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EXHIBIT 10.13
INTERCREDITOR AGREEMENT
Dated as of August 24, 2000
among
CONEMAUGH LESSOR GENCO, LLC,
KEYSTONE LESSOR GENCO, LLC,
and
SHAWVILLE LESSOR GENCO, LLC,
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INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT (as amended, restated, supplemented or
otherwise modified from time to time in accordance with the terms hereof, this
"Agreement"), dated as of August 24, 2000, among CONEMAUGH LESSOR GENCO LLC, a
Delaware limited company (together with its successors and permitted assigns,
"Conemaugh"); KEYSTONE LESSOR GENCO LLC, a Delaware limited liability company
(together with its successors and permitted assigns, "Keystone"), and SHAWVILLE
LESSOR GENCO LLC, a Delaware limited liability company (together with its
successors and permitted assigns, "Shawville", and together with Conemaugh and
Keystone, the "Owner Lessors" and each a "Owner Lessor").
RECITALS
A. Each Owner Lessor, as lessor, has entered into a separate
Facility Lease, dated as of the date hereof (as amended, restated, supplemented
or otherwise modified from time to time in accordance with the terms thereof,
collectively, the "Facility Leases"), with Reliant Energy Mid-Atlantic Power
Holdings LLC, a Delaware limited liability company ("REMA").
B. In order to secure the obligations owing under the
respective Facility Leases, REMA and each of its subsidiaries party thereto
(such subsidiaries (including any which become parties thereto after the date
hereof), collectively, the "Subsidiary Guarantors" and together with REMA, the
"Pledgors") have entered into a Pledge Agreement and Security Agreement, dated
as of the date hereof (as amended, restated, supplemented or otherwise modified
from time to time in accordance with the terms thereof, collectively, the
"Pledge Agreements"), with each Owner Lessor as secured party pursuant to which
the Pledgors have granted to each Owner Lessor a security interest in the
Collateral (as defined in the respective Pledge Agreements).
C. The parties hereto desire to enter into this Agreement,
among other things, (a) to insure the perfection of their respective security
interests in certain of the Collateral, (b) to set forth the respective rights
of the Owner Lessors with respect to all of the Collateral and (c) to provide
for the distribution of proceeds from foreclosing or otherwise realizing
thereon.
NOW, THEREFORE, in consideration of the premises and for other
valuable consideration, receipt and sufficiency of which the parties hereto
acknowledge, the parties hereto agree as follows:
Section 1. Security Interests Rank Equally. Each of the Owner
Lessors acknowledges and agrees that, as among the Owner Lessors and to the
extent valid, perfected and enforceable, the security interest of each Owner
Lessor in all of the Collateral (except as expressly provided in Section 4
below) shall rank equally among the Owner Lessors and the Owner Lessors shall
share therein and in the proceeds thereof pro rata according to the respective
Termination Values (as defined in the respective Facility Leases) then in effect
under their respective Facility Leases. The foregoing ranking of security
interests are applicable irrespective
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of the time or order of attachment or perfection thereof, the method of
perfection, the time or order of filing financing statements or taking
possession or any other act, event, or circumstances that otherwise would grant
priority to any such security interest. The agreements made herein are solely
for the benefit of the Owner Lessors as among themselves (and their successors
and permitted assigns) and shall not inure to the benefit of any other person or
entity.
Section 2. Possessory Collateral; Disclaimer. (a) Solely for
the purposes of perfecting liens and security interests in Collateral, each
Owner Lessor (on behalf of itself and its successors and permitted assigns)
agrees to hold any Collateral in its possession (other than as a result of a
distribution to it in accordance with Section 4 hereof) as custodian for and on
behalf of itself and each of the other Owner Lessors, and each Owner Lessor (on
behalf of itself and its successors and permitted assigns) appoints each other
Owner Lessor (and its successors and permitted assigns) as its agent to hold
such Collateral, in each case subject to the terms hereof. The sole duty of an
Owner Lessor with respect to the custody, safekeeping and physical possession of
the Collateral in its possession shall be to deal with it in the same manner as
it deals with similar property for its own account. No Owner Lessor (or its
agent) shall be liable for failure to demand, collect, or realize upon any of
the Collateral or for any delay in doing so, nor shall it be under any
obligation to sell or otherwise dispose of any Collateral upon the request of
any other Owner Lessor or any other person or entity or, except as provided in
Section 4 hereof, to take any other action whatsoever with regard to the
Collateral or any part thereof. Upon the termination of such Owner Lessor's
security interest in the Collateral in accordance with its Pledge Agreement,
such Owner Lessor shall deliver over to another Owner Lessor any Collateral then
held by it as a custodian or agent hereunder.
(b) Upon receipt of written notice from any Owner Lessor that
such Owner Lessor has commenced the exercise of remedies under its Pledge
Agreement, each other Owner Lessor shall deliver to such Owner Lessor all
Collateral in its possession (other than as a result of a distribution to it in
accordance with Section 4 hereof); provided that such Owner Lessor shall not be
obligated to so deliver such Collateral if such Owner Lessor has also commenced
the exercise of remedies under its Pledge Agreement.
(c) Notwithstanding any provision to the contrary herein, as
among the Owner Lessors, no Owner Lessor shall have any duties or
responsibilities except those expressly set forth herein, or any fiduciary
relationship with any other Owner Lessor, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against any Owner Lessor. Each Owner Lessor shall
be accountable to any Owner Lessor only for amounts that it actually receives
with respect to any of the Collateral, and neither it nor any of its agents
shall be responsible to any other Owner Lessor for any act or failure to act
hereunder, except as provided in Section 4 hereof and except for its own gross
negligence or willful misconduct. None of the Owner Lessors makes any
representation or warranty or assumes any liability to any other Owner Lessor
with respect to (i) the enforceability, validity, value or collectability of any
of the Collateral or (ii) any Pledgor's title or right to any of the Collateral.
None of the Owner Lessors shall have any obligation to any Owner Lessor to
marshall any Collateral.
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Section 3. Exercise of Remedies. Each Owner Lessor agrees that
prior to the exercise of remedies under its respective Pledge Agreement it shall
give notice to and consult with the other Owner Lessors. In the event that more
than one Owner Lessor has commenced remedies under its respective Pledge
Agreement, each such Owner Lessor agrees to exercise such remedies as agreed to
by both Owner Lessors (or if all three Owner Lessors are exercising such
remedies, as agreed to by at least two of the Owner Lessors).
Section 4. Distributions in Respect of Collateral. The
following provisions shall apply to Proceeds (as defined in the Uniform
Commercial Code of the State of New York) in respect of the Collateral.
4.1. Prior to Foreclosure. If an Owner Lessor receives any
cash Proceeds in respect of the Collateral prior to the exercise by it of any
remedies under its respective Pledge Agreement, it shall distribute such cash to
the Owner Lessors pro rata according to the respective Termination Values (as
defined in the respective Facility Leases) then in effect under their respective
Facility Leases. Upon such allocation and payment, such cash payment, whether or
not constituting a part of the Collateral, shall no longer be subject to the
terms and conditions of this Agreement and each Owner Lessor shall apply (or
retain) such cash payment in the manner required under its respective Pledge
Agreement (all other Proceeds shall remain part of the Collateral subject to the
terms of this Agreement).
4.2. After Foreclosure. If an Owner Lessor receives any
Proceeds of any sale, disposition or other realization upon any of the
Collateral following the exercise of remedies under its Pledge Agreement, it
shall apply such Proceeds in the following order of priority:
(a) first, to the payment in full of the costs and expenses
incurred by or on behalf of such Owner Lessor in connection with or
incident to the custody, preservation, use or operation of, or sale of,
collection from, or other realization upon, any of the Collateral; and
(b) second, to the payment to the Owner Lessors (or its
successors or assigns) of any surplus then remaining pro rata according
to the respective Termination Values (as defined in the respective
Facility Leases) then in effect under their respective Facility Leases
(or to whomever may be lawfully entitled to receive the same or as a
court of competent jurisdiction may direct) to be applied by each Owner
Lessor as provided in its Pledge Agreement.
Section 5. Limitation of Liability. Without limitation of the
generality of Section 2(c), each Owner Lessor:
(a) may consult with legal counsel (including counsel for any
party hereto), independent public accountants and other experts
selected by it, and may rely on any opinion of counsel delivered under
this Agreement, and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts or any such opinion;
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(b) makes no warranty or representation to any person and
shall not be responsible to any Owner Lessor for any statements,
warranties or representations made in or in connection with any Pledge
Agreement or other documents relating thereto by any other person;
(c) shall not have any duty to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or
conditions of any Pledgor or to inspect the property (including the
books and records) of any Pledgor;
(d) respectively, shall incur no liability under or in respect
hereof or of any Pledge Agreement or any other document by acting upon
any notice, consent, certificate or other instrument or writing (which
may be by telegram, telecopy, cable or telex) believed by it to be
genuine and signed or sent by the proper party or parties;
(e) shall have no liability or responsibility to any party
hereto for any failure on the part of any other party to comply with
any obligation to be performed by such other party under this
Agreement; and
(f) may act directly or through agents on its behalf.
Section 6. Miscellaneous.
6.1. Amendments. No amendment or waiver of any provision of
this Agreement, nor consent to any departure by any party herefrom, shall in any
event be effective unless the same shall be in writing and signed by each of the
parties hereto and, so long as the lien of any Lease Indenture (as defined in
the respective Pledge Agreements) has not been terminated or discharged,
consented to by the respective Lease Indenture Trustee under such Lease
Indenture. Any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
6.2. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopy communication)
and mailed, telecopied or delivered, at its address for notices provided in
their respective Pledge Agreements or, as to each party, at such other address
as shall be designated by such party in a written notice to the other parties.
All such notices and communications shall be effective when received.
6.3. Binding Effect. This Agreement shall become effective
when it shall have been executed by each Owner Lessor and thereafter shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
6.4. Certain Assignments.
(a) Each Owner Lessor assigning (whether absolute or as
collateral) any rights or obligations under its respective Pledge
Agreement shall cause its assignee to assume in writing such Owner
Lessor's duties and obligations hereunder.
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(b) Each party hereto hereby acknowledges the assignment and
creation of the lien and security interest by each Owner Lessor of its
right, title and interest in its Pledge Agreement under the applicable
Lease Indenture in favor of the related Lease Indenture Trustee. Unless
and until such party shall have received written notice from the
related Lease Indenture Trustee that the lien of the related Lease
Indenture has been fully terminated, such Lease Indenture Trustee shall
have the right, but shall not be obligated, to exercise any and all
rights of such Owner Lessor under this Agreement as if it were such
Owner Lessor to the extent set forth in and in accordance with the
Lease Indenture. So long as the lien of the Lease Indenture has not
been discharged, each Owner Lessor hereby irrevocably directs, and each
agrees, that all payments hereunder payable to the related Owner Lessor
shall be paid by wire transfer directly to the related Lease Indenture
Trustee's Account or to such other place as such Lease Indenture
Trustee shall notify the parties hereto in writing.
6.5. Inconsistency. If any inconsistency shall exist between
the provisions of any Pledge Agreement and the provisions of this Agreement, the
provisions of this Agreement shall govern.
6.6. Consent to Jurisdiction. Each party irrevocably:
(a) submits to the jurisdiction of any New York State or
Federal court sitting in New York and any appellate court with
jurisdiction to hear appeals from any judgment or order thereof in any
action or proceeding arising out of or relating to this Agreement;
(b) agrees that all claims in respect of such action or
proceeding may be heard and determined in such New York State or in
such Federal court;
(c) waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding;
(d) consents to the service of any and all process in any such
action or proceeding by mailing of copies of such process to such party
at its address specified in Section 6.2; and
(e) agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided
by law.
Nothing in this Section 6.6 shall affect the right of any party to serve legal
process in any other manner permitted by law or affect the right of any party to
bring any action or proceeding against any other party in the courts of other
jurisdictions.
6.7. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
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6.8. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
6.9. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING HERETO, THE REVENUES OR THE ACTIONS OF ANY OWNER LESSOR IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
CONEMAUGH LESSOR GENCO LLC
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Lessor Manager under its LLC
Agreement
By: /s/ PATRICIA A. EVANS
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Name: PATRICIA A. EVANS
Title: Senior Financial Services Officer
KEYSTONE LESSOR GENCO LLC
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Lessor Manager under its LLC
Agreement
By: /s/ PATRICIA A. EVANS
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Name: PATRICIA A. EVANS
Title: Senior Financial Services Officer
SHAWVILLE LESSOR GENCO LLC
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Lessor Manager under its LLC
Agreement
By: /s/ PATRICIA A. EVANS
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Name: PATRICIA A. EVANS
Title: Senior Financial Services Officer
Signature Page to
Intercreditor Agreement
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Each of the undersigned acknowledges and consents
to the terms of the foregoing Intercreditor Agreement
as of the date first above written.
RELIANT ENERGY MID-ATLANTIC POWER
HOLDINGS, LLC
By: JAMES E. HAMMELMAN
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Name: James E. Hammelman
Title: Treasurer
RELIANT ENERGY NORTHEAST MANAGEMENT
COMPANY
By: JAMES E. HAMMELMAN
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Name: James E. Hammelman
Title: Treasurer
RELIANT ENERGY MARYLAND HOLDINGS, LLC
By: JAMES E. HAMMELMAN
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Name: James E. Hammelman
Title: Treasurer
RELIANT ENERGY NEW JERSEY HOLDINGS, LLC
By: JAMES E. HAMMELMAN
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Name: James E. Hammelman
Title: Treasurer
RELIANT ENERGY MID-ATLANTIC POWER
SERVICES, INC.
By: JAMES E. HAMMELMAN
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Name: James E. Hammelman
Title: Treasurer
Signature Page to
Intercreditor Agreement