EXHIBIT 10(vv)
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U.S. PROJECT NOTE PLEDGE AGREEMENT
DATED AS OF AUGUST 4, 1998
BETWEEN
YORK POWER FUNDING (CAYMAN) LIMITED
AND
THE BANK OF NEW YORK, AS COLLATERAL AGENT
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RECITALS ................................................................... 1
Section 1. Construction; Definitions ...................................... 2
1.1 Defined Terms ................................................ 2
1.2 Principles of Construction ................................... 2
Section 2. Representations and Warranties ................................. 2
Section 3. Collateral ..................................................... 3
Section 4. Further Assurances; Remedies .................................. 4
4.1 Delivery and Other Perfection ............................... 4
4.2 Other Financing Statements and Liens ........................ 5
4.3 Preservation of Rights ...................................... 5
4.4 U.S. Project Note Collateral ................................ 5
4.5 Events of Default ........................................... 6
4.6 Deficiency .................................................. 7
4.7 Removals .................................................... 7
4.8 Private Sale ................................................ 8
4.9 Application of Proceeds ..................................... 8
4.10 Attorney-in-Fact ............................................ 8
4.11 Perfection .................................................. 8
4.12 Security Interest Absolute .................................. 9
4.13 Bankruptcy Filing, etc ...................................... 9
4.14 Governmental Authority Requirement .......................... 9
4.15 Indemnification ............................................. 9
4.16 Termination ................................................. 10
4.17 Further Assurances .......................................... 10
4.18 Limitation of Liability ..................................... 10
Section 5. Miscellaneous ................................................. 10
5.1 No Waiver ................................................... 10
5.2 Notices ..................................................... 10
5.3 Expenses .................................................... 11
5.4 Amendments .................................................. 11
5.5 Role of Collateral Agent .................................... 11
5.6 Successors and Assigns ...................................... 11
5.7 Headings Descriptive ........................................ 11
5.8 Counterparts ................................................ 12
5.9 Governing Law; Submission to Jurisdiction;
Waiver of Jury Trial ...................................... 12
5.10 No Third Party Beneficiaries ................................ 13
5.11 Reinstatement ............................................... 13
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5.12 Agents and Attorneys-in-Fact ................................ 13
5.13 Severability ................................................ 13
5.14 Conflicts with the Intercreditor Agreement or Depositary
Agreements ................................................ 13
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U.S. PROJECT NOTE PLEDGE AGREEMENT (this "AGREEMENT") dated as of August 4,
1998 between YORK POWER FUNDING (CAYMAN) LIMITED, a limited liability company
incorporated under the laws of the Cayman Islands ("FUNDING COMPANY") and THE
BANK OF NEW YORK, a New York banking corporation, as collateral agent for the
benefit of the Secured Parties (together with its successors and assigns in such
capacity, the "COLLATERAL AGENT").
RECITALS
WHEREAS, Funding Company is a limited liability company established
for the sole purpose of issuing the Securities in its individual capacity as
principal and as agent acting on behalf of the U.S. Guarantors pursuant to the
Indenture and to make loans to the Project Borrowers pursuant to the Project
Loan Agreements;
WHEREAS, Funding Company has simultaneously with the execution and
delivery of this Agreement issued and sold the Initial Securities pursuant to
the Indenture;
WHEREAS, payments of the principal of, premium (if any), interest on
and any other amounts due with respect to the Initial Securities will be
partially serviced by repayment of the U.S. Project Loan and guaranteed by the
U.S. Guarantors;
WHEREAS, the Secured Parties, the U.S. Guarantors and certain other
parties are entering into a Collateral Agency and Intercreditor Agreement
appointing the Collateral Agent and setting forth certain rights and remedies of
the Collateral Agent acting on behalf of the Secured Parties with respect to the
Collateral, including, without limitation, the U.S. Depositary Accounts
established pursuant to the U.S. Depositary Agreement;
WHEREAS, Funding Company and the U.S. Guarantors are entering into the
Depositary Agreement in order to, among other things, appoint the Depositary
Bank to hold and administer the proceeds of certain insurance and revenues
generated and distributed to Funding Company and the U.S. Guarantors; and
WHEREAS, it is a condition precedent to the purchase of the Initial
Securities by the Initial Purchaser that Funding Company shall have pledged the
U.S. Project Note Collateral (as defined below) pursuant to, and granted the
assignment and security interests contemplated by, this Agreement.
NOW, THEREFORE, in consideration of the premises and covenants
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Funding Company hereby agrees with
the Collateral Agent for its benefit and for the benefit of the Secured Parties
as follows:
Section 1. CONSTRUCTION; DEFINITIONS.
1.1 DEFINED TERMS.
(a) For all purposes of this Agreement, capitalized terms used but not
otherwise defined herein shall have the meaning set forth in APPENDIX A to the
Indenture.
(b) The following term shall have the following meaning:
"U.S. PROJECT NOTE COLLATERAL" shall have the meaning set forth in
SECTION 3 hereof.
1.2 PRINCIPLES OF CONSTRUCTION. For all purposes of this Agreement, the
principles of construction set forth in SECTION 1.1 (Definitions; Construction)
of the Indenture shall apply.
Section 2. REPRESENTATIONS AND WARRANTIES. Funding Company represents and
warrants to the Collateral Agent and the other Secured Parties that:
(a) Funding Company is a limited liability company duly incorporated,
validly existing and in good standing under the laws of the Cayman Islands.
(b) Funding Company has all requisite power and authority to execute
and deliver this Agreement and to perform its obligations hereunder.
(c) Funding Company has taken all necessary action on its part to
authorize its execution, delivery and performance of this Agreement.
(d) The execution, delivery and performance by Funding Company of this
Agreement does not and will not (i) require any consent of the board of
directors or any shareholder of Funding Company or any other Person that
has not been obtained, (ii) violate any Applicable Law, except any such
violation which could not reasonably be expected to have a Material Adverse
Effect, (iii) result in any breach of, or constitute a default under, or
result in the creation or imposition of (or the obligation to create or
impose) any Lien (other than the Liens created hereunder) upon any of the
property or assets of Funding Company pursuant to, any of the terms or
provisions of any agreement or instrument to which it is a party or by
which it or any of its property or assets is bound or to which it may be
subject, except for any breaches, defaults, creations or impositions of
Liens, contraventions, violations or conflicts which could not reasonably
be expected to have a Material Adverse Effect or (iv) violate or conflict
with any provision of the Memorandum of Association or Articles of
Association of Funding Company.
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(e) This Agreement has been duly executed and delivered by Funding
Company and constitutes the legal, valid and binding obligation of Funding
Company, enforceable against Funding Company in accordance with its terms
except as such enforceability (i) may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws of general applicability affecting the enforcement of
creditors' rights generally and (ii) is subject to applicable general
principles of equity and the effect of public policy (regardless of whether
enforceability is considered in a proceeding in law or equity).
(f) Funding Company is the sole beneficial owner of the U.S. Project
Note Collateral and no Lien exists or will exist upon the U.S. Project Note
Collateral at any time (and no right or option to acquire the same exists
in favor of any other Person), except for Permitted Liens. The pledge and
security interest created by this Agreement constitutes, upon delivery of
the U.S. Project Note Collateral to, and holding by, the Collateral Agent
for the benefit of itself and the other Secured Parties, a first priority
perfected pledge and security interest in and to all of the U.S. Project
Note Collateral.
Section 3. COLLATERAL. As collateral security for the prompt payment in
full and performance when due (whether at stated maturity, by acceleration or
otherwise) of any and all of the Secured Obligations now existing or hereafter
arising, and howsoever evidenced, Funding Company hereby pledges, assigns,
hypothecates, transfers, delivers and grants to the Collateral Agent for the
benefit of the Secured Parties, a Lien on and security interest in all of
Funding Company's rights, title and interests in and to the following property,
whether now existing or hereafter coming into existence (all being collectively
referred to herein as the "U.S. PROJECT NOTE COLLATERAL"):
(a) the U.S. Project Note, including without limitation (i) all rights
of Funding Company to receive moneys due and to become due under or
pursuant to the U.S. Project Note, (ii) all rights of Funding Company to
receive proceeds of insurance, payment and/or performance bond, indemnity,
warranty or guaranty with respect to the U.S. Project Note, (iii) all
claims of Funding Company for damages arising out of or for breach of or
default under the U.S. Project Note and (iv) any security interest in the
Depository Accounts granted to Funding Company by the U.S. Guarantors to
secure payments due under the U.S. Project Note; and
(b) to the extent not included in the foregoing, all proceeds of and to
any of the property of Funding Company described in the preceding clause
(a) and, to the extent related to any property described in said clause or
such proceeds, all books, correspondence, credit files, invoices and other
papers.
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Notwithstanding anything herein to the contrary, for purposes of this Agreement,
Funding Company agrees that it shall not be considered a Secured Party hereunder
and the amounts owed to it by the U.S. Guarantors shall not be considered
Secured Obligations.
Section 4. FURTHER ASSURANCES; REMEDIES. In furtherance of the grant of the
pledge and security interest pursuant to SECTION 3 hereof, Funding Company
hereby agrees with the Collateral Agent and each other Secured Party as follows:
4.1 DELIVERY AND OTHER PERFECTION. Funding Company shall:
(a) if any of the property required to be pledged or assigned by
Funding Company under SECTION 3 hereof is received by Funding Company
forthwith either (i) transfer and deliver to the Collateral Agent such
property so received by Funding Company (endorsed in blank and accompanied
by such instruments of assignment and transfer as the Collateral Agent may
reasonably request) all of which thereafter shall be held by the Collateral
Agent, pursuant to the terms of this Agreement and the Intercreditor
Agreement, as part of the U.S. Project Note Collateral or (ii) take such
other action as the Collateral Agent may reasonably request as is necessary
or appropriate to duly record the Lien created hereunder in such property
in said SECTION 3 hereof;
(b) give, execute, deliver, file and/or record any financing statement,
notice, instrument, document, agreement or other papers that may be
necessary or desirable to create, preserve or validate the pledge and
security interest granted pursuant hereto or to enable the Collateral Agent
to exercise and enforce its rights hereunder with respect to such pledge
and security interest, including, without limitation, causing any or all of
the U.S. Project Note Collateral to be transferred of record into the name
of the Collateral Agent or its nominee (and the Collateral Agent agrees
that if any U.S. Project Note Collateral is transferred into its name or
the name of its nominee, the Collateral Agent will thereafter promptly give
to Funding Company, copies of any notices and communications received by it
with respect to the U.S. Project Note Collateral).
(c) keep full and accurate books and records relating to the U.S.
Project Note Collateral, and stamp or otherwise xxxx such books and records
in such manner as the Collateral Agent may reasonably require in order to
reflect the security interests granted by this Agreement; and
(d) permit representatives of the Collateral Agent, at the expense of
Funding Company and upon five (5) days written notice, at any time during
normal business hours to inspect and make abstracts from its books and
records pertaining to the U.S. Project Note Collateral.
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4.2 OTHER FINANCING STATEMENTS AND LIENS.
(a) Other than with respect to Permitted Liens, Funding Company shall
not file or suffer to be on file, or authorize or permit to be filed or to
be on file, in any jurisdiction, any financing statement or like instrument
with respect to the U.S. Project Note Collateral in which the Collateral
Agent is not named as the sole secured party for the benefit of itself and
the other Secured Parties.
(b) Funding Company hereby authorizes the Collateral Agent to file one
or more financing statements, and amendments thereto, relating to all or
any part of the U.S. Project Note Collateral without the signature of
Funding Company where permitted by Applicable Law if necessary or
appropriate to perfect the Liens granted hereunder. Copies of such
statement or amendment thereto shall promptly be delivered to Funding
Company.
4.3 PRESERVATION OF RIGHTS. The Collateral Agent shall not be required to
take steps necessary to preserve any rights against prior parties to any of the
U.S. Project Note Collateral, including, without limitation, making
determinations as to whether, when and how to perfect a security interest in the
U.S. Project Note Collateral.
4.4 U.S. PROJECT NOTE COLLATERAL.
(a) So long as no Trigger Event shall have occurred and be continuing,
Funding Company shall have the right to exercise all rights and powers of
ownership pertaining to the U.S. Project Note Collateral; PROVIDED that
Funding Company agrees that it will not exercise such rights and powers in
any manner that is inconsistent with the terms of this Agreement or any
other Finance Document and the Collateral Agent shall execute and deliver
to Funding Company or cause to be executed and delivered to Funding Company
all such powers of attorney and other orders, and all such instruments,
without recourse, as Funding Company may reasonably request for the purpose
of enabling Funding Company to exercise the rights and powers that it is
entitled to exercise pursuant to this SECTION 4.4(a).
(b) If any Trigger Event shall have occurred and be continuing, then so
long as such Trigger Event shall continue, all payments and other
distributions in respect of the U.S. Project Note Collateral shall be paid
directly to the Collateral Agent and retained by it as part of the U.S.
Project Note Collateral, subject to the terms of this Agreement, and if the
Collateral Agent shall so request in writing, Funding Company agrees to
execute and deliver to the Collateral Agent appropriate additional orders
and documents to that end; PROVIDED that if such Trigger Event is cured,
any such payment or distribution theretofore paid to the Collateral Agent
shall, upon request of Funding Company (except to the extent
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theretofore applied to the Secured Obligations), be returned by the
Collateral Agent to Funding Company.
(c) After the occurrence and during the continuance of any Trigger
Event, Funding Company shall not take any action to revoke, amend or
supersede any instructions delivered by the Collateral Agent on behalf of
Funding Company to the Guarantors or the Bond Trustee directing the
Guarantors or the Bond Trustee to make payments or other distributions
payable to Funding Company directly to the Collateral Agent.
(d) The exercise by the Collateral Agent of its rights hereunder shall
not constitute an election by the Collateral Agent to retain the U.S.
Project Note Collateral in satisfaction of the Secured Obligations or
affect the Collateral Agent's rights to any other collateral or against
Funding Company or any other Person.
4.5 EVENTS OF DEFAULT. Subject to the Intercreditor Agreement, upon the
occurrence and during the continuance of a Trigger Event.
(a) the Collateral Agent shall have all of the rights and remedies with
respect to the U.S. Project Note Collateral of a secured party under the
Uniform Commercial Code (whether or not said code is in effect in the
jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is entitled under
the Laws in effect in any jurisdiction where any rights and remedies
hereunder may be asserted including, without limitation, the right, to the
maximum extent permitted by Applicable Law, to exercise all voting,
consensual and other powers of ownership pertaining to the U.S. Project
Note Collateral as if the Collateral Agent were the sole and absolute owner
thereof (and Funding Company agrees to take all such action as may be
appropriate to give effect to such right);
(b) the Collateral Agent in its sole discretion may, in its name or in
the name of Funding Company or otherwise, demand, xxx for, collect or
receive any money or property at any time payable or receivable on account
of or in exchange for any of the U.S. Project Note Collateral, but shall be
under no obligation to do so; and
(c) the Collateral Agent may, upon ten (10) Business Days prior written
notice to Funding Company of the time and place, with respect to the U.S.
Project Note Collateral or any part thereof, sell, lease, assign or
otherwise dispose of all or any part of such U.S. Project Note Collateral,
at such place or places as the Collateral Agent reasonably deems best, and
for cash or for credit or for future delivery (without thereby assuming any
credit risk), at public or private sale, without demand of performance or
notice of intention to effect any such disposition
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or of the time or place thereof (except such notice as is required above or
by Applicable Law and cannot be waived), and the Collateral Agent or anyone
else may be the purchaser, lessee, assignee or recipient of any or all of
the U.S. Project Note Collateral so disposed of at any public sale (or, to
the extent permitted by Applicable Law, at any private sale) and thereafter
hold the same absolutely, free from any claim or right of whatsoever kind,
including any right of equity or redemption (statutory or otherwise), of
Funding Company, any such demand, notice and right or equity being hereby
expressly waived and released. The Collateral Agent may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
the sale, and such sale may be made at any time or place to which the sale
may be so adjourned. The proceeds of each collection, sale or other
disposition under this SECTION 4.5 shall be applied in accordance with
SECTION 4.9 hereof.
Funding Company recognizes that, by reason of certain prohibitions contained in
the Securities Act and applicable state securities laws, the Collateral Agent
may be compelled, with respect to any sale of all or any part of the U.S.
Project Note Collateral, to limit purchasers to those who will agree, among
other things, to acquire the U.S. Project Note Collateral for their own account,
for investment purposes only and not with a view to the distribution or resale
thereof. Funding Company acknowledges that any such private sales may be at
prices and on terms less favorable to the Collateral Agent than those obtainable
by the Collateral Agent through a public sale without such restrictions, and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner and that the
Collateral Agent shall have no obligation to engage in public sales and no
obligation to delay the sale of any of the U.S. Project Note Collateral for the
period of time necessary for Funding Company or any issuer thereof to register
it for public sale.
4.6 DEFICIENCY. If the proceeds of sale, collection or other realization of
or upon the U.S. Project Note Collateral pursuant to SECTION 4.5 hereof are
insufficient to cover the reasonable costs and expenses of such realization and
the payment in full of the Secured Obligations, Funding Company shall, subject
to SECTION 4.18, remain liable for any deficiency.
4.7 REMOVALS. Without at least thirty (30) days' prior written notice to
the Collateral Agent, Funding Company shall not (i) maintain any of its books
and records with respect to the U.S. Project Note Collateral at any office or
maintain its principal place of business at any place other than at the address
indicated in SECTION 5.2 hereof or (ii) change its corporate name, or the name
under which it does business, from the name shown on the signature pages hereto.
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4.8 PRIVATE SALE. The Collateral Agent shall not incur any liability as a
result of the sale of the U.S. Project Note Collateral, or any part thereof, at
any private sale pursuant to SECTION 4.5 hereof conducted in a commercially
reasonable manner. To the extent permitted by Applicable Law, Funding Company
hereby waives any claims against the Collateral Agent arising by reason of the
fact that the price at which the U.S. Project Note Collateral may have been sold
at a private sale was less than the price that might have been obtained at a
public sale or was less than the aggregate amount of the Secured Obligations
even if the Collateral Agent accepts the first offer received and does not offer
such U.S. Project Note Collateral to more than one offeree.
4.9 APPLICATION OF PROCEEDS. Except as otherwise expressly provided in the
Intercreditor Agreement, the proceeds of any collection, sale or other
realization of all or any part of the U.S. Project Note Collateral pursuant
hereto, and any other cash at the time held by the Collateral Agent under this
SECTION 4, shall, after the occurrence and during the continuance of a Trigger
Event, be applied by the Collateral Agent in accordance with SECTION 4.3 of the
Intercreditor Agreement.
As used in this SECTION 4, "PROCEEDS" of U.S. Project Note Collateral shall
mean cash, securities and other property realized in respect of, and
distributions in-kind of, U.S. Project Note Collateral, including any thereof
received under any reorganization, liquidation or adjustment of debt of Funding
Company, or any issuer or obligor on any of the U.S. Project Note Collateral.
4.10 ATTORNEY-IN-FACT. Without limiting any rights or powers granted by
this Agreement to the Collateral Agent while no Event of Default has occurred
and is continuing, upon the occurrence and during the continuance of any Event
of Default, the Collateral Agent is hereby appointed the attorney-in-fact of
Funding Company for the purpose of carrying out the provisions of this SECTION 4
and taking any action and executing any instruments that the Collateral Agent
may deem necessary or advisable to accomplish the purposes hereof, which
appointment as attorney-in-fact is irrevocable and coupled with an interest.
Without limiting the generality of the foregoing, so long as the Collateral
Agent shall be entitled under this SECTION 4 to make collections in respect of
the U.S. Project Note Collateral, the Collateral Agent shall have the right and
power (subject to the Intercreditor Agreement and Depositary Agreements) to
receive, endorse and collect all instruments made payable to the order of
Funding Company representing any dividend, payment or other distribution in
respect of the U.S. Project Note Collateral or any part thereof and to give full
discharge for the same.
4.11 PERFECTION. Prior to or concurrently with the execution and delivery
of this Agreement, Funding Company shall deliver to the Collateral Agent the
U.S. Project Note accompanied by undated bond powers duly executed in blank.
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4.12 SECURITY INTEREST ABSOLUTE. All the rights of the Collateral Agent
hereunder and the Security Interest and all obligations of Funding Company
hereunder shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any of the Transaction
Documents or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Secured Obligations, or any other
amendment or waiver or any consent to any departure from any of the
Transaction Documents;
(c) any exchange or release of any U.S. Project Note Collateral or any
other collateral, or the non-perfection of any Security Interest, or any
release or amendment or waiver of or consent to or departure from any
guaranty, for all or any of the Secured Obligations;
(d) to the full extent permitted by Law, any other circumstance that
might otherwise constitute a defense available to, or a discharge of,
Funding Company or any third party pledgor; or
(e) the failure by Funding Company to fulfill its obligations under
this Agreement.
4.13 BANKRUPTCY FILING, ETC. Neither Funding Company nor any of its
Affiliates shall commence or join with any other Person (other than the Secured
Parties) in commencing any proceeding against Funding Company under any
bankruptcy, reorganization, liquidation or insolvency law or statute now or
hereafter in effect in any jurisdiction.
4.14 GOVERNMENTAL AUTHORITY REQUIREMENT. Funding Company shall not take or
omit to take (or suffer such taking or omission of) any action (unless ordered
to do so by a competent Governmental Authority having jurisdiction) in respect
of itself and its businesses if, as a consequence directly or indirectly of such
action or omission, Funding Company becomes subject to regulation by any
Governmental Authority as a "public utility," and "electric utility," an
"electric utility holding company," a "public utility company" or a subsidiary
company or affiliate of any of the foregoing under PUHCA, The Federal Power Act
of 1920 or PURPA, or as a "holding company" within the meaning of PUHCA.
4.15 INDEMNIFICATION. The U.S. Guarantors shall, jointly and severally,
defend, indemnify and hold harmless the Collateral Agent and each of the other
Secured Parties (other than Funding Company) and their officers, directors and
employees, from and against any and all costs, expenses, disbursements,
liabilities, obligations, losses, damages, injunctions, judgments, suits,
actions, causes of action, fines, penalties, claims and
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demands, of every kind or nature (including, without limitation, reasonable
attorney's fees and expenses) which are occasioned by or result from any (i)
failure by Funding Company to perform any of the terms, agreements or covenants
to be performed by Funding Company under this Agreement and (ii) proceeding or
action brought by the Collateral Agent pursuant to this Agreement or which arise
out of this Agreement except to the extent due to the gross negligence or
willful misconduct of the Collateral Agent.
4.16 TERMINATION. This Agreement shall create a continuing assignment,
pledge and first priority security interest in the U.S. Project Note Collateral
and shall remain in full force for the benefit of the Collateral Agent until the
Debt Termination Date. Upon such Debt Termination Date, (i) the Lien of the
Collateral Agent on the U.S. Project Note Collateral granted hereunder shall
terminate and all of the U.S. Project Note Collateral shall be released without
any further action by the Collateral Agent or any other Person and (ii) the
Collateral Agent shall forthwith cause to be assigned, transferred and
delivered, against receipt but without any recourse, warranty or representation
whatsoever, any remaining U.S. Project Note Collateral and money received in
respect thereof, to or on the order of Funding Company.
4.17 FURTHER ASSURANCES. Funding Company agrees that, from time to time,
Funding Company will execute and deliver such further documents and do such
other acts and things as are necessary or as the Collateral Agent may reasonably
request in order fully to effect the purposes of this Agreement.
4.18 LIMITATION OF LIABILITY. Notwithstanding anything herein to the
contrary, recourse for the Secured Obligations and all liabilities and
obligations arising hereunder shall be limited as provided in SECTION 11.11 of
the Indenture.
Section 5. MISCELLANEOUS.
5.1 NO WAIVER. No failure on the part of the Collateral Agent or any other
Secured Party to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Collateral Agent
or any other Secured Party of any right, power or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
5.2 NOTICES. Except as otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be sufficiently given and
shall be deemed given when delivered or mailed by registered or certified mail,
postage prepaid, or sent by overnight delivery or telecopy, addressed to Funding
Company, the Secured Parties, and the Collateral Agent at their respective
addresses specified on SCHEDULE III to
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the Indenture, or at such other address as shall be designated by such Person in
a written notice to the other parties hereto.
5.3 EXPENSES. Funding Company agrees to reimburse the Collateral Agent for
all reasonable costs and expenses of the Collateral Agent and each of the other
Secured Parties (including, without limitation, the reasonable fees and expenses
of legal counsel) in connection with (i) any Event of Default and any
enforcement or collection proceeding resulting therefrom, including, without
limitation, all manner of participation in or other involvement with (A)
performance by the Collateral Agent of any obligation of Funding Company in
respect of the U.S. Project Note Collateral that Funding Company has failed or
refused to perform, (B) bankruptcy, insolvency, receivership, foreclosure,
winding up or liquidation proceedings, or any actual or attempted sale, or any
exchange, enforcement, collection, compromise or settlement in respect of any of
the U.S. Project Note Collateral, and for the care of the U.S. Project Note
Collateral and defending or asserting rights and claims of the Collateral Agent
in respect thereof, by litigation or otherwise, (C) judicial or regulatory
proceedings and (D) workout, restructuring or other negotiations or proceedings
(whether or not the workout, restructuring or transaction contemplated thereby
is consummated) and (ii) the enforcement of this SECTION 5.3, and all such costs
and expenses shall be Secured Obligations entitled to the benefits of the
collateral security provided pursuant to SECTION 3 hereof.
5.4 AMENDMENTS. The terms of this Agreement may be waived, altered or
amended only by an instrument in writing duly executed by each of Funding
Company and the Collateral Agent (with the consent of the other Secured Parties
pursuant to the Intercreditor Agreement). Any such amendment or waiver shall be
binding upon the Collateral Agent, each holder of any of the Secured Obligations
and Funding Company.
5.5 ROLE OF COLLATERAL AGENT. The rights, duties, liabilities and
immunities of the Collateral Agent and its appointment and replacement hereunder
shall be governed by the Intercreditor Agreement and the terms and provisions of
such are expressly incorporated herein by reference thereto.
5.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the respective successors and assigns of each of Funding
Company and the Collateral Agent (PROVIDED, HOWEVER, that Funding Company shall
not assign or transfer its rights hereunder without the prior written consent of
the Collateral Agent).
5.7 HEADINGS DESCRIPTIVE. The headings of the several Sections and
subsections of this Agreement are for convenience only and shall not in any way
affect the meaning or construction of any provision of this Agreement.
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5.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which, taken together, shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
5.9 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL. (a)
This Agreement is a contract made under the laws of the State of New York of the
United States and shall for all purposes be governed by and construed in
accordance with the laws of such State without regard to the conflict of law
rules thereof (other than Section 5-1401 of the New York General Obligations
Law).
(b) Any legal action or proceeding against Funding Company with
respect to this Agreement may be brought in the courts of the State of New York
in the County of New York or of the United States for the Southern District of
New York and, by execution and delivery of this Agreement, Funding Company
hereby irrevocably submits and accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Funding Company agrees that a judgment, after exhaustion of all
available appeals, in any such action or proceeding shall be conclusive and
binding upon Funding Company and may be enforced in any other jurisdiction, by a
suit upon such judgment, a certified copy of which shall be conclusive evidence
of the judgment. Funding Company hereby irrevocably designates, appoints and
empowers Corporation Service Company with offices on the date hereof at 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, as its designee, appointee and
agent to receive, accept and acknowledge for and on its behalf, and in respect
of its property, service of any and all legal process, summons, notices and
documents which may be served in any such action or proceeding. If for any
reason such designee, appointee and agent shall cease to be available to act as
such, Funding Company agrees to designate a new designee, appointee and agent in
New York City on the terms and for the purposes of this provision satisfactory
to the Bond Trustee. Funding Company irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered or certified mail, postage
prepaid, to Funding Company at its address referred to in SECTION 5.2 such
service to become effective thirty (30) days after such mailing. Nothing herein
shall affect the right of any Secured Party to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
Funding Company in any other jurisdiction.
(c) Funding Company hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Agreement in the courts
referred to in clause (b) above and hereby further irrevocably waives and agrees
not to plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient forum.
12
(d) WITH REGARD TO THIS AGREEMENT, FUNDING COMPANY, EACH SECURED PARTY
AND THE COLLATERAL AGENT HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY.
5.10 NO THIRD PARTY BENEFICIARIES. The agreements of the parties hereto are
solely for the benefit of Funding Company, the Collateral Agent and the other
Secured Parties, and no Person (other than the parties hereto and their
successors and assigns permitted hereunder) shall have any rights hereunder.
5.11 REINSTATEMENT. This Agreement and the Lien created hereunder shall
automatically be reinstated if and to the extent that for any reason any payment
by or on behalf of any of Funding Company in respect of the Secured Obligations
is rescinded or must otherwise be restored by any holder of the Secured
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and Funding Company shall indemnify the Collateral
Agent or demand for all reasonable costs and expenses (including, without
limitation, fees of counsel) incurred by the Collateral Agent in connection with
such recision or restoration.
5.12 AGENTS AND ATTORNEYS-IN-FACT. The Collateral Agent may employ agents
and attorneys-in-fact in connection herewith and shall not be responsible for
the negligence or misconduct (other than the gross negligence and willful
misconduct) of any such agents or attorneys-in-fact selected by it in good
faith.
5.13 SEVERABILITY. If any provision hereof is invalid and unenforceable in
any jurisdiction, then, to the fullest extent permitted by law, (i) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in favor of the Collateral Agent in order to carry
out the intentions of the parties hereto as nearly as may be possible and (ii)
the invalidity or unenforceability of any provision hereof in any jurisdiction
shall not affect the validity or enforceability of such provision in any other
jurisdiction.
5.14 CONFLICTS WITH THE INTERCREDITOR AGREEMENT OR DEPOSITARY AGREEMENTS.
Notwithstanding any other provision hereof, in the event of any conflict between
the terms of this Agreement and the Intercreditor Agreement or the Depositary
Agreements, the provisions of the Intercreditor Agreement or the Depositary
Agreements will control.
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as a deed by their duly authorized officers, all as of the date
first written above.
YORK POWER FUNDING (CAYMAN) LIMITED
By: /s/ Xxxxxx Xxxxx
--------------------------
Name: Xxxxxx Xxxxx
Title: Director
In the presence of:
/s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
THE BANK OF NEW YORK,
as Collateral Agent
By: /s/ Xxxxxx Xxxxx
--------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
14
Acknowledged and agreed
with respect to Section 4.15
BROOKLYN NAVY YARD POWER LLC
By: B-41 ASSOCIATES, L.P.,
its Managing Member
By: B-41 Management Corporation,
its General Partner
By: /s/ Xxxxxxx Xxxxxxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Vice President
WARBASSE POWER I LLC
By: COGENERATION TECHNOLOGIES, INC.
its Managing Member
By: /s/ Xxxxxxx Xxxxxxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Executive Vice President
15
WARBASSE POWER II LLC
By: YORK COGEN PARTNERS, L.P.
its Managing Member
By: RRR's VENTURES, LTD.
its General Partner
By: /s/ Xxxxxxx Xxxxxxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Vice President
NEW WORLD POWER TEXAS RENEWABLE
ENERGY LIMITED PARTNERSHIP
By: BIG SPRINGS TEXAS ENERGY MANAGEMENT, INC.,
Managing General Partner
By: /s/ Xxxxxxx Xxxxxxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Vice President
16
BOND POWER
FOR VALUE RECEIVED, YORK POWER FUNDING (CAYMAN) LIMITED hereby assigns and
transfers unto _________________________________________ one promissory note of
BROOKLYN NAVY YARD POWER LLC, a Delaware limited liability company, WARBASSE
POWER I LLC, a Delaware limited liability company, WARBASSE POWER II LLC, a
Delaware limited liability company and NEW WORLD POWER TEXAS RENEWABLE ENERGY
LIMITED PARTNERSHIP, a Delaware limited partnership, in the principal amount of
Fifty Million Dollars ($50,000,000), dated________, and does hereby irrevocably
constitute and appoint ________________________ attorney to transfer the said
promissory note with full power of substitution in the premises.
DATED:
--------------
YORK POWER FUNDING (CAYMAN) LIMITED
By: /s/ Xxxxxx Xxxxx
--------------------------
Name: Xxxxxx Xxxxx
Title: Director
In presence of:
/s/ Xxxxxx X. Xxxxxxxx
-----------------------
Xxxxxx X. Xxxxxxxx
17
U.S. PROJECT LOAN NOTE
US$50,000,000 August 4, 1998
For value received, the undersigned, BROOKLYN NAVY YARD POWER LLC, a
Delaware limited liability company (the "BNY GUARANTOR") WARBASSE POWER I LLC
("WARBASSE I"), a Delaware limited liability company, WARBASSE POWER II LLC
("WARBASSE II" and together with Warbasse I, the "WARBASSE GUARANTOR"), a
Delaware limited liability company, NEW WORLD POWER TEXAS RENEWABLE ENERGY
LIMITED PARTNERSHIP, a Delaware limited partnership (the "BIG SPRING
GUARANTOR" and, together with the BNY Guarantor and the Warbasse Guarantor,
the "U.S. GUARANTORS"), a limited partnership organized and existing under
the laws of the State of Texas, by this promissory note, jointly and
severally, promises to pay to the order of YORK POWER FUNDING (CAYMAN)
LIMITED, ("FUNDING COMPANY") a limited liability company incorporated and
existing under the laws of the Cayman Islands, at the office of The Bank of
New York, a bank organized and existing under the laws of the State of New
York, located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in lawful
currency of the United States of America and in immediately available funds,
the principal amount of FIFTY MILLION DOLLARS (US$50,000,000), or if less,
the aggregate unpaid and outstanding principal amount of this U.S. Project
Note advanced by Funding Company to the U.S. Guarantors pursuant to that
certain U.S. Project Loan Agreement, dated as of August 4, 1998 (the "U.S.
PROJECT LOAN AGREEMENT"), by and among the U.S. Guarantors and Funding
Company, and as the same may be amended from time to time, and all other
amounts owned by the U.S. Guarantors to Funding Company hereunder.
This is one of the U.S. Project Notes entered into pursuant to the U.S.
Project Loan Agreement and is entitled to the benefits thereof and is subject
to all terms, provisions and conditions thereof. Capitalized terms used and
not defined herein shall have the meanings set forth in APPENDIX A of that
certain Trust Indenture, dated as of August 4, 1998 (the "INDENTURE"), by and
between Funding Company and The Bank of New York, a bank organized and
existing under the laws of the State of New York, as Bond Trustee.
Reference is hereby made to the Indenture and the Security Documents for
the provisions, among others, with respect to the custody and application of
the Collateral, the nature and extent of the security provided thereunder,
the rights, duties and obligations of the U.S. Guarantors and the rights of
the holder of this U.S. Project Note.
The principal amount hereof is payable in accordance with the U.S.
Project Loan Agreement, and such principal amount may be prepaid solely in
accordance with the U.S. Project Loan Agreement.
Each U.S. Guarantor further agrees to pay, in lawful currency of the
United States of America and in immediately available funds, interest from
the date hereof on the
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unpaid and outstanding principal amount hereof until such unpaid and
outstanding principal amount shall become due and payable (whether at stated
maturity, by acceleration or otherwise) at the rates of interest and at the
times set forth in the U.S. Project Loan Agreement, and each U.S. Guarantor
agrees to pay all other amounts due, including, without limitation, fees and
costs, as stated in the U.S. Project Loan Agreement
Upon the occurrence of any one or more U.S. Project Loan Events of Default
(as defined in Section 5.1 (Events of Default Defined)), all amounts then
remaining unpaid under this U.S. Project Note may become or be declared to be
immediately due and payable as provided in the U.S. Project Loan Agreement,
without notice of default, presentment or demand for payment, protest or
notice of nonpayment or dishonor, or notices or demands of any kind, all of
which are expressly waived by each U.S. Guarantor.
The obligations hereunder are subject to the limitations set forth in
Section 6.10 (Limitation of Liability) of the U.S. Project Loan Agreement,
the provisions of which are hereby incorporated by reference.
THIS U.S. PROJECT NOTE IS A CONTRACT MADE UNDER THE LAWS OF THE STATE OF
NEW YORK OF THE UNITED STATES OF AMERICA AND SHALL FOR ALL PURPOSES BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE WITHOUT
REGARD TO THE CONFLICT OF LAW RULES THEREOF (OTHER THAN SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW).
This U.S. Project Note may be executed in any number of counterparts, all
of which, taken together, shall constitute one and the same instrument and
any of the parties hereto may execute this U.S. Project Note by signing any
such counterpart.
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IN WITNESS WHEREOF, each U.S. Guarantor has caused this U.S. Project
Note to be duly executed.
BROOKLYN NAVY YARD POWER LLC
By: B-41 ASSOCIATES, L.P.,
its Managing Member
By: B-41 MANAGEMENT CORPORATION,
its General Partner
By: /s/ Xxxxxxx Xxxxxxxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Vice President
WARBASSE POWER I LLC
By: COGENERATION TECHNOLOGIES, INC.
its Managing Member
By: /s/ Xxxxxxx Xxxxxxxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Executive Vice President
WARBASSE POWER II LLC
By: YORK COGEN PARTNERS, L.P.
its Managing Member
By: RRR'S VENTURES, LTD.
its General Partner
By: /s/ Xxxxxxx Xxxxxxxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Vice President
-20-
NEW WORLD POWER TEXAS RENEWABLE ENERGY
LIMITED PARTNERSHIP
By: BIG SPRINGS TEXAS
ENERGY MANAGEMENT, INC.
Managing General Partner
By: /s/ Xxxxxxx Xxxxxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Vice President
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