purchase
Agreement by reason of any default or breach of the Company thereunder without
written notice to the Agent, and first providing to the Agent (i) thirty (30)
days from the date on which notice of default or breach is delivered to Agent to
cure such default if such default is the failure to pay amounts to the
Undersigned which are due and payable under the Amended Power Purchase Agreement
or (ii) a reasonable time as is necessary to cure such default if the breach or
default cannot be cured by the payment of money to the Undersigned so long as
the Company or the Agent has commenced to cure the default within a sixty (60)
day period from the date on which notice of default or breach is delivered to
Agent and thereafter diligently pursue such cure to completion and continue to
perform any monetary obligations under the Amended Power Purchase Agreement and
all other obligations under the Amended Power Purchase Agreement are performed
by the Company or the Agent. If possession of the cogeneration facility to which
the Amended Power Purchase Agreement relates is necessary to cure such breach or
default, and the Agent declares the Company in default and commences foreclosure
proceedings, the Agent will be allowed a reasonable period to complete such
proceedings. If the Agent is prohibited by any court order or bankruptcy or
insolvency proceedings from curing the default or from commencing or prosecuting
foreclosure proceedings, the foregoing time periods shall be extended by the
period of such prohibition.
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2. The Undersigned will accept performance by Agent or its designee or
assignee, in lieu of the Company's performance of such obligations.
3. Upon written notice from the Agent and so long as the Amended Power
Purchase Agreement has been assigned to the Agent or has been assumed by the
Agent, its designee(s) or assignee(s), the Undersigned, if requested by the
Agent, shall make all payments due under the Amended Power Purchase Agreement to
such account as the Agent may designate in writing to the Undersigned.
4. The Undersigned hereby represents and warrants to the Agent that (i)
the Amended Power Purchase Agreement is a valid and enforceable agreement, (ii)
there has been no prior assignment of the Amended Power Purchase Agreement of
which the Undersigned has notice or is aware other than the assignments
described herein, (iii) neither the Undersigned, nor to the Undersigned's best
knowledge, without investigation, the Company is in default under the Amended
Power Purchase Agreement, and (iv) to the Undersigned's best knowledge, without
investigation, all covenants, conditions and agreements have been performed as
required in the Amended Power Purchase Agreement except those not due to be
performed until after the date hereof.
5. The Undersigned acknowledges and agrees that as of the date hereof
the Undersigned has no existing cause to terminate the Amended Power Purchase
Agreement and the merger of Project Orange Funding, L.P. with and into the
Company and the Company's assumption of the obligations of Project Orange
Funding, L.P. as a consequence thereof does not constitute a "Credit Event Upon
Merger" within the meaning of such term under the Indexed Swap Agreement.
6. The address where the Undersigned may send notices to Agent is as
follows:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Fax: (000) 000-0000
Dated as of 12/2/99
NIAGARA MOHAWK POWER CORPORATION,
a New York corporation
By: /s/ Xxxxxxx X. Xxxxxx
__________________________
Xxxxxxx X. Xxxxxx
Vice President - Electric Delivery
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