Exhibit 10.27
DESIGNATED ACCOUNT REPRESENTATIVE AGREEMENT
Relating to the NOx Allowance Program
This DESIGNATED ACCOUNT REPRESENTATIVE AGREEMENT
("Agreement") is entered into as of December __, 2001, by and between EME
HOMER CITY GENERATION L.P., a Pennsylvania limited partnership ("EMEHC"), and
Xxxxx City OL1 LLC, a Delaware limited liability company, Xxxxx City OL2 LLC,
a Delaware limited liability company, Xxxxx City OL3 LLC, a Delaware limited
liability company, Xxxxx City OL4 LLC, a Delaware limited liability company,
Xxxxx City OL5 LLC, a Delaware limited liability company, Xxxxx City OL6 LLC,
a Delaware limited liability company, Xxxxx City OL7 LLC, a Delaware limited
liability company, and Xxxxx City OL8 LLC, a Delaware limited liability
company (together, the "Owner Lessors").
WITNESSETH
WHEREAS, as a result of EMEHC's sale of eight undivided
interests in Xxxxx City Electric Generating Station located near Indiana,
Pennsylvania (the "Xxxxx City Station") to the Owner Lessors, Owner Lessors are
the owners of eight undivided interests (totaling a 100% interest) in the Xxxxx
City Station (the "Undivided Interests").
WHEREAS, pursuant to eight facility leases between the Owner
Lessors and EMEHC, dated as of the date hereof (the "Facility Leases"), EMEHC
has leased back the Undivided Interests from the Owner Lessors.
WHEREAS, Boiler Nos. 1, 2 and 3 at the Xxxxx City Station
are NOx affected sources that are subject to the NOx budget and allowance
trading requirements promulgated by the Pennsylvania Department of
Environmental Protection ("PaDEP") at 25 Pa. Code Section 123.101 ET SEQ.
("NOx Allowance Program"), pursuant to the Air Pollution Control Act, as
amended, 35 P.S. Section 4001 ET SEQ.
WHEREAS, pursuant to the NOx Allowance Program, the Owner
Lessors, as the new owners of the Xxxxx City Station, are required to designate
an authorized account representative for the NOx affected sources at the Xxxxx
City
Station subject to PaDEP's NOx Allowance Program (a "NOx Designated
Representative").
WHEREAS, the Owner Lessors have not purchased nor paid for
emission allowances from EMEHC as part of the purchase of Undivided Interests in
the Xxxxx City Station, and wish to provide authority to EMEHC to appoint a NOx
Designated Representative for purposes of controlling disposition of such
allowances at all times and for so long as the Facility Leases are in effect.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals,
the parties hereto covenant and agree as follows:
1. APPOINTMENT. Each Owner Lessor hereby irrevocably grants to EMEHC
the right to appoint a NOx Designated Representative and any successors thereto
for the Xxxxx City Station, including, but not limited to Xxxxx City Station
Boiler Nos. 1, 2 and 3, as required under the NOx Allowance Program, and EMEHC
hereby accepts the right to so appoint a NOx Designated Representative unless
and until the applicable Facility Lease expires or is terminated in accordance
with its terms.
2. SCOPE OF APPOINTMENT. EMEHC and each Owner Lessor agree that EMEHC's
chosen NOx Designated Representative's duties and responsibilities as NOx
Designated Representative shall be as required under the NOx Allowance Program.
3. TERMINATION OF APPOINTMENT. EMEHC and each Owner Lessor agree
that EMEHC's right to appoint a NOx Designated Representative under this
Agreement shall be terminated upon termination of the applicable Facility
Lease pursuant to an Event of Default (as defined in such Facility Lease) in
accordance with the terms of such Facility Lease, and upon submission to
PaDEP of a superseding Account Certificate of Representation pursuant to 25
Pa. Code Section 123.104, which superseding certificate is sufficient if
signed by the Owner Lessors, only.
4. ACKNOWLEDGEMENT OF POWERS OF NOx DESIGNATED REPRESENTATIVE.
EMEHC and each Owner Lessor hereby acknowledge that (i) for the duration of its
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appointment, the NOx Designated Representative shall have full power and
authority to sell, assign and otherwise dispose of NOx allowances allocated to
the Xxxxx City Station on behalf of and at the direction of EMEHC, or to
transfer such allowances from the account maintained for the Xxxxx City Station
to any other account maintained by EMEHC or its affiliates (which allowances so
transferred shall remain the property of EMEHC or other transferee
notwithstanding the termination of this Agreement or any other Operative
Document (as defined in each of the Participation Agreements)), without
compensation to the Owner Lessors, in each case in accor dance with the
provisions of each of the Participation Agreements by and among Xxxxx City, the
Owner Lessor, Xxxxx Fargo Bank Northwest, National Association, not in its
individual capacity but solely as Owner Manager, General Electric Capital
Corporation, as the Owner Participant, Xxxxx City Funding LLC, as Lender, the
Lease Indenture Trustee and United States Trust Company of New York, not in its
individual capacity but solely as Bondholder Trustee (as amended, modified and
supplemented and in effect from time to time) (the "PARTICIPATION AGREEMENTS");
and (ii) the termination of EMEHC's right to appoint a NOx Designated
Representative Agreement as described in Section 3 hereof shall not obligate the
Designated Representative, EMEHC or any Owner Lessor to pay additional
consideration to the other parties hereto to effectuate the filing and
acceptance by PaDEP of a superceding Account Certificate of Representation
pursuant to 25 Pa. Code Section 123.104.
5. FURTHER ASSURANCES. The parties hereto agree to promptly perform or
cause to be performed any and all acts and execute or cause to be executed any
and all documents (including financing statements and continuation statements)
as may be necessary in order to carry out the intent and purposes of this
Agreement and the appointments contemplated hereby and to take any and all steps
necessary to effectuate the intent of the foregoing and the other Operative
Documents, including without limitation, taking all actions, making all filings,
or taking such other steps as may be necessary to maintain the NOx Designated
Representative chosen by EMEHC in its sole discretion as the Designated
Representative unless and until any Facility Lease is terminated in accordance
with its terms, and thereafter, to appoint and maintain as successor designated
representative the designee of the Owner Lessors.
6. COUNTERPARTS; EFFECTIVENESS. This Agreement may be executed in any
number of counterparts each of which shall be an original with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each party hereto shall have received a
counterpart
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hereof signed by the other hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
EME HOMER CITY GENERATION L.P.,
By: Mission Energy Westside, Inc.,
a California corporation
Its: General Partner
By:
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
XXXXX CITY OL1 LLC
By: Xxxxx Fargo Bank Northwest,
National Association
Its: Owner Manager
By:
---------------------------------
Name:
Title:
XXXXX CITY OL2 LLC
By: Xxxxx Fargo Bank Northwest,
National Association
Its: Owner Manager
By:
---------------------------------
Name:
Title:
XXXXX CITY OL3 LLC
By: Xxxxx Fargo Bank Northwest,
National Association
Its: Owner Manager
By:
---------------------------------
Name:
Title:
XXXXX CITY OL4 LLC
By: Xxxxx Fargo Bank Northwest,
National Association
Its: Owner Manager
By:
---------------------------------
Name:
Title:
XXXXX CITY OL5 LLC
By: Xxxxx Fargo Bank Northwest,
National Association
Its: Owner Manager
By:
---------------------------------
Name:
Title:
XXXXX CITY OL6 LLC
By: Xxxxx Fargo Bank Northwest,
National Association
Its: Owner Manager
By:
---------------------------------
Name:
Title:
XXXXX CITY OL7 LLC
By: Xxxxx Fargo Bank Northwest,
National Association
Its: Owner Manager
By:
---------------------------------
Name:
Title:
XXXXX CITY OL8 LLC
By: Xxxxx Fargo Bank Northwest,
National Association
Its: Owner Manager
By:
---------------------------------
Name:
Title:
