EXHIBIT 4.5
CONSENT AND AGREEMENT
This CONSENT AND AGREEMENT, dated as of December 12, 2001
(this "Consent and Agreement"), is among El Paso Merchant Energy, L.P., a
limited partnership organized and existing under the laws of the State of
Delaware (the "Consenting Party"), Cedar Brakes II, L.L.C., a limited liability
company organized and existing under the laws of the State of Delaware (the
"Issuer"), and Bankers Trust Company, a New York banking corporation, in its
capacity as trustee (together with its successors in such capacity, the
"Trustee") pursuant to the terms of the Indenture, dated as of December 12,
2001, between the Issuer and the Trustee (the "Indenture").
The parties hereto hereby agree as follows, anything in the
Assigned Agreements (as defined below) to the contrary notwithstanding:
1. Definitions. Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed thereto in the Indenture.
2. Consent to Assignment. The Consenting Party hereby
acknowledges notice of and irrevocably consents to the collateral assignment by
the Issuer to the Trustee, for the benefit of the Holders, of all of the
Issuer's right, title, and interest in, to, and under (a) the Power Purchase
Agreement, dated October 1, 2001, between the Consenting Party and the Issuer,
as amended on November 26, 2001 (the "EPM Power Purchase Agreement"), and (b)
the Administrative Services Agreement, dated as of December 12, 2001, between
the Consenting Party and the Issuer (each such agreement as it may be amended,
supplemented, or otherwise modified from time to time, an "Assigned Agreement"
and, collectively, the "Assigned Agreements"), and any transfer or subsequent
transfer of any Assigned Agreement by the Trustee or any assignee or transferee
of the Trustee in accordance with the terms and conditions hereof. The
Consenting Party agrees that the definition of "Financier" contained in the EPM
Power Purchase Agreement shall be deemed to include the Trustee and each Holder.
3. Payments to Trustee. The Consenting Party and the Issuer
hereby agree that all payments to be made by the Consenting Party to the Issuer
under the Assigned Agreements shall be made in immediately available funds,
directly to the Trustee for deposit in accordance with Section 502 of the
Indenture, without offset, abatement, withholding, or reduction except as may be
authorized by the Assigned Agreements.
4. Rights upon Event of Default.
(a) After the occurrence and during the continuation of an
Event of Default under the Indenture, the Trustee or its assignee or designee
(including any purchaser or transferee) shall be entitled, in the place and
stead of the Issuer, to exercise any and all rights of the Issuer under the
Assigned Agreements in accordance with the terms of the Assigned Agreements.
Without limiting the generality of the foregoing, the Trustee or its assignee or
designee (including any purchaser or transferee) shall have the full right and
power to enforce
directly against the Consenting Party all obligations of the Consenting Party
under the Assigned Agreements and otherwise to exercise all remedies thereunder.
(b) The Trustee shall have the right, but not the obligation,
to pay all sums due under any Assigned Agreement and to perform any other act,
duty, or obligation required of the Issuer thereunder or to cure any default of
the Issuer thereunder at any time. Nothing herein shall require the Trustee to
cure any default of the Issuer under an Assigned Agreement or (unless the
Trustee has succeeded to the Issuer's interests under such Assigned Agreement)
to perform any act, duty, or obligation of the Issuer under an Assigned
Agreement, but shall only give the Trustee the option to do so.
(c) In the event of a foreclosure or other exercise of
remedies under the Security Documents or any sale thereunder by the Trustee,
whether by judicial proceeding or under any power of sale contained therein, or
any conveyance from the Issuer to the Trustee in lieu thereof, the Trustee may
assign each Assigned Agreement to any entity. The Trustee shall give prompt
notice to the Consenting Party of the transferee or assignee of an Assigned
Agreement. Any such exercise of remedies in accordance with this subsection (c)
shall not constitute a default under the Assigned Agreements.
5. Right to Cure.
(a) The Consenting Party agrees that, notwithstanding any
right it may have under an Assigned Agreement, at law, in equity, or otherwise,
it shall not take any action to terminate or suspend such Assigned Agreement (i)
except as expressly provided in such Assigned Agreement and (ii) unless,
following any applicable cure period in such Assigned Agreement and the
provision of notice to the Trustee pursuant to Section 7 hereof, the Consenting
Party shall have given the Trustee at least 60 days' (or 30 days', in the case
of a payment default) prior written notice of its intent to terminate or suspend
such Assigned Agreement, specifying the condition giving rise to such right of
termination or suspension, and the Trustee shall not within such period have
cured or caused to be cured the condition giving rise to the right of
termination or suspension; provided, that if the Trustee shall have commenced
foreclosure or other proceedings with respect to the Collateral and is
diligently pursuing a cure, the Trustee shall have a further period of 60 days
in which to effect such cure. Provided it is receiving payments when due under
an Assigned Agreement, the Consenting Party shall continue performance under
such Assigned Agreement until the lapse of the cure period, whereupon the
Consenting Party may exercise all rights and remedies available to it under such
Assigned Agreement or at law.
(b) If the Trustee or any designee or assignee (including any
purchaser or transferee), pursuant to an exercise of remedies by the Trustee,
shall acquire title to or control of the Collateral and shall cure all defaults
under an Assigned Agreement that are able to be cured by such Person, then any
default of the Issuer that is not able to be cured by such Person shall no
longer be deemed to be a default under such Assigned Agreement.
2
6. Further Rights of the Trustee.
(a) In the event that the Trustee, or any designee or assignee
thereof, notifies the Consenting Party that it has succeeded to the Issuer's
interest under an Assigned Agreement, whether by foreclosure or otherwise, such
Person shall assume liability for the Issuer's obligations under such Assigned
Agreement, but such liability shall not include any liability for, nor shall
such Person be subject to any defense against or offset from, claims of the
Consenting Party against the Issuer arising from the Issuer's failure to perform
during the period prior to such Person's succession to the Issuer's interest in
and under such Assigned Agreement.
(b) Upon the exercise by the Trustee of any of the remedies
set forth in the Security Documents, the Trustee may assign its rights and
interests hereunder and, on behalf of the Issuer, the rights and interests of
the Issuer under an Assigned Agreement to any permitted purchaser or transferee
if such purchaser or transferee shall assume all of the obligations of the
Issuer under such Assigned Agreement. Following such assignment and assumption,
the Trustee shall not have any obligations or liabilities under the Assigned
Agreement.
(c) In the event that an Assigned Agreement is terminated or
rejected in connection with the bankruptcy or similar event with respect to the
Issuer, at the request of the Trustee, the Consenting Party will execute and
deliver to the Trustee or its designee a new agreement for the balance of the
remaining term under the original Assigned Agreement containing the same
conditions, agreements, terms, provisions, and limitations as the original
Assigned Agreement. References in this Consent and Agreement to an "Assigned
Agreement" shall be deemed also to refer to the new Assigned Agreement.
7. Further Agreements. The Consenting Party agrees to deliver
to the Trustee, concurrently with delivery thereof to the Issuer, a copy of each
(a) notice of default given by the Consenting Party under any Assigned
Agreement, together with a description of the action that the Consenting Party
has taken or proposes to take with respect thereto, (b) notice of force majeure
event given by the Consenting Party under the EPM Power Purchase Agreement, and
(c) notice of termination given by the Consenting Party under any Assigned
Agreement.
8. Representations. The Consenting Party hereby represents and
warrants to the Trustee as follows.
(a) The Consenting Party is a limited partnership duly
organized, validly existing, and in good standing under the laws of the State of
Delaware and is in good standing in all jurisdictions where necessary in light
of its business or properties and has all requisite power and authority to
conduct its business, to own its properties, and to execute and deliver, and
perform its obligations under, this Consent and Agreement and the Assigned
Agreements.
3
(b) The execution, delivery, and performance by the Consenting
Party of this Consent and Agreement and the Assigned Agreements have been duly
authorized by all necessary limited partnership action and do not and will not
(i) require any consent or approval of its board of directors, shareholders,
partners or any other Person that has not been obtained, (ii) violate any
provision of its certificate of limited partnership or limited partnership
agreement, or any law, rule, regulation, order, writ, judgment, injunction,
decree, or award having applicability to it, the violation of which could
reasonably be expected to have a material adverse effect on its ability to
perform its obligations under the Assigned Agreements or this Consent and
Agreement, or (iii) result in a breach of or constitute a default under any
agreement relating to the management of its affairs or any indenture or loan or
credit agreement or other agreement, lease, or instrument to which it is a party
or by which it or its properties may be bound or affected, the breach of which
could reasonably be expected to have a material adverse effect on the Consenting
Party's ability to perform its obligations under the Assigned Agreements or this
Consent and Agreement.
(c) Each of the Assigned Agreements and this Consent and
Agreement has been duly executed and delivered and is in full force and effect
and constitutes the legal, valid, and binding obligation of the Consenting Party
enforceable in accordance with its terms except as the enforceability thereof
may be limited by general principles of equity and by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the rights of
creditors generally. The Consenting Party has not assigned, transferred or
pledged either Assigned Agreement or any interest therein or consented to any
such assignment, transfer, or pledge, except as described herein.
(d) No consent, license, approval, or authorization of, or
other action by, or any notice or filing with, any court or administrative or
governmental body or any other Person is necessary in connection with the
execution, delivery, and performance by the Consenting Party of the Assigned
Agreements or this Consent and Agreement, other than those that have been duly
obtained and that are in full force and effect. The Consenting Party has
obtained all permits, licenses, approvals, consents, and exemptions with respect
to the performance of its obligations under the Assigned Agreements and this
Consent and Agreement required by applicable law.
(e) There is no pending or, to the Consenting Party's
knowledge, threatened, action or proceeding affecting the Consenting Party
before any court, governmental agency, regulatory body, or arbitrator that could
affect its ability to perform its obligations under, or that purports to affect
the legality, validity, or enforceability of, this Consent and Agreement or the
Assigned Agreements.
(f) To the Consenting Party's knowledge, there exists no event
or condition that constitutes a default, or that would, with the giving of
notice or lapse of time, or both, constitute a default, under the Assigned
Agreements.
(g) The Consenting Party has duly performed, complied with,
and fulfilled all covenants, agreements, and conditions contained in each
Assigned Agreement required to
4
be performed or complied with by it on or before the date hereof, and each
Assigned Agreement, as of the date hereof, is in full force and effect and has
not been amended (except, with respect to the EPM Power Purchase Agreement, as
described in Section 2 hereof), and none of the Issuer's rights under the
Assigned Agreements have been waived.
(h) The representations and warranties of the Consenting Party
contained in the Assigned Agreements are true and correct on the date hereof
with the same effect as if made on and as of the date hereof.
9. Amendments to Assigned Agreements. The Consenting Party
acknowledges that there are no amendments, supplements, or modifications to the
Assigned Agreements (except, with respect to the EPM Power Purchase Agreement,
as described in Section 2 hereof). The Consenting Party and the Issuer agree
that they will not, without the prior written consent of the Trustee, amend,
supplement, or otherwise modify the Assigned Agreements (as in effect on the
date hereof).
10. Miscellaneous.
(a) This Consent and Agreement shall be binding upon the
successors and permitted assigns of the Consenting Party and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
(b) THIS CONSENT AND AGREEMENT WILL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW EXCEPT SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(c) Any provision of this Consent and Agreement that is
invalid or prohibited in any jurisdiction shall, as to such jurisdiction, be
ineffective and severable from the rest of this Consent and Agreement to the
extent of such invalidity or prohibition, without impairing or affecting in any
way the validity of any other provision of this Consent and Agreement or of such
provision in other jurisdictions. The parties agree to replace any provision
that is ineffective by operation of this Section 10(c) with an effective
provision that as closely as possible corresponds to the spirit and purpose of
such ineffective provision and this Consent and Agreement as a whole. (d) No
amendment or waiver of any provision of this Consent and Agreement, or consent
to any departure by the Consenting Party therefrom, shall be effective unless it
is in writing and signed by the parties hereto. A waiver or consent granted
pursuant to this Section 10(d) shall be effective only in the specific instance
and for the specific purpose for which it is given.
(e) This Consent and Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so
5
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument.
(f) The Consenting Party and the Issuer agree that service of
all writs, process, and summons in any suit, action, or proceeding brought in
connection with this Consent and Agreement, or with respect to its property and
assets, in any court of the State of New York or any United States federal court
sitting in the Borough of Manhattan, New York City may be made upon CT
Corporation System at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, whom
the Issuer and the Consenting Party appoint as their authorized agent for
service of process. The Issuer and the Consenting Party represent and warrant
with respect to themselves that CT Corporation System has agreed to act as the
Issuer's or the Consenting Party's, as the case may be, agent for service of
process. The Issuer and the Consenting Party agree that such appointment shall
be irrevocable so long as any of the Bonds remain outstanding or until the
irrevocable appointment by the Issuer or the Consenting Party, as the case may
be, of a successor in New York City as its authorized agent for such purpose and
the acceptance (on terms reasonably satisfactory to the Trustee) of such
appointment by such successor. The Issuer and the Consenting Party further agree
to take any and all action, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment in full force
and effect as aforesaid. If CT Corporation System shall cease to act as the
Issuer's or the Consenting Party's, as the case may be, agent for service of
process, the Issuer or the Consenting Party, as applicable, shall appoint
without delay another such agent and provide prompt written notice to the
Trustee of such appointment. With respect to any such action in any court of the
State of New York or any United States federal court in the Borough of
Manhattan, City of New York, service of process upon CT Corporation System, as
the authorized agent of the Issuer and the Consenting Party for service of
process, and written notice of such service to the Issuer and the Consenting
Party, shall be deemed in every respect effective service of process upon the
Issuer and the Consenting Party.
[The remainder of this page was left blank intentionally.]
6
IN WITNESS WHEREOF, the parties, intending to be legally
bound, have caused this Consent and Agreement to be executed and acknowledged by
their respective officers or representatives hereunto duly authorized, on the
date first above written.
EL PASO MERCHANT ENERGY, L.P.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President and Associate General Counsel
CEDAR BRAKES II, L.L.C.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President and Chief Financial
Officer
BANKERS TRUST COMPANY,
as Trustee
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President