EXHIBIT 10.21
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CONSENT AND AGREEMENT
(Cogeneration Facility Operation and Maintenance Agreement)
Dated as of December 6, 1999
by
GENERAL ELECTRIC INTERNATIONAL, INC.
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CONSENT AND AGREEMENT
(Operation and Maintenance Agreement)
1. General Electric International, Inc., a Delaware corporation (the
"Undersigned") hereby acknowledges that pursuant to the Security Agreement dated
as of December 6, 1999 ("Security Agreement"), between Project Orange
Associates, L.P., a Delaware limited partnership ("Borrower"), and U.S. Bank
Trust, National Association ("Agent"), as collateral agent for the benefit of
the Secured Parties, and that Indenture dated as of December 6, 1999 (the
"Financing Agreement"), between Borrower and U.S. Bank Trust National
Association, as Trustee (the "Trustee") on behalf of and for the benefit of the
holders of the Borrower's 10.5% Senior Secured Notes due 2007 (the "Holders"
and, together with the Trustee, the "Secured Parties"), Borrower has assigned
its interest under that certain Cogeneration Facility Operation and Maintenance
Agreement, dated as of November 1, 1998 (the "Contract"), between the
Undersigned, as successor to GE Energy Plant Operations, Inc. ("GEEPO"), and
Borrower, to the Agent for the benefit of the Secured Parties. The Undersigned
consents to such assignment and agrees with the Agent as follows:
(a) Unless otherwise defined, all terms used herein which are
defined in the Contract shall have their respective meanings as defined
therein.
(b) From the time of receipt of notice by Agent to the Undersigned
to the effect that the Agent and not the Borrower will be entitled to
exercise such rights, and until the receipt of further notice, if any, from
the Agent indicating that the Borrower may again exercise such rights, the
Undersigned agrees that the Agent shall be entitled to exercise all rights
and to cure any defaults of the Borrower under the Contract. Upon receipt
of notice from the Agent, the Undersigned agrees to accept such exercise
and cure by the Agent and to render all performance due by it under the
Contract and this Consent and Agreement to the Agent. The Undersigned
agrees to make all payments (if any) to be made by it under the Contract
directly to Agent upon receipt of Agent's written instructions.
(c) The Undersigned will not, without the prior written consent of
the Agent (such consent not to be unreasonably withheld), (i) cancel or
terminate the Contract except as provided in the Contract and in accordance
with paragraph l(d) hereof, or consent to or accept any cancellation or
termination thereof by the Borrower, (ii) sell, assign or otherwise dispose
(by operation of law or otherwise) of any part of its interest in the
Contract, or (iii) amend or modify the Contract in any material respect.
The Undersigned will deliver duplicates or copies of all notices delivered
under or pursuant to the Contract to the Agent promptly upon receipt
thereof and will advise the Agent of any material amendments to the
Contract.
(d) The Undersigned will not terminate the Contract on account of
any default or breach of Borrower thereunder without written notice to the
Agent and first providing to the Agent (i) forty-five (45) days from the
date on which notice of default or breach is delivered to Agent to cure
such default if such default is the failure to pay amounts to the
Undersigned which are due and payable under the Contract or (ii) a
reasonable time as is necessary to cure such default if the breach or
default cannot be cured by the payment of money to the Undersigned so long
as they have commenced to cure the default within a ninety (90) day period
from the date on which notice of default or breach is delivered to Agent
and thereafter diligently pursue such cure to completion and continue to
perform any monetary obligations under the Contract and all other
obligations under the Contract are performed by the Borrower or the Agent.
If possession of the Project is necessary to cure such breach or default,
and the Agent declares Borrower in default and commences foreclosure
proceedings, the Agent will be allowed a reasonable period to complete such
proceedings. If the Agent is prohibited by any court order or bankruptcy or
insolvency proceedings from curing the default or from commencing or
prosecuting foreclosure proceedings, the foregoing time periods shall be
extended by the period of such prohibition. The Undersigned consents to
the transfer of Borrower's interest under the Contract to the Agent, for
the benefit of the Secured Parties, or a purchaser or grantee at a
foreclosure sale by judicial or nonjudicial foreclosure and sale or by a
conveyance by Borrower in lieu of foreclosure and agrees that upon such
foreclosure, sale or
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conveyance, the Undersigned shall recognize the Agent or any other
purchaser or grantee as the applicable party under the Contract.
(e) In the event that the Contract is rejected by a trustee or
debtor-in-possession in any bankruptcy or insolvency proceeding, or if the
Contract is terminated for any reason other than a default which could have
been but was not cured by the Agent as provided in paragraph 1(d) above,
and if, within 45 days after such termination, the Agent or its successors
or assigns shall so request, the Undersigned will execute and deliver to
the Agent a new contract ("New Contract"), which New Contract shall be on
the same terms and conditions as the original Contract for the remaining
term of the Contract before giving effect to such termination.
(f) In the event Agent elects to perform Borrower's obligations
under the Contract or to enter into a New Contract as provided in
subparagraph (d) or (e) respectively above, the Agent and the Secured
Parties shall not have personal liability to the Undersigned for the
performance of such obligations, and the sole recourse of the Undersigned
in seeking the enforcement of such obligations shall be to such parties'
interest in the Project. In the event Agent succeeds to the Borrower's
interest under the Contract, or performs any of Borrower's obligations
under the Contract, Agent shall cure any defaults for failure to pay
amounts owed under the Contract, but shall not otherwise be required to
perform (or be subject to any defenses or offsets by reason of) any of the
Borrower's other obligations under the Contract that were unperformed at
such time. Agent shall have the right to assign all or part of its
interest in the Contract or a New Contract entered into pursuant to
subparagraph (e) to a person or entity to whom the Project is transferred,
provided such transferee assumes the obligations of the Borrower (or the
Agent) under the Contract and has a financial capability at least
equivalent to that of Borrower on the date hereof. Upon such assignment,
the Agent (including its agents, employees and contractors) shall be
released from any further liability thereunder to the extent of the
interest assigned.
(g) The Undersigned hereby acknowledges and agrees that Borrower
has satisfied any and all of its obligations under the Contract due as of
the date hereof. The Undersigned hereby waives any rights to terminate the
Contract, any right to an equitable adjustment in the Operating Fee, Fired-
Hour Fee, Per-Hour Fee, or Spare Parts Fee (each as defined in the
Contract) or any other fee under the Contract, and any rights to reduce,
extend the time for or suspend its performance under the Contract or
hereunder, for any failure of Borrower to meet any obligations under such
contract due as of the date hereof to the extent that Undersigned knows or
reasonably should know of such failure as of said date.
(h) The Undersigned hereby acknowledges that it has authorized and
directed one or more of its Attesting Secretaries to issue a certificate
of the Undersigned to Agent
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with respect to the signature authority of the individual who signs this
Consent and Agreement on behalf of the Undersigned, and agrees that Agent
and the Secured Parties may rely on such certificate.
2. The Undersigned hereby represents and warrants that (a) the
Undersigned is the successor to all of GEEPO's right, title and interest in and
to the Contract and has assumed all of GEEPO's obligations under the Contract;
(b) the execution, delivery and performance by the Undersigned of the Contract
and this Consent and Agreement have been duly authorized by all necessary
corporate action, and do not require any further consents or approvals to the
date of this Consent and Agreement which have not been obtained, or violate any
provision of any law, regulation, order, judgment, injunction or similar matters
or materially breach any agreement presently in effect with respect to or
binding on the Undersigned; (c) this Consent and Agreement and the Contract are
legal, valid and binding obligations of the Undersigned enforceable against the
Undersigned in accordance with their terms, subject to bankruptcy laws,
principles of equity, and other laws affecting creditor rights generally; (d)
all government approvals necessary for the execution, delivery and performance
by the Undersigned of its obligations under the Contract to the date of this
Consent and Agreement have been obtained and are in full force and effect; (e)
as of the date hereof, the Contract is in full force and effect, has not been
amended, supplemented or modified and the Undersigned has no reason to expect
that any necessary governmental approvals required in the future may not be
obtained without undue delay or expense; (f) to the best of the Undersigned's
knowledge, Borrower has fulfilled all of its obligations under the Contract; and
there are no breaches or unsatisfied conditions presently existing (or which
would exist after the passage of time and/or giving of notice) under the
Contract; and (g) the Undersigned has authorized and directed one or more of its
Attesting Secretaries to render a certificate of the Undersigned of even date
herewith to the Agent.
3. All Notices required or permitted hereunder shall be in writing and
shall be effective (i) upon receipt if hand delivered, (ii) when the appropriate
answer back is received if sent by telex and (iii) if otherwise delivered, upon
the earlier of receipt or two (2) Business Days after being sent registered or
certified mail, return receipt requested, with proper postage affixed thereto,
or by private courier or delivery service with charges prepaid, and addressed as
specified below:
If to the Undersigned:
General Electric International, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attn: General Manager of Operations, GE Contractual Services
FAX: (000) 000-0000
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If to Agent:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Administration
FAX: (000) 000-0000
For purposes of this Consent and Agreement, the term "Business Day" shall
mean any day other than a Saturday, a Sunday or a day on which banking
institutions in the City of New York are authorized by law, regulation or
executive order to remain closed.
4. This Consent and Agreement shall be binding upon and benefit the
successors and permitted assigns of the Undersigned, the Borrower, the Agent,
and their respective successors, permitted transferees and permitted assigns.
No termination, amendment, variation or waiver of any provisions of this Consent
and Agreement shall be effective unless in writing and signed by the
Undersigned, the Agent and the Borrower. This Consent and Agreement shall be
governed by the laws of the State of New York.
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IN WITNESS WHEREOF, the Undersigned by its officer thereunto duly authorized,
has duly executed this Consent and Agreement as of the date set forth below.
Dated: December 6, 1999
GENERAL ELECTRIC INTERNATIONAL INC.,
a Delaware corporation
By:/s/ Xxxxx X. Xxxxx
_________________________________
Name: Xxxxx X. Xxxxx
Title: GM-Operations
Accepted:
U.S. BANK TRUST NATIONAL ASSOCIATION,
for itself and as Agent for the benefit of
the Secured Parties
By: /s/ Xxxx X. Xxxxxxx
_______________________________
Name:
Title:
By: /s/ Xxxx Xxxxxx
_______________________________
Name:
Title:
PROJECT ORANGE ASSOCIATES, L.P.,
a Delaware limited partnership
By: G.A.S. ORANGE ASSOCIATES, LLC
a Delaware limited liability company
By: /s/ Xxxx Xxxxxx
______________________________
Name: Xxxx Xxxxxx
Title: President
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