EXECUTION COPY
APPENDIX I
TO THE
AMENDED AND RESTATED PARTICIPATION AGREEMENT
AGREED DEFINITIONS
Capitalized terms used in the Transaction Documents shall, unless the
context otherwise requires or they are otherwise defined therein, have the
meanings set forth herein. All references herein to any agreements shall be to
such agreement as amended or modified to the date of reference and include all
schedules and exhibits attached thereto and all parties include permitted
successors and assigns. All references to a particular entity shall include a
reference to such entity's successors and permitted assigns. Except as
otherwise required by the context, such definitions shall be equally
applicable to the singular or plural forms of the terms defined. All
references to a law shall include any amendment or modification to such law.
"Abandonment" shall mean:
(a) the cessation of operation of the Project pursuant to the decision of
Lessor (such Abandonment shall be deemed to occur either upon receipt by
Agent of notice from Lessor of such decision or upon the date specified in
such notice, such date to be no later than one month after such decision);
or
(b) the cessation of operation of the Project for a continuous period of
at least 120 days; provided that (i) an Abandonment shall not be deemed to
have occurred if such cessation is caused by an Event of Force Majeure so
long as (A) Lessor is making a good faith effort (1) to correct the causes
of such cessation and intends in good faith to continue with the operation
of the Project or (2) to collect proceeds of insurance or of a governmental
taking and (B) Lessor notifies Agent in writing during such 120-day period
and within each 60-day period thereafter during which such cessation
continues that such cessation has occurred and is continuing, which notice
shall state that Lessor is making a good faith effort described in the
preceding clause (A) and shall describe such effort, and (ii)
notwithstanding compliance with the preceding clause (i), an Abandonment
shall be deemed to occur upon notice from Agent to Lessor given not earlier
than 90 days after the date of receipt by the Disbursement Agent of
proceeds of insurance or of a governmental taking in respect of such Event
of Force Majeure if operation of the Project has not resumed by the date of
delivery of such notice to the Lessor or if Lessor is not using such
proceeds to prosecute diligently the repair or restoration of the Project.
"Accounts" shall mean the Lessee Accounts and the Lessor Accounts.
"Additional Contract" shall mean any material contract or undertaking to
which Lessor or Lessee is a party or of which it is a beneficiary providing
for (i) the sale or exchange by Lessor or Lessee of any of the Facility's
electrical output or (ii) relating in any way to the Facility or the Site
(including, without limitation, the acquisition of Fuel), which contract or
undertaking is entered into after the Closing Date, including without
limitation, any contracts or agreements referred to in any Principal Project
Agreement.
"Additional Rent" shall have the meaning attributed thereto in Section
3.01(b) of the Amended and Restated Lease.
"Additional Rent Percentage" shall mean 50%.
"Advance Payment" shall mean the amount set forth in the Advance Payment
Certificate.
"Advance Payment Certificate" shall mean a duly executed and completed
certificate in the form of Exhibit 5.02(b) of the Amended and Restated
Disbursement Agreement.
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"Affiliate" shall mean, with respect to any designated Person, each Person
that, directly or indirectly, controls or is controlled by or is under common
control with such designated Person and, without limiting the generality of
the foregoing, shall include (a) any Person that beneficially owns or holds 5%
or more of any class of voting securities of such designated Person or 5% or
more of the equity interest in such designated Person and (b) any Person of
which such designated Person beneficially owns or holds 5% or more of any
class of voting securities or in which such designated Person beneficially
owns or holds 5% or more of the equity interest. For the purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities or by contract or
otherwise.
"After Tax Basis" shall mean, with respect to any payment received or deemed
to have been received by any Person, the amount of such payment supplemented
by a further payment to such Person so that the sum of the two payments shall,
after deducting all Taxes and other charges, payable by reason of the receipt
or accrual of such payments (taking into account any permanent credits and
current deductions actually arising therefrom) computed at the highest Federal
and state marginal statutory tax rates in effect at the time that the payment
is made or accrued, be equal to the amount which is to be received on an
after-tax basis.
"Agent" shall mean the "Agent" as defined in the preamble to the Amended and
Restated Reimbursement Agreement.
"Agent Default Notice" shall mean a duly executed and completed notice in
the form of Exhibit 11.01(a)(1) to the Amended and Restated Disbursement
Agreement.
"Agent Post Default Disbursement Certificate" shall mean a duly executed and
completed certificate in the form of Exhibit 11.01(a)(3) to the Amended and
Restated Disbursement Agreement.
"Agent Release Notice" shall mean a duly executed and completed notice in
the form of Exhibit 5.02(d)(1) to the Amended and Restated Disbursement
Agreement.
"Alteration" shall mean any accessory, equipment or device affixed to or
installed in, or any alteration, improvement, upgrade, modification or
addition to, the Facility not originally incorporated in the Facility during
the construction thereof, except for any such alteration, improvement,
modification or addition effected pursuant to the Transmission Line EPC
Contract, the Facility EPC Contract, or any vendor warranty.
"Amended and Restated Collateral Assignments of Partnership Interests" shall
have the meaning set forth in the Amended and Restated Reimbursement
Agreement.
"Amended and Restated Disbursement Agreement" shall mean the Amended and
Restated Disbursement and Security Agreement, dated December 22, 1995, by and
among Lessor, Lessee, the Disbursement Agent and Agent.
"Amended and Restated Lease" shall mean the Amended and Restated Lease
Agreement, dated December 22, 1995, by and between Lessor and Lessee.
"Amended and Restated Lessee Working Capital Loan Agreement" shall mean the
Amended and Restated Lessee Working Capital Loan Agreement, dated December 22,
1995, by and between Lessee and Lessor.
"Amended and Restated Participation Agreement" shall mean the Amended and
Restated Participation Agreement, dated December 22, 1995, by and among Agent,
Lessor, Lessee, the Bond Trustee, EPC and the Disbursement Agent.
"Amended and Restated Reimbursement Agreement" shall mean the Amended and
Restated Reimbursement and Loan Agreement, dated December 22, 1995, by and
among the Borrower, NatWest, the Agent and the Banks listed on Schedule I
thereto.
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"Amortization Account" shall mean the Amortization Account established
pursuant to Section 2.02(b) of the Amended and Restated Disbursement
Agreement.
"Amortization Sub-Account" shall mean the Amortization Sub-Account
established pursuant to Section 2.02(b) of the Amended and Restated
Disbursement Agreement.
"Amortization Sub-Account Disbursement Certificate" shall mean a duly
executed and completed certificate in the form of Exhibit 21.02(a) to the
Amended and Restated Disbursement Agreement.
"Applicable Rate" shall mean, for any period, (i) with respect to amounts
due pursuant to the Amended and Restated Reimbursement Agreement, Basic Rent
(Principal) and the debt portion of Stipulated Loss Value a per annum rate
equal to the respective rate of interest applicable during such period to the
Senior Debt and (ii) with respect to Basic Rent (Equity) and the equity
portion of Stipulated Loss Value, shall mean 17% (on an After Tax Basis).
"Appraisal Procedure" means the following procedure for determining any
amount in dispute under the Amended and Restated Lease:
(i) Lessor and Xxxxxx shall attempt to agree upon a single appraiser, but
failing agreement within 20 days, each of Lessor and Xxxxxx shall nominate
an appraiser and the two appraisers shall nominate a third appraiser (but
failing agreement, a third appraiser shall be appointed by the American
Arbitration Association). If a single appraiser is appointed, he shall
determine the applicable value which shall be binding on Lessor and Lessee,
and the costs of such appraiser shall be shared by Lessor and Lessee
equally. If three appraisers are appointed, the three appraised values
shall be mathematically averaged and the two appraised values closest to
such mathematical average shall then be mathematically averaged and such
two appraisal mathematical average shall be binding on Lessor and Lessee.
Lessor and Xxxxxx shall each bear the cost of their own appraisals and
share equally the cost of the third appraisal.
(ii) If either party fails to appoint an appraiser within the time
required, the determination of the appraiser appointed by the other party
shall be final.
(iii) All appraisers appointed under this Appraisal Procedure shall be
experienced in the appraisal of electric generating facilities; provided
that any such appraiser used with respect to any appraisal regarding only
the Site may be an independent appraiser experienced in the appraisal of
industrial sites.
"Asbestos" shall have the meaning provided under any relevant Environmental
Laws and shall include, without limitation, asbestos fibers and friable
asbestos, as such terms are defined under the relevant Environmental Laws.
"Assigned Documents" shall have the meaning set forth in the Project
Mortgage.
"Assigned Rights" shall have the meaning set forth in Section 11.2(a)(i) of
the Amended and Restated Participation Agreement.
"Assignment of Power Purchase Agreement" shall mean the Assignment of Power
Purchase Agreement, dated as of December 15, 1990, between SPC and Lessor.
"Assumed Tax Consequences" shall have the meaning set forth in Section I of
the Tax Indemnity Agreement.
"Authority" shall mean the Venango County Industrial Development Authority.
"Authorized Officer" of any Person shall mean the authorized representative
of such Person responsible for its financial affairs or, in his or her
absence, the chief operating officer of such Person.
"Available Cash Flow Account" shall mean the Available Cash Flow Account
established pursuant to Section 2.03(c) of the Amended and Restated
Disbursement Agreement.
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"Bank Parties" shall mean the Disbursement Agent, Agent, the Bond LOC
Issuer, the Contract LOC Issuer and the Banks.
"Bankruptcy Law" shall mean Title 11, United States Code, and any other
Federal or state insolvency, reorganization, moratorium or similar law for the
relief of debtors.
"Banks" shall have the meaning set forth in the preamble to the Amended and
Restated Reimbursement Agreement.
"Base Rate" shall mean, at any time, the higher of the Prime Rate or the
Federal Funds Rate. Each change in any interest rate provided for in the
Transaction Documents based upon the Base Rate resulting from a change in the
Prime Rate or the Federal Funds Rate shall take effect automatically and
without necessity of further action by any Person at the time of such change
in the Prime Rate or the Federal Funds Rate, as the case may be.
"Basic Rent" shall mean, with respect to any Rent Payment Date or any other
date on which Basic Rent (Interest) is due, the Basic Rent (Equity), the Basic
Rent (Interest) and the Basic Rent (Principal), if any, due on such date.
"Basic Rent (Equity)" shall mean that portion of each installment of Basic
Rent set forth on Schedule I to the Amended and Restated Lease for such
category.
"Basic Rent (Interest)" shall mean that portion of each installment of Basic
Rent which provides for the payment of interest due on the Senior Debt on any
payment date.
"Basic Rent (Principal)" shall mean that portion of each installment of
Basic Rent set forth on Schedule I to the Amended and Restated Lease for such
category, which provides for principal payments due with respect to the Senior
Debt (except the Working Capital Loans) on the applicable payment date as such
amount may be increased or decreased in accordance with Section 3.01(a)(ii) of
the Amended and Restated Lease.
"Basic Term" shall mean, with respect to the Amended and Restated Lease, the
period commencing on the Lease Commencement Date, and ending on the twenty-
second anniversary of the Lease Commencement Date, subject to earlier
termination and renewal pursuant to the terms of the Amended and Restated
Lease.
"Bechtel Power" means Bechtel Power Corporation, a Nevada corporation.
"Bond Documents" shall mean the collective reference to the Bonds, the Bond
Purchase Agreement, the Indenture, the Installment Sale Agreement, the
Remarketing Agreement, the Installment Sale Agreement Assignment and all other
documents and instruments executed and delivered pursuant to or in connection
with any of the foregoing.
"Bond Issuer" shall mean the Venango County Development Authority, a public
instrumentality of the Commonwealth of Pennsylvania.
"Bond Issuer Fees" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"Bond Letter of Credit" shall mean an irrevocable letter of credit issued by
the Bond LOC Issuer substantially in the form of Exhibit B to the Amended and
Restated Reimbursement Agreement, including any increase in the amount thereof
or additional letter of credit made or issued pursuant to Section 2.01 of the
Amended and Restated Reimbursement Agreement.
"Bond LOC Issuer" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"Bond Pledge Agreement" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
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"Bond Purchase Agreement" shall have the meaning set forth in the Amended
and Restated Reimbursement Agreement.
"Bond Trustee" shall mean Bankers Trust Company, as trustee under the
Indenture, and its successors and assigns in such capacity appointed in the
manner provided in the Indenture.
"Bonds" shall mean the Bond Issuer's Resource Recovery Revenue Bonds,
Scrubgrass Partnership Project, Series 1990A and 1990B, and any additional
bonds issued pursuant to the Indenture.
"Borrower" shall mean Lessor in its capacity as borrower under the Loan
Documents.
"Borrower Environmental Liability Reserve Account" shall mean the Borrower
Environmental Liability Reserve Account established pursuant to Section
2.02(f) of the Amended and Restated Disbursement Agreement.
"Borrowing" shall have the meaning set forth in the Amended and Restated
Reimbursement Agreement.
"Business Day" shall mean any day on which commercial banks located in
cities in which the principal offices of the Disbursement Agent, Agent, the
Bond Trustee and the Remarketing Agent are located are not authorized or
required to close and, if such day relates to a borrowing of, a payment or
prepayment of or a Conversion of or into, or an Interest Period for, a
Eurodollar Rate Loan or a notice by Agent with respect to any such borrowing
payment, prepayment, Conversion or Interest Period, which day is also a day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"Buzzard Stock Pledge Agreement" shall have the meaning set forth in the
Amended and Restated Reimbursement Agreement.
"Calculation Date" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"Capital Lease" shall have the meaning set forth in the Amended and Restated
Reimbursement Agreement.
"Claims" shall mean all losses, claims, damages or liabilities (including
legal fees and costs of investigation and defense thereof), joint or several.
"Closing Date" shall mean December 28, 1990.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Collateral" shall mean the property and interests pledged to Agent or
Disbursement Agent for the benefit of the Bank Parties pursuant to the
Security Documents.
"Consents" shall have the meaning set forth in the Amended and Restated
Reimbursement Agreement.
"Construction Account" shall mean the Construction Account established
pursuant to Section 2.02(a) of the Amended and Restated Disbursement
Agreement.
"Contingent Obligation" of any Person, shall mean (a) the undrawn face
amount of all letters of credit issued for the account of such Person and (b)
any obligation of such Person guaranteeing or in effect guaranteeing any Debt,
leases, dividends, letters of credit or other obligations ("primary
obligations") of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, including, without limitation, any obligation
of such Person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (A) for the purchase or payment of any such
primary obligation or (B) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or
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services primarily for the purpose of assuring the obligee under any such
primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the
obligee under such primary obligation against loss in respect thereof;
provided that the term Contingent Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business.
"Contract Letter of Credit" shall mean an irrevocable letter of credit
issued by the Contract LOC Issuer substantially in the form of Exhibit C to
the Amended and Restated Reimbursement Agreement for the benefit of the Power
Purchaser.
"Contract LOC Issuer" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"Contractual Obligation" shall mean, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or undertaking
to which such Person is a party or by which it or any of its property is
bound.
"Conversion" shall have the meaning set forth in the Amended and Restated
Reimbursement Agreement.
"Conversion Date" shall mean June 30, 1994.
"Custodian" shall mean any receiver, trustee, debtor in possession,
assignee, custodian, liquidator or similar official under any Bankruptcy Law.
"Damage" shall mean loss, loss of use, permanent failure to function in
accordance with the Facility design as set forth in the Facility EPC Contract
or the Transmission Line EPC Contract, wearing out, destruction, condemnation,
transfer in lieu of condemnation, confiscation, theft, seizure or requisition
of use or title, excluding, however, any such occurrence which does not cause
any diminution in the value, utility or useful life of the Project or any
impairment of the Qualifying Facility status of the Facility or of the
interests of Lessor, or the Bank Parties.
"Date of Issuance" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"Debt" of any Person, shall mean (a) indebtedness for borrowed money or the
deferred purchase price of property or services (excluding obligations under
agreements for the purchase of goods and services in the normal course of
business that are not more than 30 days past due, but including obligations
under agreements relating to the issuance of performance letters of credit or
acceptance financing), (b) obligations as lessee under Capital Leases; (c)
Contingent Obligations, in each case of such Person, and (d) obligations under
any agreement providing for a swap, ceiling and/or floor rate, contingent
participation or other hedging mechanism with respect to any Debt of such
Person.
"Debt Service" shall have the meaning set forth in the Amended and Restated
Reimbursement Agreement.
"Debt Service Coverage Ratio" shall have the meaning set forth in the
Amended and Restated Reimbursement Agreement.
"Debt Service Loans" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"Default" when used in, or with reference to, any agreement without other
reference, shall mean any event that, with the giving of notice or lapse of
time, or both, would, unless cured or waived, become an Event of Default under
such agreement.
"Default Notice Withdrawal" shall mean a duly executed and completed notice
in the form of Exhibit 11.01(a)(2) to the Amended and Restated Disbursement
Agreement.
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"Default Rate" shall mean, at any time, (a) with respect to amounts due
under the Amended and Restated Reimbursement Agreement, Basic Rent (Principal)
and the debt portion of Stipulated Loss Value, an interest rate per annum
equal to the lesser of the Base Rate plus two percent (2%) or the highest rate
permitted by any Requirement of Law, (b) with respect to amounts due under the
Amended and Restated Lease as Basic Rent (Equity) and the equity portion of
Stipulated Loss Value, shall be 19% (on an After Tax Basis) and (c) with
respect to amounts due under any other Transaction Document, an interest rate
per annum equal to the lesser of the Base Rate plus two percent (2%) or the
highest rate permitted by any Requirement of Law.
"Determination Date" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"Disbursement Agent" shall mean Bankers Trust Company, in its capacity as
disbursement agent under the Amended and Restated Disbursement Agreement,
together with its successors and permitted assigns in such capacity.
"Disbursement Certificate" shall mean a duly executed and completed
certificate in the form of Exhibit 5.02(a)(1) to the Amended and Restated
Disbursement Agreement.
"Distributions" shall mean, with respect to any Person, the declaration or
payment of any dividend or the making of any other distribution of any nature
(whether in cash, property, securities or otherwise) to its shareholders,
partners or the holders of any equity interest in such Person, or the
redemption, retirement, purchase or other acquisition directly or indirectly,
for a consideration, of any shares of any class of its capital stock or of any
partnership or other equity interest now or hereafter outstanding or the
setting aside of any funds for any of the foregoing purposes.
"Dollars" and "$" shall mean lawful money of the United States of America.
"Easements" shall mean such easements, if any, required to provide to Lessor
or Lessee and their respective agents and employees access to the Site, the
Facility, water, transportation, utilities and other services necessary for
the construction, operation and maintenance of the Facility or the delivery of
electricity to the Power Purchaser.
"East Bay" shall mean East Bay Model Engineer's Society, a California
corporation.
"East Bay Stock Pledge Agreement" shall have the meaning set forth in the
Amended and Restated Reimbursement Agreement.
"Economic Return" shall mean with respect to any Partner, its anticipated
effective after-tax economic yield (calculated using the multiple investment
sinking fund analysis) and total after-tax cash flow.
"Effective Date" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"Effective Date Projections" shall mean the projections of operating results
for the Project delivered to the Agent on the Effective Date, as the same may
be amended in accordance with the Amended and Restated Reimbursement
Agreement.
"Eminent Domain Proceeds" shall have the meaning ascribed thereto in Section
10.13 of the Amended and Restated Reimbursement Agreement.
"Employee Benefit Plan" shall mean a "plan" as such term is defined in
Section 3(3) of ERISA or Section 4975 of the Code.
"Enhancement Certificate" shall mean a duly executed and completed
certificate in the form of Exhibit 8.04(a) to the Amended and Restated
Disbursement Agreement.
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"Enhancement Consent Certificate" shall mean a duly executed and completed
certificate in the form of Exhibit 8.04(b) to the Amended and Restated
Disbursement Agreement.
"Environmental Discharge" shall mean any discharge or release of Hazardous
Materials, pollutants, effluents or emissions of any kind in violation of any
relevant Environmental Law.
"Environmental Law" shall mean any federal, state or local statute, law,
rule, regulation, ordinance, code, policy or rule of common law now or
hereafter in effect and in each case as amended, and any judicial or
administrative order, consent decree or judgment, relating to the environment,
health, safety or Hazardous Materials, including, without limitation, (i) the
Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. Section 9601, et seq. ("Superfund"); the Superfund Amendments and
Reauthorization Act, Public Law 99-499, 100 Stat. 1613 ("XXXX"); the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., the National
Environmental Policy Act, 42 U.S.C. Section 4321; the Safe Drinking Water Act,
42 U.S.C. Section 300f, et seq.; the Toxic Substances Control Act, 15 U.S.C.
Section 2601; the Hazardous Materials Transportation Act, 49 U.S.C. Section
1801; the Federal Water Pollution Control Act., 33 U.S.C. Section 1251, et
seq.; the Clean Air Act, 42 U.S.C. 7401, et seq.; and, in each case, the
regulations promulgated in connection therewith; (ii) Environmental Protection
Agency regulations pertaining to Asbestos (including 40 C.F.R. Part 61,
Subpart M); Occupational Safety and Health Administration regulations
pertaining to Asbestos (including 29 C.F.R. Sections 1910.1001 and 1926.58);
(iii) the following laws of the Commonwealth of Pennsylvania: Air Pollution
Control Act, 35 P.S. (S) 4001 et seq., Clean Streams Law, 35 P.S. 5 691.1 et
seq., Dam Safety and Encroachments Act, 32 P.S. (S) 693.1 et seq., Hazardous
Sites Cleanup Act, 35 P.S. (S) 6020.101 et seq., Low Level Radioactive Waste
Disposal Act, 35 P.S. (S) 7130.101 et seq., Pesticide Control Act, 3 P.S.
(S) 111.24 et seq., Radiation Protection Act, 35 P.S. (S) 7110.101, Safe
Drinking Water Act, 35 P.S. (S) 721.1 et seq., Solid Waste Management Act, 35
P.S. (S) 6018.401 et seq., Storage Tank and Spill Prevention Act, 35 P.S.
(S) 6021.101 et seq., and Worker and Community Right-to-Know Act, 35 P.S. (S)
7301 et seq.; and (iv) any state and local laws and regulations pertaining to
Hazardous Materials and/or Asbestos.
"Environmental Liability" shall mean (i) the cost actually incurred by the
Lessor or the Lessee, as appropriate, pursuant to any governmental agency or
court order or settlement, (ii) any damages payable to any governmental agency
or third party by the Lessor or the Lessee, as appropriate, pursuant to any
governmental agency or court order or settlement, and (iii) reasonable legal
and other expenses incurred to defend, settle or otherwise respond to any
action, notice or investigation by any governmental agency or court, with
respect to the environmental clean up of the former Eclipse oil refinery site
that are incurred as a result of the Lessor or the Lessee, as appropriate,
holding, or having held, an easement for, or operating, the Transmission Line
across the Property.
"Environmental Notice" shall mean any complaint, order, citation, letter,
inquiry, notice or other written communication from any Person affecting or
relating to:
(a) Lessor;
(b) Lessee;
(c) the Site or any part thereof or any interest therein; or
(d) any activity or operations at any time conducted by Lessor, Lessee or
any other Person on or in connection with the Site or any part thereof or
any interest therein;
in each case with regard to the occurrence or presence of or exposure to or
possible or threatened or alleged occurrence or presence of or exposure to
Environmental Discharges, Hazardous Materials or Petroleum Products,
including, without limitation:
(i) the existence of any contamination or possible or threatened
contamination;
(ii) remediation of any Environmental Discharge, Hazardous Materials or
Petroleum Products in connection with the Site or any part thereof; and
(iii) any violation or alleged violation of any relevant Environmental
Law.
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"EPC" means Environmental Power Corporation, a Delaware corporation.
"EPC Group" shall mean Lessee, EPC and any Affiliate of either of them.
"EPC Group Default" shall mean a Default under the Amended and Restated
Lease arising solely from (i) an event described in Section 13.01(d) of the
Amended and Restated Lease (other than with respect to Article VI of the
Amended and Restated Lease), or in Section 13.01(j) or (k) of the Amended and
Restated Lease; (ii) a breach by a member of the EPC Group of a representation
or warranty relating to any member of the EPC Group as to matters solely
within the knowledge or control of the EPC Group or as to actions taken by any
member of the EPC Group; or (iii) an EPC Group member's failure to perform
under any Transaction Document, including the Amended and Restated Lease, any
obligation of such Person which is contemplated by the Transaction Documents
to be observed or performed by one or more members of the EPC Group and which
has not been delegated to or assumed by another party pursuant to any
Transaction Document, but excluding any obligation, the failure to perform
which is a result of a Project Risk.
"EPC Parties" shall mean, collectively, EPC, Sunnyside Cogeneration
Associates, a Utah joint venture, Kaiser Power of Sunnyside Inc., a Delaware
corporation, Kaiser Systems, Inc., a Delaware corporation and Sunnyside Power
Corp., a Utah corporation.
"Equipment" shall, for purposes of the Tax Indemnity Agreement, mean every
asset comprising the Facility other than the improvements, and for all other
purposes, shall have the meaning set forth in the Security Documents.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" shall mean, with respect to any person, each other person,
trade or business (whether or not incorporated) which would be required to be
aggregated with such person under Sections 414(b), (c), (m), or (o) of the
Code.
"Estate" shall mean, collectively, Xxxxx X. Xxxxx, acting as trustee for the
bankruptcy estate of Xxxxxxxx Coal Company, and the bankruptcy estate of
Xxxxxxxx Coal Company.
"Eurodollar Rate Loan" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"Event of Default" when used in, or with reference to, any agreement without
other reference, shall mean an event of default as defined in, or pursuant to,
the terms of such agreement.
"Event of Eminent Domain" means any compulsory transfer or taking or
transfer under threat of compulsory transfer or taking of any material part of
the Collateral by any agency, department, authority, commission, board,
instrumentality or political subdivision of the Commonwealth of Pennsylvania
or the United States or any other entity vested with the power of
condemnation.
"Event of Force Majeure" shall mean an event of Force Majeure (as defined in
the Facility EPC Contract and O&M Agreement) or "force majeure" (as defined in
the Power Purchase Agreement).
"Event of Loss" means any of the following events: (i) loss of all or
substantially all of the Project or the use thereof due to destruction, damage
beyond economical repair or rendition of the Project permanently unfit for
normal use for any reason whatsoever (other than if it is merely not
economically feasible to maintain, use or
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operate); (ii) anything which results in an insurance settlement with respect
to the Project on the basis of a total loss or constructive total loss
thereof; and (iii) the condemnation or taking or requisitions of title or use
for a period in excess of 6 months by any Governmental Authority which
constitutes the taking of all or substantially all of the Project or all or
such a substantial portion of the Site such that the remainder is not
sufficient to permit operation of the Project on a commercially feasible
basis.
"Excess Cash Flow" shall mean, for any Period, Project Revenues remaining
after application through item Seventh of Section 13.01(c)(ii) of the Amended
and Restated Reimbursement Agreement.
"Excluded Payments" shall mean (i) any indemnity or other liability,
obligation or amount (including, without limitation, any liability insurance
payments) that is paid or payable to Lessor or any other Person in compliance
with the Amended and Restated Participation Agreement or the Tax Indemnity
Agreement, whether paid or payable thereunder or under the Amended and
Restated Lease, (ii) any proceeds of liability or casualty insurance
maintained separately (in addition to that required to be maintained under the
Amended and Restated Lease or the Amended and Restated Reimbursement
Agreement, by Lessor for its benefit to the extent such insurance is permitted
by the Amended and Restated Lease or the Amended and Restated Reimbursement
Agreement, (iii) proceeds resulting from the exercise of the rights of Lessor
to enforce payments against Lessee and others of any of the foregoing amounts
or proceeds by a proceeding not involving any exercise of the remedies
provided for in Section 13.02 of the Amended and Restated Lease and (iv) any
proceeds of the foregoing clauses (i), (ii) and (iii).
"Existing Term Loans" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"Facility" shall mean the bituminous waste coal and coal burning facility
located in Venango County, Pennsylvania, designed to produce a net electrical
power output of approximately 85 megawatts, constructed on the Site pursuant
to the Facility EPC Contract and the Transmission Line EPC Contract,
consisting of two atmospheric circulating, fluidized bed boilers, a single
condensing steam turbine, a baghouse for particulate control, a wet-cooling
tower and related facilities, including the Transmission Line and the
Interconnection Facilities. The Facility includes the Facility Site and all
easements and other appurtenances thereto and all equipment, appliances,
machinery, buildings, structures, improvements and transmission lines
constructed pursuant to the Facility EPC Contract and the Transmission Line
EPC Contract, all as more particularly described in Exhibit A to the Amended
and Restated Lease, and all Alterations thereto or replacements thereof, all
fixtures, piping, attachments, appliances, equipment, machinery and other
articles attached thereto or used in connection therewith and all Lessor Spare
Parts and all Parts which may from time to time be incorporated in or
installed in or attached thereto, other than, in each case, Parts to which
Lessee or another Person has title pursuant to Section 5.03 or 5.05 of the
Amended and Restated Lease.
"Facility EPC Contract" shall mean the Contract for Engineering, Procurement
and Construction of the Scrubgrass Power Plant, dated December 21, 1990, by
and between Facility EPC Contractor and Lessor, providing for engineering,
procurement and construction services in connection with the Facility.
"Facility EPC Contractor" shall mean Bechtel Power Corporation, a Nevada
corporation, in its status as contractor under the Facility EPC Contract.
"Facility Site" shall mean that portion of the Site and all easements and
other appurtenances thereto on which the Facility is constructed, as more
particularly described in Exhibit C to the Amended and Restated Lease.
"Fair Market Value" shall mean the value of the item to be valued (and if
such item is the Facility, inclusive of the Site and the Principal Project
Agreements) in an arm's-length transaction between an informed and willing
purchaser under no compulsion to buy and an informed and willing seller under
no compulsion to sell.
"Falcon" shall mean Falcon Power Corporation, a California corporation.
10
"Federal Bankruptcy Code" shall mean Title 11 of the United States Code, as
amended, or any other federal bankruptcy code hereafter in effect.
"Federal Funds Rate" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"Fees" shall have the meaning set forth in the Amended and Restated
Reimbursement Agreement.
"FERC" shall mean the Federal Energy Regulatory Commission or any successor
entity or analogous federal Governmental Authority.
"Final Determination" shall have the meaning set forth in Section 7.03(f) of
the Tax Indemnity Agreement for purposes of such Agreement and for all other
purposes shall mean a judgment, order or other binding decision of any court,
agency or other tribunal having jurisdiction in the premises which is not
subject to further appeal or for which the applicable appeal period has
expired without any appeal being brought.
"First Amendment to O&M Agreement" shall mean the First Amendment to
Operation and Maintenance Agreement dated December 22, 1995 between the Lessee
and Operator.
"Fixed Rental Renewal Term" shall mean a three year term following the
expiration of the Basic Term of the Amended and Restated Lease, in accordance
with the terms of Section 9.01 of the Amended and Restated Lease.
"Fuel" shall mean (a) the bituminous and coal waste, conforming to all
applicable specifications at the Facility, used or intended to be used as fuel
for the Facility, and (b) coal which may be used to operate the Facility in
accordance with Governmental Approvals and any Requirement of Law, which
Lessor either owns or has the right to use.
"Fuel Agreements" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"GAAP" shall mean generally accepted accounting principles in the United
States of America from time to time as set forth in (a) the opinions and
pronouncements of the Accounting Principles Board and the American Institute
of Certified Public Accountants and (b) Statements and pronouncements of the
Financial Accounting Standards Board.
"General Partners" shall mean Pine, Falcon, SPC and all other Persons
admitted as general partners of Lessor pursuant to the terms of the
Partnership Agreement.
"Governmental Approvals" shall mean any authorization, consent, approval,
license, franchise, lease, ruling, order, permit, tariff, rate, certification,
exemption, variance, filing or registration by or with any Governmental
Authority or legal or administrative body, domestic or foreign, federal, state
or local, relating to the construction, ownership, operation or maintenance of
the Project or to the execution, delivery or performance of any Principal
Project Agreement.
"Governmental Authority" shall mean any Federal, state, local, municipal or
regional government, governmental department, authority, commission, bureau,
instrumentality, board, agency, court, tribunal or other administrative or
regulatory body, officer or entity, including any zoning body, building
inspector, health or safety inspector or fire marshal, and any arbitrator with
authority to bind a party at law.
"Governmental Rule" shall mean any law, rule, regulation, ordinance, order,
code, interpretation, judgment or similar form of decision of any Governmental
Authority.
"Guaranty" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing in any manner any Debt of any
other Person or in any manner providing for the payment
11
of any Debt of any other Person or otherwise protecting the holder of such
Debt against loss (whether by virtue of partnership arrangements, by agreement
to keep-well, to pay or purchase such Debt or to advance or supply funds for
the payment or purchase of such Debt, to purchase, sell or lease (as lessee or
lessor) property, assets, goods, securities or services, or to take-or-pay or
otherwise), provided, that the term "Guaranty" shall not include endorsements
for collection or deposit in the ordinary course of business. The term
"Guaranty" used as a verb has a correlative meaning.
"Hazardous Materials" shall mean Asbestos, polychlorinated biphenyls (PCBs),
Petroleum Products and any toxic or hazardous materials and substances, wastes
or contaminants, as any of those terms are defined from time to time in or for
the purpose of any relevant Environmental Law.
"Hedge Account" shall mean the Hedge Account established pursuant to Section
2.02(g) of the Amended and Restated Disbursement Agreement.
"Improvements" shall, for the purposes of the Tax Indemnity Agreement, have
the meaning set forth therein and for all other purposes, shall have the
meaning set forth in the Project Mortgage.
"Indemnifiable Tax Loss" shall have the meaning given in Section 4.01 of the
Tax Indemnity Agreement.
"Indemnitee" shall mean (A) each of (i) Lessor and each Partner thereof,
(ii) the Bond Trustee, the Disbursement Agent, Agent (both in their individual
and their trust capacities), (iii) each Bank, (iv) the LOC Issuers, (B) the
respective successors, assigns, agents, shareholders, officers, directors or
employees of the foregoing and (C) any Affiliate of any thereof.
"Indenture" shall have the meaning set forth in the Amended and Restated
Reimbursement Agreement.
"Independent Engineer" shall mean (a) X.X. Xxxx and Associates or (b) such
other engineering consultant, satisfactory to Lessor and Agent that is engaged
to examine the plans and specifications of the Project, changes in such plans
and specifications and cost breakdowns and estimates, to make periodic
inspections of the construction and operation of the Project on behalf of the
Bank Parties, and to advise and render reports to the Bank Parties concerning
the same, or otherwise to perform such services with respect to the Project as
the Bank Parties from time to time may request.
"Installment Sale Agreement" shall have the meaning set forth in the Amended
and Restated Reimbursement Agreement.
"Installment Sale Agreement Assignment" shall mean the Installment Sale
Agreement Assignment, dated as of December 15, 1990, between SPC and the
Lessor.
"Insurance Account" shall mean the Insurance Account established pursuant to
Section 2.02(c) of the Amended and Restated Disbursement Agreement.
"Insurance Consultant" shall mean any insurance consultant retained by Agent
from time to time with respect to insurance coverage for the Project in
accordance with Section 10.04 of the Amended and Restated Reimbursement
Agreement.
"Insurance Proceeds" has the meaning specified in Section 13.02 of the
Amended and Restated Reimbursement Agreement.
"Insurance Proceeds Disbursement Certificate" shall mean a duly executed and
completed certificate in the form of Exhibit 9.02(a) to the Amended and
Restated Disbursement Agreement.
"Interconnection Facilities" shall mean such electrical interconnection
facilities as are necessary for the Facility to be capable of delivering
electrical power to the Power Purchaser in accordance with the Power Purchase
Agreement.
12
"Interest Period" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"Interest Rate Protection Agreement" shall have the meaning set forth in the
Amended and Restated Reimbursement Agreement.
"Junior Debt" shall mean any Debt and other obligations of Lessor to any
Partner or Affiliate of any Partner and any Debt of Lessee incurred in
connection with the Settlement Agreement, not exceeding $4,000,000 in the
aggregate, or any Debt and other obligations of Lessor to any other Person as
may be approved by Agent (regardless of the principal amount thereof), in each
case evidenced by an instrument or instruments subordinated to the payment of
the Obligations and the rights of the LOC Issuers, the Banks and the holders
of the Notes under the Amended and Restated Reimbursement Agreement by
provisions substantially in the form of Exhibit E to the Amended and Restated
Reimbursement Agreement or incorporating such provisions by reference.
"Law" shall mean any statute, law, rule, code, ordinance, decision,
regulation, ruling, guideline, order, permit or other governmental act.
"Lease Commencement Date" shall mean June 30, 1994.
"Lease Participant" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"Lease Term" shall have the meaning set forth in the Amended and Restated
Lease.
"Lease Termination Date" shall mean the last day of the Lease Term, or any
earlier date on which the Amended and Restated Lease terminates in accordance
with its terms.
"Xxx Xxxxx" shall mean, collectively, the Agreement, dated February 12,
1981, by and between Xxxxxx Xxx and Xxxxx X. Xxx and Xxxxxxxx Coal Company,
and the Agreement, dated February 6, 1976, by and between Xxxxxx Xxx and Xxxxx
X. Xxx and Xxxxxxxx Coal Company.
"Lessee" shall mean Buzzard Power Corporation, a Delaware corporation, or
any other Person who is Lessee under the Amended and Restated Lease.
"Lessee Account Collateral" shall have the meaning specified in Section 3.01
of the Amended and Restated Disbursement Agreement.
"Lessee Accounts" shall mean the Operating Account, the Maintenance Reserve
Account, the Available Cash Flow Account and the Lessee Environmental
Liability Reserve Account, created in accordance with the terms of the Amended
and Restated Disbursement Agreement.
"Lessee Available Cash" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"Lessee Collateral" shall have the meaning specified in Section 11.2(a)(ii)
of the Amended and Restated Participation Agreement.
"Lessee Environmental Liability Reserve Account" shall mean the Lessee
Environmental Liability Reserve Account established pursuant to Section
2.03(d) of the Amended and Restated Disbursement Agreement.
"Lessee Parent" shall mean EPC.
"Lessee Security Agreement" shall have the meaning set forth in the Amended
and Restated Reimbursement Agreement.
13
"Lessee Working Capital Loan" shall have the meaning set forth in the
Amended and Restated Lessee Working Capital Loan Agreement.
"Lessor" shall mean Scrubgrass Generating Company, L.P., a Delaware limited
partnership in its capacity as Lessor under the Amended and Restated Lease.
"Lessor Account Collateral" shall have the meaning specified in Section 3.02
of the Amended and Restated Disbursement Agreement.
"Lessor Accounts" shall mean the Construction Account, the Amortization
Account, the Amortization Sub-Account, the Insurance Account, the Lessor
Revenues Account, the Rent Suspense Account, the Borrower Environmental
Liability Reserve Account and the Hedge Account, created in accordance with
the terms of the Amended and Restated Disbursement Agreement.
"Lessor Collateral" shall mean, collectively, the "Collateral" as defined in
Section 2.1(a) of the Security Agreement and the "Mortgaged Property" as
defined in the Project Mortgage.
"Lessor Default Notice" shall mean a duly executed and completed notice in
the form of Exhibit 11.02(a)(1) to the Amended and Restated Disbursement
Agreement.
"Lessor Group" shall mean Lessor, each General Partner and the Operator and
the Manager (but only so long as the Operator and the Manager are Affiliates
of the Lessor or any General Partner), and any Affiliate of any of them.
"Lessor Lien" shall mean any Lien on the Collateral or any part thereof
which results from (i) nonpayment by Lessor or any Partner of any taxes
imposed on or measured by its net income or the net income of the consolidated
group of taxpayers, of which it is a part or (ii) any act or failure to act of
or claim against Lessor or any Partner arising out of events or conditions not
related or connected to any transaction contemplated by the Transaction
Documents.
"Lessor Post-Default Disbursement Certificate" shall mean a duly executed
and completed certificate in the form of Exhibit 11.02(a)(2) to the Amended
and Restated Disbursement Agreement.
"Lessor QF Casualty" shall have the meaning set forth in Section 7.2 of the
Amended and Restated Participation Agreement.
"Lessor Release Notice" shall mean a duly executed and completed notice in
the form of Exhibit 5.02(d)(2) to the Amended and Restated Disbursement
Agreement.
"Lessor Revenues Account" shall mean the Lessor Revenues Account established
pursuant to Section 2.02(d) of the Amended and Restated Disbursement
Agreement.
"Lessor Spare Parts" shall mean the spare parts for the Facility furnished
to Lessee by Lessor on the Lease Commencement Date.
"Letters of Credit" shall mean, in the singular, the Bond Letter of Credit
or the Contract Letter of Credit, as the context requires, and in the plural,
the collective reference to the Bond Letter of Credit and the Contract Letter
of Credit.
"Lien" shall mean any mortgage, pledge, lien, security interest, deed of
trust or other charge or encumbrance of any kind, or any other similar type of
preferential arrangement (including, without limitation, any agreement to give
any of the foregoing, any conditional sale or other title retention agreement,
any lease in the nature thereof and the filing of or agreement to give any
financing statement under the Uniform Commercial Code of any jurisdiction).
14
"Limestone Agreement(s)" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"Limited Partners" shall mean the Persons or entities admitted to the
Partnership at any time and from time to time as limited partners.
"Loan Documents" shall mean the Amended and Restated Reimbursement
Agreement, the Notes, the Letters of Credit, the Security Documents, and any
Interest Rate Protection Agreement.
"Loans" shall have the meaning set forth in the Amended and Restated
Reimbursement Agreement.
"LOC Issuer" shall have the meaning set forth in the Amended and Restated
Reimbursement Agreement.
"Loss Payment Date" shall have the meaning set forth in Section 7.01 of the
Amended and Restated Lease.
"Maintenance Reports" shall have the meaning set forth in Section 4.02 of
the Amended and Restated Lease.
"Maintenance Reserve Account" shall mean the Maintenance Reserve Account
established pursuant to Section 2.03(b) of the Amended and Restated
Disbursement Agreement.
"Maintenance Reserve Account Reduction Certificate" shall mean a duly
executed and completed certificate in the form of Exhibit 8.02(d) to the
Amended and Restated Disbursement Agreement.
"Majority Banks" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"Majority of the Limited Partners" shall have the meaning set forth in the
Partnership Agreement.
"Management Costs" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"Material Adverse Effect" shall have the meaning set forth in the Amended
and Restated Reimbursement Agreement.
"Memorandum of Amended and Restated Lease" shall mean the Memorandum of
Amended and Restated Lease, dated December 22, 1995, between the Lessor and
the Lessee.
"Monthly Distribution Date" shall have the meaning set forth in the Amended
and Restated Reimbursement Agreement for the term "Payment Date."
"Moody's" shall mean Xxxxx'x Investors Service, Inc., a Delaware
corporation.
"Mortgaged Property" shall have the meaning set forth in the Project
Mortgage.
"Multiemployer Plan" shall mean a Plan which is a "multiemployer plan" as
such term is defined in Section 4001(a)(3) of ERISA.
"NatWest" shall mean National Westminster Bank Plc, acting through its New
York branch.
"Net Cash Flow" shall mean, for any Period, Project Revenues remaining after
application through item Third of Section 13.01(c)(i) of the Amended and
Restated Reimbursement Agreement.
"New Term Loans" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
15
"Nonseverable Alteration" shall mean any Alteration which cannot be readily
removed from the Facility without causing material damage to or reducing the
fair market value, residual value, utility or economic useful life of the
Facility that the Facility would have had if such Alteration had never been
made.
"Notes" shall have the meaning set forth in the Amended and Restated
Reimbursement Agreement.
"Notice Provisions" shall mean Schedule IV to the Amended and Restated
Participation Agreement.
"Obligations" shall mean, collectively, Xxxxxx's obligations pursuant to the
Transaction Documents.
"OECD" shall mean Organization for Economic Cooperation and Development.
"Officer's Certificate" shall mean, in respect of any corporation, a
certificate of the President, any Vice President or the Treasurer of the
corporation and, in respect of any partnership, a certificate of a general
partner or other authorized representative of such partnership.
"O&M Agreement" shall mean the Operation and Maintenance Agreement, dated as
of December 21, 1990, by and between Lessor and Bechtel Power and assigned by
Bechtel Power to Operator pursuant to an Assignment and Assumption Agreement
dated as of January 1, 1992, as amended by First Amendment to O&M Agreement or
any substitute agreement for the operation and maintenance of the Facility
that shall have been approved by the Majority Banks in their sole discretion.
"Omnibus Reaffirmation Agreement" shall have the meaning set forth in the
Amended and Restated Reimbursement Agreement.
"Operating Account" shall mean the Operating Account established pursuant to
Section 2.03(a) of the Amended and Restated Disbursement Agreement.
"Operating Budget" shall have the meaning set forth in Section 10.12 of the
Amended and Restated Reimbursement Agreement.
"Operating Expenses" shall mean, for any Period after the Conversion Date,
the operating and maintenance expenses of the Project incurred by Lessor or
Lessee for such Period, including, but not limited to, insurance premiums,
indemnity payments paid directly or indirectly to any Person who is not a
Lease Participant and licensing taxes, and excluding amounts to be deposited
in the Maintenance Reserve Account, Subordinated Operating Expenses, Junior
Debt, Debt Service, Basic Rent (Equity), Supplemental Rent (Equity) and
Additional Rent; provided, however, that in no event shall Operating Expenses
include fees and costs incurred by Lessor or Lessee in connection with the
adjustment of Rent and Stipulated Loss Value under Section 3.04(c) of the
Amended and Restated Lease, in excess of $10,000 in any twelve month period.
"Operating Logs" shall have the meaning set forth in Section 4.02 of the
Amended and Restated Lease.
"Operator" shall mean U.S. Operating Services Company, a California general
partnership, in its status as the operator of the Facility, and any successor
operator.
"Part" shall mean any part, appliance, instrument, appurtenance, accessory,
furnishing or other property of any nature necessary or useful to the
operation, maintenance, service or repair of the Facility, including any
Alteration.
"Partial Event of Eminent Domain" shall have the meaning ascribed thereto in
Section 13.03 of the Amended and Restated Reimbursement Agreement.
"Participants" shall mean, collectively, Lessee, Lessor, the Bond Trustee,
the Disbursement Agent, Agent, the LOC Issuers and EPC (but only in any period
during which EPC is obligated under Section 9.1 of the Amended and Restated
Participation Agreement), and reference to a Participant shall be to any one
of the Participants.
16
"Partners" shall mean, collectively, the General Partners and all Limited
Partners from time to time of Lessor, and reference to a Partner shall be to
any one of the Partners.
"Partnership" shall mean Scrubgrass Generating Company, L.P., a Delaware
limited partnership.
"Partnership Agreement" shall mean the First Amended and Restated Limited
Partnership Agreement of Scrubgrass Generating Company, L.P., dated as of
January 14, 1993, by and among Pine, Falcon and SPC and certain limited
partner(s).
"Partnership Interest" shall have the meaning set forth in the Partnership
Agreement.
"Payment Date" shall have the meaning set forth in the Amended and Restated
Reimbursement Agreement.
"Period" shall have the meaning set forth in the Amended and Restated
Reimbursement Agreement.
"Permitted Investments" shall mean any of the following:
(i) Direct obligations of, or obligations the principal of and interest
on which are unconditionally guaranteed by, the United States of America
and which shall mature within one year from the date of acquisition
thereof;
(ii) Obligations of state and local government and municipal bond
issuers, which are rated at least AA or Aa or the equivalent thereof by S&P
or Moody's, but excluding any such obligation, the obligor of which is
either an entity qualifying as charitable under Section 501(c)(3) of the
Code or a non-profit corporation, unless such obligation is supported by a
letter of credit issued by a bank incorporated in an OECD member country;
(iii) Full faith and credit obligations of state or local government bond
issuers which are rated at least AA or Aa or the equivalent thereof by S&P
or Moody's;
(iv) Commercial paper of any bank which is incorporated in an OECD member
country, which commercial paper is rated at least A-1+ or P-1 or the
equivalent thereof by S&P or Moody's;
(v) Certificates of deposit of any bank or bank holding company of any
bank (including the Bond Trustee) whose outstanding secured long term debt
is rated at least AA or Aa or the equivalent thereof by S&P or Moody's;
(vi) Tax-exempt money market funds; and
(vii) Guaranteed investment contracts approved by the Majority Banks.
"Permitted Liens" shall have the meaning, with respect to Lessor, set forth
in Section 11.02 of the Amended and Restated Reimbursement Agreement and, with
respect to Lessee, shall mean any of the following:
(i) Liens specifically permitted by, or created by, the Lessee Security
Agreement or any other Transaction Document;
(ii) Liens in respect of property or assets of Lessee imposed by law,
which were incurred in the ordinary course of business, such as carriers',
warehousemen's and mechanics' liens and other similar liens arising in the
ordinary course of business, and (x) which do not in the aggregate detract
from the value of such property or assets or impair the use thereof in the
operation of the business of Lessee or (y) which are being contested in
good faith by appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property or assets subject to such
Lien; provided, however, that adequate reserves with respect thereto shall
be maintained on the books of Lessee in accordance with GAAP;
(iii) Liens for taxes which are either not yet due, are due but payable
without penalty or are being contested in good faith by appropriate
proceedings conducted with due diligence, if adequate reserves for such
taxes have been established and are being maintained;
17
(iv) Liens in connection with worker's compensation, unemployment
insurance or other social security obligations;
(v) Any exceptions to title which are contained in the title insurance
policies delivered to Agent pursuant to Section 8.01(f) of the Amended and
Restated Reimbursement Agreement;
(vi) Liens securing purchase money obligations which do not in the
aggregate exceed $500,000 at any one time outstanding; or
(vii) Liens to which the Majority Banks have consented in writing.
"Permitted Transfers" shall mean (a) sales, transfers, assignments or other
dispositions which (i) are to Persons, approved by the Majority Banks (which
approval shall not be unreasonably withheld), who assume all obligations of
Lessor and under the other Loan Documents and (ii) after giving effect
thereto, do not result in the occurrence of any Default or Event of Default
under any Transaction Document, (b) any sale, transfer, assignment or other
disposition of a limited partner interest in Lessor or (c) any sale, transfer,
assignment or other disposition of a general partner interest permitted by
Section 10.02 of the Amended and Restated Reimbursement Agreement.
"Persons" shall mean an individual, corporation, partnership, joint venture,
trust, association or unincorporated organization, or a government or any
agency or political subdivision thereof.
"Petroleum Products" shall mean gasoline, diesel fuel, motor oil, waste or
used oil, heating oil, kerosene and any other petroleum products or any
fraction thereof.
"Pine" shall mean Pine Power Leasing, Inc., a Delaware corporation.
"Plan" shall mean any pension plan that is covered by Title IV of ERISA in
respect of which Lessor or a "Controlled Group" (within the meaning of Section
4001(a)(14) of ERISA) or a Person under common control with Lessor is an
"employer" as defined in Section 3(5) of ERISA.
"Plan Assets" shall mean assets of any Plan (other than a governmental plan
within the meaning of Section 414(d) of the Code) as such term "plan assets"
is interpreted ((i) with respect to any Bank or any of their assignees,
transferees or pledgees, at the time a Note (or interest therein) is acquired,
assigned, transferred or pledged; or (ii) with respect to any Partner, or any
of its assignees, transferees, or pledgees, at the time a Partnership Interest
(or interest therein) is acquired, assigned, transferred or pledged under the
Partnership Agreement, the Amended and Restated Participation Agreement, or
under any other Transaction Document to which such person is a party but only
to the extent of the funds) by the Internal Revenue Service and United States
Department of Labor in regulations, rulings, releases or bulletins and by
decisions of courts in cases arising under ERISA or the Code.
"Power Purchase Agreement" shall mean the Agreement for the Sale of Electric
Energy from the Scrubgrass Generating Plant, dated as of August 7, 1987, as
amended by Supplemental Agreement, dated February 22, 1989, Letter Agreement,
dated March 28, 1989, Second Supplemental Agreement, dated September 27, 1989,
Letter Agreement dated March 7, 1990, Letter Agreement, dated March 9, 1990,
Third Supplemental Agreement, dated August 13, 1990, and Amendment to Third
Supplemental Agreement, dated as of November 27, 1990, and the Letter
Agreement dated December 20, 1990 as assigned to Lessor pursuant to the
Assignment of Power Purchase Agreement and any other Additional Contract
relating to the sale of electric output from the Facility.
"Power Purchaser" shall mean Pennsylvania Electric Company, a public utility
corporation organized and existing under the laws of the Commonwealth of
Pennsylvania.
"Present Value" shall mean, with respect to Basic Rent, the value at the
date of calculation, of the remaining payments of Basic Rent to be made during
the Basic Term, discounted at the Default Rate, or with respect to Section
3.04(e) of the Amended and Restated Lease, the Applicable Rate.
18
"Prime Rate" shall have the meaning set forth in the Amended and Restated
Reimbursement Agreement.
"Principal Project Agreements" shall mean the Power Purchase Agreement, the
Facility EPC Contract, the Transmission Line EPC Contract, the Partnership
Agreement, the O&M Agreement, the Project Management Agreement, the Amended
and Restated Lease, the Limestone Agreements, the Fuel Agreements, the
Transportation Agreements, the Settlement Agreement Documents and all
Additional Contracts.
"Principal Project Participants" shall mean Lessor, the Operator, the
Project Manager, the Power Purchaser, the General Partners, Lessee and EPC.
"Proceedings" shall mean, collectively, any proceeding by or against Lessor,
seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, or other similar
official for it or for any substantial part of its property.
"Project" shall mean, collectively, the Facility and the Site.
"Project Costs" shall mean the costs and expenses incurred by Lessor in
connection with the development, financing, design, engineering, acquisition,
construction, assembly, inspection, testing, completion and start-up of the
Facility, including, without limitation, interest on Loans, Unpaid Drawings
and Fees accrued prior to the Conversion Date, funding of aggregate
Distributions of approximately $7,400,000 for the purpose of financing the
acquisition of SPC stock by Falcon (including the related payment obligations
incurred pursuant to Section 1.3 of the Stock Purchase Agreement) and all
other capitalized fees and expenditures, including all items of cost
includable within "Costs" (as defined in the Indenture).
"Project Management Agreement" shall mean the Management Services Agreement,
dated as of December 15, 1990, by and between Lessor and the Project Manager
providing for certain management services with respect to the Project.
"Project Management Compensation" shall have the meaning set forth in the
Project Management Agreement.
"Project Manager" shall mean U.S. Generating Company, a California general
partnership.
"Project Mortgage" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"Project Revenues" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"Project Risk" shall mean any failure of the Project to generate sufficient
revenue to pay all operating costs and expenses of the Project and amounts
owed under any Transaction Document by reason of events outside the exclusive
responsibility and control of either the Lessor Group or the EPC Group,
including without limitation, any Event of Force Majeure or the non-
performance by or the commencement of Proceedings involving any party (other
than by any member of the EPC Group or the Lessor Group) in connection with a
Principal Project Agreement.
"Property" shall mean the portions of the properties in Sugarcreek Township,
Venango County, Pennsylvania owned by ACV Power Corporation, Xxxx Industries,
Inc., Xxxxxx Xxxxxx and Xxxxx Xxxxx that the Transmission Line crosses.
"Proportionate Share" shall have the same meaning as the term "Partnership
Interest," as such term is defined in the Partnership Agreement.
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"Prudent Utility Practices" shall mean those practices, methods, equipment,
specifications and standards of safety and performance, as the same may change
from time to time, as are commonly used by electric generation stations in
Pennsylvania of a type and size similar to the Facility as good, safe and
prudent engineering practices in connection with the design, construction,
operation, maintenance, repair and use of electrical and other equipment,
facilities and improvements of such electrical station, with commensurate
standards of safety, performance, dependability, efficiency and economy.
Prudent Utility Practices are not intended to be limited to the optimum
practice or method to the exclusion of all others, but rather to be a spectrum
of possible practices and methods.
"Public Utility" shall mean an "electric utility" or an "electric utility
holding company," as such terms are used in PURPA and the regulations
thereunder (18 CFR Part 292), or any wholly or partially-owned direct or
indirect subsidiary of any "electric utility" or "electric utility holding
company," as such terms are so used, or any similar entity (including without
limitation a "public utility," as such term is defined in the Federal Power
Act, or a "holding company," a "subsidiary company," an affiliate" of a
"holding company," as such terms are defined in the Public Utility Holding
Company Act of 1935, subject to regulation under the Federal Power Act except
those portions that relate to Qualifying Facilities, the Public Utility
Holding Company Act of 1935, as amended, the Pennsylvania Public Utility Act
or any other comparable Federal, state or local law or regulation.
"Purchase Price" shall mean the purchase price described in Section 1.3 of
the Stock Purchase Agreement.
"PURPA" shall mean the Public Utility Regulatory Policies Act of 1978, as
amended.
"Qualifying Facility" shall mean (i) a cogeneration facility meeting all of
the requirements for a "qualifying cogeneration facility" or (ii) so long as
neither Lessor nor the Project shall be subject to regulation as an "electric
utility," "electric corporation," "electrical company," "public utility,"
"public utility holding company" or similar entity pursuant to the Public
Utility Holding Company Act of 1935, the Federal Power Act or any other
Governmental Rule, except as set forth in 18 C.F.R. (S) 292.601 or 18 C.F.R.
(S) 292.602, a facility meeting all of the requirements for a "qualifying
small power production facility" set forth in PURPA and in Part 292 of the
rules and regulations of FERC under PURPA.
"Ratable Share" shall have the meaning set forth in the Amended and Restated
Reimbursement Agreement.
"Refinancing" shall mean any subsequent or additional financing with respect
to the Project which is not contemplated by or pursuant to the Loan Documents.
"Regulatory Records" shall have the meaning set forth in Section 4.02 of the
Amended and Restated Lease.
"Remarketing Agent" shall have the meaning set forth in the Indenture.
"Remarketing Agreement" shall mean the Remarketing Agent's Agreement, dated
as of December 15, 1990, by and between Lessor and the Remarketing Agent with
respect to the Bonds, and any future remarketing agreements between Lessor and
the Remarketing Agent with respect to the issuance of any additional Bonds
after the Closing Date.
"Renewal Term" shall mean, with respect to the Amended and Restated Lease,
the Fixed Rental Renewal Term.
"Rent" shall mean, collectively, Basic Rent, Additional Rent and
Supplemental Rent.
"Rent Payment Date" shall mean the dates set forth on Schedule I to the
Amended and Restated Lease.
"Rent Suspense Account" shall mean the account of Lessor maintained in
accordance with Section 2.02(e) of the Amended and Restated Disbursement
Agreement.
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"Required Maintenance Reserve Account Balance" shall mean $3,000,000, or
such lesser amount as may be established from time to time pursuant to Section
8.02(d) of the Amended and Restated Disbursement Agreement.
"Requirement of Law" shall mean, as to any Person, the certificate of
incorporation and by-laws or partnership agreements or other organizational or
governing documents of such Person, and any law, treaty, executive order, rule
or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its properties or to which such Person or any of its properties is
subject, including, without limitation, Environmental Laws and zoning, use and
building codes, laws, regulations and ordinances.
"Reserved Areas" shall mean that portion of the Site which does not include
the Facility Site, as more particularly described in Exhibit E to the Amended
and Restated Lease.
"Scrubgrass Stock Pledge Agreement" shall have the meaning set forth in the
Amended and Restated Reimbursement Agreement.
"Secured Obligations" shall mean Lessor's obligations to the Bank Parties
under the Transaction Documents.
"Securities" shall mean any shares, stock, bonds, debentures, notes,
evidences or indebtedness or any other instruments commonly known as
"securities."
"Securities Act" shall mean the Securities Act of 1933, as amended, and any
similar or successor Federal statute, and the rules and regulations of the
Securities and Exchange Commission hereunder, all as the same may be in effect
at the time.
"Security Agreement" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"Security Documents" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"Segregated Lessor Revenues" shall have the meaning set forth in the Amended
and Restated Reimbursement Agreement.
"Senior Debt" means the Debt evidenced by the Notes and the Bonds.
"Settlement Agreement" shall mean the Agreement dated December 22, 1995
among USGen, the Operator, EPC, the Lessee and the Lessor.
"Settlement Agreement Documents" shall mean, collectively, the Settlement
Agreement, the Settlement Notes and the First Amendment to O&M Agreement.
"Settlement Notes" shall mean, collectively, the Promissory Note dated
December 22, 1995 issued by the Lessee to USGen in the amount of $900,000, the
Promissory Note dated December 22, 1995 issued by the Lessee to USGen in the
amount of $152,000, the Promissory Note dated December 22, 1995 issued by the
Lessee to USGen in the amount of $429,000, the Promissory Note dated December
22, 1995 issued by the Lessee to USGen in the amount of $300,000 and the
Promissory Note dated December 22, 1995 issued by the Borrower to EPC in the
amount of $452,000.
"Severable Alteration" shall mean any Alteration which can be readily
removed from the Facility without causing material damage to or reducing the
Fair Market Value, residual value, utility or economic useful life of the
Facility.
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"Site" shall mean the real property described in the Project Mortgage and in
Exhibit B to the Amended and Restated Lease, including the Facility Site and
the Reserved Areas.
"SPC" shall mean Scrubgrass Power Corp., a Pennsylvania corporation.
"Stipulated Loss Value" shall mean as of any Rent Payment date, the amount
set forth opposite such date on Schedule IV to the Amended and Restated Lease;
provided, however, that notwithstanding such Schedule IV or any other
provision of the Amended and Restated Lease, Stipulated Loss Value as of any
date, together with any other amounts required to be paid to Lessor under the
Amended and Restated Lease on such date, under any circumstances and in any
event, shall be in an amount at least sufficient to pay in full, as of any day
of payment, the aggregate unpaid principal amount of all Senior Debt, together
with all unpaid interest and premium or penalty, if any, thereon accrued, as
of such date of payment.
"Stock Pledge Agreements" shall mean the Scrubgrass Stock Pledge Agreement,
the Buzzard Stock Pledge Agreement, and the East Bay Stock Pledge Agreement.
"Stock Purchase Agreement" shall mean the Stock Purchase Agreement, dated as
of December 15, 1990, by and among Falcon, EPC and SPC pursuant to which
Falcon purchased the stock of SPC from EPC.
"Subordinated O&M Payments" shall mean any fees or other amounts payable to
Operator pursuant to the O&M Agreement that are expressly subordinated in
accordance with the terms of Section 2 of Exhibit B to the O&M Agreement.
"Subordinated Operating Expenses" shall mean any Management Costs or
Subordinated O&M Payments.
"Subsidiary" shall have the meaning set forth in the Amended and Restated
Reimbursement Agreement.
"Supplemental Rent" shall mean collectively, (i) Supplemental Rent (Senior
Debt), (ii) Supplemental Rent (Equity) and (iii) the amount required to be
paid on each respective Rent Payment Date for the purposes indicated in
clauses Tenth through Sixteenth of Section 13.01(c)(ii) of the Amended and
Restated Reimbursement Agreement (without regard to the amount of funds
actually available for such purposes on any Rent Payment Date).
"Supplemental Rent (Equity)" shall mean any and all amounts, liabilities and
obligations (other than Basic Rent and Additional Rent) that Lessee assumes or
agrees to pay to or on behalf of (A) Lessor and each Partner thereof, (B)
their respective successors, assigns, agents, shareholders, officers,
directors, employees, and (C) any Affiliate of any thereof under the Amended
and Restated Participation Agreement, the Amended and Restated Lease or any
other Transaction Document, including payment of indemnity amounts due from
Lessee pursuant to the Power Purchase Agreement or any other Principal Project
Agreement assigned to Lessee pursuant to the Amended and Restated Lease.
"Supplemental Rent (Senior Debt)" shall mean (i) when due, all amounts which
Lessor is required to pay as principal and interest on the Working Capital
Loans, (ii) when due, or when no due date is specified, on demand, all amounts
(other than Basic Rent (Interest) and Basic Rent (Principal)) which Lessee
assumes the obligation to pay or agrees to pay (whether or not specifically
denominated as Supplemental Rent (Senior Debt)) to Agent, the LOC Issuers, the
Banks, the Bond Trustee or the Disbursement Agent, under any Transaction
Document, (iii) when due under the Indenture or the Amended and Restated
Reimbursement Agreement (or the Amended and Restated Disbursement Agreement),
as the case may be, any premium or other prepayment penalty or other amount
with respect to the Bonds, and (iv) on demand, and in any event on the next
Rent Payment Date next succeeding the date such amount shall be due and
payable under any Transaction Document, to the extent permitted by Requirement
of Law, interest (computed on the same basis as the Senior Debt) at a rate per
annum equal to the Default Rate on any payment of Supplemental Rent (Senior
Debt) not paid when due for any period for which the same shall be overdue.
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"Tax Assumptions" shall have the meaning assigned thereto by Section 1 of
the Tax Indemnity Agreement.
"Tax Claim" shall have the meaning set forth in Section 10.2(f) of the
Amended and Restated Participation Agreement.
"Tax Indemnity Agreement" shall mean the Tax Indemnity Agreement, dated as
of June 30, 1994, by and between Lessor, Lessee and the other parties thereto,
as amended by First Amendment to Tax Indemnity Agreement, dated December 22,
1995.
"Taxes" shall have the meaning ascribed thereto in Section 5.17(a) of the
Amended and Restated Reimbursement Agreement, or, in the context of Section
10.2 of the Amended and Restated Participation Agreement, as set forth
therein.
"Term Indebtedness" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"Term Loans" shall mean Existing Term Loans and New Term Loans.
"Transaction Costs" shall mean, collectively, those costs described as
payable by Lessor pursuant to Section 15.01 of the Amended and Restated
Reimbursement Agreement, Section 15.8 of the Amended and Restated
Participation Agreement and Section 9 of the Bond Purchase Agreement.
"Transaction Documents" shall mean the Principal Project Agreements, the
Bond Documents, the Loan Documents, the Amended and Restated Lease, the
Amended and Restated Participation Agreement and the Amended and Restated
Lessee Working Capital Loan Agreement.
"Transmission Line" shall have the meaning set forth in the Transmission
Line EPC Contract.
"Transmission Line EPC Contract" shall mean the Contract for Engineering,
Procurement and Construction of a 115 KV Power Transmission Line, dated as of
November 30, 1990, by and between Lessor and the Transmission Line EPC
Contractor, providing for engineering, procurement and construction services
in connection with the electrical interconnection facilities of the Project.
"Transmission Line EPC Contractor" shall mean Xxxxx Electric Service
Company.
"Transportation Agreements" shall mean the Hauling Agreement between
XxXxxxxx-Xxxxxxxx Trucking, Inc., a Pennsylvania corporation, and Lessor,
dated December 15, 1990, and any other agreement entered into (or assigned) at
any time and from time to time by Lessor or Lessee relating to the
transportation of Fuel, limestone, ash or related materials.
"USGen" shall mean U.S. Generating Company, a California general
partnership.
"Unpaid Drawings" shall have the meaning set forth in the Amended and
Restated Reimbursement Agreement.
"Useful Life" of the Facility shall mean the economic useful life of the
Facility as set forth in any appraisal.
"Working Capital Advance" and "Working Capital Loan" shall both mean a Loan
to Lessor pursuant to Section 5.05 of the Amended and Restated Reimbursement
Agreement.
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