EXHIBIT 10.172
CONSENT AND AMENDMENT AGREEMENT
This CONSENT AND AMENDMENT AGREEMENT, dated as of July 17, 1998
(this "AGREEMENT") among PANDA-BRANDYWINE, L.P., a limited partnership organized
under the laws of Delaware (the "LESSEE" or the "PARTNERSHIP"), PANDA BRANDYWINE
CORPORATION, a Delaware corporation and the sole general partner of the
Partnership (the "GENERAL PARTNER"), GENERAL ELECTRIC CAPITAL CORPORATION, a New
York corporation, in its individual capacity ("GE Capital") and as the Owner
Participant (the "OWNER PARTICIPANT"), FLEET NATIONAL BANK (formerly known as
Shawmut Bank Connecticut, National Association), a national banking association,
not in its individual capacity but as Owner Trustee (in such capacity, the
"OWNER TRUSTEE") and as Security Agent (in such capacity, the "SECURITY AGENT"),
FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking association, not
in its individual capacity but solely as the Indenture Trustee (the "INDENTURE
TRUSTEE"), CREDIT SUISSE FIRST BOSTON, a bank organized and existing under the
laws of Switzerland, acting by and through its New York branch, in its
individual capacity ("CREDIT SUISSE") and as the Administrative Agent (in such
capacity, the "ADMINISTRATIVE AGENT"), the Loan Participants signatories hereto
(the "LOAN PARTICIPANTS" and each a "LOAN PARTICIPANT") and the Participants (as
defined in the Swap Sharing Agreement dated as of January 31, 1997 among Credit
Suisse First Boston; Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A,
"Rabobank Nederland," Grand Cayman Branch; KB Financial Services (Ireland);
MeesPierson N.V.; and Bayerische Vereinsbank AG, New York Branch) (the "SWAP
PARTICIPANTS" and each a "SWAP PARTICIPANT").
All capitalized terms used herein, unless otherwise defined herein,
shall have the meanings given to such terms in Annex A to the Participation
Agreement, dated as of December 18, 1996, as amended by Amendment No. 1 thereto,
dated as of January 31, 1997, among the Partnership, the General Partner, GE
Capital, the Owner Participant, the Owner Trustee, the Security Agent, the
Indenture Trustee, the Administrative Agent and the Loan Participants named
therein (as the same may be further amended, supplemented or otherwise modified
from time to time, the "PARTICIPATION AGREEMENT").
RECITALS
WHEREAS, the Partnership, the General Partner, GE Capital, the Owner
Participant, the Owner Trustee, the Security Agent, the Indenture Trustee, the
Administrative Agent and the Loan Participants entered into the Financing
Documents, including the Participation Agreement, in order to establish rights
and obligations among the parties in connection with the leveraged leaseback of
a gas fired cogeneration facility located in Brandywine, Maryland;
WHEREAS, the Partnership desires to enter into (i) a Letter
Agreement, dated as of October 24, 1997, with the Power Purchaser, as
supplemented by the letter from Xxxxx X. Xxxxxxx to Xxxxxx X. Xxxxxxxx dated as
of June 30, 1998 and accepted and agreed to by PEPCO on July 17, 1998, in the
form attached hereto as Exhibit A (the "PANDA-PEPCO LETTER
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AGREEMENT"), for the purpose of settling certain disputes between the
Partnership and the Power Purchaser, (ii) an Assignment, Assumption and
Exclusive Sales Agreement, dated as of July 17, 1998, with Panda Power
Corporation, a Delaware corporation ("PPC") in the form attached hereto as
Exhibit B (the "PPC ASSIGNMENT AND EXCLUSIVE SALES AGREEMENT") pursuant to
which, among other things, the Partnership has assigned to PPC certain rights
and PPC has assumed certain obligations under the Panda-PEPCO Letter Agreement
and (iii) a Letter Agreement, dated as of July 17, 1998, with the Power
Purchaser in the form attached hereto as Exhibit C (the "BALANCING SERVICES
LETTER AGREEMENT") pursuant to which the Power Purchaser will provide certain
balancing services;
WHEREAS, pursuant to that certain Collateral Assignment of
Assignment, Assumption and Exclusive Sales Agreement, dated as of July 17, 1998,
by the Partnership in favor of the Security Agent (the "COLLATERAL ASSIGNMENT OF
PPC ASSIGNMENT"), the Partnership has agreed to collaterally assign the PPC
Assignment and Exclusive Sales Agreement to the Security Agent for the benefit
of the Owner Trustee, and by collateral assignment the Indenture Trustee;
WHEREAS, pursuant to that certain Consent and Agreement, dated as of
July 17, 1998, among PPC, the Partnership, GE Capital, the Indenture Trustee and
the Security Agent (the "CONSENT OF PPC"), PPC has consented to the Collateral
Assignment of PPC Assignment;
WHEREAS, the Administrative Agent, the Loan Participants signatories
hereto, the Indenture Trustee, the Owner Participant and the Owner Trustee are
willing to consent to the Partnership entering into the Panda-PEPCO Letter
Agreement, the PPC Assignment and Exclusive Sales Agreement and the Balancing
Services Letter Agreement on the terms and subject to the conditions contained
herein;
WHEREAS, in order to accommodate the provisions of the Panda-PEPCO
Letter Agreement, the PPC Assignment and Exclusive Sales Agreement and the
Balancing Services Letter Agreement, the parties hereto desire to amend certain
provisions of the Financing Documents; and
WHEREAS, simultaneously herewith, the Power Purchaser is approving
the amendments to the Financing Documents set forth herein.
NOW, THEREFORE, in consideration of the agreements herein and in
reliance upon the representations and warranties set forth herein, and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree as follows:
1. AMENDMENT NO. 2 TO PARTICIPATION AGREEMENT
Pursuant to Section 13.1 of the Participation Agreement and
Paragraph I of Schedule II to the Participation Agreement, the following
amendments are hereby made to the Participation Agreement where indicated.
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1.1 CERTIFICATES; OTHER INFORMATION. The following amendments,
additions and deletions are hereby made to Section 6.10:
(a) Section 6.10(h) is hereby amended by deleting such section in
its entirety and replacing such section with the following:
(h) five Business Days prior to each Basic Rent Payment Date,
a certificate of an Authorized Officer of the General Partner, in
form and substance reasonably satisfactory to the Owner Participant
and the Administrative Agent, stating the Available Cash Flow, the
Distributable Cash Flow, Cash Flow Available for Distributions and
the Operating Cash Flow Ratio for the three-month period (or in the
case of the Basic Rent Payment Date to occur on July 31, 1998, the
four-month period) ending on the day immediately preceding such
Basic Rent Payment Date (each such quarterly period, a "QUARTERLY
MEASUREMENT PERIOD") and setting forth reasonably sufficient
information to permit the Owner Participant and the Administrative
Agent to confirm the accuracy of such amounts;
(b) The following Section 6.10(m) is hereby added to the end of
Section 6.10:
(m) five days prior to each Basic Rent Payment Date, a
year-to-date summary, in form and substance satisfactory to the
Owner Participant and Administrative Agent, setting forth for such
period all Additional Sales Contracts, the total actual contractual
sales in respect thereof as of such date and for the periods covered
by such Additional Sales Contracts, the total expected revenues to
the Partnership in respect thereof, the amounts of outstanding
receivables due and owing to the Partnership in respect thereof, the
status of such outstanding receivables in respect thereof, the
aggregate amount of payments to PEPCO, PPC, and any other third
parties in respect thereof, and any material amendments or
modifications to any Additional Sales Contracts.
1.2 APPROVAL OF TRANSACTIONS. Between Sections 7.14 and 7.16, a new
Section 7.15 shall be added as follows:
7.15 SALES OF EXCESS ENERGY. The Partnership shall not,
without the prior written approval of the Administrative Agent and
the Owner Participant, agree to sell electricity in respect of any
Transaction with a term of greater than one year or from which the
total expected gross revenues exceed Two Million Dollars
($2,000,000).
1.3 SALE OF ELECTRICITY. Section 7.21 is hereby amended by deleting
such section in its entirety and replacing such section with the following:
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7.21 The Partnership will not sell any electricity generated
by the Facility to any other person other than the Power Purchaser
as provided under the Power Purchase Agreement or PPC as provided
under the PPC Assignment and Exclusive Sales Agreement.
1.4 EXTENDING CAPACITY AND ENERGY SALES PROVISIONS. After Section
7.26, a new Section 7.27 shall be added as follows:
7.27. EXTENDING CAPACITY AND ENERGY SALES PROVISIONS. The
Partnership shall not extend beyond May 31, 2000 the right to broker
or sell capacity releases as provided in Paragraph 2 of the
Panda-PEPCO Letter Agreement or beyond December 31, 2002 the right
to broker or sell energy releases as provided in Paragraph 3 of the
Panda-PEPCO Letter Agreement without the prior written consent of
the Administrative Agent, the Majority Loan Participants and the
Owner Participant, PROVIDED, HOWEVER, that in the event consent only
to the extension of the term of the right to broker or sell energy
releases as provided in Paragraph 3 of the Panda-PEPCO Letter
Agreement is requested and such extension will have no Material
Adverse Effect, such consent shall not be unreasonably withheld or
delayed beyond ninety (90) days after such consent is requested.
1.5 ANNEX A. The following amendments, additions and deletions are
hereby made to ANNEX A:
(a) The definition of the term "ADDITIONAL PROJECT DOCUMENTS"
shall be modified by adding after the phrase "and any consent and agreement
which constitutes an Ancillary Document and is delivered in connection
therewith" and before the phrase "but excluding Non-Material Agreements," the
following phrase: "and including, without limitation, the PPC Assignment and
Exclusive Sales Agreement and the Balancing Services Letter Agreement."
(b) After the term "ADDITIONAL PROJECT DOCUMENTS," the term
"ADDITIONAL SALES CONTRACTS" shall be added and defined as follows:
"ADDITIONAL SALES CONTRACTS": the collective reference
to any agreement or contract evidencing any completed or
prospective Transaction.
(c) After the term "AVAILABLE CASH FLOW," the term "BALANCING
SERVICES LETTER AGREEMENT" shall be added and defined as follows:
"BALANCING SERVICES LETTER AGREEMENT": that certain
Letter Agreement with respect to energy balancing services
dated as of July 17 1998 between the Partnership and PEPCO, as
amended, supplemented or
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otherwise modified from time to time in accordance with the
terms of such agreement and the Participation Agreement.
(d) After the term "BUSINESS DAY," the term "CAPACITY SALES
RESERVE AMOUNT" shall be added and defined as follows:
"CAPACITY SALES RESERVE AMOUNT": (i) as of April 30,
1998 and until July 31, 1998, fifty percent (50%) of the
amount (without duplication) of the Released Capacity Payments
scheduled to be due and owing to PEPCO during the twelve-month
period ending on Xxxxx 00, 0000, (xx) as of July 31, 1998 and
on each Basic Rent Payment Date thereafter until January 31,
1999, the total amount (without duplication) of the Released
Capacity Payments scheduled to be due and owing to PEPCO
during the nine-month period ending on April 30, 1999 minus
the amount of the expected revenues during such period to the
Partnership in respect of all Additional Sales Contracts in
effect as of such date for the sales of capacity pursuant to
Paragraph 2 of the Panda-PEPCO Letter Agreement, (iii) as of
January 31, 1999 and on each Basic Rent Payment Date
thereafter until January 31, 2000, the total amount (without
duplication) of the Released Capacity Payments scheduled to be
due and owing to PEPCO during the twelve-month period ending
on January 31, 2000 minus the amount of the expected revenues
during such period to the Partnership in respect of all
Additional Sales Contracts in effect as of such date for the
sales of capacity pursuant to Paragraph 2 of the Panda-PEPCO
Letter Agreement, and (iv) as of January 31, 2000 and on each
Basic Rent Payment Date thereafter until May 31, 2000, the
total amount (without duplication) of the Released Capacity
Payments scheduled to be due and owing to PEPCO during the
four-month period ending on May 31, 2000 minus the amount of
the expected revenues during such period to the Partnership in
respect of all Additional Sales Contracts in effect as of such
date for the sales of capacity pursuant to Paragraph 2 of the
Panda-PEPCO Letter Agreement; provided, HOWEVER, that in all
cases and at all times until the termination of the capacity
sales provisions of paragraph 2 of the Panda-PEPCO Letter
Agreement, the Capacity Sales Reserve Amount shall not be less
than Five Hundred Thousand Dollars ($500,000.00).
(e) After the term "DISCOUNT RATE," the term "DISCRETIONARY
CAPITAL EXPENDITURE" shall be added and defined as follows:
"DISCRETIONARY CAPITAL EXPENDITURE": any capital
expenditure made by the Partnership in any fiscal year of the
Partnership as to which the Owner Participant and the
Administrative Agent have specifically agreed in writing may
be designated in the Operating Budget for such fiscal year as
a "discretionary capital expenditure" for such fiscal year.
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(f) After the term "EFFLUENT WATER AGREEMENT," the term
"ENERGY SALES RESERVE AMOUNT" shall be added and defined as follows:
"ENERGY SALES RESERVE AMOUNT": as of April 30, 1998 and
on any Basic Rent Payment Date thereafter, the sum of (x)
fifty percent (50%) of the amount of invoiced receivables to
the Partnership that are not then past-due in respect of sales
of energy pursuant to Paragraph 3 of the Panda-PEPCO Letter
Agreement and (y) the total amount of past-due receivables
owing to the Partnership in respect of sales of energy
pursuant to Paragraph 3 of the Panda-PEPCO Letter Agreement.
(g) The definition of the term "EURODOLLAR RATE" shall be
modified by deleting the definition in its entirety and replacing it with the
following:
"EURODOLLAR RATE": means (a) the rate per annum
determined by the Administrative Agent at approximately 11:00
a.m. (London time) on the date which is two Business Days
prior to the beginning of the relevant Interest Period by
reference to the British Bankers' Association Interest
Settlement Rates for deposits in Dollars (as set forth by any
service selected by the Administrative Agent which has been
nominated by the British Bankers' Association as an authorized
information vendor for the purpose of displaying the rates)
for a period equal to such Interest Period; provided that, to
the extent that an interest rate is not ascertainable pursuant
to the foregoing provisions of this definition, such interest
rate shall be the interest rate per annum determined by the
Administrative Agent to be the rate per annum at which
deposits in Dollars are offered for such relevant Interest
Period to major banks in the London interbank market in
London, England by the Administrative Agent at approximately
11:00 a.m. (London time) on the date which is two Business
Days prior to the beginning of such Interest Period, DIVIDED
BY (b) one minus the Eurocurrency Reserve Requirements.
(h) After the term "O&M LETTER OF CREDIT," the term "O&M
RESERVE AMOUNT" shall be added and defined as follows:
"O&M RESERVE AMOUNT": from the Lease Closing Date until
the fifth anniversary thereof, $5,000,000; and for each
calendar year from and after the fifth anniversary of the
Lease Closing Date, an amount equal to the sum of (x) the O&M
Reserve Amount then in effect for the prior calendar year (the
"PRIOR O&M RESERVE AMOUNT") plus (y) the product of the GNP
Deflator for the prior calendar year times the Prior O&M
Reserve Amount.
(i) The definition of the term "OPERATING CASH FLOW" shall be
modified by adding after the phrase "(ii) fees payable pursuant to subsection
2.3(b) and (c) of the
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Reimbursement Agreement," the following phrase, "and (iii) the PPC Adjusted Net
Payment payable pursuant to Section 4.2(a) of the Security Deposit Agreement."
(j) The definition of the term "OPERATING CASH FLOW RATIO"
shall be modified by deleting the definition in its entirety and replacing it
with the following:
"OPERATING CASH FLOW RATIO": as of any date of
determination in any calendar month, the quotient obtained by
dividing Operating Cash Flow for the rolling three-month
period ending on the day immediately preceding the last day of
such calendar month by the sum of Basic Rent payable on the
next succeeding Basic Rent Payment Date.
(k) After the term "OPERATION AND MAINTENANCE RESERVE
ACCOUNT," the term "OPERATION AND MAINTENANCE RESERVE L/C" shall be added and
defined as follows:
"OPERATION AND MAINTENANCE RESERVE L/C": as defined
in Section 7(b)(iv) of the Facility Lease."
(l) After the term "PANDA," the term "PANDA CONFIRMATION
LETTER" shall be added and defined as follows.
"PANDA CONFIRMATION LETTER": a Confirmation Letter
(as defined in the PPC Assignment and Exclusive Sales
Agreement) between the Partnership and PPC.
(m) After the term "PANDA CONFIRMATION LETTER," the term
"PANDA-PEPCO LETTER AGREEMENT" shall be added and defined as follows:
"PANDA-PEPCO LETTER AGREEMENT": that certain Letter
Agreement dated as of October 24, 1997 between the Partnership
and PEPCO, as supplemented by the letter from Xxxxx X. Xxxxxxx
to Xxxxxx X. Xxxxxxxx dated as of June 30, 1998 and accepted
and agreed to by PEPCO on July 17, 1998, and as further
amended, supplemented or otherwise modified from time to time
in accordance with the terms of such agreement and the
Participation Agreement.
(n) After the term "PEPCO LETTERS OF CREDIT," the term "PEPCO
PAYMENTS" shall be added and defined as follows:
"PEPCO PAYMENTS": all amounts payable to PEPCO by the
Partnership or any other party pursuant to Paragraphs 2, 3 and
5 of the Panda-PEPCO Letter Agreement which amounts shall
include the Released Capacity Payments, all fees and incentive
payments payable to PEPCO pursuant to such Paragraphs and any
interest accrued on such amounts pursuant to the Panda-PEPCO
Letter Agreement as a result of
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being past due. For the avoidance of doubt, pursuant to the
PPC Assignment and Exclusive Sales Agreement, PPC has assumed
the obligation to make all PEPCO Payments and the Partnership
remains liable for all of its obligations to make PEPCO
Payments to the extent such obligations are not fulfilled in a
timely manner by PPC.
(o) The definition of the term "POWER PURCHASE AGREEMENT"
shall be modified by adding after the phrase, "(including all amendments and
clarification letters relating thereto) delivered to the Owner Participant and
Administrative Agent on the Lease Closing Date," the following phrase, "as
supplemented by the Panda-PEPCO Letter Agreement and."
(p) After the term "POWER PURCHASER," the term "PPC" shall be
added and defined as follows:
"PPC" shall mean Panda Power Corporation, a Delaware
corporation.
(q) After the term "PPC," the term "PPC ADJUSTED NET PAYMENT"
shall be added and defined as follows:
"PPC ADJUSTED NET PAYMENT": as defined in Article 1
to the PPC Assignment and Exclusive Sales Agreement.
(r) After the term "PPC ADJUSTED NET PAYMENT," the term "PPC
ASSIGNMENT AND EXCLUSIVE SALES AGREEMENT" shall be added and defined as follows:
"PPC ASSIGNMENT AND EXCLUSIVE SALES AGREEMENT": the
Assignment, Assumption and Exclusive Sales Agreement, dated as
of July 17, 1998, between the Partnership and PPC, including
all Panda Confirmation Letters executed thereunder, as the
same may be amended, supplemented or otherwise modified from
time to time in accordance with the terms of such agreement,
the Panda-PEPCO Letter Agreement and the Participation
Agreement.
(s) The definition of the term "PROJECT EXPENSES" shall be
modified as follows:
(i) by deleting clause (viii) in its entirety and
replacing such clause with the following:
(viii) capital expenditures in the ordinary course
of business and set forth in the current Operating
Budget but excluding any Discretionary Capital
Expenditures PLUS
(ii) by adding a new clause (xi) after clause (x) to
read as follows:
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PLUS (xi) the sum of all PEPCO Payments to the
extent PPC has failed to make such PEPCO Payments when
due under the terms of the Panda-PEPCO Letter Agreement.
(iii) by deleting the reference to "(x)" in the last
sentence of such definition and substituting therefor a
reference to "(xi)."
(iv) by adding at the end of the last sentence of such
definition the following phrase, "or any PPC Adjusted Net
Payments payable pursuant to Section 4.2(a) of the Security
Deposit Agreement."
(t) The definition of "QUARTERLY MEASUREMENT PERIOD" shall be
modified by deleting the definition in its entirety and replacing it with the
following:
"QUARTERLY MEASUREMENT PERIOD": as of any Basic Rent
Payment Date, the three-month period (or in the case of the
Basic Rent Payment Date to occur on July 31, 1998, the
four-month period) ending on the day immediately preceding
such Basic Rent Payment Date.
(u) After the term "REIMBURSEMENT EVENT OF DEFAULT," the term
"RELEASED CAPACITY PAYMENTS" shall be added and defined as follows:
"RELEASED CAPACITY PAYMENTS": amounts payable to PEPCO
by the Partnership or any other party as compensation for the
release of capacity by PEPCO pursuant to Paragraph 2 of the
Panda-PEPCO Letter Agreement. For the avoidance of doubt,
pursuant to the PPC Assignment and Exclusive Sales Agreement,
PPC has assumed the obligation to make all Released Capacity
Payments and the Partnership remains liable for all of its
obligations to make Released Capacity Payments to the extent
such obligations are not fulfilled in a timely manner by PPC.
(v) The definition of the term "REQUIRED OPERATION AND
MAINTENANCE RESERVE BALANCE" shall be modified by deleting the definition in its
entirety and replacing it with the following:
"REQUIRED OPERATION AND MAINTENANCE RESERVE
Balance": the sum of the O&M Reserve Amount plus the
Capacity Sales Reserve Amount.
(w) The definition of the term "REQUIRED RENT RESERVE BALANCE"
shall be modified by deleting the definition in its entirety and replacing it
with the following:
"REQUIRED RENT RESERVE BALANCE": the sum of the
Energy Sales Reserve Amount plus:
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(a) at any time prior to April 30, 1997,
$2,610,509.14;
(b) during the period starting on April 30, 1997 and
ending on October 30, 1997, $5,221,018.28;
(c) during the period starting on October 31, 1997 and
ending on January 30, 1998, $5,213,485.62;
(d) during the period starting on January 31, 1998 and
ending on October 30, 1998, $5,205,952.96;
(e) during the period starting on October 31, 1998 and
ending on January 30, 1999, $7,596,956.10;
(f) during the period starting on January 31, 1999 and
ending on October 30, 1999, $9,987,959.24;
(g) during the period starting on October 31, 1999 and
ending on January 30, 2000, $10,159,093.16;
(h) during the period starting on January 31, 2000 and
ending on October 30, 2000, $10,330,227.08;
(i) during the period starting on October 31, 2000 and
ending on January 30, 2001, $11,981,381.20;
(j) during the period starting on January 31, 2001 and
ending on October 30, 2001, $13,632,535.32;
(k) during the period starting on October 31, 2001 and
ending on January 30, 2002, $13,800,830.69;
(l) during the period starting on January 31, 2002 and
ending on October 30, 2002, $13,969,126.06;
(m) during the period starting on October 31, 2002 and
ending on January 30, 2003, $13,961,309.93;
(n) during the period starting on January 31, 2003 and
ending on April 29, 2003, $13,953,493.80;
(o) on April 30, 2003 and at any time thereafter, the
greater of (i) $2,400,000 or (ii) an amount equal to the sum
of the payments of Basic Rent scheduled to be due and owing on
the two next succeeding Rent Payment Dates.
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(x) The definition of the term "SPECIFIED PARTICIPANT" shall be modified by
adding after the phrase "each Gas Transportor" and before the phrase "and the
Power Purchaser," the following phrase: ", PPC."
(y) After the term "TOTAL ACCRETION LINE OF CREDIT COMMITMENT," the term
"TRANSACTION" shall be added and defined as follows:
"TRANSACTION": as defined in Article 1 to the PPC
Assignment and Exclusive Sales Agreement.
1.6 SCHEDULE 6. Schedule 6 to the Participation Agreement is hereby
deleted in its entirety and replaced by Schedule 6 attached hereto.
2. AMENDMENT NO. 1 TO AMENDED AND RESTATED SECURITY DEPOSIT AGREEMENT
Pursuant to Section 9.5 of the Amended and Restated Security Deposit
Agreement, the following amendments are hereby made where indicated to the
Amended and Restated Security Deposit Agreement.
2.1 DEPOSITS. The following Section 3.1(i) is hereby added to the
end of Section 3.1:
(i) The Lessee shall instruct PEPCO to make payment directly
to and shall cause to be deposited in the Revenue Account the amount
required to be paid by PEPCO under Paragraph 1 of the Panda-PEPCO
Letter Agreement, which is equal to $3,855,992.00.
2.2 REVENUE ACCOUNT -- MONTHLY TRANSFERS AFTER THE LEASE CLOSING
DATE.
(a) Section 4.2(a) is hereby amended by adding to the third
sentence thereof, a new clause (iii) as follows:
and (iii) so long as (A) all amounts then required to be on
deposit in the Rent Reserve Account, the Operation and
Maintenance Reserve Account and the Warranty Maintenance
Reserve Account (and any other account maintained under the
Security Deposit Agreement other than the Interest Hedging
Account) shall be on deposit therein, (B) the Operating Cash
Flow Ratio for the immediately preceding Quarterly Measurement
Period shall be greater than 1.2 and (C) at the time of the
distribution described in this clause (iii) and after giving
effect thereto, no Lease Default, Lease Event of Default,
Reimbursement Default or Reimbursement Event of Default shall
have occurred and be continuing, then to PPC, up to the amount
then available in the Revenue Account, all amounts due and
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payable to PPC as the PPC Adjusted Net Payment plus the
accrued interest on any such amounts that are past due
pursuant to the PPC Assignment and Exclusive Sales Agreement.
(b) The Form of Project Certificate set forth in Schedule 1 to
the Security Deposit Agreement is hereby amended by adding a new paragraph (6)
to such Schedule 1 as follows:
(6) As of this Monthly Transfer Date for the
distributions described herein, (a) all amounts
required to be on deposit in the Rent Reserve
Account, the Operation and Maintenance Reserve
Account and the Warranty Maintenance Reserve
Account (and any other account maintained under
the Security Deposit Agreement other than the
Interest Hedging Account) are on deposit therein,
(b) the Operating Cash Flow Ratio for the
immediately preceding Quarterly Measurement Period
is greater than 1.2 and (c) at the time of the
distribution described herein and after giving
effect thereto, no Lease Default, Lease Event of
Default, Reimbursement Default or Reimbursement
Event of Default shall have occurred and be
continuing. Accordingly, the following amount is
due and payable to PPC representing the PPC
Adjusted Net Payments plus the accrued interest on
any such PPC Adjusted Net Payments that are past
due pursuant to the PPC Assignment and Exclusive
Sales Agreement: $___________.
2.3 RENT RESERVE ACCOUNT. Section 4.5 is hereby amended by adding to
the final sentence of such section after the phrase "(less any Accretion
Amount)" and before the phrase "as reasonably determined by the Administrative
Agent and certified to the Security Agent," the following phase, "PLUS the
lesser of (1) the Energy Sales Reserve Amount as of such Basic Rent Payment Date
and (2) the excess of the amount then on deposit in the Rent Reserve Account
over the amount then required to be on deposit in the Rent Reserve Account under
clauses (a) through (o) of the definition of the term "Required Rent Reserve
Balance."
2.4 OPERATION AND MAINTENANCE RESERVE ACCOUNT.
(a) Section 4.6 is hereby amended by adding to the end of the
final sentence of such section the following:
PROVIDED, HOWEVER, that any amounts distributed at any time in
respect of PEPCO Payments shall not be in excess of the lesser
of (1) the Capacity Sales Reserve Amount for the immediately
preceding Basic Rent Payment Date and (2) the excess of the
amount then on deposit in the Operation and Maintenance
Reserve Account over the aggregate amount required to be
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on deposit therein allocated to the O&M Reserve Amount
pursuant to Section 7(b) of the Facility Lease.
If an Operation and Maintenance Reserve L/C is delivered
in satisfaction of all or any part of the Partnership's
funding obligations with respect to the Operation and
Maintenance Reserve Account, then the Security Agent shall
make any withdrawal, transfer or distribution from the
Operation and Maintenance Account as required hereunder,
first, from actual funds on deposit in the Operation and
Maintenance Reserve Account and, second, from drafts on the
Operation and Maintenance Reserve L/C to the extent of any
deficiency in the Operation and Maintenance Reserve Account.
In addition, the Security Agent shall draw the entire amount
of the Operation and Maintenance Reserve L/C on the date that
is forty-five (45) days prior to any expiration date of the
Operation and Maintenance Reserve L/C unless the Partnership
causes the Operation and Maintenance Reserve L/C to be renewed
prior to such date.
(b) Exhibit D to the Amended and Restated Security Deposit
Agreement is hereby amended by:
(i) deleting the second paragraph of such Exhibit D in
its entirety and replacing it with the following:
Please liquidate investments in the Operation and
Maintenance Reserve Account [and draw on the Operation
and Maintenance Reserve L/C] in an amount sufficient to
yield proceeds of $_______________ to be used for [LOC
Reimbursement Obligation in respect of drawings under
the O&M Letter of Credit] [ ]. [LIST REQUESTED
DISBURSEMENTS SEPARATELY.] Such amount[s] should be paid
by [official bank check] [or] [wire transfer] to [GE
Capital] [the Lessee] [payee[s]] at [ADDRESS[ES]] of [GE
Capital] [the Lessee] [payee[s]].
(ii) deleting subparagraph (b) of the third paragraph of
such Exhibit D in its entirety and replacing it with the following:
(b) the moneys to be delivered pursuant hereto
represent [amounts that the Lessee has paid from its own
funds] [amounts that are currently due and owing to the
payees identified above] [constituting Project Expenses
that are maintenance expenses incurred with respect to
the Project or any portion thereof] [constituting PEPCO
Payments] for which funds are not available for payment
from revenues of the Project.
13
2.5 RELEASE OF EXCESS AMOUNTS.
(a) Section 4.7 is hereby amended by deleting clause (i) of
such section in its entirety and replacing it with the following:
(i) an amount on deposit in the Rent Reserve Account or the
Operation and Maintenance Reserve Account (including any
amount available for drawing under an Operation and
Maintenance Reserve L/C ) is in excess of the then Required
Rent Reserve Balance or the then Required Operation and
Maintenance Reserve Balance, as the case may be, as the result
of the actual realization of income or gain on the amounts on
deposit in such Account, a reduction in the Capacity Sales
Reserve Amount or the Energy Sales Reserve Amount, or the
delivery of an Operation and Maintenance Reserve L/C,
(b) Exhibit E to the Amended and Restated Security Deposit
Agreement is hereby amended by deleting subparagraph (b) to the first paragraph
of such Exhibit E in its entirety and replacing it with the following:
(b) the amount on deposit in the [Operation and
Maintenance Reserve] [Rent Reserve] Account
[plus the amount available for drawing under an
Operation and Maintenance Reserve L/C] is
$__________ and the amount of the Required
[Operation and Maintenance] [Rent] Reserve
Balance is $__________, resulting in excess
funds in the amount of $__________ which excess
funds are the result of [income or gain earned
on amounts on deposit therein] [and] [a
reduction in the [Capacity Sales Reserve
Amount] [Energy Sales Reserve Amount]] [and]
[the delivery of an Operation and Maintenance
Reserve L/C] (the "EXCESS AMOUNT").
-------------
3. AMENDMENT NO. 1 TO FACILITY LEASE
Pursuant to Section 20(a) of the Facility Lease, the following
amendments are hereby made where indicated to the Facility Lease.
3.1 OPERATION AND MAINTENANCE RESERVE ACCOUNT. Section 7(b) is
hereby amended by deleting such section in its entirety and replacing it with
the following:
(b) OPERATION AND MAINTENANCE RESERVE ACCOUNT.
(i) On the Lease Closing Date, the Lessee shall deposit
in the Operation and Maintenance Reserve Account an amount equal to
the Initial Operation and Maintenance Reserve Deposit. On the Basic
Rent Payment Date to
14
occur on April 30, 1998, the Security Agent shall transfer to the
Operation and Maintenance Reserve Account from the cash available in
the Revenue Account an amount equal to the Capacity Sales Reserve
Amount then required. On each Basic Rent Payment Date, the Lessee
shall, out of the cash then available in the Revenue Account (and in
accordance with the priorities set forth in the Security Deposit
Agreement), deposit into the Operation and Maintenance Reserve
Account unless and until the Required Operation and Maintenance
Reserve Balance (less the amount, if any, then available for drawing
under any Operation and Maintenance Reserve L/C provided by the
Lessee pursuant to paragraph (iv) of this Section 7(b)) shall be on
deposit in the Operation and Maintenance Reserve Account:
(A) for allocation to the O&M Reserve Amount,
unless and until amounts deposited therein allocated to the
O&M Reserve Amount equal or exceed the O&M Reserve Amount
required at that time, (1) with respect to each of the first
eight (8) Basic Rent Payment Dates, an amount equal to
$125,000 plus the amount of any accrued deficiencies in
contributions allocated to O&M Reserve Amount with respect to
prior periods, (2) with respect to the eight (8) Basic Rent
Payment Dates occurring immediately thereafter, an amount
equal to $375,000 plus the amount of any accrued deficiencies
in contributions allocated to the O&M Reserve Amount with
respect to prior periods and (3) with respect to each Basic
Rent Payment Date thereafter, an amount equal to one fourth of
the "INCREMENTAL REQUIRED BALANCE" (as defined below) for the
Lease Year in which such Basic Rent Payment Date falls, plus
the amount of any accrued deficiencies in contributions
allocated to the O&M Reserve Amount with respect to prior
periods,
(B) for allocation to the Capacity Sales Reserve
Amount, an amount such that after such deposit, the total
amount deposited therein allocated to the Capacity Sales
Reserve Amount shall equal the Capacity Sales Reserve Amount
required at that time, and
"INCREMENTAL REQUIRED BALANCE" for any Lease Year shall be the
difference between the O&M Reserve Amount for such Lease Year and
the O&M Reserve Amount for the immediately preceding Lease Year.
Deposits made into the Operation and Maintenance Reserve Account
pursuant to Section 7(b)(iii) shall not be credited toward the
Lessee's obligation to make deposits in such Account pursuant to
this Section 7(b)(i).
(ii) Income or gain earned on amounts on deposit in the
Operation and Maintenance Reserve Account shall be deemed to have
been earned by Lessee and deposited into such account and shall be
retained therein and credited to the Required Operation and
Maintenance Reserve Balance. If, on any Basic Rent Payment Date,
either:
15
(A) as the result of the actual realization of
income or gain on the amounts on deposit in the Operation and
Maintenance Reserve Account, an amount in excess of the
Required Operation and Maintenance Reserve Balance shall be on
deposit therein, or
(B) as a result of the reduction in the Capacity
Sales Reserve Amount, an amount in excess of the Required
Operation and Maintenance Reserve Balance shall be on deposit
therein, or
(C) as a result of the delivery of an Operation
and Maintenance Reserve L/C, the amounts available for drawing
from such Operation and Maintenance Reserve L/C together with
the amounts on deposit in the Operation and Maintenance
Reserve Account exceed the Required Operation and Maintenance
Reserve Balance at such time,
and no Lease Default or Lease Event of Default shall have occurred
and then be continuing, such excess may be distributed to the
Revenue Account on such Basic Rent Payment Date.
(iii) In the event of any withdrawal from the Operation
and Maintenance Reserve Account (other than withdrawals as a result
of income or gain in excess of the Required Operation and
Maintenance Reserve Balance, a reduction of the Capacity Sales
Reserve Amount, or the delivery of an Operation and Maintenance
Reserve L/C as permitted pursuant to Section 7(b)(ii)), on each
Basic Rent Payment Date occurring after such withdrawal and until
the Operation and Maintenance Reserve Account has been replenished
by the amount of such withdrawal, the Lessee shall deposit into the
Operation and Maintenance Reserve Account, prior and in addition to
any deposits required to be made pursuant to Section 7(b)(i), 50% of
Available Cash Flow for the Quarterly Measurement Period ended
immediately prior to such Basic Rent Payment Date.
(iv) In lieu of depositing in the Operation and
Maintenance Reserve Account any amount required to be so deposited
by the Lessee under Section 7(a) or (b) hereof (or in lieu of
maintaining in such account any amount previously so deposited), the
Lessee may cause to be provided a letter of credit with an amount
available for drawing not less than such amount required to be so
deposited (or, as the case may be, required to so remain on deposit)
(the "OPERATION AND MAINTENANCE RESERVE L/C"); PROVIDED, that (A)
such letter of credit shall (1) have been issued by a bank or other
financial institution acceptable to each of the Lessor, GE Capital
and the Administrative Agent and (2) be in form and substance
satisfactory to each of the Lessor, GE Capital and the
Administrative Agent in the sole discretion of each (including,
without limitation, in respect of the circumstances under which
drawings can be made under such letter of credit and the Person or
Persons on whose behalf such drawings can be
16
made) and (B) (1) the Lessee has no direct or indirect reimbursement
obligations or liabilities of any type whatsoever to the issuer of
such letter of credit or any other Person in respect of such letter
of credit and (2) none of the Collateral is encumbered as security
for the payment or performance of any obligation under such letter
of credit.
3.2 RENT RESERVE ACCOUNT.
(a) Section 7(c)(ii) is hereby amended by adding to the second
sentence thereof after the phrase "[i]f, on any Basic Rent Payment Date, as the
result of the actual realization of income or gain on the amounts on deposit in
the Rent Reserve Account," the phrase "or a reduction in the Energy Sales
Reserve Amount."
(b) Section 7(c)(iii) is hereby amended by deleting the phrase
"one month" where it appears therein and replacing it with the word
"immediately."
3.3 FACILITY OPERATION AND MAINTENANCE. Section 8(a) is hereby
amended by deleting the final sentence of such section and replacing such
sentence with the following: "The Lessee shall not sell any electricity
generated by the Facility except to the Power Purchaser as provided in the Power
Purchase Agreement or PPC as provided in the PPC Assignment and Exclusive Sales
Agreement."
3.4 REQUIRED FIXED RATE RENEWAL OPTION. Section 12 is hereby amended
by adding immediately after paragraph (c) of such section a new paragraph (d) as
follows:
(d) REQUIRED FIXED RATE RENEWAL OPTION. The Lessor may, by
providing written notice to the Lessee not later than April 30,
2005, require the Lessee to exercise, pursuant to Section 12(a), the
Fixed Rate Renewal Option to renew the Facility Lease at the end of
the Basic Term for one Fixed Rate Renewal Term. In the event that
the Lessor shall have provided such notice, (i) the Lessee shall be
deemed for all purposes hereof to have given on the date of such
notice by the Lessor irrevocable written notice to the Lessor
pursuant to Section 13(a)(ii) hereby that the Lessee intends to
exercise such option and (ii) without the need for any further
action by any party, the Facility Lease shall be renewed at the end
of the Basic Term for one Fixed Rate Renewal Term. Notwithstanding
any provision hereof, the Lessee shall not be required to provide
any Renewal Appraisal in connection with a renewal pursuant to this
Section 12(d).
3.5 SCHEDULE C. Schedule C is hereby amended by deleting such
Schedule in its entirety and replacing it with Schedule C attached hereto.
3.6 SCHEDULE D. Schedule D is hereby amended by deleting such
Schedule in its entirety and replacing it with Schedule C attached hereto.
17
4. AMENDMENT NO. 1 TO INTEREST HEDGING AGREEMENT
Pursuant to Section 9(b) of the Interest Hedging Agreement, the
following amendments are hereby made where indicated to the Interest Hedging
Agreement.
4.1 LIBOR DEFINITION. Part 4(m) of the Schedule to the Master
Agreement shall be modified by deleting such section in its entirety and
replacing it with the following:
(m) "LIBOR" shall mean (a) the rate per annum determined by
the Administrative Agent at approximately 11:00 a.m. (London time)
on the date which is two Business Days prior to the beginning of the
relevant Interest Period by reference to the British Bankers'
Association Interest Settlement Rates for deposits in Dollars (as
set forth by any service selected by the Administrative Agent which
has been nominated by the British Bankers' Association as an
authorized information vendor for the purpose of displaying the
rates) for a period equal to such Interest Period; provided that, to
the extent that an interest rate is not ascertainable pursuant to
the foregoing provisions of this definition, such interest rate
shall be the interest rate per annum determined by the
Administrative Agent to be the rate per annum at which deposits in
Dollars are offered for such relevant Interest Period to major banks
in the London interbank market in London, England by the
Administrative Agent at approximately 11:00 a.m. (London time) on
the date which is two Business Days prior to the beginning of such
Interest Period, DIVIDED BY (b) one minus the Eurocurrency Reserve
Requirements.
5. CONSENT
5.1 PANDA-PEPCO LETTER AGREEMENT. Each of the Administrative Agent,
the Loan Participants signatories hereto, the Indenture Trustee, the Owner
Trustee and the Owner Participant hereby acknowledges and agrees that it has
been informed of, and consents to, the entering into and the performance by the
Partnership of the Panda-PEPCO Letter Agreement, the PPC Assignment and
Exclusive Sales Agreement and the Balancing Services Letter Agreement.
5.2 INTEREST HEDGING AGREEMENT. Each of the Swap Participants hereby
acknowledges and agrees that it has been informed of, and consents to, the
terms, the existence of, the entering into and the performance under this
Agreement including the provisions of Section 4 hereof.
6. REPRESENTATIONS AND WARRANTIES
Each of the Partnership and the General Partner represents and
warrants as of the date hereof:
18
6.1 EXISTENCE.
(a) The Partnership has been duly formed and is validly
existing and in good standing under the laws of Delaware with partnership power
and authority to conduct its business as now conducted and to own, or hold under
lease, its assets and to enter into this Agreement, the Panda-PEPCO Letter
Agreement, the PPC Assignment and Exclusive Sales Agreement, the Balancing
Services Letter Agreement, the Assignment referred to in Section 7.6(ii) hereof
(the "Collateral Assignment of PPC Assignment") and the Consent to Assignment
referred to in Section 7.6(ii) hereof (the "Consent of PPC") and perform its
obligations thereunder.
(b) The General Partner has been duly incorporated and is
validly existing and in good standing under the laws of Delaware with corporate
power and authority to conduct its business as now conducted and to own, or hold
under lease, its assets and to enter into this Agreement, the Panda-PEPCO Letter
Agreement, the PPC Assignment and Exclusive Sales Agreement, the Balancing
Services Letter Agreement, the Collateral Assignment of PPC Assignment and the
Consent of PPC and perform its obligations thereunder.
6.2 AUTHORITY.
(a) The execution, delivery and performance of this Agreement,
the Panda-PEPCO Letter Agreement, the PPC Assignment and Exclusive Sales
Agreement, the Balancing Services Letter Agreement, the Collateral Assignment of
PPC Assignment and the Consent of PPC have been duly authorized by all necessary
partnership action of the Partnership, and such documents have been duly
executed and delivered by the Partnership.
(b) The execution, delivery and performance of this Agreement,
the Panda-PEPCO Letter Agreement, the PPC Assignment and Exclusive Sales
Agreement, the Balancing Services Letter Agreement, the Collateral Assignment of
PPC Assignment and the Consent of PPC have been duly authorized by all necessary
corporate action of the General Partner, and such documents have been duly
executed and delivered by the General Partner.
6.3 NO CONFLICTS.
(a) The execution and delivery by the Partnership of this
Agreement, the Panda-PEPCO Letter Agreement, the PPC Assignment and Exclusive
Sales Agreement, the Balancing Services Letter Agreement, the Collateral
Assignment of PPC Assignment and the Consent of PPC and the performance of the
obligations of the Partnership under such documents do not: (i) violate any
federal, New York, Texas or Delaware statute, rule or regulation applicable to
the Partnership, (ii) violate the provisions of the Partnership Agreement of the
Partnership, (iii) result in the breach of or a default under any indenture,
mortgage, deed of trust, credit agreement, loan agreement or any other material
agreement to which the Partnership is a party or by which the Partnership or its
assets are bound, (iv) result in the breach of or a default under any court or
administrative orders, writs, judgments and decrees specifically directed to the
Partnership, or (v) require any consents, approvals, authorizations,
registrations, declarations or filings by the Partnership under any statute,
rule or regulation applicable to the Partnership except such consents,
19
approvals, authorizations, registrations, declarations and filings that have
already been obtained and are in full force and effect.
(b) The execution and delivery by the General Partner of this
Agreement, the Panda-PEPCO Letter Agreement, the PPC Assignment and Exclusive
Sales Agreement, the Balancing Services Letter Agreement, the Collateral
Assignment of PPC Assignment and the Consent of PPC and the performance of the
obligations of the General Partner under such documents do not: (i) violate any
federal, New York, Texas or Delaware statute, rule or regulation applicable to
the General Partner, (ii) violate the provisions of the Certificate of
Incorporation and Bylaws of the General Partner, (iii) result in the breach of
or a default under any indenture, mortgage, deed of trust, credit agreement,
loan agreement or any other material agreement to which the General Partner is a
party or by which the General Partner or its assets are bound, (iv) result in
the breach of or a default under any court or administrative orders, writs,
judgments and decrees specifically directed to the General Partner, or (v)
require any consents, approvals, authorizations, registrations, declarations or
filings by the General Partner under any statute, rule or regulation applicable
to the General Partner except such consents, approvals, authorizations,
registrations, declarations and filings that have already been obtained and are
in full force and effect.
6.4 ENFORCEABILITY.
(a) Each of this Agreement, the Panda-PEPCO Letter Agreement,
the PPC Assignment and Exclusive Sales Agreement, the Balancing Services Letter
Agreement, the Collateral Assignment of PPC Assignment and the Consent of PPC
constitutes a legally valid and binding obligation of the Partnership,
enforceable against the Partnership in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of creditors
generally and by general principles of equity.
(b) Each of this Agreement, the Panda-PEPCO Letter Agreement,
the PPC Assignment and Exclusive Sales Agreement, the Balancing Services
Letter Agreement, the Collateral Assignment of PPC Assignment and the
Consent of PPC constitutes a legally valid and binding obligation of the
General Partner, enforceable against the General Partner in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and by general principles of
equity.
6.5 PRO FORMA FINANCIAL STATEMENTS. The pro forma financial
statements for the Partnership and PPC attached hereto as Exhibit D are complete
and correct in all material respects and fairly present the information
contained therein as date hereof and, to the extent they relate to future
periods, are based on reasonable assumptions for the forecast period contained
therein. To the best knowledge of the Partnership, as of the date of the pro
forma financial statements, neither the Partnership nor PPC has any material
liability, contingent or otherwise, or any material forward or long-term
commitments which are not disclosed by, or reserved against in, the pro forma
financial statements. There are no unrealized or anticipated losses from any
20
unfavorable commitments of the Partnership or PPC which would reasonably be
expected to have a Material Adverse Effect.
6.6 REAFFIRMED REPRESENTATIONS. Each of the Partnership and the
General Partner hereby reaffirms the representations and warranties set forth in
Sections 3.5 (GOVERNMENTAL ACTIONS AND OTHER CONSENTS AND APPROVALS), 3.7 (NO
PROCEEDING OR LITIGATION), 3.8 (NO DEFAULT OR EVENT OF LOSS), 3.13 (INVESTMENT
COMPANY ACT; ETC.), 3.20 (PUBLIC UTILITY STATUS) and 3.27 (QUALIFYING FACILITY)
of the Participation Agreement as each being true and correct as of the date
hereof and represents and warrants that none of the representations and
warranties set forth in any such section will become untrue as a result of the
Partnership's entering into and performing under any of the Panda-PEPCO Letter
Agreement, the PPC Assignment and Exclusive Sales Agreement or the Balancing
Services Letter Agreement.
7. CONDITIONS PRECEDENT
This Agreement shall not become effective until the date as of which
all of the following conditions precedent shall have been fulfilled:
7.1 This Agreement shall have been duly executed and delivered by
each of the Partnership, the Owner Participant, the Administrative Agent, the
General Partner, the Owner Trustee, the Security Agent, the Indenture Trustee,
the Required Loan Participants and the Swap Participants.
7.2 The Owner Participant and the Administrative Agent shall each
have received (with a copy for each Loan Participant) such legal opinions, in
form and substance reasonably satisfactory to the Owner Participant and the
Administrative Agent, as are reasonably requested by the Owner Participant and
the Administrative Agent in respect of this Agreement, the Panda-PEPCO Letter
Agreement and the documents and transactions contemplated therein and herein,
including without limitation, legal opinions from local and federal regulatory
counsel concerning the Panda-PEPCO Letter Agreement, the PPC Assignment and
Exclusive Sales Agreement, the Balancing Services Letter Agreement and the
transactions contemplated in each such agreement.
7.3 The Owner Participant and the Administrative Agent shall each
have received from the Partnership a marketing plan satisfactory to each of them
in respect of the brokering and sale of electric energy and capacity released
for such brokering and sale under the Panda-PEPCO Letter Agreement, and the
Owner Participant and the Administrative Agent shall have received (with a copy
for each Loan Participant) true and correct copies, certified as such by the
Partnership, of all agreements entered into prior to the date hereof in respect
of such brokering and sale, and all such agreements, and all other documents and
arrangements in respect of such brokering and sale, shall be in form and
substance reasonably satisfactory to the Owner Participant and the
Administrative Agent.
21
7.4 The Owner Participant and the Administrative Agent shall have
received written confirmation regarding PEPCO's interpretation concerning the
number of must-run hours under the Power Purchase Agreement.
7.5 The Partnership shall have paid or caused to be paid to the
Owner Participant, in immediately available funds, all verifiable third-party
costs of match-funding breakage payable by the Owner Participant in connection
with any termination, amendments or other modifications effected or to be
effected in order to reflect the new Schedules C and D of the Facility Lease and
Schedule 6 of the Participation Agreement to be put in place hereby, provided,
HOWEVER, that at the Partnership's option and in a form satisfactory to GE
Capital and the Administrative Agent , such costs can be incorporated into
Schedules C and D of the Facility Lease and Schedule 6 of the Participation
Agreement in lieu of a single cash payment.
7.6 The Owner Participant and the Administrative Agent shall have
received (i) the approval of the Power Purchaser to the amendments to the
Financing Documents as set forth herein, (ii) the consent of the Power Purchaser
to the Partnership's assignment of certain rights and obligations under the
Panda-PEPCO Letter Agreement as set forth in the PPC Assignment and Exclusive
Sales Agreement and (iii) pursuant to Section 6.14(a) of the Participation
Agreement, an Assignment by the Partnership of the PPC Assignment and Exclusive
Sales Agreement and a Consent to Assignment by PPC with respect to such
Assignment, in each case, in form and substance satisfactory to each of the
Owner Participant and the Administrative Agent.
7.7 The following documents shall have been duly authorized,
executed and delivered by the respective parties thereto, and an executed
counterpart of each shall have been delivered to the Owner Participant, the
Administrative Agent and each of the Loan Participants:
(a) this Agreement;
(b) the Panda-PEPCO Letter Agreement (copies only);
(c) the PPC Assignment and Exclusive Sales Agreement;
(d) the Collateral Assignment of PPC Assignment;
(e) the Consent of PPC;
(f) the Amendment to PEPCO Amended and Restated Consent and
Agreement and to PEPCO Compliance Certificate, dated as
of July 17, 1998 (the "Amendment to PEPCO Consent"),
among PEPCO, the Partnership, the Security Agent, the
Owner Trustee, the Indenture Trustee, GE Capital and the
Administrative Agent providing for PEPCO's approval to
the amendments to the Financing Documents as set forth
herein;
(g) the Consent to Assignment , dated as of July 17, 1998,.
among PEPCO, PPC and the Partnership providing for
PEPCO's consent to the Partnership's assignment of
certain rights and obligations under the PPC Assignment
and Exclusive Sales Agreement;
(h) the Balancing Services Letter Agreement; and
22
(i) the Service Agreement, dated as of July 17, 1998,
between PPC and PEPCO;
(j) the Confirmation Notice, dated as of July 17, 1998
between PPC and PEPCO.
8. MISCELLANEOUS
8.1 EFFECTIVE DATE. This Agreement shall become effective on the
date that all the conditions precedent set forth in Section 7 herein are
satisfied. Thereafter, upon the receipt from PEPCO (in full and in immediately
available funds) and deposit in the Revenue Account of the $3,855,992.00
required to be paid by PEPCO under Paragraph 1 of the Panda-PEPCO Letter
Agreement, the Partnership shall provide to the Administrative Agent, the Owner
Participant, the Security Agent and any other Person, all such information,
certificates, exhibits and schedules as is required on each Basic Rent Payment
Date for the purpose of administering solely the $3,855,992.00 from the Revenue
Account as provided in the Security Deposit Agreement and the other Financing
Documents, as amended hereby, as though such date were the April 30, 1998 Basic
Rent Payment Date. Within five (5) days thereafter, the Security Agent shall
administer the $3,855,992.00 and make the appropriate deposits, withdrawals and
distributions from the Accounts as provided in clauses FIRST through sixth of
Section 4.3 of the Security Deposit Agreement, as amended hereby, as though such
date were the April 30, 1998 Basic Rent Payment Date, without duplication of the
deposits, withdrawals and distributions from the Accounts made pursuant to such
clauses on the actual April 30, 1998 Basic Rent Payment Date except to the
extent that the amount of any such deposit, withdrawal or distribution shall
have changed as a result of the amendments to the Financing Documents made
hereby. After such deposits, withdrawals and distributions have been made, (a)
the Security Agent shall transfer to the Owner Participant and the
Administrative Agent (or to such account or accounts as the Owner Participant
and the Administrative Agent shall designate) from the cash remaining in the
Revenue Account the amounts owning to each of them pursuant to Section 8.9
hereof, and (b) if the conditions precedent to cash distributions to the
Partners set forth in Section 7.3 of the Participation Agreement are then
satisfied (as certified in a certificate of an Authorized Officer of the
Partnership and countersigned by the Administrative Agent and the Owner
Participant substantially in the form of Exhibit F to the Security Deposit
Agreement), the Security Agent shall distribute to the Partnership from the cash
available in the Revenue Account an amount equal to the $3,855,992.00 less the
sum of (i) the aggregate amount of the deposits, withdrawals and distributions
made pursuant to the immediately previous sentence hereto plus (ii) the
aggregate amount transferred pursuant to clause (a) of this sentence.
8.2 NO OTHER AMENDMENTS. Except as otherwise expressly provided in
this Agreement which shall be read as one with the Financing Documents as if
fully set forth therein, the Financing Documents shall remain unchanged and in
full force and effect and are hereby ratified and confirmed in all respects. The
execution, delivery and effectiveness of this Agreement shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of
any of the Administrative Agent, the Loan Participants, the Indenture Trustee,
the
23
Owner Participant or the Owner Trustee, nor constitute a waiver of any provision
of the Financing Documents.
8.3 SEVERABILITY. In the event that any portion of this Agreement
shall be invalid, illegal or unenforceable in any respect, it shall not affect
the validity, legality or enforceability of any other provision of this
Agreement.
8.4 JOINT EFFORT. This Agreement shall be considered for all
purposes as having been prepared through the joint efforts of the parties
hereto, and shall not be construed against one party or the other as a result of
the preparation, submittal or other event of negotiation, drafting or execution
thereof.
8.5 HEADINGS. The heading in this Agreement are for convenience only
and are not part of the substance hereof.
8.6 COUNTERPARTS. This Agreement may be executed in any number of
separate counterparts with the same effect as if the parties had signed the same
document. All counterparts shall be construed together and shall constitute one
agreement.
8.7 GOVERNING LAW. This Agreement shall be governed by and be
construed in accordance with the laws of the State of New York.
8.8 INSTRUCTIONS. Both the Owner Participant, authorized to give the
instructions herein on behalf of the Owner Trustee, and the Administrative
Agent, authorized to give the instructions herein on behalf of the Indenture
Trustee, hereby instruct the Security Agent to execute this Agreement, the
Amendment to PEPCO Consent and the Consent of PPC in accordance with Section 2.1
of the Amended and Restated Security Deposit Agreement and Section 3.10 of the
Indenture. The Administrative Agent, authorized to give the instructions herein
on behalf of the Loan Participants, hereby instructs the Indenture Trustee to
execute this Agreement, the Amendment to PEPCO Consent and the Consent of PPC
pursuant to Section 10.2 of the Indenture. The Owner Participant, authorized to
give the instructions herein, hereby instructs the Owner Trustee to execute this
Agreement and the Amendment to PEPCO Consent pursuant to Section 5.2 of the
Trust Agreement.
8.9 EXPENSES. The Partnership shall pay all reasonable expenses and
fees incurred by the Owner Participant, the Security Agent, the Owner Trustee,
the Indenture Trustee and the Administrative Agent with respect to the review,
negotiation, preparation, execution and delivery of this Agreement and of any
document required or contemplated hereunder, including, without limitation, all
reasonable fees and expenses of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to the Owner
Participant, and all reasonable fees and expenses of Xxxxxx & Xxxxxxx, counsel
to the Administrative Agent.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
24
IN WITNESS WHEREOF, the parties have hereunto executed this
Agreement as of the day and year first written above.
PANDA-BRANDYWINE, L.P.,
a Delaware limited partnership
By: PANDA BRANDYWINE CORPORATION,
a Delaware corporation
By: _______________________________
Name: _____________________________
Title: ____________________________
PANDA BRANDYWINE CORPORATION,
a Delaware corporation
By: _______________________________
Name: _____________________________
Title: ____________________________
GENERAL ELECTRIC CAPITAL CORPORATION,
a New York corporation, in its individual
capacity and as the Owner Participant
By: _______________________________
Name: _____________________________
Title: ____________________________
FLEET NATIONAL BANK
(formerly known as Shawmut Bank
Connecticut, National Association),
a national banking association,
By: _______________________________
Name: _____________________________
Title: ____________________________
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
a national banking association,
as the Indenture Trustee
By: _______________________________
Name: _____________________________
Title: ____________________________
CREDIT SUISSE FIRST BOSTON, a bank organized
and existing under the laws of Switzerland,
in its individual capacity, as the
Administrative Agent, as a Swap Participant,
and (successor to Greenwich Funding
Corporation, a Delaware Corporation) as a
Loan Participant
By: _______________________________
Name: _____________________________
Title: ____________________________
By: _______________________________
Name: _____________________________
Title: ____________________________
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A, "RABOBANK NEDERLAND,"
GRAND CAYMAN BRANCH,
as a Loan Participant and a Swap Participant
By: _______________________________
Name: _____________________________
Title: ____________________________
By: _______________________________
Name: _____________________________
Title: ____________________________
KB FINANCIAL SERVICES (IRELAND),
as a Loan Participant and a Swap Participant
By: _______________________________
Name: _____________________________
Title: ____________________________
By: _______________________________
Name: _____________________________
Title: ____________________________
MEESPIERSON CAPITAL CORP.,
(successor to MeesPierson N.V.),
as a Loan Participant and a Swap Participant
By: _______________________________
Name: _____________________________
Title: ____________________________
By: _______________________________
Name: _____________________________
Title: ____________________________
BAYERISCHE VEREINSBANK AG, NEW YORK BRANCH,
as a Loan Participant and a Swap Participant
By: _______________________________
Name: _____________________________
Title: ____________________________
By: _______________________________
Name: _____________________________
Title: ____________________________
CAISSE NATIONALE DE CREDIT AGRICOLE,
as a Loan Participant
By: _______________________________
Name: _____________________________
Title: ____________________________
By: _______________________________
Name: _____________________________
Title: ____________________________
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION
EUROPEENNE,
as a Loan Participant
By: _______________________________
Name: _____________________________
Title: ____________________________
By: _______________________________
Name: _____________________________
Title: ____________________________
COMMERZBANK AG ATLANTA AGENCY,
as a Loan Participant
By: _______________________________
Name: _____________________________
Title: ____________________________
By: _______________________________
Name: _____________________________
Title: ____________________________
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK,
CAYMAN ISLAND BRANCH,
as a Loan Participant
By: _______________________________
Name: _____________________________
Title: ____________________________
By: _______________________________
Name: _____________________________
Title: ____________________________
BAYERISCHE HYPOTHEKEN - UND WECHSEL -
BANK AG, NEW YORK BRANCH,
as a Loan Participant
By: _______________________________
Name: _____________________________
Title: ____________________________
By: _______________________________
Name: _____________________________
Title: ____________________________
THE SAKURA BANK, LTD.,
as a Loan Participant
By: _______________________________
Name: _____________________________
Title: ____________________________
By: _______________________________
Name: _____________________________
Title: ____________________________
EXHIBIT A
to Consent and Amendment Agreement
PANDA-PEPCO LETTER AGREEMENT
EXHIBIT B
to Consent and Amendment Agreement
PPC ASSIGNMENT AND EXCLUSIVE SALES AGREEMENT
EXHIBIT C
to Consent and Amendment Agreement
BALANCING SERVICES LETTER AGREEMENT
EXHIBIT D
to Consent and Amendment Agreement
PRO FORMA FINANCIAL STATEMENTS
SCHEDULE 6
BASIC RENT FACTORS AND STIPULATED LOSS VALUES
Schedule 6 to
Participation Agreement
BASIC RENT FACTORS
BASIC RENT PAYMENT DATES BASIC RENT FACTORS
------------------------ ------------------
(expressed as a
percentage of
lessor's cost)
1 0.00000000
2-5 1.20029675
6-9 1.57167249
10-13 2.81464490
14-17 2.87615513
18-21 3.43116902
22-25 3.46301515
26-29 3.47664757
30-33 3.47674760
34-37 3.48179760
38-41 3.42509587
42-45 3.41354975
46-49 3.40486159
50-53 3.39221516
54-57 3.46319234
58-61 3.66733571
62-65 3.48825657
66-69 3.51034280
70-73 3.54490113
74-77 3.58090559
78-80 3.15861490
Schedule 6 to
Participation Agreement
STIPULATED LOSS VALUE
(Does not include Accrued Basic Rent)
PERCENTAGE OF
SETTLEMENT DATE LESSOR'S COST
--------------- -------------
Jul 17 1998 112.64536213
Jul 31 1998 112.71308712
Oct 31 1998 113.91731461
Jan 31 1999 115.14498938
Apr 30 1999 115.01708587
Jul 31 1999 114.93505309
Oct 31 1999 114.84492657
Jan 31 2000 114.78081328
Apr 30 2000 114.54875403
Jul 31 2000 114.33061011
Oct 31 2000 114.10386054
Jan 31 2001 113.92031850
Apr 30 2001 113.05472531
Jul 31 2001 112.22369205
Oct 31 2001 111.37277588
Jan 31 2002 110.52885184
Apr 30 2002 109.51177897
Jul 31 2002 108.52606794
Oct 31 2002 107.51748310
Jan 31 2003 106.52235014
Apr 30 2003 105.36380230
Jul 31 2003 104.23224238
Oct 31 2003 103.07404271
Jan 31 2004 101.93217098
Apr 30 2004 100.68618945
Jul 31 2004 99.47544283
Oct 31 2004 98.27413562
Jan 31 2005 97.13086772
Apr 30 2005 95.88018356
Jul 31 2005 94.68950681
Oct 31 2005 93.48603662
Jan 31 2006 92.30641592
Apr 30 2006 91.05464194.
Jul 31 2006 89.84134564.
Oct 31 2006 88.62198077
Jan 31 2007 87.42375473
Apr 30 2007 86.11963871
Jul 31 2007 84.84935696
Oct 31 2007 83.57109181
PERCENTAGE OF
SETTLEMENT DATE LESSOR'S COST
--------------- -------------
Jan 31 2008 82.31174988
Apr 30 2008 80.97168221
Jul 31 2008 79.64806236
Oct 31 2008 78.32198898
Jan 31 2009 77.04289304
Apr 30 2009 75.65696295
Jul 31 2009 74.30342694
Oct 31 2009 72.94648339
Jan 31 2010 71.61222862
Apr 30 2010 70.09815797
Jul 31 2010 68.60949239
Oct 31 2010 67.11289778
Jan 31 2011 65.63397417
Apr 30 2011 63.83933843
Jul 31 2011 62.05867000
Oct 31 2011 60.25987307
Jan 31 2012 58.48589904
Apr 30 2012 56.77569776
Jul 31 2012 55.06217957
Oct 31 2012 53.33251719
Jan 31 2013 51.61230087
Apr 30 2013 49.75708704
Jul 31 2013 47.91950660
Oct 31 2013 46.07511493
Jan 31 2014 44.24972466
Apr 30 2014 42.28993909
Jul 31 2014 40.34052308
Oct 31 2014 38.38062448
Jan 31 2015 36.34313514
Apr 30 2015 34.12331390
Jul 31 2015 31.83033821
Oct 31 2015 29.44090323
Jan 31 2016 26.94407615
Apr 30 2016 24.73495288
Jul 31 2016 22.42381459
Oct 31 2016 20.00000000
SCHEDULE C
BASIC RENT FACTORS
SCHEDULE C TO FACILITY LEASE
BASIC RENT
BASIC RENT FACTOR
(EXPRESSED AS A
PERCENTAGE OF BASIC RENT
BASIC RENT PAYMENT DATES LESSOR'S COST) ($)
------------------------ ----------------- -------------
Jan 31 1997 $
Apr 30 1997 1.20029675 $ 2,610,509.14
Jul 31 1997 1.20029675 $ 2,610,509.14
Oct 31 1997 1.20029675 $ 2,610,509.14
Jan 31 1998 1.20029675 $ 2,610,509.14
Apr 30 1998 1.57187249 $ 3,418,644.18
Jul 31 1998 1.57187249 $ 3,418,644.18
Oct 31 1998 1.57187249 $ 3,418,644.18
Jan 31 1999 1.57187249 $ 3,418,644.18
Apr 30 1999 2.81464490 $ 6,121,533.05
Jul 31 1999 2.81464490 $ 6,121,533.05
Oct 31 1999 2.81464490 $ 6,121,533.05
Jan 31 2000 2.81464490 $ 6,121,533.05
Apr 30 2000 2.87615513 $ 6,255,310.82
Jul 31 2000 2.87615513 $ 6,255,310.82
Oct 31 2000 2.87615513 $ 6,255,310.82
Jan 31 2001 2.87615513 $ 6,255,310.82
Apr 30 2001 3.43116902 $ 7,462,403.00
Jul 31 2001 3.43116902 $ 7,462,403.00
Oct 31 2001 3.43116902 $ 7,462,403.00
Jan 31 2002 3.43116902 $ 7,462,403.00
Apr 30 2002 3.46301515 $ 7,531,664.73
Jul 31 2002 3.46301515 $ 7,531,664.73
Oct 31 2002 3.46301515 $ 7,531,664.73
Jan 31 2003 3.46301515 $ 7,531,664.73
Apr 30 2003 3.47664757 $ 7,561,313.70
Jul 31 2003 3.47664757 $ 7,561,313.70
Oct 31 2003 3.47664757 $ 7,561,313.70
Jan 31 2004 3.47664757 $ 7,561,313.70
Apr 30 2004 3.47674760 $ 7,561,531.25
Jul 31 2004 3.47674760 $ 7,561,531.25
Oct 31 2004 3.47674760 $ 7,561,531.25
Jan 31 2005 3.47674760 $ 7,561,531.25
Apr 30 2005 3.48179760 $ 7,572,514.42
Jul 31 2005 3.48179760 $ 7,572,514.42
Oct 31 2005 3.48179760 $ 7,572,514.42
Jan 31 2006 3.48179760 $ 7,572,514.42
Apr 30 2006 3.42509587 $ 7,449,194.60
Jul 31 2006 3.42509587 $ 7,449,194.60
Oct 31 2006 3.42509587 $ 7,449,194.60
SCHEDULE C TO FACILITY LEASE
BASIC RENT
BASIC RENT FACTOR
(EXPRESSED AS A
PERCENTAGE OF BASIC RENT
BASIC RENT PAYMENT DATES LESSOR'S COST) ($)
------------------------ ----------------- -------------
Jan 31 2007 3.42509587 $ 7,449,194.60
Apr 30 2007 3.41354975 $ 7,424,083.10
Jul 31 2007 3.41354975 $ 7,424,083.10
Oct 31 2007 3.41354975 $ 7,424,083.10
Jan 31 2008 3.41354975 $ 7,424,083.10
Apr 30 2008 3.40486159 $ 7,405,187.33
Jul 31 2008 3.40486159 $ 7,405,187.33
Oct 31 2008 3.40486159 $ 7,405,187.33
Jan 31 2009 3.40486159 $ 7,405,187.33
Apr 30 2009 3.39221516 $ 7,377,682.78
Jul 31 2009 3.39221516 $ 7,377,682.78
Oct 31 2009 3.39221516 $ 7,377,682.78
Jan 31 2010 3.39221516 $ 7,377,682.78
Apr 30 2010 3.46319234 $ 7,532,050.10
Jul 31 2010 3.46319234 $ 7,532,050.10
Oct 31 2010 3.46319234 $ 7,532,050.10
Jan 31 2011 3.46319234 $ 7,532,050.10
Apr 30 2011 3.66733571 $ 7,976,038.75
Jul 31 2011 3.66733571 $ 7,976,038.75
Oct 31 2011 3.66733571 $ 7,976,038.75
Jan 31 2012 3.66733571 $ 7,976,038.75
Apr 30 2012 3.48825657 $ 7,586,561.94
Jul 31 2012 3.48825657 $ 7,586,561.94
Oct 31 2012 3.48825657 $ 7,586,561.94
Jan 31 2013 3.48825657 $ 7,586,561.94
Apr 30 2013 3.51034280 $ 7,634,597.00
Jul 31 2013 3.51034280 $ 7,634,597.00
Oct 31 2013 3.51034280 $ 7,634,597.00
Jan 31 2014 3.51034280 $ 7,634,597.00
Apr 30 2014 3.54490113 $ 7,709,757.44
Jul 31 2014 3.54490113 $ 7,709,757.44
Oct 31 2014 3.54490113 $ 7,709,757.44
Jan 31 2015 3.54490113 $ 7,709,757.44
Apr 30 2015 3.58090559 $ 7,788,063.04
Jul 31 2015 3.58090559 $ 7,788,063.04
Oct 31 2015 3.58090559 $ 7,788,063.04
Jan 31 2016 3.58090559 $ 7,788,063.04
Apr 30 2016 3.15861490 $ 6,869,628.74
Jul 31 2016 3.15861490 $ 6,869,628.74
Oct 31 2016 3.15861490 $ 6,869,628.74
SCHEDULE D
STIPULATED LOSS VALUES
SCHEDULE D TO FACILITY LEASE
STIPULATED LOSS VALUES
(Does Not Include Accrued Basic Rent)
STIPULATED LOSS VALUE
(Expressed as a Percentage
BASIC RENT PAYMENT DATES of Lessor's Cost)
------------------------ -------------------------
Jul 17 1998 112.64536213
Jul 31 1998 112.71308712
Oct 31 1998 113.91731461
Jan 31 1998 115.14498938
Apr 30 1999 115.01708587
Jul 31 1999 114.93505309
Oct 31 1999 114.84492657
Jan 31 2000 114.78081328
Apr 30 2000 114.54875403
Jul 31 2000 114.33031011
Oct 31 2000 114.10386054
Jan 31 2001 113.92031850
Apr 30 2001 113.05472531
Jul 31 2001 112.22369205
Oct 31 2001 111.37277588
Jan 31 2002 110.52885184
Apr 30 2002 109.51177897
Jul 31 2002 108.52606794
Oct 31 2002 107.51748310
Jan 31 2003 106.52235014
Apr 30 2003 105.36380230
Jul 31 2003 104.23224238
Oct 31 2003 103.07404271
Jan 31 2004 101.93217098
Apr 30 2004 100.68618945
Jul 31 2004 99.47544283
Oct 31 2004 98.27413562
Jan 31 2005 97.13086772
Apr 30 2005 95.88018356
Jul 31 2005 94.68950681
Oct 31 2005 93.48603662
Jan 31 2006 92.30641592
Apr 30 2006 91.05484194
Jul 31 2006 89.84134564
Oct 31 2006 88.62198077
SCHEDULE D TO FACILITY LEASE
STIPULATED LOSS VALUES
(Does Not Include Accrued Basic Rent)
STIPULATED LOSS VALUE
(Expressed as a Percentage
BASIC RENT PAYMENT DATES of Lessor's Cost)
------------------------ -------------------------
Jan 31 2007 87.42375473
Apr 30 2007 86.11963871
Jul 31 2007 84.84935696
Oct 31 2007 83.57109181
Jan 31 2008 82.31174988
Apr 30 2008 80.97168221
Jul 31 2008 79.64806236
Oct 31 2008 78.32198898
Jan 31 2009 77.04289304
Apr 30 2009 75.65696295
Jul 31 2009 74.30342694
Oct 31 2009 72.94648339
Jan 31 2010 71.61222862
Apr 30 2010 70.09815797
Jul 31 2010 68.60949239
Oct 31 2010 67.11289778
Jan 31 2011 65.63397417
Apr 30 2011 63.83933843
Jul 31 2011 62.05867000
Oct 31 2011 60.25987307
Jan 31 2012 58.48589904
Apr 30 2012 56.77569776
Jul 31 2012 55.06217957
Oct 31 2012 53.33251719
Jan 31 2013 51.61230087
Apr 30 2013 49.75708704
Jul 31 2013 47.91950660
Oct 31 2013 46.17511493
Jan 31 2014 44.24972466
Apr 30 2014 42.28993909
Jul 31 2014 40.34052308
Oct 31 2014 38.38062448
Jan 31 2015 36.34313514
Apr 30 2015 34.12331390
Jul 31 2015 31.83033821
Oct 31 2015 29.44090323
Jan 31 2016 26.94407615
Apr 30 2016 24.73495288
Jul 31 2016 22.42381459
Oct 31 2016 20.00000000