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EXHIBIT 4.6
CONSENT AND AGREEMENT
CONSENT AND AGREEMENT, dated as of September 26, 2000 (this "Consent and
Agreement"), among El Paso Energy Corporation, a corporation organized and
existing under the laws of the State of Delaware, (the "Consenting Party"),
Cedar Brakes I, L.L.C., a limited liability company organized and existing under
the laws of the State of Delaware, (the "Issuer"), and Bankers Trust Company, in
its capacity as trustee (together with its successors in such capacity, the
"Trustee") pursuant to the terms of the indenture, dated as of September 26,
2000 between the Issuer and the Trustee (the "Indenture").
The parties hereto hereby agree as follows, anything in the
Assigned Agreements (as defined below) to the contrary notwithstanding:
1. Definitions. Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed thereto in the Indenture.
2. Consent to Assignment. The Consenting Party hereby acknowledges
notice of and irrevocably consents to the collateral assignment by the Issuer to
the Trustee, for the benefit of the Holders, of all of the Issuer's right, title
and interest in, to and under (i) the Funding Agreement, between the Consenting
Party and the Issuer and (ii) the Guaranty, by the Consenting Party in favor of
the Issuer with respect to the obligations of El Paso Merchant Energy, L.P.
("EPM"), under the Power Services Agreement (between EPM and the Issuer) and the
Administrative Services Agreement (between EPM and the Issuer) (each such
agreement or guarantee as may be amended, supplemented or otherwise modified
from time to time, an "Assigned Agreement", and collectively, the "Assigned
Agreements"), and any transfer or subsequent transfer of any Assigned Agreement
by the Trustee or any assignee or transferee of the Trustee in accordance with
the terms and conditions hereof.
3. Payments to Trustee. The Consenting Party and the Issuer hereby
agree that all payments to be made by the Consenting Party to the Issuer under
the Assigned Agreements shall be made in immediately available funds, directly
to the Trustee for deposit in accordance with Section 502 of the Indenture,
without offset, abatement, withholding or reduction except as may be authorized
by the Assigned Agreements.
4. Rights Upon Event of Default.
(a) After the occurrence and during the continuation of an Event
of Default under the Indenture, the Trustee shall or its assignee or designee
(including any
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purchaser or transferee) be entitled, in the place and stead of the Issuer, to
exercise any and all rights of the Issuer under the Assigned Agreements in
accordance with the terms of the Assigned Agreements. Without limiting the
generality of the foregoing, the Trustee or its assignee or designee (including
any purchaser or transferee) shall have the full right and power to enforce
directly against the Consenting Party all obligations of the Consenting Party
under the Assigned Agreements and otherwise to exercise all remedies thereunder.
(b) The Trustee shall have the right, but not the obligation, to
pay all sums due under any Assigned Agreement and to perform any other act, duty
or obligation required of the Issuer thereunder or to cure any default of the
Issuer thereunder at any time. Nothing herein shall require the Trustee to cure
any default of the Issuer under an Assigned Agreement or (unless the Trustee has
succeeded to the Issuer's interests under such Assigned Agreement) to perform
any act, duty or obligation of the Issuer under an Assigned Agreement, but shall
only give the Trustee the option to do so.
(c) In the event of a foreclosure or other exercise of remedies
under the Security Documents or any sale thereunder by the Trustee, whether by
judicial proceeding or under any power of sale contained therein, or any
conveyance from the Issuer to the Trustee in lieu thereof, the Trustee may
assign an Assigned Agreement to any entity. The Trustee shall give prompt notice
to the Consenting Party of the transferee or assignee of an Assigned Agreement.
Any such exercise of remedies in accordance with this subsection (c) shall not
constitute a default under the Assigned Agreements.
5. Right to Cure.
(a) The Consenting Party agrees that, notwithstanding any right it
may have under an Assigned Agreement, at law, in equity or otherwise, it shall
not take any action to terminate or suspend such Assigned Agreement (i) except
as expressly provided in such Assigned Agreement and (ii) unless, following any
applicable cure period in such Assigned Agreement and the provision of notice to
the Trustee pursuant to Section 7 hereof, the Consenting Party shall have given
the Trustee at least 60 days' (or 30 days, in the case of a payment default)
prior written notice of its intent to terminate or suspend such Assigned
Agreement, specifying the condition giving rise to such right of termination or
suspension, and the Trustee shall not within such period have cured or caused to
be cured the condition giving rise to the right of termination or suspension;
provided, that if the Trustee shall have commenced foreclosure or other
proceedings with respect to the Collateral, and is diligently pursuing a cure
the Trustee shall have a further period of 60 days in which to effect such cure.
Provided it is receiving payments when due under an Assigned Agreement, the
Consenting Party shall continue performance under such Assigned Agreement until
the lapse of the cure period, whereupon the Consenting Party may exercise all
rights and remedies available to it under such Assigned Agreement or at law.
(b) If the Trustee or any designee or assignee (including any
purchaser or transferee), pursuant to an exercise of remedies by the Trustee,
shall acquire title to or control of the Collateral and shall cure all defaults
under an Assigned Agreement which
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are able to be cured by such Person, then any default of the Issuer which is not
able to be cured by such Person shall no longer be deemed to be a default under
such Assigned Agreement.
6. Further Rights of the Trustee.
(a) In the event that the Trustee, or any designee and assignee
thereof, notifies the Consenting Party that it has succeeded to the Issuer's
interest under an Assigned Agreement, whether by foreclosure or otherwise, such
Person shall assume liability for the Issuer's obligations under such Assigned
Agreement, but such liability shall not include any liability for, nor shall
such Person be subject to any defense against or offset from, claims of the
Consenting Party against the company arising from the Issuer's failure to
perform during the period prior to such Person's succession to the Issuer's
interest in and under such Assigned Agreement.
(b) Upon the exercise by the Trustee of any of the remedies set
forth in the Security Documents the Trustee may, on behalf of the Issuer, assign
its rights and interests hereunder and the rights and interests of the Issuer
under an Assigned Agreement to any permitted purchaser or transferee if such
purchaser or transferee shall assume all of the obligations of the Issuer under
such Assigned Agreement. Following such assignment and assumption, the Trustee
shall not have any obligations or liabilities under the Assigned Agreement.
(c) In the event that an Assigned Agreement is terminated or
rejected in connection with the bankruptcy or similar event with respect to the
Issuer, at the request of the Trustee, the Consenting Party will execute and
deliver to the Trustee or its designee a new agreement for the balance of the
remaining term under the original Assigned Agreement containing the same
conditions, agreements, terms, provisions and limitations as the original
Assigned Agreement. References in this Consent and Agreement to an "Assigned
Agreement" shall be deemed also to refer to the new Assigned Agreement.
7. Further Agreements. The Consenting Party agrees to deliver to
the Trustee, concurrently with delivery thereof to the Issuer, a copy of each:
(i) notice of default given by the Consenting Party under any Assigned
Agreement, together with a description of the action that the Consenting Party
has taken or proposes to take with respect thereto and (ii) notice of
termination given by the Consenting Party under any Assigned Agreement.
8. Representations. The Consenting Party hereby represents and
warrants to the Trustee that:
(a) The Consenting Party is a corporation duly organized, validly
existing and in good standing under the laws of State of Delaware and is in good
standing in all jurisdictions where necessary in light of its business or
properties and has all requisite power and authority to conduct its business, to
own its properties and to execute and
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deliver, and perform its obligations under, this Consent and Agreement and the
Assigned Agreements.
(b) The execution, delivery and performance by the Consenting
Party of this Consent and Agreement and the Assigned Agreements have been duly
authorized by all necessary corporate action, and do not and will not (i)
require any consent or approval of its board of directors, shareholders or any
other Person that has not been obtained, (ii) violate any provision of its
articles of incorporation or by-laws, or any law, rule, regulation, order, writ,
judgment, injunction, decree or award having applicability to it, the violation
of which could reasonably be expected to have a material adverse effect on its
ability to perform its obligations under the Assigned Agreements or this Consent
and Agreement, (iii) result in a breach of or constitute a default under any
agreement relating to the management of its affairs or any indenture or loan or
credit agreement or other agreement, lease or instrument to which it is a party
or by which it or its properties may be bound or affected, the breach of which
could reasonably be expected to have a material adverse effect on the Consenting
Party's ability to perform its obligations under the Assigned Agreements or this
Consent and Agreement.
(c) The Assigned Agreements and this Consent and Agreement each
has been duly executed and delivered and is in full force and effect and
constitutes the legal, valid and binding obligation of the Consenting Party
enforceable in accordance with its terms except as the enforceability hereof may
be limited by general principles of equity and by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights of
creditors generally. The Consenting Party has not assigned, transferred or
pledged any Assigned Agreement or any interest therein or consented to any such
assignment, transfer or pledge, except as described herein.
(d) No consent, license, approval or authorization of, or other
action by, or any notice or filing with, any court or administrative or
governmental body or any other Person is necessary in connection with the
execution, delivery and performance by the Consenting Party of the Assigned
Agreements or this Consent and Agreement, other than those which have been duly
obtained and which are in full force and effect. The Consenting Party has
obtained all permits, licenses, approvals, consents and exemptions with respect
to the performance of its obligations under the Assigned Agreements and this
Consent and Agreement required by Applicable Law.
(e) There is no pending or, to the Consenting Party's knowledge,
threatened, action or proceeding affecting the Consenting Party before any
court, governmental agency, regulatory body or arbitrator, which could affect
its ability to perform its obligations under, or which purports to affect the
legality, validity or enforceability of, this Consent and Agreement or the
Assigned Agreements.
(f) To the Consenting Party's knowledge, there exists no event or
condition which constitutes a default, or which would, with the giving of notice
or lapse of time, or both, constitute a default, under the Assigned Agreements.
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(g) The Consenting Party has duly performed, complied with, and
fulfilled all covenants, agreements and conditions contained in each Assigned
Agreement required to be performed or complied with by it on or before the date
hereof, and each Assigned Agreement, as of the date hereof, is in full force and
effect and has not been amended, and none of the Issuer's rights under the
Assigned Agreements have been waived.
(h) The representations and warranties of the Consenting Party
contained in the Assigned Agreements are true and correct on the date hereof
with the same effect as if made on and as of the date hereof.
9. Amendments to Assigned Agreements. The Consenting Party
acknowledges that there are no amendments, supplements or modifications to the
Assigned Agreements. The Consenting Party and the Issuer agree that they will
not, without the prior written consent of the Trustee, amend, supplement or
otherwise modify the Assigned Agreements (as in effect on the date hereof).
10. Miscellaneous.
(a) This Consent and Agreement shall be binding upon the
successors and permitted assigns of the Consenting Party and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
(b) THIS CONSENT AND AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, OTHER THAN CONFLICT OF
LAW PRINCIPLES THAT WOULD APPLY THE LAWS OF ANOTHER JURISDICTION AND EXCEPT TO
THE EXTENT THAT THE LAWS OF ANY OTHER JURISDICTION MAY BE MANDATORILY
APPLICABLE.
(c) Any provision of this Consent and Agreement which is invalid
or prohibited in any jurisdiction shall, as to such jurisdiction, be ineffective
and severable from the rest of this Consent and Agreement to the extent of such
invalidity or prohibition, without impairing or affecting in any way the
validity of any other provision of this Consent and Agreement or of such
provision in other jurisdictions. The parties agree to replace any provision
which is ineffective by operation of this Section 10(c) with an effective
provision which as closely as possible corresponds to the spirit and purpose of
such ineffective provision and this Consent and Agreement as a whole.
(d) No amendment or waiver of any provision of this Consent and
Agreement, or consent to any departure by the Consenting Party therefrom, shall
be effective unless it is in writing and signed by the parties hereto. A waiver
or consent granted pursuant to this Section 10(d) shall be effective only in the
specific instance and for the specific purpose for which it is given.
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(e) This Consent and Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same instrument.
(f) The Consenting Party and the Issuer agree that service of all
writs, process and summons in any suit, action or proceeding brought in
connection with this Consent and Agreement, or with respect to its property and
assets, in any court of the State of New York or any United States federal court
sitting in the Borough of Manhattan, New York City may be made upon CT
Corporation System at 111 Eighth Avenue, 13th Floor, New York, NY 10011, whom
the Issuer and the Consenting Party appoint as their authorized agent for
service of process. The Issuer and the Consenting Party represent and warrant
with respect to themselves that CT Corporation System has agreed to act as the
Issuer's or the Consenting Party's, as the case may be, agent for service of
process. The Issuer and the Consenting Party agree that such appointment shall
be irrevocable so long as any of the Bonds remain outstanding or until the
irrevocable appointment by the Issuer or the Consenting Party, as the case may
be, of a successor in New York City as its authorized agent for such purpose and
the acceptance (on terms reasonably satisfactory to the Trustee) of such
appointment by such successor. The Issuer and the Consenting Party further
agrees to take any and all action, including the filing of any and all documents
and instruments, that may be necessary to continue such appointment in full
force and effect as aforesaid. If CT Corporation System shall cease to act as
the Issuer's or the Consenting Party's, as the case may be, agent for service of
process, the Issuer or the Consenting Party, as applicable, shall appoint
without delay another such agent and provide prompt written notice to the
Trustee of such appointment. With respect to any such action in any court of the
State of New York or any United States federal court in the Borough of
Manhattan, City of New York, service of process upon CT Corporation System, as
the authorized agent of the Issuer and the Consenting Party for service of
process, and written notice of such service to the Issuer and the Consenting
Party, shall be deemed in every respect, effective service of process upon the
Issuer and the Consenting Party.
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IN WITNESS WHEREOF, the parties, intending to be legally bound,
have caused this Consent and Agreement to be executed and acknowledged by their
respective officers or representatives hereunto duly authorized, on the date
first above written.
EL PASO ENERGY CORPORATION
By: /s/ H. Brent Austin
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Name: H. Brent Austin
Title: Executive Vice President
and Chief Financial
Officer
CEDAR BRAKES I, L.L.C.
By: /s/ John L. Harrison
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Name: John L. Harrison
Title: Vice President
BANKERS TRUST COMPANY, as Trustee
By: /s/ Richard L. Buckwalter
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Name: Richard L. Buckwalter
Title: Vice President