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Exhibit 10.28
DESIGNATED ACCOUNT REPRESENTATIVE AGREEMENT
Relating to the Acid Rain Program
This DESIGNATED ACCOUNT REPRESENTATIVE AGREEMENT
("Agreement") is entered into as of December __, 2001, by and between EME
HOMER CITY GENERATION L.P., a Pennsylvania limited partnership ("EMEHC"), and
Homer City OL1 LLC, a Delaware limited liability company, Homer City OL2 LLC,
a Delaware limited liability company, Homer City OL3 LLC, a Delaware limited
liability company, Homer City OL4 LLC, a Delaware limited liability company,
Homer City OL5 LLC, a Delaware limited liability company, Homer City OL6 LLC,
a Delaware limited liability company, Homer City OL7 LLC, a Delaware limited
liability company, and Homer City OL8 LLC, a Delaware limited liability
company (together, the "Owner Lessors").
WITNESSETH
WHEREAS, as a result of EMEHC's sale of eight undivided
interests in Homer City Electric Generating Station located near Indiana,
Pennsylvania (the "Homer City Station") to the Owner Lessors, Owner Lessors are
the owners of eight undivided interests (totaling a 100% interest) in the Homer
City Station (the "Undivided Interests").
WHEREAS, pursuant to eight facility leases between the Owner
Lessors and EMEHC, dated as of the date hereof (the "Facility Leases"), EMEHC
has leased back the Undivided Interests from the Owner Lessors.
WHEREAS, the Homer City Station is an affected source and
Homer City Station Units 1, 2 and 3 are affected units that are subject to the
acid disposition control requirements of Title IV-A of the Clean Air Act, as
amended, and the rules promulgated thereunder by the United States Environmental
Protection Agency ("U.S. EPA") at 40 C.F.R. Parts 72-78 (collectively, "Acid
Rain Program").
WHEREAS, as a result of the purchase of the Homer City
Station, the Owner Lessors are undertaking to transfer certain environmental
permits for the Homer City Station, including the acid rain permit issued by
U.S. EPA.
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WHEREAS, pursuant to the Acid Rain Program, the Owner Lessors,
as the new owners of the Homer City Station, are required to designate an
authorized account representative (a "SOx Designated Representative") for the
units at the Homer City Station subject to the U.S. EPA's Acid Rain Program.
WHEREAS, the Owner Lessors have not purchased nor paid for
emission allowances from EMEHC as part of the purchase of Undivided Interests in
the Homer City Station, and wish to provide authority to EMEHC to appoint a SOx
Designated Representative for purposes of controlling disposition of such
allowances at all times and for so long as the Facility Leases are in effect.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals,
the parties hereto covenant and agree as follows:
1. APPOINTMENT. Each Owner Lessor hereby irrevocably grant to
EMEHC the right to appoint a SOx Designated Representative and any successors
thereto for the Homer City Station, including, but not limited to Homer City
Station Units 1, 2 and 3, as required under the Acid Rain Program, and EMEHC
hereby accepts the right to so appoint a SOx Designated Representative unless
and until the applicable Facility Lease expires or is terminated in accordance
with its terms.
2. SCOPE OF APPOINTMENT. EMEHC and each Owner Lessor agree
that EMEHC's chosen SOx Designated Representative's duties and responsibilities
as SOx Designated Representative shall be as required under the Acid Rain
Program.
3. TERMINATION OF APPOINTMENT. EMEHC and each Owner Lessor
agree that EMEHC's right to appoint a SOx Designated Representative under
this Agreement shall be terminated upon termination of the applicable
Facility Lease pursuant to an Event of Default (as defined in such Facility
Lease) in accordance with the terms of such Facility Lease, and upon
submission to U.S. EPA of a superseding Certificate of Representation
pursuant to 40 C.F.R. Section 72.23, which superseding certificate is
sufficient if signed by the Owner Lessors, only.
4. ACKNOWLEDGEMENT OF POWERS OF SOx DESIGNATED
REPRESENTATIVE. EMEHC and each Owner Lessor hereby acknowledge that (i) for
the duration of this appointment, the SOx Designated Representative shall
have full power and authority to sell, assign and otherwise dispose of SOx
allowances allocated to the
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Homer City Station, or to transfer such allowances from the account
maintained for the Homer City Station to any other account maintained by
EMEHC or its affiliates (which allowances so transferred shall remain the
property of EMEHC or other transferee notwithstanding the termination of this
Agreement or any other Operative Document (as defined in each of the
Participation Agreements)), on behalf of and at the direction of EMEHC,
without compensation to the Owner Lessors, in each case in accordance with
the provisions of each of the Participation Agreements by and among Homer
City, the Owner Lessor, Wells Fargo Bank Northwest, National Association, not
in its individual capacity but solely as Owner Manager, General Electric
Capital Corporation, as the Owner Participant, Homer City Funding LLC, as
Lender, the Lease Indenture Trustee and United States Trust Company of New
York, not in its individual capacity but solely as Bondholder Trustee (as
amended, modified and supplemented and in effect from time to time) (the
"PARTICIPATION AGREEMENTS"); and (ii) the termination of EMEHC's right to
appoint a SOx Designated Representative as described in Section 3 hereof
shall not obligate the SOx Designated Representative, EMEHC or any Owner
Lessor to pay additional consideration to the other parties hereto to
effectuate the filing and acceptance by U.S. EPA of a superseding Certificate
of Representation pursuant to 40 C.F.R. Section 72.23.
5. FURTHER ASSURANCES. The parties hereto agree to promptly
perform or cause to be performed any and all acts and execute or cause to be
executed any and all documents (including financing statements and
continuation statements) as may be necessary in order to carry out the intent
and purposes of this Agreement and the appointments contemplated hereby and
to take any and all steps necessary to effectuate the intent of the foregoing
and the other Operative Documents, including without limitation, taking all
actions, making all filings, or taking such other steps as may be necessary
to maintain the SOx Designated Representative chosen by EMEHC in its sole
discretion as the SOx Designated Representative unless and until any Facility
Lease is terminated in accordance with its terms, and thereafter, to appoint
and maintain as successor designated representative the designee of the Owner
Lessors.
6. COUNTERPARTS; EFFECTIVENESS. This Agreement may be executed
in any number of counterparts each of which shall be an original with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have
received a counterpart hereof signed by the other hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
EME HOMER CITY GENERATION L.P.,
By: Mission Energy Westside, Inc.,
a California corporation
Its: General Partner
By:
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Name: Steven D. Eisenberg
Title: Vice President
HOMER CITY OL1 LLC
By: Wells Fargo Bank Northwest,
National Association
Its: Owner Manager
By:
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Name:
Title:
HOMER CITY OL2 LLC
By: Wells Fargo Bank Northwest,
National Association
Its: Owner Manager
By:
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Name:
Title:
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HOMER CITY OL3 LLC
By: Wells Fargo Bank Northwest,
National Association
Its: Owner Manager
By:
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Name:
Title:
HOMER CITY OL4 LLC
By: Wells Fargo Bank Northwest,
National Association
Its: Owner Manager
By:
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Name:
Title:
HOMER CITY OL5 LLC
By: Wells Fargo Bank Northwest,
National Association
Its: Owner Manager
By:
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Name:
Title:
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HOMER CITY OL6 LLC
By: Wells Fargo Bank Northwest,
National Association
Its: Owner Manager
By:
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Name:
Title:
HOMER CITY OL7 LLC
By: Wells Fargo Bank Northwest,
National Association
Its: Owner Manager
By:
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Name:
Title:
HOMER CITY OL8 LLC
By: Wells Fargo Bank Northwest,
National Association
Its: Owner Manager
By:
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Name:
Title: