EXHIBIT 10.62.2
PEPCO
AMENDED AND RESTATED
CONSENT AND AGREEMENT
AMENDED AND RESTATED CONSENT AND AGREEMENT ("Consent"),
dated as of December 30, 1996, among POTOMAC ELECTRIC POWER
COMPANY, a District of Columbia and Virginia corporation
("PEPCO"); Panda-Brandywine, L.P., a Delaware limited partnership
(the "Partnership"); FLEET NATIONAL BANK, a national banking
association, formerly known as Shawmut Bank Connecticut, National
Association, in its capacity as Security Agent (the "Security
Agent") under the Security Deposit Agreement (as defined in Annex
A to the Participation Agreement referred to below); FLEET
NATIONAL BANK, a national banking association, formerly known as
Shawmut Bank Connecticut, National Association, not in its
individual capacity, but solely as Owner Trustee (the "Owner
Trustee") under the Trust Agreement (as defined in Annex A to the
Participation Agreement referred to below); GENERAL ELECTRIC
CAPITAL CORPORATION, a New York corporation, as the issuer of the
Letters of Credit under the Reimbursement Agreement (as defined
in Annex A to the Participation Agreement referred to below) (the
"LOC Issuer"); GENERAL ELECTRIC CAPITAL CORPORATION, a New York
corporation, as the Interest Hedging Counterparty (as defined in
Annex A to the Participation Agreement referred to below) (the
"Interest Hedging Counterparty"); GENERAL ELECTRIC CAPITAL
CORPORATION, a New York corporation, as the Owner Participant (as
defined in Annex A to the Participation Agreement referred to
below) (the "Owner Participant"); FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association, not in its
individual capacity but solely as indenture trustee (in such
capacity, the "Indenture Trustee") under the Indenture (as
defined below); and CREDIT SUISSE, a bank organized and existing
under the laws of Switzerland, acting by and through its New York
branch, as administrative agent for the Loan Participants (in
such capacity, the "Administrative Agent"). (The Security Agent,
Owner Trustee, the LOC Issuer, the Interest Hedging Counterparty,
the Owner Participant, Indenture Trustee and Administrative Agent
are hereinafter referred to collectively as the "Collateral
Security Parties" and individually as a "Collateral Security
Party" and whenever "General Electric Capital Corporation" is
referred to herein by such name, it is not acting in any of the
specific roles set forth above).
All capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in
Annex A to the Participation Agreement, as defined below.
References in this Consent to any of the Financing Documents
shall be to the form of such document specified in Exhibit I to
the PEPCO Compliance Certificate attached hereto as Annex A,
unless PEPCO shall have given its written approval to any
amendment, modification or supplement to any such document, in
which case references thereto shall include such amendment,
modification or supplement.
RECITALS
WHEREAS, PEPCO and the Partnership have entered into a
Power Purchase Agreement, dated as of August 9, 1991, as amended
as of the date hereof in accordance with the First Amendment
thereto dated as of September 16, 1994 (as further amended,
modified or supplemented from time to time following the date
first written above in accordance with the terms thereof, the
"Assigned Agreement"); and
WHEREAS, PEPCO, the Partnership, General Electric
Capital Corporation, the Owner Trustee, and the Security Agent
entered into the PEPCO Consent and Agreement dated as of April
10, 1995 (the "Original Consent") in connection with the
Construction Loan Agreement (as defined below); and
WHEREAS, the parties hereto wish to execute and deliver
this Consent in order to amend and restate the Original Consent
and to add new parties thereto; and
WHEREAS, PEPCO, Panda Brandywine Corporation, a
Delaware corporation and the sole general partner of the
Partnership (the "General Partner"), and Panda Energy
Corporation, a Delaware corporation and the sole limited partner
of the Partnership (the "Limited Partner"), have entered into,
and the Partnership has acknowledged and agreed to, an Agreement
With Respect to Transfers of Interests in Panda-Brandywine, L.P.,
dated as of August 8, 1991 (as amended modified or supplemented
from time to time following the date first written above in
accordance with the terms thereof, the "Transfer Agreement"); and
WHEREAS, in order to finance the construction of the
Project, the Partnership and the General Partner entered into a
Construction Loan Agreement and Lease Commitment, dated as of
March 30, 1995, with General Electric Capital Corporation (as
amended, supplemented or otherwise modified from time to time,
the "Construction Loan Agreement") pursuant to which General
Electric Capital Corporation (i) provided construction financing
for the Project and (ii) issued the Letters of Credit as
collateral security for certain obligations of the Partnership
under the Assigned Agreement;
WHEREAS, the Partnership and Chicago Title Insurance
Company, as trustee for the benefit of the Security Agent,
entered into the Deed of Trust and Security Agreement to secure
the payment and performance by the Partnership of all of its
obligations to General Electric Capital Corporation and the Owner
Trustee;
WHEREAS, the Owner Trustee leased the Site from the
Partnership pursuant to the Site Lease and subleased the Site
back to the Partnership pursuant to the Site Sublease;
WHEREAS, the Partnership assigned all of its right,
title and interest in, to and under, and granted a security
interest in, the Assigned Agreement to the Security Agent,
pursuant to (i) the Collateral Assignment of Power Purchase
Agreement, dated as of March 30, 1995, a copy of which is
attached as Exhibit A hereto (the "Assignment"), (ii) the Deed of
Trust and Security Agreement, and (iii) the Security Agreement;
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 Construction Loan Agreement;
WHEREAS, the Partnership and the Owner Trustee are
entering into the Facility Lease (and, with certain other
parties, entering into the other Lease Documents), pursuant to
which, among other things, the Owner Trustee will lease the
Facility to the Partnership;
WHEREAS, the Partnership, the General Partner and the
LOC Issuer are entering into the Reimbursement Agreement to
provide for the continued issuance by the LOC Issuer to the Power
Purchaser of the Letters of Credit;
WHEREAS, the Owner Participant has elected to fund the
Facility Lease as a leveraged lease pursuant to Section 5.8 of
the Construction Loan Agreement and, in connection therewith, on
the Lease Closing Date (i) the Loan Participant will participate
in the debt financing of a portion of the Owner Trustee's payment
of the Purchase Price for the Facility, (ii) the Owner
Participant will participate in the Owner Trustee's payment of
the Purchase Price by making an equity investment in the Owner
Trustee, and (iii) the Partnership has directed that the Purchase
Price for the Facility be paid to General Electric Capital
Corporation as repayment for the loans made by it under the
Construction Loan Agreement;
WHEREAS, in order to set forth the rights and
obligations of the Owner Participant, the Owner Trustee, the
Security Agent, the Partnership, the General Partner, the
Administrative Agent and the Indenture Trustee, in connection
with the foregoing transactions and to describe and provide for
the transactions contemplated thereby, (i) the foregoing entities
are entering into the Participation Agreement, (ii) the Owner
Trustee and the Indenture Trustee are entering into the
Indenture, (iii) certain of the Lessee Security Documents are
being amended and restated (including, without limitation, the
Security Deposit Agreement), and (iv) the Construction Loan
Agreement is being terminated;
WHEREAS, the obligations of the Partnership under the
Reimbursement Agreement to the LOC Issuer and under the Site
Sublease and the Facility Lease to the Owner Trustee, including
its obligation to repay the LOC Reimbursement Obligations and to
make payments of Rent, are secured by a first assignment of and
prior perfected security interest in all rights and property of
the Partnership, including all of the revenues of the
Partnership, to the Security Agent, as agent for the LOC Issuer,
the Owner Participant, and the Owner Trustee (and by collateral
assignment, the Indenture Trustee) pursuant to the terms and
provisions of the Security Agreement;
WHEREAS, the obligations of the Owner Trustee under the
Indenture to the Indenture Trustee, the Administrative Agent, the
Interest Hedging Counterparty, and the Loan Participants,
including the Owner Trustee's obligations to repay the Interest
Hedging Obligations and the Loan Certificates with interest
thereon, are secured by a first assignment of, and prior
perfected security interest in, all rights and property of the
Owner Trustee, including an assignment by the Owner Trustee of
all of its right, title and interest under the Facility Lease,
the Security Agreement, the Pledge Agreements, the Deed of Trust
and Security Agreement, the Lessee Security Agreements, the
Assigned Agreement and the Collateral to the Indenture Trustee;
WHEREAS, the parties hereto desire that PEPCO
acknowledge the transactions described above and confirm and
reaffirm the rights of the Collateral Security Parties in respect
of the Assigned Agreement;
WHEREAS, each of the General Partner and the Limited
Partner has assigned all its right, title and interest in and to,
and granted a security interest in, its partnership interest and
the Transfer Agreement to the Security Agent, for the benefit of
the Owner Trustee, the LOC Issuer and the Owner Participant,
pursuant to the Pledge Agreements, which interest has been
collaterally assigned to the Indenture Trustee;
WHEREAS, in connection with the execution and delivery
of the Facility Lease, the Partnership will assign all of its
right, title and interest in, to and under the Assigned Agreement
to the Owner Trustee pursuant to the Present Assignment of
Assigned Agreement to be dated as of the Lease Closing Date (the
"Present Assignment", a copy of which is attached as Exhibit B);
WHEREAS, upon the execution and delivery of the Present
Assignment, the Assignment will be terminated as set forth
herein;
WHEREAS, it is a condition precedent (a) to the
Administrative Agent's obligation to make the Loans under the
Indenture, the Interest Hedging Counterparty to enter into the
Interest Hedging Agreement and for the Owner Participant to make
an equity investment, in each case in order to furnish the funds
necessary for the Owner Trustee to effect the proposed sale-
leaseback transaction and, (b) for the LOC Issuer to continue to
issue the Letters of Credit, that PEPCO and the Partnership
execute and deliver this Consent;
WHEREAS, Section 19.1 of the Assigned Agreement
requires PEPCO's prior written consent (i) for the Partnership's
assignment to the Security Agent (under the Assignment) or the
Owner Trustee (under the Present Assignment) of the Partnership's
right, title and interest in, to and under, the Assigned
Agreement and (ii) for any further assignment of the
Partnership's right, title and interest in to and under, the
Assigned Agreement to any of the other Collateral Security
Parties; and
WHEREAS, Subsection 19.1(x) of the Assigned Agreement
requires the Security Agent, the Owner Trustee and any other
assignee of the Partnership's right, title and interest under the
Assigned Agreement, to expressly assume the Partnership's
obligations under the Assigned Agreement; and
WHEREAS, Subsection 18.6(b)(iv) of the Assigned
Agreement contemplates an explicit agreement between a party
providing financing for the Project and PEPCO with respect to the
terms of any foreclosure on Project assets or interests in the
Partnership assigned as security in connection with such
financing;
WHEREAS, PEPCO and the Partnership entered into a
letter agreement dated October 30, 1996 pursuant to the terms of
which, PEPCO accepted transfer of the Transmission Facilities
from the Partnership (as such letter agreement may be further
amended, modified or supplemented from time to time following the
date first written above in accordance with the terms thereof,
the "Transmission Facilities Letter Agreement");
WHEREAS, General Electric Capital Corporation and the
Partners have entered into the Equity Loan Facility Letter
Agreement pursuant to which General Electric Capital Corporation
may make Equity Loans;
NOW, THEREFORE, in consideration of these premises, the
mutual covenants herein set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the parties
hereto hereby agree as follows:
SECTION 1. CONSENT TO ASSIGNMENT, ETC.
1.1 Consent to Assignment.
(a) PEPCO acknowledges notice and
receipt of, and consents upon the terms and
conditions herein set forth (i) to the
assignment to the Security Agent, for the
benefit of the Owner Trustee, the LOC Issuer,
and the Owner Participant of the
Partnership's right, title and interest in,
to and under the Assigned Agreement pursuant
to the Assignment and the Security Agreement,
(ii) upon execution and delivery of the
Facility Lease, to the assignment of such
right, title and interest to the Owner
Trustee pursuant to the Present Assignment
(the "Assigned Interest"), (iii) to the
collateral assignment by the Owner Trustee of
all its right, title and interest in and to
the Assigned Interest to the Indenture
Trustee pursuant to the Indenture, and (iv)
to the assignment to the Security Agent, for
the benefit of the Owner Trustee, the LOC
Issuer and the Owner Participant (and by
collateral assignment, to the Indenture
Trustee), each of the General Partner's and
the Limited Partner's right, title and
interest in, to and under its partnership
interest and the Transfer Agreement pursuant
to the Pledge Agreements. Notwithstanding
the provisions of the Security Agreement and
the Present Assignment, except as provided in
the following two sentences, neither the
Security Agent, the Owner Trustee, the
Indenture Trustee nor any of the other
Collateral Security Parties shall succeed to
the rights, title, interest and obligations
of the Partnership under, or be substituted
for the Partnership as a party to, the
Assigned Agreement, unless and until such
succession and substitution have been made in
accordance with the provisions of Section
1.2(a) hereof, it being understood that if
the Owner Trustee shall exercise any right to
act as "Seller" under the Assigned Agreement
it shall be subject to the provisions of said
Section 1.2(a) hereof. PEPCO acknowledges
and agrees that upon the occurrence of a
Lease Event of Default under the Facility
Lease and during the continuation thereof,
and subject to prior notice by a Collateral
Security Party to PEPCO, the Security Agent
shall be entitled to make all demands, give
all notices, take all actions and exercise
all rights of the Partnership under the
Assigned Agreement in accordance with the
terms of the Assigned Agreement, provided
that any assignment of rights under the
Assigned Agreement shall also be subject to
Section 1.2(a) of this Consent. The
Partnership agrees that PEPCO is authorized
to act in accordance with the Security
Agent's exercise of the Partnership's rights
in accordance with this Section 1.1, upon
PEPCO's receipt of notice from a Collateral
Security Party, and that PEPCO shall bear no
liability to the Partnership in connection
therewith.
(b) PEPCO's acknowledgement and
consent in Section 1.1(a) hereof are limited
to (i) the assignment to the Security Agent
of the Partnership's right, title and
interest in, to and under the Assigned
Agreement pursuant to the Security Agreement
and the assignment by the Partnership of such
right, title and interest to the Owner
Trustee pursuant to the Present Assignment,
(ii) the collateral assignment of the
Transfer Agreement and the partnership
interests of the General Partner and the
Limited Partner to the Security Agent
pursuant to the Pledge Agreements, and (iii)
the collateral assignment by the Owner
Trustee to the Indenture Trustee pursuant to
the Indenture of all the Owner Trustee's
right, title and interest in the Assigned
Agreement, the Transfer Agreement and such
partnership interests, and are not applicable
to any other Project Document or to any other
Financing Document or any action taken
pursuant to any other Financing Document. By
entering into this Consent, PEPCO is not
waiving (and hereby expressly reserves) its
rights to consent to or otherwise approve any
other assignment beyond those explicitly
listed in this Section 1.1(b).
1.2 Substitute Owner.
(a) Each party hereto agrees that,
if any Collateral Security Party shall notify
PEPCO that a default or an event of default
has occurred and is continuing under any
Financing Document (as such default or event
of default is defined in such Financing
Document) and that such Collateral Security
Party has elected to exercise rights and
remedies it may have under any of the
Financing Documents as a result of such
default or event of default, then, such
Collateral Security Party or its transferee,
or any purchaser of the Assigned Interest at
a foreclosure or other sale shall be
substituted for the Partnership under the
Assigned Agreement, provided that such
substitution shall be subject to (i) the
agreement of such Collateral Security Party,
such transferee or such purchaser, as the
case may be, to assume all of the obligations
of the Partnership under the Assigned
Agreement, the Transmission Facilities Letter
Agreement and the Transfer Agreement in
accordance with Section 1.6 hereof and to be
bound by the terms of the Assigned Agreement,
the Transmission Facilities Letter Agreement,
the Transfer Agreement and this Consent
(which assumption and agreement shall be set
forth in a form reasonably satisfactory to
PEPCO), (ii) the prior written consent of
PEPCO, which consent shall not be
unreasonably withheld or delayed, as long as
PEPCO reasonably determines that such
Collateral Security Party, such transferee or
such purchaser, as the case may be, is a
party that is financially and technically
capable (or, as to technical capability, has
retained an experienced operator who is
technically capable) of completing the
construction of, and operating, the Project
in accordance with the terms of the Assigned
Agreement, and (iii) the receipt of all
necessary governmental and regulatory
approvals required for such substitution, if
any, in form and substance reasonably
satisfactory to PEPCO, the Security Agent,
the Owner Trustee, the Indenture Trustee and
GE Capital. Notwithstanding the foregoing,
no Person shall be substituted for the
Partnership under the Assigned Agreement if,
prior to PEPCO's receipt of notice from any
Collateral Security Party pursuant to this
Section 1.2(a), PEPCO has (i) given the
Partnership a notice of default and intention
to terminate the Assigned Agreement pursuant
to Subsection 15.2(a) of the Assigned
Agreement, and (ii) where applicable, given
the Security Agent, the Owner Trustee, the
Indenture Trustee and the Owner Participant
notice pursuant to Section 1.3 hereof that
the Partnership is in default and that PEPCO
intends to terminate the Assigned Agreement
and the Security Agent, the Owner Trustee,
the Indenture Trustee, or the Owner
Participant has failed to cure such default
within the time period provided to the
Security Agent, the Owner Trustee, the
Indenture Trustee and the Owner Participant
in Section 1.3 hereof to cure such default.
(b) The parties hereto agree that,
if any Collateral Security Party shall notify
PEPCO that a default or an event of default
has occurred and is continuing under any
Financing Document (as such default or event
of default is defined in such Financing
Document) and that such Collateral Security
Party has elected to exercise rights and
remedies it may have under any of the
Financing Documents as a result of such
default or event of default, then, such
Collateral Security Party or its transferee
or any purchaser of a Transfer Interest (as
such term is defined below) at a foreclosure
or other sale shall be substituted for the
Partnership (or the Owner Trustee with
respect to the Facility following the
assignment and sale of the Facility by the
Partnership to the Owner Trustee pursuant to
the Xxxx of Sale and the Present Assignment
and Section 1.7(a) of this Consent) as the
owner of such Transfer Interest, provided
that such substitution shall be subject to
(i) the agreement of such Collateral Security
Party, such transferee or such purchaser, as
the case may be, to assume all of the
obligations of the Partnership (with respect
to the Transfer Interest) under the Assigned
Agreement, the Transmission Facilities Letter
Agreement, and the Transfer Agreement in
accordance with Section 1.6 hereof and this
Consent and (with respect to the Transfer
Interest) to be bound by the terms of the
Assigned Agreement, the Transfer Agreement,
the Transmission Facilities Letter Agreement
and this Consent (which assumption and
agreement shall be set forth in a form
reasonably satisfactory to PEPCO), (ii) the
prior written consent of PEPCO, which consent
shall not be unreasonably withheld or
delayed, as long as PEPCO reasonably
determines that such Collateral Security
Party, such transferee or such purchaser, as
the case may be, is a party that is
financially and technically capable (or, as
to technical capability, has retained an
experienced operator who is technically
capable) of completing the construction of,
and operating, the Project in accordance with
the terms of the Assigned Agreement, (iii)
the receipt of all necessary governmental and
regulatory approvals required for such
substitution, if any, in form and substance
reasonably satisfactory to PEPCO, the
Security Agent, the Indenture Trustee and the
Owner Participant and (iv), in the case of a
foreclosure sale, compliance with the
provisions of either Subsection 18.6(b)(i) or
Subsection 18.6(b)(ii) of the Assigned
Agreement to PEPCO's reasonable satisfaction
(with such Collateral Security Party being
treated as Financing Parties, the Partnership
being the Seller and the Site being included
within the term "Facility" for purposes of
application of such Subsections).
Notwithstanding the foregoing, no person
shall be substituted for the Partnership (or
the Owner Trustee with respect to the
Facility following the assignment and sale of
the Facility by the Partnership to the Owner
Trustee pursuant to the Xxxx of Sale and the
Present Assignment and Section 1.7(a) of this
Consent) as the owner of a Transfer Interest
if, prior to PEPCO's receipt of notice from
any Collateral Security Party pursuant to
this Section 1.2(b), PEPCO has given the
Partnership, the Security Agent, the
Indenture Trustee, the Owner Trustee and the
Owner Participant notice pursuant to Section
18.1 or 18.2 of the Assigned Agreement of
PEPCO's intention to exercise its right to
purchase such Transfer Interest. PEPCO
hereby waives during the effectiveness of
this Consent its option under Section 18.1 of
the Assigned Agreement and its right of first
refusal under Section 18.2 of the Assigned
Agreement to purchase a Transfer Interest
that is transferred in accordance with the
requirements of this Section 1.2(b). For
purposes of this Consent, the term "Transfer
Interest" shall be defined as set forth in
the Assigned Agreement, provided, however,
that any such interest shall continue to be
deemed to be a Transfer Interest following
transfer of such interest from the
Partnership to any other Person (including
but not limited to the Owner Trustee, the
Indenture Trustee, the Owner Participant and
the Security Agent), and each subsequent
transfer of such interest.
(c) The parties hereto agree
that, if any Collateral Security Party shall
notify PEPCO that a default or an event of
default has occurred and is continuing under
any Financing Document (as such default or
event of default is defined in such Financing
Document) and that such Collateral Security
Party has elected to exercise any right and
remedy it may have under any Financing
Document, as a result of such default or
event of default to lease the Facility to a
lessee other than the Partnership ("Other
Lessee"), then the Owner Trustee or the
Indenture Trustee may enter into such lease
with such Other Lessee, provided that the
execution of such lease shall be subject to
(i) the agreement of the Other Lessee to sell
the capacity and associated energy of the
Facility to PEPCO in accordance with the
provisions of the Assigned Agreement and the
Transmission Facilities Letter Agreement
(which agreement shall be set forth in a form
reasonably satisfactory to PEPCO), (ii) the
prior written consent of PEPCO, which consent
shall not be unreasonably withheld or
delayed, as long as PEPCO reasonably
determines that such Other Lessee is a party
that is financially and technically capable
(or, as to technical capability, has retained
an experienced operator who is technically
capable) of operating the Project in
accordance with the terms of the Assigned
Agreement, and (iii) the receipt of all
necessary governmental and regulatory
approvals, if any, required for such lease to
the Other Lessee and such sale of capacity
and energy by such Other Lessee to PEPCO, in
form and substance reasonably satisfactory to
PEPCO and the Security Agent, the Indenture
Trustee and the Owner Participant.
(d) The parties hereto agree that,
if a default or an event of default has
occurred and is continuing under any
Financing Document (as such default or event
of default is defined in such Financing
Document) and any Collateral Security Party
elects to exercise any right and remedy it
may have under any Financing Document as a
result of such default or event of default to
take possession of the Facility from the
Partnership, then such Collateral Security
Party shall, during the period of its
possession of the Facility, continue to sell
the capacity and associated energy of the
Facility to PEPCO in accordance with the
provisions of the Assigned Agreement (which
agreement shall be set forth in a form
reasonably satisfactory to PEPCO), subject to
the receipt of all necessary governmental and
regulatory approvals, if any, required for
such sale of capacity and energy to PEPCO, in
form and substance reasonably satisfactory to
PEPCO, the Security Agent, the Owner Trustee,
the Indenture Trustee and the Owner
Participant.
(e) The parties hereto agree that,
if any Collateral Security Party shall notify
PEPCO that a default or an event of default
has occurred and is continuing under any
Financing Document (as such default or event
of default is defined in such Financing
Document) and that such Collateral Security
Party has elected to exercise rights and
remedies it may have under any of the
Financing Documents as a result of such
default or event of default, then, such
Collateral Security Party, its transferee, or
any purchaser of a Seller Interest (as such
term is defined below) at a foreclosure or
other sale shall be substituted for the
General Partner or the Limited Partner, as
the case may be, as the owner of such Seller
Interest, provided that such substitution
shall be subject to (i) the agreement of such
Collateral Security Party, such transferee or
such purchaser, as the case may be, to assume
all of the obligations of the General Partner
or the Limited Partner, as the case may be,
under the Transfer Agreement in accordance
with Section 1.6 hereof and to be bound by
the terms of the Transfer Agreement (and in
the case of the Collateral Security Party or
its transferee, to be bound by the terms of
this Consent) (which assumption and agreement
shall be set forth in a form reasonably
satisfactory to PEPCO), (ii) the prior
written consent of PEPCO, which consent shall
not be unreasonably withheld or delayed, as
long as PEPCO reasonably determines that such
Collateral Security Party, such transferee or
such purchaser, as the case may be, is,
except in the case of a Limited Partner, a
party that is financially and technically
capable (or, as to technical capability, has
retained an experienced operator who is
technically capable) of completing the
construction of, and operating, the Project
in accordance with the terms of the Assigned
Agreement, (iii) the receipt of all necessary
governmental and regulatory approvals
required for such substitution, if any, in
form and substance reasonably satisfactory to
PEPCO, the Security Agent, the Indenture
Trustee and the Owner Participant and (iv),
in the case of a foreclosure sale, compliance
with the provisions of either Subsection
18.6(b)(i) or Subsection 18.6(b)(ii) of the
Assigned Agreement to PEPCO's reasonable
satisfaction (with such Collateral Security
Party being treated as Financing Parties and
the Partnership being the Seller for purposes
of application of such Subsections).
Notwithstanding the foregoing, no Person
shall be substituted for the General Partner
or the Limited Partner, as the case may be,
as the owner of a Seller Interest if, prior
to PEPCO's receipt of notice from any
Collateral Security Party pursuant to this
Section 1.2(e), PEPCO has given the Owner (as
such term is defined in Section 18.3 of the
Assigned Agreement) notice pursuant to
Section 18.3 of the Assigned Agreement of
PEPCO's intention to exercise its right to
purchase the Seller Interest. PEPCO hereby
waives during the effectiveness of this
Consent its right of first refusal under
Section 18.3 of the Assigned Agreement and
the Transfer Agreement to purchase a Seller
Interest that is transferred in accordance
with the requirements of this Section 1.2(e).
For purposes of this Consent, the term
"Seller Interest" shall be defined as set
forth in the Assigned Agreement.
(f) PEPCO, the Collateral Security
Parties and the Partnership agree that,
during the term of the Facility Lease, the
Partnership will not, without the prior
written consent of PEPCO, assign or sublease
or otherwise in any manner deliver, transfer
or relinquish possession of all or any
portion of the Facility or the Site or assign
any of its rights or obligations under the
Facility Lease, except (i) the lease of the
portion of the Distilled Water Facility by
the Partnership, as lessor, to the Steam
Host, as lessee, in the Steam Lease, (ii) the
lease of the Site by the Partnership, as Site
Lessor, to the Owner Trustee, as Site Lessee,
in the Site Lease, (iii) the assignment of a
security interest in the Facility by the
Partnership to the Security Agent in the
Security Agreement, and/or (iv) the
assignment as collateral security by the
Owner Trustee of its right, title and
interest in and to the Facility and the Site
to the Indenture Trustee pursuant to the
Indenture, provided that such exception does
not include any subsequent assignment, lease
or transfer made in accordance with the
provisions of the leases and assignments
referred to in (i), (ii), (iii) and (iv).
(g) The parties hereto agree that
no sale (including, but not limited to, a
foreclosure sale), assignment or other
transfer of the Assigned Interest shall be
made except in accordance with the provisions
of either Section 19.1 of the Assigned
Agreement or Section 1.2(a) of this Consent.
The parties hereto further agree that no sale
(including, but not limited to, a foreclosure
sale), assignment or other transfer of any
interest in the Facility or the Site shall be
made except (i) the assignment of a security
interest in the Facility by the Partnership
to the Security Agent in the Security
Agreement, the lease of the Facility by the
Owner Trustee (as lessor) to the Partnership
(as lessee) under the Facility Lease, the
lease of the Site by the Partnership (as Site
Lessor) to the Owner Trustee (as Site Lessee)
in the Site Lease, the sublease of the Site
by the Owner Trustee (as sublessor) to the
Partnership (as sublessee) in the Site
Sublease and the assignment as collateral
security by the Owner Trustee of its right,
title and interest in and to the Facility and
the Site to the Indenture Trustee pursuant to
the Indenture (provided that the exception
set forth in this subsection (i) does not
include any subsequent sale, assignment or
other transfer made in accordance with the
provisions of the referenced assignment,
leases, and sublease), (ii) the sale of the
Facility to the Partnership (but not to a
designee of the Partnership) at the end of
the Basic Lease Term or Renewal Term in
accordance with Section 12 of the Facility
Lease, or (iii) in accordance with the
provisions of Article XVIII of the Assigned
Agreement or Sections 1.2(b), 1.2(c) or
1.7(a) of this Consent. The parties hereto
agree that no lease of the Facility to any
Person other than the Partnership shall be
made except in accordance with Sections
1.2(c), 1.2(f) or 1.7(a) of this Consent.
The parties hereto agree that no sale
(including, but not limited to, a foreclosure
sale), assignment or other transfer of any
interest in the Partnership shall be made
except in accordance with the provisions of
the Transfer Agreement or Section 1.2(e) of
this Consent.
(h) The parties hereto agree that
neither any of the Collateral Security
Parties nor the Partnership will effect any
sale (including, but not limited to, a
foreclosure sale), assignment, lease or other
transfer of the Facility or the Site unless
the Partnership (or any Person that succeeds
to the Partnership's obligations under the
Assigned Agreement in accordance with the
provisions of the Assigned Agreement or this
Consent) has access to, and use of, the
Facility and the Site on terms that will
enable the Partnership (or such other Person)
to fulfill its obligations to provide
capacity and energy from the Facility to
PEPCO in accordance with the provisions of
the Assigned Agreement.
(i) Each of the Collateral
Security Parties shall provide PEPCO with a
copy of any notice of default or event of
default given under any of the Financing
Documents at the same time that such notice
is provided to any party to such Financing
Document. Each Collateral Security Party
shall also provide PEPCO with at least ten
(10) days' prior written notice of any sale
(including but not limited to a foreclosure
sale), assignment, lease or other transfer of
all or any portion of the Facility, the Site
or a Seller Interest (as such term is defined
in Section 1.2(e) hereof) pursuant to any of
the Financing Documents. The failure of any
Collateral Security Party to give any notice
of default to PEPCO in accordance with this
Section 1.2(i) shall not result in any
liability of such Collateral Security Party,
but no such sale, assignment, lease, or other
transfer of all or any portion of the
Facility, the Site, or a Seller Interest
shall be effective unless the Collateral
Security Party shall have provided PEPCO with
such notice.
(j) Any substitute, successor or
additional Security Agent, Indenture Trustee,
Owner Trustee, Interest Hedging Counterparty,
Owner Participant, Administrative Agent or
LOC Issuer shall agree to be bound by the
terms of this Consent and shall enter into a
supplement to this Consent in form and
substance reasonably satisfactory to PEPCO.
Each Collateral Security Party shall also
cause any receiver acting for, or at the
request of, such Collateral Security Party to
agree to be bound by the terms of this
Consent and to enter into a supplement to
this Consent in form and substance reasonably
satisfactory to PEPCO.
(k) Any Collateral Security Party
that is authorized to provide direction to
the Trustee (as such term is defined in the
Deed of Trust and Security Agreement) shall
cause the Trustee under the Deed of Trust and
Security Agreement to act in a manner
consistent with the rights granted to PEPCO
in this Consent. Without limiting the scope
of the foregoing in any manner, any
instructions or directions that any
Collateral Security Party provides to such
Trustee shall be consistent with the rights
granted to PEPCO in this Consent.
(l) Each party hereto agrees that
the Financing Documents to which it is a
party will not be amended, modified or
supplemented without the prior written
approval of PEPCO (which approval shall not
be withheld unless PEPCO reasonably
determines that such amendment, modification
or supplement would materially impair the
operation of the Facility by the Partnership
as a Facility that is dispatchable by PEPCO
in accordance with the terms and provisions
of the Assigned Agreement or would otherwise
materially impair PEPCO's rights in
accordance with the terms and provisions of
the Assigned Agreement).
(m) The parties hereto agree that
all provisions of this Consent relating to
the sale, assignment, lease or other transfer
of the Facility shall also apply to any sale
(including, but not limited to, a foreclosure
sale) assignment, lease or other transfer of
the electricity produced by the Facility.
(n) Each of the Collateral
Security Parties and the Partnership warrants
and represents to PEPCO that the Collateral
Security Parties are the only Persons that
have been assigned security interests in the
Collateral, and that may exercise rights or
remedies with respect to the Collateral under
the Financing Documents. This warranty and
representation shall survive the execution
and delivery of this Consent and shall
continue in effect as long as the Power
Purchase Agreement and any of the Financing
Documents remain in effect. PEPCO, the
Partnership and the Collateral Security
Parties agree that no Person may exercise any
rights or remedies or similar action with
respect to the Collateral under any of the
Financing Documents unless conducted in a
manner consistent with this Consent and the
rights of the Power Purchaser under 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 PEPCO in
accordance with the terms of this Consent).
(o) If General Electric Capital
Corporation extends Equity Loans to the
Partners under the Equity Loan Facility
Letter Agreement, it may obtain a second
security interest in some of the Collateral.
Prior to obtaining any such security
interest, General Electric Capital
Corporation shall enter into an appropriate
amendment to this Consent (in form reasonably
satisfactory to PEPCO), agreeing to be bound
by all provisions of this Consent with
respect to such security interest.
(p) (i) Each of Administrative
Agent and Indenture Trustee represents and
warrants, for the sole benefit of PEPCO, that
the Loan Participants shall have no right to
exercise any rights or remedies in respect of
any security interest in the Facility, the
Site, this Consent, the Assigned Agreement or
any Seller Interest (as defined in Section
1.2(e) of this Consent) except by and through
the Administrative Agent or the Indenture
Trustee (as the case may be), in each case
acting in accordance with the terms and
conditions of this Consent.
(ii) Each of LOC Issuer and
Security Agent represents and warrants, for
the sole benefit of PEPCO, that the LOC
Participants, if any, shall have no right to
exercise any rights or remedies in respect of
any security interest in the Facility, the
Site, this Consent, the Assigned Agreement or
any Seller Interest (as defined in Section
1.2(e) of this Consent) except by and through
the LOC Issuer or the Security Agent (as the
case may be), in each case acting in
accordance with the terms and conditions of
this Consent.
(iii) PEPCO shall have no
duty or obligation hereunder to provide any
Loan Participant or LOC Participant with
originals or copies of any notice or other
communication required under this Consent or
the Assigned Agreement or to otherwise take
any action in respect of the Facility, the
Site, this Consent, the Assigned Agreement or
any Seller Interest (as defined in Section
1.2(e) of this Consent) in response to, as a
result of, or in reaction to, any purported
notice, communication, authorization,
direction or instruction from any Loan
Participant or LOC Participant, and the
parties hereto acknowledge and agree that any
such purported communication or notice shall
be void as against PEPCO and that PEPCO shall
have no liability in respect thereof.
(iv) PEPCO shall have the
right, but not the obligation, to demand,
from time to time, a written reaffirmation by
the Administrative Agent and Indenture
Trustee or the LOC Issuer and Security Agent,
as the case may be, of the foregoing
respective representations and warranties in
respect of any purported notices or actions
by any Loan Participant or LOC Participant,
as the case may be, in contravention of the
provisions hereof. The failure of the
Administrative Agent and the Indenture
Trustee or the LOC Issuer and Security Agent,
as the case may be, to provide such
reaffirmation within ten (10) Business Days
of receipt of the above-referenced PEPCO
demand, or the breach of the representations
and warranties set forth in this paragraph
1.2(p), shall be deemed to be a breach of
this Consent.
1.3 Right to Cure.
(a) During the effectiveness of
this Consent, in the event of a failure by
the Partnership to comply with a material
provision of the Assigned Agreement, which
failure is subject to Subsection 15.1(b) of
the Assigned Agreement, PEPCO agrees that the
Owner Trustee, the Owner Participant, the
Indenture Trustee and the Security Agent
shall have the same right, but not the
obligation, to cure the failure as the
Partnership has under Subsection 15.1(b) of
the Assigned Agreement. PEPCO shall give
notice of such failure to the Owner Trustee,
the Owner Participant, the Indenture Trustee
and the Security Agent at the same time it
gives notice thereof to the Partnership
pursuant to Subsection 15.1(b) of the
Assigned Agreement and shall afford the Owner
Trustee, the Owner Participant, the Indenture
Trustee and the Security Agent an
opportunity, concurrently with the
Partnership, to cure such failure within the
same time period provided for cure by the
Partnership as set forth in Subsection
15.1(b) of the Assigned Agreement.
(b) During the effectiveness of
this Consent, if there is an Event of Default
(as such term is defined in the Assigned
Agreement) by the Partnership in the
performance of any of its obligations that is
subject to Subsection 15.1(a), (i), (j), (l)
or (m) (for purposes of this Section 1.3(b),
Events of Default under Subsection 15.1(l)
shall only include Events of Default
involving Fuel Supply Contracts (as such term
is defined in the Assigned Agreement)) of the
Assigned Agreement, PEPCO will not exercise
its right to terminate the Assigned Agreement
until it first gives notice of such Event of
Default to the Owner Trustee, the Owner
Participant, the Indenture Trustee and the
Security Agent and, (i) with respect to an
Event of Default under Subsection 15.1(a)
affords the Owner Trustee, the Owner
Participant, the Indenture Trustee and the
Security Agent, concurrently, a period of
five (5) days from receipt of such notice to
cure such Event of Default, (ii) with respect
to an Event of Default under Subsection
15.1(i) or (j), affords the Owner Trustee,
the Owner Participant, the Indenture Trustee
and the Security Agent, concurrently, a
period of fifteen (15) days from receipt of
such notice to cure such Event of Default,
(iii) with respect to an Event of Default
under Subsection 15.1(m) affords the Owner
Trustee, the Owner Participant, the Indenture
Trustee and the Security Agent, concurrently,
a period of thirty (30) days from receipt of
such notice to cure such Event of Default,
and (iv) with respect to an Event of Default
under Subsection 15.1(l), affords the Owner
Trustee, the Owner Participant, the Indenture
Trustee and the Security Agent, concurrently,
a period of sixty (60) days from receipt of
such notice to cure such Event of Default.
An Event of Default under Subsection 15.1(l)
may be cured by the execution of replacement
Fuel Supply Contracts, subject to the prior
written consent of PEPCO in accordance with
Subsection 8.9(a) of the Assigned Agreement.
(c) The failure of PEPCO to give
any notice of failure or default to the Owner
Trustee, the Owner Participant, the Indenture
Trustee or the Security Agent in accordance
with Section 1.3(a) or 1.3(b) hereof shall
not result in any liability of PEPCO, but no
termination of the Assigned Agreement shall
be effective unless PEPCO shall have provided
the Owner Trustee, the Owner Participant, the
Indenture Trustee and the Security Agent with
notice, and opportunity to cure the failure
or default, as required by Section 1.3(a) or
1.3(b).
(d) The Partnership hereby
irrevocably consents to the exercise by the
Owner Trustee, the Owner Participant, the
Indenture Trustee or the Security Agent of
any cure rights it may have hereunder.
1.4 No Amendments. PEPCO agrees to give the Owner
Trustee, the Owner Participant, the Indenture Trustee and the
Security Agent ten (10) days prior written notice of the pending
execution of any amendment, supplement or modification of the
Assigned Agreement or any waiver or consent with respect thereto.
The failure of PEPCO to give such notice to the Owner Trustee,
the Owner Participant, the Indenture Trustee and the Security
Agent shall not result in any liability of PEPCO, but the
amendment, supplement or modification, waiver or consent as to
which such notice was not delivered shall not be effective
against the Owner Trustee, the Owner Participant, the Indenture
Trustee and the Security Agent unless the Owner Trustee, the
Owner Participant, the Indenture Trustee and the Security Agent,
each at its option, expressly agrees that such amendment,
modification, supplement, waiver or consent shall be effective
against it.
1.5 Replacement Agreement. During the effectiveness
of this Consent, in the event that the Assigned Agreement is (i)
terminated as a result of any bankruptcy or insolvency proceeding
affecting the Partnership, or (ii) terminated by PEPCO pursuant
to Subsection 15.1(f) or (g) of the Assigned Agreement, PEPCO
will, at the option of the Security Agent, which option shall be
exercised within thirty (30) days following such rejection or
termination of the Assigned Agreement, enter into a new agreement
with the Security Agent or its respective transferee or nominee
having terms substantially the same as the terms of such Assigned
Agreement, provided that PEPCO's obligation to enter into such
new agreement shall be subject to (i) the prior written consent
of PEPCO, which consent shall not be unreasonably withheld or
delayed, as long as PEPCO reasonably determines that the Security
Agent, its transferee or nominee, as the case may be, is a party
that is financially and technically capable (or, as to technical
capability, has retained an experienced operator who is
technically capable) of completing the construction of, and
operating, the Project in accordance with the terms of the
Assigned Agreement, and (ii) the receipt of all necessary
governmental and regulatory approvals required for such new
agreement, if any, in form and substance reasonably satisfactory
to PEPCO, the Security Agent, the Indenture Trustee, the Owner
Trustee and the Owner Participant. Notwithstanding the
foregoing, PEPCO shall have no obligation to enter into a new
agreement if, prior to PEPCO's receipt of notice from the
Security Agent pursuant to this Section 1.5, PEPCO has (i) given
the Partnership a notice of default and intention to terminate
the Assigned Agreement pursuant to Subsection 15.2(a) of the
Assigned Agreement (excluding any default under Subsection
15.1(f) or (g) of the Assigned Agreement), and (ii) where
applicable, given the Owner Trustee, the Owner Participant, the
Indenture Trustee and the Security Agent notice pursuant to
Section 1.3 hereof that the Partnership is in default and that
PEPCO intends to terminate the Assigned Agreement and the Owner
Trustee, the Owner Participant, the Indenture Trustee or the
Security Agent has failed to cure such default within the time
period provided to the Owner Trustee, the Owner Participant, the
Indenture Trustee and the Security Agent in Section 1.3 hereof to
cure such default.
1.6 Liability. PEPCO acknowledges and agrees that no
party hereto (other than the Partnership) shall have any
liability or obligation under the Assigned Agreement, the
Transfer Agreement or the Transmission Facilities Letter
Agreement as a result of this Consent or the Financing Documents
nor shall any such party, except during any period described in
the next sentence, be obligated or required to perform any of the
Partnership's or such Partners' obligations under the Assigned
Agreement, the Transfer Agreement or the Transmission Facilities
Letter Agreement. If any Collateral Security Party, its
transferee or another purchaser succeeds to the Partnership's
interests under the Assigned Agreement, assumes the Partnership's
obligations under the Transmission Facilities Letter Agreement or
assumes the Partnership's obligations or a Partner's obligations
under the Transfer Agreement, in accordance with Section 1.2 of
this Consent, whether by foreclosure or otherwise, the party that
succeeds to such interests or obligations shall assume liability
for all of the Partnership's or the Partner's obligations under
the Assigned Agreement, the Transfer Agreement, or the
Transmission Facilities Letter Agreement, as the case may be,
including, but not limited to, payment of all amounts due and
owing to PEPCO under the Assigned Agreement, the Transfer
Agreement, or the Transmission Facilities Letter Agreement,
whether such obligations or amounts shall have accrued before or
after the date of succession. Nothing in this Consent is
intended to or shall relieve the Partnership from any of its
obligations under the Assigned Agreement or the Transmission
Facilities Letter Agreement, or relieve the Partnership or a
Partner from any of its obligations under the Transfer Agreement,
or limit the right of PEPCO to proceed against the Partnership or
any Partner, as the case may be, for recovery in respect of any
default or unperformed obligations under the Assigned Agreement,
the Transfer Agreement or the Transmission Facilities Letter
Agreement. Notwithstanding anything to the contrary contained in
this Consent, in the event that any Collateral Security Party or
its transferee or another purchaser succeeds to the Partnership's
interests under the Assigned Agreement, assumes the Partnership's
obligations under the Transmission Facilities Letter Agreement or
assumes the Partnership's obligations or a Partner's obligations
under the Transfer Agreement, liability in respect of any and all
obligations of such party under the Assigned Agreement, the
Transmission Facilities Letter Agreement or the Transfer
Agreement, as the case may be, shall be limited solely to such
party's interest in the Project and the sole recourse of PEPCO
against such party in seeking enforcement of such obligations
shall be to such party's interest in the Project (and any
officer, director, employee, shareholder, agent or affiliate or
subsidiary thereof shall have no liability with respect thereto).
For purposes of the immediately preceding sentence, a party's
interest in the Project shall include, but shall not be limited
to, the party's interest in the assets of any Partner in which
the party acquires an ownership interest.
1.7 Consent to Sale and Lease; Consent to Leveraged Lease.
(a) PEPCO hereby consents to the
assignment and sale by the Partnership to the
Owner Trustee of all of its right, title and
interest in and to the Facility pursuant to
the Xxxx of Sale and the Present Assignment,
such sale and assignment to occur on the
Lease Closing Date, provided that
simultaneously with such assignment and sale
the Owner Trustee leases the Facility to the
Partnership in accordance with the Facility
Lease. The Owner Trustee hereby agrees that
any subsequent assignment, sale, or other
transfer of all or part of the Facility by
the Owner Trustee to any Person (other than
the collateral assignment by the Owner
Trustee to the Indenture Trustee pursuant to
the Indenture and a sale of the Facility to
the Partnership at the end of the Basic Lease
Term or any Renewal Term in accordance with
Section 12 of the Facility Lease) shall be
subject to PEPCO's purchase rights under
Sections 18.1 and 18.2 of the Assigned
Agreement and to the provisions of Sections
1.2(b) and 1.2(g) of this Consent. For
purposes of the application of Sections 18.1
and 18.2 of the Assigned Agreement as
provided for in the immediately preceding
sentence, the Owner Trustee shall be deemed
to be the "Seller" as such term is used in
such Sections. If the assignment and sale of
the Facility by the Partnership to the Owner
Trustee is made in accordance with the
foregoing provisions of this Section 1.7(a),
then PEPCO waives any rights it may have to
purchase such Transfer Interest (as such term
is defined in the Assigned Agreement) as a
result of such assignment and sale pursuant
to Sections 18.1 and 18.2 of the Assigned
Agreement.
(b) PEPCO further consents to the
Owner Participant exercising its option under
the Loan Agreement to "leverage" the Facility
Lease on the Lease Closing Date as described
in the WHEREAS clauses hereof by causing the
Owner Trustee to finance a portion of the
purchase price of the Facility payable to the
Partnership pursuant to the Lease Documents.
(c) If any of the Collateral
Security Parties exercises any rights it may
have under any of the Financing Documents to
sell, assign, transfer, grant participations
in, or otherwise dispose of all or any
portion of its participations in any of the
Loans or the Letters of Credit or any of its
right, title and interest in any of the
Financing Documents or any of the Collateral
to any other Person ("Assignees") or engage
in any refinancing with respect to the above,
then prior to such sale, assignment,
transfer, grant or disposal or refinancing,
such Collateral Security Party shall obtain
the agreement of each such Assignee or
refinancing party in writing, in a form
reasonably satisfactory to PEPCO, to be bound
by the provisions of this Consent provided,
however, that the foregoing provisions shall
not apply to any person which shall not
acquire any separate right or any interest in
any of the Collateral except through the
Collateral Security Party exercising such
right.
(d) The Owner Participant agrees
with PEPCO that if the Owner Trustee shall
remain in possession of the Facility at the
end of the Lease Term, then for the remaining
portion, if any, of the Term (as defined in
the Assigned Agreement) the Owner Participant
shall, or shall cause the Owner Trustee to,
sell the capacity and energy of the Facility
to PEPCO in accordance with the provisions of
the Assigned Agreement and the Transmission
Facilities Letter Agreement, and shall
assume, or cause the Owner Trustee to assume
(which assumption shall be set forth in a
form reasonably satisfactory to PEPCO) all of
the obligations of the "Seller" under the
Assigned Agreement (including but not limited
to the provisions of Subsection 2.2 of the
Assigned Agreement), and all of the
obligations of the Partnership under the
Transmission Facilities Letter Agreement. If
any of the other Collateral Security Parties
(other than the Owner Trustee) is in
possession of the Facility at the end of the
Lease Term, then for the remaining portion,
if any, of the Term (as defined in the
Assigned Agreement) such Collateral Security
Party shall sell the capacity and energy of
the Facility to PEPCO in accordance with the
provisions of the Assigned Agreement and the
Transmission Facilities Letter Agreement, and
shall assume (which assumption shall be set
forth in a form reasonably satisfactory to
PEPCO) all of the obligations of the "Seller"
under the Assigned Agreement (including, but
not limited to, the provisions of Subsection
2.2 of the Assigned Agreement), and all of
the obligations of the Partnership under the
Transmission Facilities Letter Agreement.
1.8 Transfer by the Owner Participant. The Owner
Participant agrees to give PEPCO ten (10) days prior written
notice of any transfer by it of any portion of its beneficial
interest under the Trust Agreement or any termination by it of
the Trust Agreement and/or the trust created thereby. Any
transferee of the Owner Participant shall agree in writing (in a
form reasonably satisfactory to PEPCO) to take its interest
subject to the terms of this Consent. If the Trust Agreement or
the trust created thereby shall terminate, the Owner Participant
shall agree in writing (in a form reasonably satisfactory to
PEPCO) to assume all of the agreements of the Owner Trustee
hereunder.
1.9 The LOC Issuer Letters of Credit. PEPCO agrees
that, as of the date hereof, the LOC Issuer is a financial
institution acceptable to PEPCO for purposes of issuing letters
of credit to satisfy the Partnership's obligations to provide the
Interconnection Security, the Performance Security and/or the
Maintenance Reserve, whether or not the LOC Issuer is rated by
Thomson's BankWatch. PEPCO reserves the right to withdraw its
acceptance of the LOC Issuer for this purpose if there is a
material adverse change in the LOC Issuer's financial condition.
In any case, the form of each such letter of credit remains
subject to PEPCO's approval under the Assigned Agreement.
1.10 Breach of Assigned Agreement. The parties hereto
agree that any breach by any party hereto (other than PEPCO) of
any provision of this Consent, shall be deemed to be a failure of
the Partnership to comply with a material provision of the
Assigned Agreement within the meaning of Subsection 15.1(b) of
the Assigned Agreement.
1.11 Reliable Fuel Supply. (a) The parties hereto
understand that PEPCO has the right to give the Partnership a
written notice pursuant to Subsection 15.1(b) of the Assigned
Agreement in the case of a failure by the Partnership to comply
with the provisions of Section 11.2 of the Assigned Agreement due
to the failure of the Partnership to have a reliable supply of
Fuel (as defined in the Assigned Agreement) (a "Fuel Default");
provided, however, that the cure period which must expire before
a Fuel Default becomes an Event of Default under said
Subsection 15.1(b) will not commence unless and until there has
been an actual failure by the Project to perform (by failing to
deliver, in accordance with the Assigned Agreement, Net
Electrical Output (as defined in the Assigned Agreement) to the
Interconnection Point (as defined in the Assigned Agreement) in
response to a PEPCO dispatch) due to such Fuel Default. PEPCO's
notice of a Fuel Default must describe in reasonable detail its
reasons for declaring a default under said Section 11.2, and the
cure period under such Subsection 15.1(b) with respect to such
Fuel Default shall not commence unless the subsequent failure of
the Project to perform is attributable to the reasons set forth
in such notice of Fuel Default. To the extent that a failure to
perform is attributable to the Fuel Default, it is herein called
a "Fuel/Performance Failure". If, in the case of a
Fuel/Performance Failure, at the end of the cure period provided
under said Subsection 15.1(b) with respect to such
Fuel/Performance Failure (as the commencement of such period may
have been deferred in accordance with the first sentence of this
paragraph) the related Fuel Default is not cured or such
Fuel/Performance Failure is continuing, PEPCO will have the right
to give a notice of default and intention to terminate under
Section 15.2 of the Assigned Agreement. To the extent that any
Fuel Default arises out of the implementation of any provision of
any Gas Contract, the Partnership shall not be required to change
or terminate such provision or the implementation thereof in
order to cure such Fuel Default, so long as such Fuel Default is
cured in some other manner.
(b) In consideration of PEPCO's agreement to defer the
commencement of the cure period for a Fuel Default as set forth
above, the Partnership hereby waives, and PEPCO will be relieved
of the obligation to make, Monthly Capacity Payments under the
Assigned Agreement for the period commencing on the date of a
Fuel/Performance Failure and continuing until the date that both
the related Fuel Default is cured and such Fuel/Performance
Failure has ended; provided that the period during which such
Fuel/Performance Failure continues shall not be included in the
calculation of the Equivalent Availability Factor (as defined in
the Assigned Agreement). None of the parties hereto, nor any of
their respective successors and assigns, will challenge the non-
payment of Monthly Capacity Payments pursuant to the first
sentence of this paragraph (b) of this Section 1.11 on the
grounds that said first sentence is invalid or unenforceable
because it should have been approved by a Governmental Authority.
It is understood that PEPCO may, at its option, seek approval of
the provisions of this paragraph (b) of this Section 1.11 from
any such Governmental Authority as it deems appropriate;
provided, however, that, PEPCO agrees that any filing with or
determination by, any such Governmental Authority will not affect
any other provision of this Consent, including without
limitation, the provisions of paragraph (a) of this Section 1.11.
1.12 Financing Documents. For all purposes of the
Assigned Agreement, the "Financing Documents" (as defined
therein) shall be deemed to include, without limitation, the
Financing Documents as defined in Annex A to the Participation
Agreement.
1.13 Transfer Agreement. If the Partnership is no
longer the owner or lessee of the Project and is no longer a
party to the Assigned Agreement, then any breach by the
Partnership, the General Partner or the Limited Partner of any
obligation under the Transfer Agreement shall not be a default
under the Assigned Agreement. The foregoing is without
derogation of the provisions of the third sentence of Section 1.6
hereof. Whenever any provision contained herein requires a party
to assume the Transfer Agreement, such obligation may be
fulfilled by such party entering into a separate agreement with
PEPCO on the same terms and conditions as the Transfer Agreement,
provided that the Transfer Agreement is also amended as necessary
to reflect any changes resulting from such assumption.
1.14 Performance and Maintenance Reserve. (a) If
PEPCO shall draw on a letter of credit issued to fund the
Performance Security required by Section 4.5 of the Assigned
Agreement because such letter of credit is expiring without being
renewed, then PEPCO shall hold the proceeds of such draw for the
purposes and uses provided in said Section 4.5 until an escrow
account is established in accordance with said Section 4.5, at
which time such proceeds shall be deposited in such escrow
account.
(b) If PEPCO shall draw on a letter of credit issued
to fund the Maintenance Reserve required by Section 8.7 of the
Assigned Agreement because such letter of credit is expiring
without being renewed, then PEPCO shall hold the proceeds of such
draw for the purposes and uses provided in said Section 8.7 until
a Maintenance Reserve is established in accordance with said
Section 8.7, at which time such proceeds shall be deposited in
such Maintenance Reserve.
SECTION 2. PAYMENTS
The Partnership hereby directs PEPCO to pay all moneys
due and to become due to the Partnership under the Assigned
Agreement directly to Fleet National Bank, as Security Agent, 000
Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Corporate
Trust Administration, for deposit in the Revenue Account, or to
such other person or in such other manner as the Security Agent
may from time to time specify in writing to PEPCO, without
offset, abatement, withholding or reduction except as provided or
permitted by the Assigned Agreement.
SECTION 3. REPRESENTATIONS OF PARTIES.
3.1 Representations of the Owner Participant.
The Owner Participant hereby represents,
as of the date hereof, that:
(a) This Consent has been duly
authorized, executed and delivered by the
Owner Participant, and is in full force and
effect on the day hereof; and
(b) This Consent is a valid, legal
and binding obligation of the Owner
Participant, enforceable against the Owner
Participant in accordance with its terms,
except (i) as such enforceability may be
limited by bankruptcy, insolvency,
reorganization, moratorium, or other similar
laws now or hereafter in effect relating to
creditors' rights generally, and (ii) to the
extent that the remedies of specific
performance, injunctive relief and other
forms of equitable relief are subject to
equitable defenses, the discretion of the
court before which any proceeding therefor
may be brought, and the principles of equity
in general.
3.2 Representations of the Security Agent, in its
individual capacity.
The Security Agent, in its individual
capacity, hereby represents, as of the date
hereof, that:
(a) This Consent has been duly
authorized, executed and delivered by the
Security Agent, and is in full force and
effect on the day hereof; and
(b) This Consent is a valid, legal
and binding obligation of the Security Agent,
enforceable against the Security Agent in
accordance with its terms, except (i) as such
enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, or
other similar laws now or hereafter in effect
relating to creditors' rights generally, and
(ii) to the extent that the remedies of
specific performance, injunctive relief and
other forms of equitable relief are subject
to equitable defenses, the discretion of the
court before which any proceeding therefor
may be brought, and the principles of equity
in general.
3.3 Representations of the Partnership.
The Partnership hereby represents, as of
the date hereof, that:
(a) This Consent has been duly
authorized, executed and delivered by the
Partnership, and is in full force and effect
on the day hereof; and
(b) This Consent is a valid, legal
and binding obligation of the Partnership,
enforceable against the Partnership in
accordance with its terms, except (i) as such
enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, or
other similar laws now or hereafter in effect
relating to creditors' rights generally, and
(ii) to the extent that the remedies of
specific performance, injunctive relief and
other forms of equitable relief are subject
to equitable defenses, the discretion of the
court before which any proceeding therefor
may be brought, and the principles of equity
in general.
3.4 Representations of PEPCO.
PEPCO hereby represents, as of the date
hereof, that:
(a) This Consent has been duly
authorized, executed and delivered by PEPCO,
and is in full force and effect on the day
hereof; and
(b) This Consent is a valid, legal
and binding obligation of PEPCO, enforceable
against PEPCO in accordance with its terms,
except (i) as such enforceability may be
limited by bankruptcy, insolvency,
reorganization, moratorium, or other similar
laws now or hereafter in effect relating to
creditors' rights generally, and (ii) to the
extent that the remedies of specific
performance, injunctive relief and other
forms of equitable relief are subject to
equitable defenses, the discretion of the
court before which any proceeding therefor
may be brought, and the principles of equity
in general; and
(c) PEPCO has not delivered to the
Partnership any notice under Section 15.1 of
the Assigned Agreement or notice of default
and intention to terminate under Subsection
15.2(a) of the Assigned Agreement; and
(d) PEPCO has no notice of, and
has not consented to, any previous assignment
by the Partnership of all or any part of the
Partnership's rights under the Assigned
Agreement, other than (i) the Assignment and
Security Agreement, dated as of December 2,
1993, between the Partnership and United
Engineers & Constructors Inc. dba Raytheon
Engineers & Constructors ("Raytheon") (as
consented to by PEPCO pursuant to the terms
of the Consent and Agreement, dated as of
December 2, 1993, among PEPCO, the
Partnership and Raytheon), (ii) the Amended
and Restated Assignment and Security
Agreement, dated as of March 23, 1994,
between the Partnership and General Electric
Capital Corporation, as agent for the Lenders
(as consented to by PEPCO pursuant to the
Amendment to Consent and Agreement, dated as
of March 23, 1994, among PEPCO, the
Partnership, Raytheon, and General Electric
Capital Corporation (as Agent)) and (iii) the
Assignment (as consented to by PEPCO pursuant
to the Original Consent).
3.5 Representations of the Interest Hedging
Counterparty.
The Interest Hedging Counterparty hereby
represents, as of the date hereof, that:
(a) This Consent has been duly
authorized, executed and delivered by the
Interest Hedging Counterparty, and is in full
force and effect on the day hereof; and
(b) This Consent is a valid, legal
and binding obligation of the Interest
Hedging Counterparty, enforceable against the
Interest Hedging Counterparty in accordance
with its terms, except (i) as such
enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, or
other similar laws now or hereafter in effect
relating to creditors' rights generally, and
(ii) to the extent that the remedies of
specific performance, injunctive relief and
other forms of equitable relief are subject
to equitable defenses, the discretion of the
court before which any proceeding therefor
may be brought, and the principles of equity
in general.
3.6 Representations of the Administrative Agent.
The Administrative Agent hereby
represents, as of the date hereof, that:
(a) This Consent has been duly
authorized, executed and delivered by the
Administrative Agent, and is in full force
and effect on the day hereof; and
(b) This Consent is a valid, legal
and binding obligation of the Administrative
Agent, enforceable against the Administrative
Agent in accordance with its terms, except
(i) as such enforceability may be limited by
bankruptcy, insolvency, reorganization,
moratorium, or other similar laws now or
hereafter in effect relating to creditors'
rights generally, and (ii) to the extent that
the remedies of specific performance,
injunctive relief and other forms of
equitable relief are subject to equitable
defenses, the discretion of the court before
which any proceeding therefor may be brought,
and the principles of equity in general.
3.7 Representations of the Indenture Trustee, in its
individual capacity.
The Indenture Trustee, in its individual
capacity, hereby represents, as of the date
hereof, that:
(a) This Consent has been duly
authorized, executed and delivered by the
Indenture Trustee, and is in full force and
effect on the day hereof; and
(b) This Consent is a valid, legal
and binding obligation of the Indenture
Trustee, enforceable against the Indenture
Trustee in accordance with its terms, except
(i) as such enforceability may be limited by
bankruptcy, insolvency, reorganization,
moratorium, or other similar laws now or
hereafter in effect relating to creditors'
rights generally, and (ii) to the extent that
the remedies of specific performance,
injunctive relief and other forms of
equitable relief are subject to equitable
defenses, the discretion of the court before
which any proceeding therefor may be brought,
and the principles of equity in general.
3.8 LOC Issuer.
LOC Issuer hereby represents, as of the
date hereof, that:
(a) This Consent has been duly
authorized, executed and delivered by LOC
Issuer, and is in full force and effect on
the day hereof; and
(b) This Consent is a valid, legal
and binding obligation of the LOC Issuer,
enforceable against the LOC Issuer in
accordance with its terms, except (i) as such
enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, or
other similar laws now or hereafter in effect
relating to creditors' rights generally, and
(ii) to the extent that the remedies of
specific performance, injunctive relief and
other forms of equitable relief are subject
to equitable defenses, the discretion of the
court before which any proceeding therefor
may be brought, and the principles of equity
in general.
3.9 Representations of the Owner Trustee, in its
individual capacity.
The Owner Trustee, in its individual
capacity, hereby represents, as of the date
hereof, that:
(a) This Consent has been duly
authorized, executed and delivered by the
Owner Trustee, and is in full force and
effect on the day hereof; and
(b) This Consent is a valid, legal
and binding obligation of the Owner Trustee,
enforceable against the Owner Trustee in
accordance with its terms, except (i) as such
enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, or
other similar laws now or hereafter in effect
relating to creditors' rights generally, and
(ii) to the extent that the remedies of
specific performance, injunctive relief and
other forms of equitable relief are subject
to equitable defenses, the discretion of the
court before which any proceeding therefor
may be brought, and the principles of equity
in general.
SECTION 4. MISCELLANEOUS
4.1 Notices. All notices and other communications
hereunder shall be in writing, shall refer on their face to the
Assigned Agreement (although failure to so refer shall not render
any such notice or communication ineffective), shall be sent by
personal delivery or by a nationally recognized courier service
(with a receipt for delivery), and shall be directed (a) if to
PEPCO, in accordance with Section 19.2 of the Assigned Agreement,
(b) if to General Electric Capital Corporation, in any role
hereunder, at 0000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000,
attention, Vice President, Energy Project Operations and
Transportation and Industrial Financing Division, (c) if to the
Partnership, at 0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
00000, (d) if to the Security Agent or the Owner Trustee, at 000
Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Corporate
Trust Administration, (e) if to the Indenture Trustee, at 00
Xxxxx Xxxx Xxxxxx, 0xx Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000,
Attention: Corporate Trust Services, (f) if to the
Administrative Agent, at 00 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000, Attention: Global Project Finance, or (g)
to such other address or addressee as any party may designate by
notice given pursuant hereto. Such notice sent as aforesaid
shall be deemed to have been duly given or made when delivered by
hand or, in the case of a nationally recognized overnight courier
service one Business Day after delivery to such courier service.
4.2 Governing Law. THIS CONSENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK.
4.3 Counterparts. This Consent may be executed in any
number of counterparts and by the different parties hereto on
separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together
constitute one and the same instrument.
4.4 Headings Descriptive. The headings of the several
Sections and subsections of this Consent are inserted for
convenience only and shall not in any way affect the meaning or
construction of any provision of this Consent.
4.5 Severability. In case any provision in or
obligation under this Consent shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not
in any way be affected or impaired thereby.
4.6 Amendment, Waiver. Neither this Consent nor any
of the terms hereof may be terminated, amended, supplemented,
waived or modified except by an instrument in writing signed by
each party hereto.
4.7 Successors and Assigns. (a) The Collateral
Security Parties may each assign its rights and obligations under
this Consent (i) as specifically contemplated by Section 1.8
hereof (in the case of the Owner Participant), or (ii) to any
other Person, subject in the case of this clause (ii) to the
prior written consent of PEPCO, which consent shall not be
unreasonably withheld. The Partnership may assign its rights and
obligations under this Consent, subject to the prior written
consent of the Collateral Security Parties and PEPCO, which
consent shall not be unreasonably withheld. PEPCO may assign its
rights and obligations under this Consent, subject to the prior
written consent of the Owner Participant, the Indenture Trustee
and the Security Agent; provided, however, that such consent
shall not be required prior to an assignment to a wholly-owned
subsidiary of PEPCO which is an assignee of the Assigned
Agreement; provided, further, that, unless expressly agreed
otherwise by the Owner Participant, the Indenture Trustee, the
Security Agent and the Owner Trustee, no assignment, whether or
not consented to, shall relieve PEPCO of its obligations
hereunder in the event its assignee fails to perform.
(b) This Consent shall be binding upon the
successors and permitted assigns of the parties and shall enure
to the benefit of the parties and their respective successors and
permitted assigns. Without limiting the scope of the foregoing,
PEPCO's rights and obligations under this Consent shall be
binding upon, and enure to the benefit of, Constellation Energy
Corporation ("Constellation") as successor to PEPCO, effective
upon the merger of PEPCO and Constellation. Furthermore, PEPCO's
rights and obligations under the Assigned Agreement and the
Transfer Agreement shall be binding upon, and enure to the
benefit of, Constellation as successor to PEPCO, effective upon
the merger of PEPCO and Constellation.
4.8 Waiver of Trial by Jury. TO THE EXTENT PERMITTED
BY APPLICABLE LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES
ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS CONSENT OR
ANY MATTER ARISING HEREUNDER.
4.9 No Amendment. Notwithstanding any other provision
of this Consent (i) nothing herein set forth is intended to or
shall amend, modify or in any other way change the Assigned
Agreement, the Transfer Agreement or the Transmission Facilities
Letter Agreement and (ii) except as explicitly set forth in
Sections 1.2(b), 1.2(e), 1.3 and 1.7(a) hereof, PEPCO does not
waive any rights it may have pursuant to the Assigned Agreement,
the Transfer Agreement, or the Transmission Facilities Letter
Agreement and each of the Collateral Security Parties explicitly
acknowledges PEPCO's rights under these Agreements.
4.10 Conflict. This Consent sets forth the terms and
conditions upon which PEPCO consents to the assignment of the
Assigned Agreement pursuant to the Security Agreement and the
Present Assignment. Solely insofar as PEPCO is concerned, to the
extent that there is a conflict between any term or provision set
forth in this Consent and any term or provision of the Security
Agreement or the Facility Lease or any other Financing Document
(other than this Consent), the terms and provisions of this
Consent shall govern. Solely insofar as PEPCO is concerned and
without limiting the extent of the foregoing in any manner, the
parties hereto agree that (i) any purported bar, waiver or
similar limitation on PEPCO's rights with respect to the
Partnership, the Partnership's present or future property, the
Assigned Agreement, the Transfer Agreement, the Transmission
Facilities Letter Agreement or this Consent that is set forth in
the Security Agreement, the Present Assignment, the Loan
Agreement, the Facility Lease or any other Financing Document
(other than this Consent) shall not have any force or effect with
respect to PEPCO and (ii) to the extent that there is a conflict
between any term or provision of the Assigned Agreement, the
Transfer Agreement or the Transmission Facilities Letter
Agreement and any term or provision of the Security Agreement,
the Present Assignment, the Facility Lease or any other Financing
Document (other than this Consent), the terms and provisions of
the Assigned Agreement, the Transfer Agreement or the
Transmission Facilities Letter Agreement shall govern.
4.11 Written Confirmation. Upon the request of the
Owner Participant, the Indenture Trustee, the Security Agent, or
the Owner Trustee, PEPCO hereby agrees to negotiate a supplement
to this Consent, in form and substance reasonably satisfactory to
the Owner Participant, the Security Agent, the Owner Trustee and
PEPCO, confirming the rights and obligations of any permitted
successor or assignee of the Owner Trustee, the Owner
Participant, the Indenture Trustee or the Security Agent under
this Consent.
4.12 Compliance Certificate. PEPCO hereby agrees to
execute and deliver a compliance certificate addressed to the
Owner Trustee, the Owner Participant, the Indenture Trustee and
the Partnership in the form of Annex A hereto and such compliance
certificate is hereby incorporated herein by reference as if a
part of this Consent.
4.13 Termination of Assignment. The parties hereto
agree that upon the execution and delivery of the Present
Assignment the Assignment shall automatically terminate without
further action of any kind whatsoever.
4.14 Amendment and Restatement. The Original Consent
is hereby amended and restated in its entirety as set forth in
this Consent.
4.15 Instructions of Various Parties. PEPCO shall
have no liability to any party hereto for accepting and following
any notice, instruction, authorization or other action by any
party hereto that is authorized hereby to give any such notice,
instruction or authorization or take any such action. Without
limiting the generality of the foregoing, in the event that PEPCO
shall receive contrary notices, instructions, authorizations or
other actions from any such parties, then PEPCO may request
definitive instructions on how to proceed from the Security
Agent.
4.16 Authorization to Agent and Trustees. Each party
hereto (other than PEPCO) hereby authorizes and directs the
Security Agent, the Indenture Trustee and the Owner Trustee to
execute, deliver and perform this Consent.
IN WITNESS WHEREOF, the parties have caused this
Consent to be duly executed and delivered by their officers
thereunto duly authorized as of the date first above written.
POTOMAC ELECTRIC POWER COMPANY
By: /s/ Xxxxxxx X. Xxx, Xx.
Name: Xxxxxxx X. Xxx, Xx.
Title: Vice President, Energy Planning
& Economy
FLEET NATIONAL BANK, a national banking
association, as Security Agent
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
FLEET NATIONAL BANK, not in its
individual capacity, but solely
as Owner Trustee
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Manager of Operations
PANDA-BRANDYWINE, L.P.
By: Panda Brandywine Corporation, its
sole general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
CREDIT SUISSE, a bank organized and
existing under the laws of Switzerland,
acting through its New York branch,
as Administrative Agent
By: /s/ Xxxxx X. Laconetti /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Laconetti Xxxxx X. Xxxxx
Title: Associate Associate
FIRST SECURITY BANK, not in its
individual capacity, but solely as
Indenture Trustee
By: /s/ C. Xxxxx Xxxxxxx
Name: C. Xxxxx Xxxxxxx
Title: Vice President
The undersigned hereby acknowledge and consent to the
foregoing Consent and Agreement.
PANDA BRANDYWINE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
PANDA ENERGY CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
EXHIBIT A
TO PEPCO CONSENT
COLLATERAL ASSIGNMENT OF POWER PURCHASE AGREEMENT
KNOW ALL MEN BY THESE PRESENTS, that PANDA-BRANDYWINE, L.P.
(the "Partnership"), for a valuable consideration, receipt of
which is hereby acknowledged, has, as of this 30th day of March,
1995, sold, assigned, transferred, conveyed and set over and does
hereby sell, assign, transfer, convey and set over unto SHAWMUT
BANK CONNECTICUT, NATIONAL ASSOCIATION, in its capacity as
Security Agent (the "Security Agent") under the Security Deposit
Agreement (as defined in the Loan Agreement referred to below),
its successors and assigns, in connection with the transactions
contemplated by the Construction Loan Agreement and Lease
Commitment, dated as of March 30, 1995, between General Electric
Capital Corporation ("GE Capital"), the Partnership and Panda-
Brandywine Corporation (as amended, supplemented or otherwise
modified from time to time, the "Loan Agreement"; capitalized
terms used herein and not otherwise defined shall have the
respective meanings set forth in the Loan Agreement), all the
right, title and interest of the Partnership in, to and under
(including all moneys due and to become due to the Partnership
under), and does hereby grant to the Security Agent, for the
benefit of GE Capital and the Owner Trustee, a first priority
security interest in the Power Purchase Asreement, dated August
9, 1991, between the Partnership and Potomac Electric Power
Company ("PEPCO"), as amended as of the date hereof in accordance
with the First Amendment thereto, dated September 16, 1994 (and
as the same may from time to time be further amended,
supplemented or otherwise modified, the "Assigned Agreement").
This Assignment is made as collateral security for all
obligations of the Partnership to GE Capital and the Owner
Trustee under the Loan Agreement, the Site Sublease, the Facility
Lease and the other Transaction Documents and is subject to all
of the terms and conditions of (i) the Deed of Trust and Security
Agreement and (ii) the Security Agreement. All the right, title
and interest of the Partnership in, to and under the Assigned
Agreement shall from the date hereof constitute part of the
"Trust Property" as defined in the Deed of Trust and Security
Agreement and the "Collateral" as defined in the Security
Agreement, for all purposes of such agreements.
The Partnership hereby irrevocably authorizes and directs
PEPCO to pay all moneys, if any, due and to become due under or
by reason of the Assigned Agreement directly to Shawmut Bank
Connecticut, National Association, as Security Agent, 000 Xxxx
Xxxxxx, Xxxx xxxx, Xxxxxxxxxxx 00000, Attention: Corporate Trust
Administration, for deposit in the Revenue Account, or to such
other person or in such other manner as the Security Agent or GE
Capital may hereafter from time to time specify to PEPCO in
writing, until such time as the Security Agent or GE Capital
shall notify PEPCO that this Assignment has been terminated and
released.
This Assignment shall not cause the Security Agent, the
Owner Trustee or GE Capital to be under any obligation to the
Partnership or to PEPCO for the performance or observance of any
of the representations, warranties, terms or conditions of the
Assigned Agreement.
Notwithstanding this Assignment, the Partnership shall be
and remain obligated to PEPCO to perform all of the Partnership's
obligations and agreements under the Assigned Agreement, and
PEPCO shall be and remain obligated to the Partnership to perform
all of PEPCO's obligations and agreements under the Assigned
Agreement.
The Partnership does hereby irrevocably constitute and
appoint the Security Agent its true and lawful attorney-in-fact
with full and irrevocable power and authority in the place and
stead of the Partnership and in the name of the Partnership or in
the name of the Security Agent, for the purpose of carrying out
the terms of this Assignment, the Deed of Trust and Security
Agreement and the Security Agreement, to take any and all action
and to execute any and all instruments which may be necessary to
accomplish the purposes of this Assignment. This power-of-
attorney is a power coupled with an interest and shall be
irrevocable.
The Partnership hereby represents and warrants that it has
not heretofore assigned or otherwise disposed of or encumbered
any right, title or interest of the Partnership in, to or under
the Assigned Agreement or any moneys due or to become due to the
Partnership under or by reason thereof, and that the Partnership
has the right and power to transfer to the Security Agent, on
behalf of the Owner Trustee and GE Capital, absolute title to the
Partnership's right, title and interest in, to and under the
Assigned Agreement and in and to all the moneys due and to become
due to the Partnership under the Assigned Agreement.
Nothing in this Collateral Assignment of Power Purchase
Agreement shall be deemed to limit the provisions of the Consent
of Power Purchaser. Without limiting the scope of the foregoing,
the exercise of remedies or any similar action under this
Collateral Assignment of Power Purchase Agreement is subject to,
and shall be conducted in a manner consistent with, PEPCO's
rights under (i) the Consent of Power Purchaser, and (ii) the
Assigned Agreement and the Transfer Agreement (to the extent such
rights under the Assigned Agreement and the Transfer Agreement
are not explicitly waived by PEPCO in accordance with the terms
of the Consent of Power Purchaser).
This Assignment shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the Partnership has caused this
Assignment to be duly executed and delivered as of the date first
above written.
PANDA-BRANDYWINE, L.P.
By: PANDA BRANDYWINE CORPORATION,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
Title: President
EXHIBIT B To Consent
PRESENT ASSIGNMENT OF Assigned Agreement
[SEE EXHIBIT 10.62.1 TO THIS REGISTRATION STATEMENT]
