Exhibit 10.13
Agreement Number: ELLSP-1-1
WATER SUPPLY STORAGE AGREEMENT
BETWEEN THE UNITED STATES OF AMERICA
AND
LSP ENERGY LIMITED PARTNERSHIP FOR
WATER STORAGE SPACE IN XXXX XXXX
THIS Agreement, entered into this 8th day of June 1998, by and between
THE UNITED STATES OF AMERICA (hereinafter called the "Government") represented
by the District Engineer of the Vicksburg District of the United States Army
Corps of Engineers, or his/her successor or designee (hereinafter called the
"District Engineer") executing this agreement, and LSP Energy Limited
Partnership (hereinafter called the "User"):
WITNESSETH THAT:
WHEREAS, the Flood Control Act of 25 March 1928, as amended, authorized
the construction, operation, and maintenance of the Yazoo Basin, Xxxx Xxxx,
Yocona River, Mississippi (hereinafter called the "Project"); and
WHEREAS, the User desires to enter into an agreement with the Government
for the use of storage included in the Project for municipal and industrial
water supply, and for payment of the cost thereof in accordance with the
provisions of the water Supply Act of 1958, as amended (43 U.S.C. 390b-f); and
WHEREAS, the User is empowered to enter into an agreement with the
Government and is vested with all necessary powers of accomplishment of the
purposes of this agreement.
NOW, THEREFORE, the Government and the User agree as follows:
ARTICLE 1 - WATER STORAGE SPACE
a. Project Construction. The Government, subject to the directions of
Federal law and any limitations imposed thereby, shall modify the Project so as
to include therein space for the storage of water by the user.
b. Rights of User.
(1) The User shall have the right to utilize an undivided 7.8
percent (estimated to contain 4,500 acre-feet after adjustment for sediment
deposits) of the conservation storage space between elevations 205.0 and 230.0
feet, National
Agreement Number: ELLSP-1-1
Geodetic Vertical Datum (NGVD), which usable storage space is estimated to
contain 57,600 acre-feet after adjustment for sediment deposits. This storage
space of 4,500 acre-feet is to be used to impound water for present demand or
need for municipal and industrial water supply.
(2) The User shall have the right to withdraw water from the lake
subject to the provisions of Article 1c and to the extent the aforesaid storage
space will provide; and shall have the right to construct all such works,
plants, pipelines, and appurtenances as may be necessary and convenient for the
purpose of diversion or withdrawals, subject to the approval of the District
Engineer as to design and location, said approval not be unreasonably withheld.
The grant of an easement for right-of-way, across, in and upon land of the
Government at the Project shall be by a separate instrument in a form
satisfactory to the Secretary of the Army, without additional cost to the User,
under the authority of and in accordance with the provisions of 10 U.S.C. 2669
and such other authorities as may be necessary. Subject to the conditions of
such easement, the User shall have the right to use so much of the Project land
as may reasonably be required in the exercise of the rights and privileges
granted under this agreement.
c. Rights Reserved. The Government reserves the right to control and use
all storage in the Project in accordance with authorized Project purposes. The
Government further reserves the right to take such measures as may be necessary
in the operation of the Project to preserve life and/or property, including the
right not to make downstream releases during such periods of time as are deemed
necessary, in its sole discretion, to inspect, maintain, or repair the Project.
d. Quality or Availability of Water. The User recognizes that this
agreement provides storage space for raw water only. The Government makes no
representations with respect to the quality or availability of water and assumes
no responsibility therefor, or for the treatment of the water.
e. Sedimentation Surveys.
(1) Sedimentation surveys will be made by the District Engineer
during the term of this agreement at intervals not to exceed fifteen (15) years
unless the District Engineer determines that such surveys are unnecessary. When,
in the opinion of the District Engineer, the findings of such survey
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Agreement Number: ELLSP-1-1
indicate any Project purpose will be affected by unanticipated sedimentation
distribution, there shall be an equitable redistribution of the sediment reserve
storage space among the purposes served by the Project including municipal and
industrial water supply. The total available remaining storage space in the
Project will then be divided among the various Project features in the same
ratio as was initially utilized. Adjusted pool elevations will be rounded to the
nearest one-half foot. Such findings and the storage space allocated to
municipal and industrial water supply shall be defined and described as an
exhibit which will be made a part of this agreement and the water control manual
will be modified accordingly.
(2) The Government assumes no responsibility for deviations from
estimated rates of sedimentation, or the distribution thereof. Such deviations
may cause unequal distribution of sediment reserve storage greater than
estimated, and/or encroachment on the total storage at the Project.
ARTICLE 2 - REGULATION OF AND RIGHT TO USE OF WATER
The regulation of the use of water withdrawn or released from the
aforesaid storage space shall be the sole responsibility of the User. The User
has the full responsibility to acquire in accordance with State laws and
regulations, and, if necessary, to establish or defend, any and all water rights
needed for utilization of the storage provided under this agreement. The
Government shall not be responsible for diversions by others, nor will it become
a party to any controversies involving the use of the storage space by the User
except as such controversies may affect the operations of the Project by the
Government.
ARTICLE 3 - OPERATION AND MAINTENANCE
The Government shall operate and maintain the Project and the User shall
pay to the Government a share of the costs of such operation and maintenance as
provided in Article 5. The User shall be responsible for operation and
maintenance of all installations and facilities which it my construct for the
diversion or withdrawal of water, and shall bear all costs of construction
operation and maintenance of such installations and facilities.
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Agreement Number: ELLSP-1-1
ARTICLE 4 - MEASUREMENT OF WITHDRAWALS AND RELEASES
The User agrees to furnish and install, without cost to the Government, suitable
meters or measuring devices satisfactory to the District Engineer for
measurement of water which is withdrawn from the Project. The User shall furnish
to the Government monthly statements of all such withdrawals. Prior to the
construction of any facilities for withdrawal of water from the Project, the
User will obtain the District Engineer's approval of the design, location and
installation of the facilities including the meters or measuring devices, said
approval not to be unreasonably withheld. Such devices shall be available for
inspection by Government representatives at all reasonable
ARTICLE 5 - PAYMENTS
In consideration of the right to utilize the aforesaid storage space in the
Project for municipal and industrial water supply purposes, the User shall pay
the following sums to the Government:
a. Project Investment Costs.
(1) The User shall repay to the Government, at the times and with
interest on the unpaid balance as hereinafter specified, the amounts stated
below which, as shown in Exhibit "B" attached to and made a part of this
agreement, constitute the entire actual amount of the costs allocated to the
water storage right acquired by the User under this agreement. The amount of
costs is based on updated cost of storage. The interest rate to be used for
purposes of computing interest on the unpaid balance will be the yield rate
adjusted at 5-year intervals as determined by the Secretary of the Treasury on
the basis set forth in Section 932 of the 1986 Water Resources Development Act.
For this agreement, the starting interest rate shall be that rate in effect at
the time the agreement is approved. The interest will be revised as specified in
Article 5a(4) and at 5-year intervals after first payment of storage cost.
(2) The cost allocated to the storage space indicated in Article
1b(1) is currently estimated at $1,111,898 on the basis of the costs presented
in Exhibit "B". These costs shall be repaid within the life of the Project and
not to exceed 30 years from the due date of the first annual payment. The
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Agreement Number: ELLSP-1-1
payments shall be in equal consecutive annual installments, the first of which
shall be due and payable within 24 months after the User is notified by the
District Engineer that the agreement has been approved or within 30 days after
the first use of storage, whichever occurs first. Annual installments thereafter
will be due and payable on the anniversary date of the date the first payment is
due. Except for the first annual payment which will be applied solely to the
retirement of principal, all installments shall include accrued interest on the
unpaid balance at the rate provided above. The last annual installment shall be
adjusted upward or downward when due to assure repayment of all of the
investment costs allocated to the storage within 30 years from the above date.
(3) An estimated schedule of annual payments for the reallocation
water supply costs is attached as Exhibit "C" of this agreement.
(4) Subsequent to approval of the Secretary of the Army or his duly
authorized representative, and prior to the first payment on the storage space
by the User, Exhibit "B" will be adjusted to reflect application of the
appropriate construction cost index, and fiscal year interest rate.
b. Repair, Rehabilitation, and Replacement Costs. The User will be
required to pay 0.682 percent of the cost of joint-use repair, rehabilitation,
or replacement of Project features. Payment of these costs shall be made either
incrementally during construction or in lump sum (including interest during
construction) upon completion of construction.
c. Annual Operation and Maintenance (O&M Expense). The User will be
required to pay 0.682 percent of the annual experienced joint-use O&M expense of
the Project. Payments for O&M expense are due and payable in advance on the date
for payment of Project investment costs as set forth in Article 5a(2) and shall
be based on O&M expense for the Project in the Government fiscal year most
recently ended. The amount of each annual payment will be the actual experienced
O&M expense (allocated joint-use) for the preceding fiscal year or an estimate
thereof when actual expense information is not available.
d. Prepayment. The User shall have the right at any time to prepay the
indebtedness under this Article in whole or in
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Agreement Number: ELLSP-1-1
part, with accrued interest thereon to the date of such prepayment.
e. Delinquent Payments. If the User shall fail to make any of the aforesaid
payments when due, then the overdue payments shall bear interest compounded
annually until paid. The interest rate to be used for overdue payments due under
the provisions of Articles 5a, 5b, and 5c above shall be that determined by the
Department of the Treasury's Treasury Fiscal Requirements Manual (1 TFRM 6-8000,
"Cash Management"). The amount charged on payments overdue for a period of less
than one year shall be figured on a monthly basis. For example, if the payment
is made within the first month after being overdue after a 15-day grace period
from the anniversary date of the date of notification, one month's interest
shall be charged. Thereafter a month's interest will be charged for any portion
of each succeeding month that the payment is delinquent. This provision shall
not be construed as giving the User a choice of either making payments when due
or paying interest, nor shall it be construed as waiving any other rights of the
Government, at law or in equity, which might result from any default by the
User.
ARTICLE 6 - PROTECTIVE COVENANT AND TERMINATION
a. Prior to use of the water storage space the User must complete design
and construction of its water intake Structure. Pending completion of design and
construction, the Government shall reserve for the User 4,500 acre-feet of
storage for municipal and industrial water supply purposes for a period of up to
24 months. For this privilege, the User shall pay the Government $1.00 per
acre-foot per year or $4,500 per year. The payment shall be due and payable
within 30 days after the User is notified by the District Engineer that the
agreement has been approved. This payment will preclude the requirement for any
other payments prior to first use or the end of the 24-month period. All
operation, maintenance, and replacement costs incurred subsequent to first use
or the expiration of the 24-month period must be shared by the User. Should the
User be unable to complete design and construction of its water intake structure
it may notify the District Engineer of said failure and the agreement shall be
considered terminated at that time. Should the User not terminate the agreement
within the 24-month period, payments for project costs shall be as set forth in
Article 5.
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Agreement Number: ELLSP-1-1
b. In the event of any termination pursuant to this Article, the User
shall, upon request of the District Engineer, promptly remove at User's own
expense, any facilities constructed on project land for water withdrawal and
restore premises around the removed facilities to a condition satisfactory to
the District Engineer.
ARTICLE 7 - DURATION OF AGREEMENT
This agreement shall become effective when approved by the Secretary of
the Xxx or his duly authorized representative and shall continue in full force
and effect for the life of the Project.
ARTICLE 8 - PERMANENT RIGHTS TO STORAGE
Upon completion of payments by the User, as provided in Article 5a herein,
the User shall have a permanent right, under the provisions of the Act of 16
October 1963 (Public Law 88-140, 43 U.S.C. 390e), to the use of the water
supply storage space in the Project as provided in Article 1, subject to the
following:
a. The User shall continue payment of annual operation. and maintenance
costs allocated to water supply in accordance with Article 5c.
b. The User shall bear the costs allocated to water supply of any
necessary repair, rehabilitation, or replacement of Project features which may
be required to continue satisfactory operation of the Project in accordance with
authorized Project purposes. Such costs will be established by the District
Engineer and repayment arrangements shall be in writing in accordance with the
terms and conditions set forth in Article 5b for repair, rehabilitation, or
replacement costs and be made a part of this agreement.
c. Upon completion of payments by the User as provided in Article 5a, the
District Engineer shall redetermine the storage space for municipal and
industrial water supply in accordance with the provisions of Article 1e. Such
redetermination of reservoir storage capacity my be further adjusted from, time
to time as the result of sedimentation resurveys to reflect actual rates of
sedimentation and the exhibit revised to show the revised storage space
allocated to municipal and industrial water supply.
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Agreement Number: ELLSP-1-1
d. The permanent rights of the User under this agreement shall be
continued so long as the Government continues to operate the Project. In the
event the Government no longer operates the Project, such rights may be
continued subject to the execution of a separate agreement, or additional
supplemental agreement providing for:
(1) Continued operation by the User of such part of the facility as
is necessary for utilization of the water supply storage space allocated to it;
(2) Terms which will protect the public interest; and.
(3) Effective absolvement of the Government by the User from all
liability in connection with such continued operation.
ARTICLE 9 - RELEASE OF CLAIMS
The User shall hold and save the Government, including its officers, agents, and
employees harmless from liability of any nature or kind for or on account of any
claim for damages which may be filed or asserted as a result of the storage in
the Project, or withdrawal or release of water from the Project, made or ordered
by the User or as a result of the construction, operation, or maintenance of the
water supply facilities and appurtenances thereto owned and operated by the User
except for damages due to the fault or negligence of the Government or its
contractors.
ARTICLE 10 - ASSIGNMENT
The User shall not transfer or assign this agreement nor any rights acquired
thereunder, nor suballot said water supply storage space or any part thereof,
nor grant any interest, privilege, or license whatsoever in connection with this
agreement, without the approval of the Secretary of the Army or his duly
authorized representative, provided that, unless contrary the public interest,
this restriction shall not be construed to apply to any water that may be
obtained from the water supply storage space by the User and furnished to any
third party or parties, nor any method of allocation thereof.
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Agreement Number: ELLSP-1-1
ARTICLE 11 - OFFICIALS NOT TO BENEFIT
No member of or delegate to Congress, or Resident Commissioner, shall be
admitted to any share or part of this agreement or to any benefit that may arise
therefrom; but this provision shall not be construed to extend to this agreement
if made with a corporation for its general benefit.
ARTICLE 12 - COVENANT AGAINST CONTINGENT FEES
The User warrants that no person or selling agency has been employed or
retained to solicit or secure this agreement upon an agreement or understanding
for a commission, percentage, brokerage, or contingent fee, excepting bona fide
employees or bona fide established commercial or selling agencies maintained by
the User for the purpose of securing business. For breach or violation of this
warranty the Government shall have the right to annul this agreement without
liability or in its discretion to add to the price or consideration, or
otherwise recover the full amount of such commission, percentage, brokerage, or
contingent fee.
ARTICLE 13 - ENVIRONMENTAL QUALITY
During any construction, operation, and maintenance by User of any facilities,
specific actions will be taken to control environmental pollution which could
result from such activity and to comply with applicable Federal, State, and
local laws and regulations concerning environmental pollution.
Particular attention should be given to:
a. Reduction of air pollution by control of burning, minimization of dust,
containment of chemical vapors, and control of engine exhaust gases, and of
smoke from temporary heaters;
b. Reduction of water pollution by control of sanitary facilities, storage
of fuels and other contaminants, and control of turbidity and siltation from
erosion;
c. Minimization of noise levels;
d. Onsite and off-site disposal of waste and spoil; and
e. Prevention of landscape defacement and damage.
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Agreement Number: ELLSP-1-1
ARTICLE 14 - FEDERAL AND STATE LAWS
a. In acting under its rights and obligations hereunder the User agrees to
comply with all applicable Federal and State laws and regulations, including but
not limited to the provisions of the Xxxxx-Xxxxx Act (40 U.S.C. 276a et seq.);
the Agreement Work Hours and Safety Standards Act (40 U.S.C. 327-333); Title 29,
Code of Federal Regulations, Part 3; and Sections 210 and 305 of the Uniform
Relocation Assistance and Real Property Acquisition Policies Act of 1970 (PL
91-646).
b. The User furnishes, as part of this agreement, and assurance (Exhibit
"D") that it will comply with Title VI of the Civil Rights Act of 1964 (78 Xxxx.
000, 00 X.X.X. 0000x, et seq.) and Department of Defense Directive 5500.11
issued pursuant thereto and published in Part 300 of Title 32, Code of Federal
Regulations.
c. Any discharges of water into a navigable stream or tributary thereof
resulting from. the User's facilities and operations undertaken under this
agreement shall be performed only in accordance with applicable Federal, State,
and local laws and regulations.
d. The User furnishes, as part of this agreement, a certification (Exhibit
"E" and a Disclosure of Lobbying Activities) that it will comply with Table 31,
U.S.C., Section 1352 of the Limitation on use of appropriated funds to influence
certain Federal contracting and financial transactions (Public Law 101-121
October 23, 1989) and Federal Acquisition Regulation 52.203-12 issued pursuant
thereto.
ARTICLE 15
DEFINITIONS
a. Annual operation and maintenance (O&M) expenses. Annual expenses funded
under the O&M, General account. These expenses include the daily project O&M
costs as well as those O&M costs which are not capitalized.
b. District Engineer. The District Engineer of the Vicksburg
District of the United States Army Corps of Engineers, or his/her successor
or designee.
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Agreement Number: ELLSP-1-1
c. Fiscal Year. Refers to the Government's fiscal year. This year begins
on 1 October and ends on 30 September. The September calendar year corresponds
to the fiscal year.
d. Joint-use cost. The cost of features used for any two or more Project
purposes.
e. Life of the project. This is the physical life of the Project.
f. Project investment costs. The initial cost of the Project, including
land acquisition; construction; interest during construction on the value of
land, labor, and materials used for planning and construction of the Project.
g. Repair, rehabilitation, and replacement. Costs funded in part under the
operation and Maintenance, General, or Construction, General accounts but not
associated with initial Project investment costs. Such expenditures are for
costly, infrequent work and are intended to ensure continued satisfactory
operation of the Project.
ARTICLE 16 - APPROVAL OF AGREEMENT
This agreement shall be subject to the written approval of the Secretary
of the Army or his duly authorized representative and shall not be binding until
so approved.
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Agreement Number: ELLSP-1-1
IN WITNESS WHEREOF, the parties have executive this agreement as of the
day and year first above written.
APPROVED: THE UNITED STATES OF AMERICA
/s/ Xx. Xxxx X. Xxxxxxxx By /s/ Xxxxxx Xxxxx
----------------------------- -----------------------------------
Xx. Xxxx X. Xxxxxxxx Xxxxxx Xxxxx
Acting Assistant Secretary Colonel, Corps of Engineers
of the Army for Civil Works District Engineer
Date: June 8, 1998 LSP Energy Limited Partnship
------------ By LSP Energy, Inc.,
General Partner
--------------------------------
--------------------------------
By /s/ Xxxxxxxx X. Xxxxxx
--------------------------------
Executive Vice President
12
Agreement Number: ELLSP-1-1
EXHIBIT A
CERTIFICATION
I, Xxxxx X. Xxxxxxxxxxx, Attorney for LSP Energy Limited Partnership,
have reviewed the foregoing agreement executed by the Executive Vice President
and as principal legal officer of/for LSP Energy Limited Partnership, certify
that the company is legally capable of entering into the contractual
obligations contained in the foregoing agreement and that, upon acceptance, it
will be legally enforceable.
Given under my hand, this 14th day of May 1998.
/s/ Xxxxx X. Xxxxxxxxxxx
-------------------------------------------
Attorney for LSP Energy Limited Partnership
A-1
Agreement Number: ELLSP-1-1
EXHIBIT B
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I-LAKE STORAGE
--------------------------------------------------------------------------------
Percent of
----------------------------------
Usable Water
Elevation Storage Usable Conservation Supply
Feature (ft, NGVD) (ac-ft) Storage Storage Storage
--------------------------------------------------------------------------------
Flood Control 230.0 - 268.0 602,400 91.273
--------------------------------------------------------------------------------
Conservation Storage 205.0 - 230.0 57,600 100.00
--------------------------------------------------------------------------------
Water Supply (4,500) 0.682 7.8 100.00
--------------------------------------------------------------------------------
conservation (53,100) 8.045 92.2
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Total 660,000 100.00
--------------------------------------------------------------------------------
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II - INVESTMENT COSTS TO BE REPAID BY USER
FOR WATER SUPPLY STORAGE
IN XXXX XXXX
--------------------------------------------------------------------------------
Cost of 4,500 acre-feet of water supply storage:
4,500/660,000 = 0,00682 x 163,034,904 = $1,111,898
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
III - ANNUAL COSTS TO USER FOR USE OF
STORAGE SPACE IN XXXX XXXX
--------------------------------------------------------------------------------
Interest & Amortization
$1,111,898 x 0.07360 factor based on 30
payments, 29 with interest @ 6.75% $81,800
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Operation and Maintenance a/
Joint-Use (0.00682 x S3,020,947) $20,600
--------------------------------------------------------------------------------
Major Replacement b/
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Total Estimated Annual Costs $102,400
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a/ The first payment shall be due and payable on the date specified in
Article 5a(2).
b/ Major replacement costs are payable only when incurred as specified in
Article 5b(2).
B-1
Agreement Number: ELLSP-1-1
EXHIBIT C REPAYMENT SCHEDULE
(ANNUAL)
--------------------------------------------------------------------------------
TOTAL COST $1,111,898
INTEREST RATE PERCENT 6.75
NUMBER OF PAYMENTS 30
ANNUAL PAYMENT [cannot read]
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PAYMENT TO PAYMENT TO
YEAR INTEREST PRINCIPAL TOTAL PAYMENT BALANCE DUE
--------------------------------------------------------------------------------
($) ($) ($) ($)
1,111,898
1 0 81,800 81,800 1,030,088
2 69,532 12,268 81,800 1,017,830
3 68,703 13,097 81,800 1,004,733
4 67,819 13,981 81,800 990,753
5 66,876 14,924 81,800 975,828
6 65,868 15,932 81,800 959,897
7 64,793 17,007 81,800 942,882
8 63,645 18,155 81,800 924,735
9 62,420 19,380 81,800 905,355
10 61,111 20,689 81,800 884,666
11 59,715 22,085 81,800 862,581
12 58,224 23,576 81,800 839,005
13 56,633 25,167 81,800 813,836
14 54,934 26,866 81,800 786,972
15 53,121 28,679 81,800 758,293
16 51,185 30,615 81,800 727,677
17 49,118 32,682 81,800 694,996
18 46,912 34,888 81,800 660,108
19 44,557 37,243 81,800 622,865
20 42,043 39,757 81,800 583,208
21 39,360 42,440 81,800 540,668
22 36,495 45,305 81,800 495,363
23 33,437 48,363 81,800 447,000
24 30,173 51,627 81,800 395,373
25 26,688 55,112 81,800 340,261
26 22,968 58,832 81,800 281,428
27 18,996 62,804 81,800 218,625
28 14,757 67,043 81,800 151,582
29 10,232 71,568 81,800 80,014
30 5,401 80,014 85,415 0
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C-1
Agreement Number: ELLSP-1-1
EXHIBIT D
ASSURANCE OF COMPLIANCE WITH THE DEPARTMENT OF DEFENSE DIRECTIVE UNDER TITLE
VI OF THE CIVIL RIGHTS ACT OF 1964
LSP ENERGY LIMITED PARTNERSHIP
HEREBY AGREES THAT it will comply with Title VI of the Civil Rights Act of 1964
(Public Law 88-352) and all requirements imposed by or pursuant to the Directive
of the Department of Defense (32 Code of Federal Regulations Part 300, issued as
Department of Defense Directive 5500. 11, 28 December 1964) issued pursuant to
that title, to the end that in accordance with Title VI of that Act and the
Directive, no person in the United States shall, on the ground of race, color,
or national origin be excluded from participation in, be denied the benefits of,
or be otherwise subjected to discrimination under any program or activity for
which the Applicant-Recipient receives Federal financial assistance from
Department of the Army and HEREBY GIVES ASSURANCE THAT it will immediately take
any measures necessary to effectuate this agreement
If any real property or structure thereon is provided or improved with the aid
of Federal financial assistance extended to the Applicant-Recipient by the
Department of the Army, assurance shall obligate the Applicant-Recipient, or in
the case of any transfer of such property, any transferee, for the period during
which the real property or structure is used for a purpose for which the
Federal financial assistance is extended or for another purpose involving the
provision of similar services or benefits. If any personal property is so
provided this assurance shall obligate the Applicant-Recipient for the period
during which it retains ownership or possession of the property. In all other
cases this assurance shall obligate the Applicant-Recipient for the period
during which the Federal financial assistance is extended to it by Department of
the Army.
THIS ASSURANCE is given in consideration of and for the purpose of obtaining any
and all Federal grants, loans, contracts, property, discounts or other Federal
financial assistance extended after the date hereof to the Applicant-Recipient
by the Department, including installment payments after such date on account of
arrangements for Federal financial assistance which were approved before such
date. The Applicant-Recipient recognizes and agrees that such Federal financial
assistance will be extended in reliance on the representations and agreements
made in this assurance, and that the United States shall have the right to, seek
judicial enforcement of this assurance.
D-1
Agreement Number: ELLSP-1-1
EXHIBIT D (Cont)
This assurance is binding on the Applicant-Recipient, its successors,
transferees, and assignees, and the person or persons whose signatures appear
below are authorized to sign this assurance on behalf of the
Applicant-Recipient.
Sections IV and VII of Department of Defense Directive 5500.11 setting forth
prohibited discriminatory actions and compliance information is on the reverse
hereof.
Dated 14 May 1998 LSP Energy Limited Partnership
----------------- ---------------------------------------------------
(Applicant-Recipient)
By /s/ Xxxxxxxx X. Xxxxxx, Executive Vice President
---------------------- ---------------------------------------------------
LSP Energy, Inc., General Partner
D-2
Agreement Number: ELLSP-1-1
EXHIBIT D (Cont)
SECTIONS IV AND VII DEPARTMENT OF DEFENSE DIRECTIVE 5500.11
IV. Policy.
A. General. No person in the United States shall on the ground of race,
color, or national origin be excluded from participation in be denied the
benefits of, or be otherwise subjected to discrimination under any program to
which this Directive applies.
B. Specific Discriminatory Actions Prohibited.
1. A recipient under any program to which this Directive applies may not,
directly or through contractual or other arrangements, on the ground of race,
color, or national origin.
a. Deny an individual any service, financial aid, or other benefit
provided under the program;
b. Provide any service, financial aid, or other benefit to an individual
which is different or is provided in a different manner, from that provided to
others under the program;
c. Subject an individual to segregation or separate treatment in any
matter related to his receipt of any service, financial aid, or other benefit
under the program;
d. Restrict an individual in any way in the enjoyment of any advantage or
privilege enjoyed by other receiving any service, financial aid, or other
benefit under the program;
e. Treat an individual differently from others in determining whether he
satisfies any admission, enrollment, quota, eligibility, membership or other
requirement or condition which individuals must meet in order to be provided any
service, financial aid, or other benefit provided under the program;
f. Deny an individual an opportunity to participate in the program through
the provision of services or otherwise or afford him an opportunity to do so
which is different from that afforded others under the program.
2. A recipient, in determining the types of services, financial aid, or
other benefits, or facilities which will be provided under any such program or
the class of individuals to whom, or the situations in which, such services,
financial aid, other benefits, or facilities will be provided under any such
program, or the class of individuals to be afforded the opportunity to
participate in any such program, may not, directly or through contractual or
other arrangements, utilize criteria or methods of administration which have the
effect of subjecting individuals to discrimination because of their race, color,
or nation origin, or have the effect of defeating or substantially impairing
accomplishment of the objectives of the program as respect individuals of a
particular race, color, or national origin.
3. As used in this Section the services, financial aid, or other benefits
provided under a program receiving Federal
D-3
Agreement Number: ELLSP-1-1
EXHIBIT D (Cont)
financial assistance shall be deemed to include any service, financial aid, or
other benefit provided in or through a facility provided with the aid of Federal
financial assistance.
4. The enumeration of specific forms of prohibited discrimination in this
Subsection does not limit the generality of the prohibition in Subsection I.A.
of this Section.
VII. Compliance Information.
A. Cooperation and Assistance. Each responsibility Department official
shall to the fullest extent practicable see, the cooperation of recipients in
obtaining compliance with this Directive and shall provide assistance and
guidance to recipients to help them comply voluntarily with this Directive.
B. Compliance Reports. Each recipient shall keep such records and submit
to the responsible Department official timely complete and accurate compliance
reports at such times, and in such form and containing such information, as the
responsible Department official may determine to be necessary to enable him to
ascertain whether the recipient has complied or is complying with this
Directive. In the case of any program under which a primary recipient extends
Federal assistance to any other recipient such other recipient shall also submit
compliance reports to the primary recipient as may be necessary to enable The
primary recipient to carry out its obligations imposed pursuant to this
Directive.
C. Access to Sources of Information. Each recipient shall permit access by
the responsible Department official during normal business hours to such of its
books, records, accounts, and other sources of information, and its facilities
as may be pertinent to ascertain compliance with this Directive. Where any
information required of a recipient is in the exclusive possession of any other
institution or person and this institution or person shall fail or refuse to
furnish this information, the recipient shall so certify in its report and shall
set forth what effects it has made to obtain the information.
D. Information to Beneficiaries and Participants. Each recipient shall
make available to participants, beneficiaries, and other interested persons such
information regarding the provisions of this Directive and its applicability to
the program under which the recipient receives Federal financial assistance, and
make such information available to them in such manner, as the responsible
Department official finds necessary to apprise such persons of the protections
against discrimination assured them by the Act and this Directive.
D-4
Agreement Number: ELLSP-1-1
EXHIBIT E
CERTIFICATION REGARDING LOBBYING
XXXX XXXX WATER SUPPLY STORAGE
1. The undersigned certifies, to the best of their knowledge and belief, that:
a. No Federal appropriated funds have been paid or will be paid, by or on
behalf of the undersigned, to any person for influencing or attempting to
influence an officer or employee of any agency, a member of Congress, an officer
or employee of Congress, or any employee of a member of Congress in connection
with the awarding of any Federal agreement, the making of any Federal grant, the
making of any Federal loan, the entering into of any cooperative agreement, and
the extension, continuation, renewal, amendment or modification of any Federal
agreement, grant, loan, or cooperative agreement.
b. If any funds other than Federal appropriated funds have been paid or
will be paid to any person for influencing or attempting to influence an officer
or employee of any agency, Member of Congress, an officer or employee of
Congress, or an employee of a Member of Congress in connection with the water
storage agreement for LSP Energy Limited Partnership, the undersigned shall
complete and submit Standard Form-LLL, "Disclosure of Lobbying Activities", in
accordance with its instructions.
c. The undersigned shall require that the language of this certification
be included in the award documents for all subawards at all tiers (including
subagreements, subgrants, and agreements under grants, loans and cooperative
agreements) and that all subrecipients shall certify and disclose accordingly.
E-1
Agreement Number: ELLSP-1-1
EXHIBIT E (Cont)
2. This certification is a material representation of fact upon which reliance
was placed when this transaction was made or entered into. Submission of this
certification is a prerequisite for making or entering into this transaction
imposed by Section 1352, Title 31 U.S. Code. Any person who fails to file the
required certification shall be subject to a civil penalty of not less than
$10,000 and not more than $100,000 for each such failure.
LSP Energy Limited Partnership
By LSP Energy, Inc., General Partner
/s/ Xxxxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxxxx X. Xxxxxx, Executive Vice President
--------------------------------------------
E-2
AMENDMENT NO. I
AMENDMENT TO THE WATER SUPPLY STORAGE AGREEMENT
BETWEEN THE UNITED STATES OF AMERICA AND
LSP ENERGY LIMITED PARTNERSHIP
FOR WATER STORAGE SPACE IN XXXX XXXX
WITNESSETH THAT:
WHEREAS, LSP Energy Limited Partnership (hereinafter called the
"User") entered into Agreement No. ELLSP- 1 - 1 with the United States of
America (hereinafter called the "Government") on June 8, 1998, for water supply
space in Xxxx Xxxx (hereinafter called "the Agreement"); and,
WHEREAS, the United States of America is acting through the District
Engineer of the Vicksburg District of the United States Army Corps of Engineers;
and,
WHEREAS, water withdrawn from Xxxx Xxxx by the User pursuant to the
Agreement will be used in the User's electric generating facility located in
Batesville, Mississippi (hereinafter called the "Facility"); and,
WHEREAS, the User, certain lenders (hereinafter called the
"Lenders") and Credit Suisse First Boston, as agent acting on behalf of the
Lenders (the "Agent") have entered into certain financing and security
agreements and documents related thereto pursuant to which the Lenders have
provided to the User construction and permanent financing of the Facility; and
WHEREAS, as a condition to the Lenders' advance of funds under the
financing documents, the Lenders request a modification to the Agreement.
NOW, THEREFORE, in consideration for the foregoing, the Government
and the User do hereby agree to amend Article 10 of the Agreement as follows:
1. The existing Article 10 is hereby amended by adding the character "(a)" in
front of the first sentence of Article 10.
2. Article 10 is hereby amended by adding the following clauses:
(b) Water withdrawn from Xxxx Xxxx by the User pursuant to the
Agreement will be used in the User's electric generating facility
located in Batesville, Mississippi (hereinafter called the
"Facility"). The User, certain lenders (hereinafter called the
"Lenders") and Credit Suisse First Boston, as agent acting on
behalf of the Lenders (the "Agent") have entered into certain
financing and security agreements and documents related thereto
pursuant to which the Lenders have provided to the User
construction and permanent financing of the Facility. The
Government will not, without prior written notice to the Agent
cancel or terminate this Agreement, on account of any default or
breach of the User thereunder. The Agent will be provided (i)
thirty (30) days from the date notice of default or breach is
delivered to the Agent to cure such default if such default is
the failure to pay amounts to
the Government which are due and payable by the User under this
Agreement or (ii) a reasonable opportunity, but not fewer than
thirty (30) days, to cure such breach or default if the breach or
default cannot be cured by the payment of money to the Government so
long as the Agent or its designee shall have commenced to cure the
breach or default within such period and thereafter diligently
pursues such cure to completion and continues to perform any
monetary obligations under this Agreement and all other obligations
under this Agreement are performed by the User or the Agent;
provided, that such period shall not exceed ninety (90) days.
(c) Should the Lenders foreclose on any agreements between the
Lenders and the User, or otherwise succeed to the rights, title
and interest of the User in and to the Facility, then within a
reasonable time period after such foreclosure or other succession
to the rights, title and interest of the User in and to the
Facility, the Agent or its successors or assigns shall so
request, the Government will negotiate with the Agent a new
Agreement, which Agreement shall be on substantially the same
terms and conditions as this Agreement.
(d) Except as expressly provided in this Article, nothing contained
herein shall be construed as modifying the obligations of the User
to the Government under this Agreement or a waiver of any rights of
the Government against the User pursuant to this Agreement.
(e) The Government and the User hereby agree that the Lenders and the
Agent are intended third party beneficiaries of this Agreement and
this Article.
3. This amendment may be executed by one or more parties to this amendment on
any number of separate counterparts (including by facsimile transmission),
and all of said counterparts taken together shall be deemed to constitute
one and the same instrument.
4. Except as provided in this amendment, all of the terms and provisions of
the Agreement are and shall remain in full force and effect.
5. Any references to the "Agreement" shall include the Agreement as amended
by this amendment.
6. Nothing contained herein affects or diminishes the Government's statutory
and/or sovereign powers with respect to the operation and/or maintenance
of Xxxx Xxxx.
2
AMENDMENT NO. I
This Amendment shall become effective upon the execution of said
agreement by the Secretary of the Army or his duly authorized representative.
DATED: 1/29/99 LSP ENERGY LIMITED PARTNERSHIP
-------
By: LSP Energy, Inc., its managing
general partner
By: /s/ Xxxxxxx Xxxxx
------------------------------
Name: Xxxxxxx Xxxxx
Title:President
SECRETARY OF THE ARMY OR HIS DULY
DATED: 15th March 1999 AUTHORIZED REPRESENTATIVE
-------------------
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Assistant Secretary of the
Army
ACCEPTED AND ACKNOWLEDGED BY:
CREDIT SUISSE FIRST BOSTON, as agent
for the Lenders
By: /s/ Xxxxx Xxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxx
Title: Director
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
AMENDMENT NO. I
This Amendment shall become effective upon the execution of said
agreement by the Secretary of the Army or his duly authorized representative.
DATED: __________________ LSP ENERGY LIMITED PARTNERSHIP
By: LSP Energy, Inc., its managing
general partner
By:
------------------------------
Name: Xxxxxxx Xxxxx
Title:President
SECRETARY OF THE ARMY OR HIS DULY
DATED: __________________ AUTHORIZED REPRESENTATIVE
By:
------------------------------
Name:
Title:
ACCEPTED AND ACKNOWLEDGED BY:
CREDIT SUISSE FIRST BOSTON, as agent
for the Lenders
By: /s/ Xxxxx Xxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxx
Title: Director
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
