Exhibit 4.22
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SECOND AMENDED AND RESTATED SECURITIES ACCOUNT
CONTROL AGREEMENT
dated as of May 21, 1999
between
LSP BATESVILLE FUNDING CORPORATION,
LSP ENERGY LIMITED PARTNERSHIP
and
THE BANK OF NEW YORK,
as Collateral Agent and Securities Intermediary
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TABLE OF CONTENTS
RECITALS ......................................................................1
AGREEMENT......................................................................3
Section 1. Establishment of Securities Accounts............................3
Section 2. "Financial Assets" Election.....................................4
Section 3. Entitlement Order...............................................4
Section 4. Subordination of Lien; Waiver of Set-Off........................5
Section 5. Choice of Law...................................................5
Section 6. Conflict with Other Agreements..................................5
Section 7. Adverse Claims..................................................6
Section 8. Representations, Warranties and Covenants of the Securities
Intermediary....................................................6
Section 9. Indemnification of Securities Intermediary......................7
Section 10. Successors; Assignment..........................................7
Section 11. Notices.........................................................7
Section 12. Termination.....................................................8
Section 13. Counterparts....................................................9
Section 14. References to Securities Account Control Agreement..............9
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SECOND AMENDED AND RESTATED
SECURITIES ACCOUNT CONTROL AGREEMENT
This SECOND AMENDED AND RESTATED SECURITIES ACCOUNT CONTROL
AGREEMENT, dated as of May 21, 1999 (this "Agreement"), among LSP ENERGY LIMITED
PARTNERSHIP, a Delaware limited partnership (the "Partnership"), LSP BATESVILLE
FUNDING CORPORATION (the "Funding Corporation", and together with the
Partnership, the "Debtors"), THE BANK OF NEW YORK, as Collateral Agent (the
"Collateral Agent"), and THE BANK OF NEW YORK, as Administrative Agent (the
"Securities Intermediary"). Capitalized terms used but not defined herein shall
have the meanings assigned thereto in the Trust Indenture, dated as of May 21,
1999 (the "Indenture"), among the Debtors and The Bank of New York as trustee
(the "Trustee"). All references herein to the "UCC" shall mean the Uniform
Commercial Code as in effect in the State of New York.
RECITALS
WHEREAS, the Partnership was formed for the purpose of developing,
financing, constructing, owning and operating an approximately 837 MW (net)
natural gas-fired combined-cycle electric generation facility located in
Batesville, Mississippi (the "Project");
WHEREAS, pursuant to the Tranche A Facility Credit Agreement, dated
as of August 28, 1998 (the "Initial Credit Agreement"), among the Partnership,
the banks and other financial institutions party thereto (the "Initial Banks")
and Credit Suisse First Boston as agent for the Initial Banks, the Initial Banks
agreed to provide loans (the "Initial Loans") to the Partnership to finance a
portion of the development, construction and start-up of the Project;
WHEREAS, in connection with the execution of the Initial Credit
Agreement and the related financing documents, and as a condition precedent to
the Initial Banks providing the Initial Loans to the Partnership, the
Partnership, the Funding Corporation and LSP Batesville Holding, LLC ("Holding")
entered into the Common Agreement, dated as of August 28, 1998 (the "Initial
Common Agreement") with Credit Suisse First Boston as Tranche A Facility Lender
and L/C Facility Agent and IBJ Xxxxxxxx Bank & Trust Company as Administrative
Agent, Collateral Agent, Intercreditor Agent and Securities Intermediary;
WHEREAS, in connection with the execution of the Initial Credit
Agreement, the Initial Common Agreement and the related financing documents, the
Partnership executed the Securities Account Control Agreement, dated as of
August 28, 1998 (the "Initial Securities Account Control Agreement"), with IBJ
Xxxxxxxx Bank & Trust Company as collateral agent;
WHEREAS, pursuant to the Amended and Restated Bank Facility Credit
Agreement, dated as of December 15, 1998 (the "Supplemental Credit Agreement"),
among the Partnership, the banks and other financial institutions party thereto
(the "Supplemental Banks") and Credit Suisse First Boston as agent for the
Supplemental Banks, (1) the Partnership, the Supplemental Banks and Credit
Suisse First Boston amended and restated the Initial Credit Agreement in its
entirety and (2) the Supplemental Banks agreed to provide loans (the
"Supplemental Loans") to the Partnership to finance a portion of the
development, construction and start-up of the Project;
WHEREAS, in connection with the execution of the Supplemental Credit
Agreement and the related financing documents, and as a condition precedent to
the Supplemental Banks providing the Supplemental Loans to the Partnership, the
Partnership and Credit Suisse First Boston as Bank Facility Agent, L/C Facility
Agent, Administrative Agent, Collateral Agent and Securities Intermediary
executed the Amended and Restated Common Agreement, dated as of the December 15,
1998 (the "Supplemental Common Agreement"), pursuant to which the Initial Common
Agreement was amended and restated in its entirety;
WHEREAS, in connection with the execution of the Supplemental Credit
Agreement and the related financing documents, the Partnership executed the
Amended and Restated Securities Account Control Agreement, dated as of December
15, 1998 (the "Supplemental Securities Account Control Agreement"), with Credit
Suisse First Boston as collateral agent, and pursuant to which the Initial
Securities Account Control Agreement was restated in its entirety;
WHEREAS, the Partnership and the Funding Corporation have determined
to issue (1) $150,000,000 aggregate principal amount of their 7.164% Series A
Senior Secured Bonds due January 15, 2014 (the "Series A Bonds") and (2)
$176,000,000 aggregate principal amount of their 8.160% Series B Senior Secured
Bonds due July 15, 2025 (the "Series B Bonds" and, together with the Series A
Bonds, the "Bonds") pursuant to the Indenture;
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WHEREAS, the Partnership and the Funding Corporation will use the
net proceeds of the Bonds to (1) repay in full the Indebtedness outstanding
under the Supplemental Credit Agreement and (2) pay a portion of the remaining
Project Costs;
WHEREAS, in connection with the issuance and sale of the Bonds and
the execution of the related Financing Documents, the Partnership, the Funding
Corporation, with The Bank of New York as the Collateral Agent, the
Administrative Agent and the Intercreditor Agent are entering into the Second
Amended and Restated Common Agreement (the "Common Agreement"), in order to
amend and restate the Supplemental Common Agreement in its entirety;
WHEREAS, in connection with the issuance and sale of the Bonds and
the execution of the Common Agreement, the Partnership, the Funding Corporation,
the Collateral Agent and the Administrative Agent desire to amend and restate
the Supplemental Securities Account Control Agreement in its entirety; and
WHEREAS, in order to secure the Debtors' obligations under the terms
of the Bonds, the Debtors have granted to the Collateral Agent, for the benefit
of the Secured Parties, a security interest in substantially all of their
tangible and intangible personal property pursuant to (i) the Second Amended and
Restated Security Agreement, dated as of May 21, 1999 (the "Partnership Security
Agreement"), between the Partnership and the Collateral Agent, and (ii) the
Security Agreement, dated as of May 21, 1999 (the "Funding Corporation Security
Agreement," and together with the Second Amended and Restated Partnership
Security Agreement, the "Security Documents") between the Funding Corporation
and the Collateral Agent.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Supplemental Securities Account Control Agreement is hereby
amended and restated in its entirety as follows:
Section 1. Establishment of Securities Accounts. The Securities
Intermediary hereby confirms and agrees that:
(a) The Securities Intermediary has established the accounts set
forth on
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Schedule I hereto (such accounts and any other successor accounts, collectively,
the "Securities Accounts") and the Securities Intermediary shall not change the
name or account number of any of the Securities Accounts without the prior
written consent of the Collateral Agent;
(b) All securities or other property underlying any financial assets
credited to any of the Securities Accounts shall be registered in the name of
the Securities Intermediary, indorsed to the Securities Intermediary or in blank
or credited to another securities account maintained in the name of the
Securities Intermediary and in no case will any financial asset credited to any
of the Securities Accounts be registered in the name of the Debtors, payable to
the order of the Debtors or specially indorsed to the Debtors except to the
extent the foregoing have been specially indorsed to the Securities Intermediary
or in blank;
(c) All property delivered to the Securities Intermediary pursuant
to the Senior Security Documents or the Common Agreement will be promptly
credited to the appropriate Securities Account;
(d) Each Securities Account is a "securities account" as such term
is defined in Section 8-501-(b) of the UCC; and
(e) The Securities Accounts are accounts to which financial assets
may be credited, and the Securities Intermediary shall, subject to the terms of
this Agreement, treat the Collateral Agent as (i) entitled to exercise the
rights that comprise any financial asset credited to any of the Securities
Accounts, and (ii) the "entitlement holder" (within the meaning of Section 8-102
of the UCC) with respect to the Securities Accounts on the books and records of
the Securities Intermediary.
Section 2. "Financial Assets" Election. The Securities Intermediary
hereby agrees that each item of property (whether investment property, financial
asset, security, instrument, cash or any other property of any kind) credited to
any of the Securities Accounts shall be treated as a "financial asset" within
the meaning of Section 8-102(a)(9) of the UCC.
Section 3. Entitlement Orders. If at any time the Securities
Intermediary shall receive any order from the Collateral Agent directing
transfer or redemption of any financial asset relating to any of the Securities
Accounts, the Securities Intermediary shall
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comply with such entitlement order without further consent by the Debtors or any
other person.
Section 4. Subordination of Lien; Waiver of Set-Off. In the event
that the Securities Intermediary has or subsequently obtains by agreement, by
operation of law or otherwise a security interest in any of the Securities
Accounts or any security entitlement credited thereto, the Securities
Intermediary hereby agrees that such security interest shall be subordinate to
the security interest of the Collateral Agent. The financial assets and other
items credited to the Securities Accounts will not be subject to deduction,
set-off, banker's lien or any other right in favor of any person other than the
Collateral Agent (except that the Securities Intermediary may set off (i) all
amounts due to the Securities Intermediary in respect of the Securities
Intermediary's customary fees and expenses for the routine maintenance and
operation of the Securities Accounts and (ii) the face amount of any checks
which have been credited to any of the Securities Accounts but are subsequently
returned unpaid because of uncollected or insufficient funds).
Section 5. Choice of Law. Both this Agreement and each of the
Securities Accounts (as well as the securities entitlements related thereto)
shall be governed by the laws of the State of New York. Regardless of any
provision in any other agreement, for purposes of the UCC, New York shall be
deemed to be the Securities Intermediary's jurisdiction.
Section 6. Conflict with Other Agreements.
(a) In the event of any conflict between this Agreement (or any
portion thereof) and any other agreement now existing or hereafter entered into,
the terms of this Agreement shall prevail.
(b) No amendment or modification of this Agreement or waiver of any
right hereunder shall be binding on any party hereto unless it is in writing and
is signed by all of the parties hereto.
(c) The Securities Intermediary hereby confirms and agrees that:
(i) There are no other agreements entered into between the
Securities Intermediary and the Debtors with respect to any of the
Securities Accounts other than the Senior Security Documents and
agreements with respect
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to the making of Permitted Investments;
(ii) It has not entered into, and until the termination of
this agreement will not enter into, any agreement with any other person
relating to any of the Securities Accounts and/or any financial assets
credited thereto pursuant to which it has agreed to comply with
entitlement orders (as defined in Section 8-102(a)(8) of the UCC) of such
other person; and
(iii) It has not entered into, and until the termination of
this agreement will not enter into, any agreement with the Debtors or the
Collateral Agent purporting to limit or condition the obligation of the
Securities Intermediary to comply with entitlement orders as set forth in
Section 3 hereof.
Section 7. Adverse Claims. Except for the claims and interest of the
Collateral Agent and the Debtors in the Securities Accounts, the Securities
Intermediary does not have actual knowledge of any claim to, or interest in, any
of the Securities Accounts or in any "financial asset" (as defined in Section
8-102(a) of the UCC) credited thereto. If any person asserts any lien,
encumbrance or adverse claim (including any writ, garnishment, judgment, warrant
of attachment, execution or similar process) against any of the Securities
Accounts or in any financial asset carried therein, the Securities Intermediary
will promptly notify the Collateral Agent and the Debtors thereof.
Section 8. Representations, Warranties and Covenants of the
Securities Intermediary. The Securities Intermediary hereby makes the following
representations, warranties and covenants:
(a) The Securities Accounts have been established as set forth in
Section 1 above and the Securities Accounts will be maintained in the manner set
forth herein until termination of this Agreement. The Securities Intermediary
shall not change the name or account number of any of the Securities Accounts
without the prior written consent of the Collateral Agent;
(b) This Agreement is the valid and legally binding obligation of
the Securities Intermediary, except to the extent that enforceability may be
limited by applicable bankruptcy, insolvency, moratorium, reorganization or
other similar laws affecting the enforcement of creditors' rights generally and
subject to general equitable principles;
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(c) The Securities Intermediary shall, during the term of this
Agreement, act as a "securities intermediary" and have the obligations of a
"securities intermediary" under Article 8 of the UCC with respect to the
Securities Accounts; and
(d) No financial asset is or will be registered in the name of the
Debtors, payable to the Debtors' order or specifically indorsed to the Debtors,
except to the extent such financial asset has been endorsed to the Securities
Intermediary or in blank.
Section 9. Indemnification of Securities Intermediary. The Debtors
and the Collateral Agent hereby agree that the Securities Intermediary is
released from any and all liabilities to the Debtors and the Collateral Agent
arising from the terms of this agreement and the compliance of the Securities
Intermediary with the terms hereof, except to the extent that such liabilities
arise directly from the Securities Intermediary's gross negligence. The Debtors
and its successors and assigns shall at all times indemnify and save harmless
the Securities Intermediary from and against any and all claims, actions and
suits of others arising out of the terms of this agreement or the compliance of
the Securities Intermediary with the terms hereof, except to the extent that
such arises directly from the Securities Intermediary's gross negligence, and
from and against any and all liabilities, losses, damages, costs, charges,
counsel fees and other expenses of every nature and character arising by reason
of the same, until the termination of this Agreement.
Section 10. Successors; Assignment. The terms of this Agreement
shall be binding upon, and shall inure to the benefit of, the parties hereto and
their respective successors and permitted assigns. The Collateral Agent may
assign its rights hereunder to any successor collateral agent in accordance with
the Common Agreement, the Collateral Agency Agreement and the other Financing
Documents. Any other assignment by the Collateral Agent shall be effective only
with the express written consent of the Securities Intermediary and by sending
written notice of such assignment to the Debtors.
Section 11. Notices. Any notice, request or other communication
required or permitted to be given under this Agreement shall be in writing and
deemed to have been properly given when delivered in person, or when sent by
telecopy or other electronic means and electronic confirmation of error free
receipt is received or upon receipt when sent by certified or registered United
States mail, return receipt requested, postage prepaid, addressed to the party
at the address set forth below.
Debtors: LSP Energy Limited Partnership
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LSP Batesville Funding Corporation
Xxx Xxxxx Xxxxxx
00xx Xxxxx Xxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
Collateral Agent: The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee
Administration
Securities
Intermediary: The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee
Administration
Any party may change its address for notices in the manner set forth
above.
Section 12. Termination. The rights and powers granted herein to the
Collateral Agent have been granted in order to perfect its security interest in
the Securities Accounts, are powers coupled with an interest and will neither be
affected by the bankruptcy of either of the Debtors nor the lapse of time. The
obligations of the Securities Intermediary to the Collateral Agent pursuant to
this Agreement shall continue in effect until the security interests of the
Collateral Agent in the Securities Accounts have been terminated pursuant to the
terms of the Security Documents and the Collateral Agent has notified the
Securities Intermediary of such termination in writing. The Collateral Agent
agrees to provide a Notice of Termination in substantially the form of Exhibit A
hereto to the Securities Intermediary upon the request of the Debtors on or
after the termination of the Collateral Agent's security interest in the
Securities Accounts pursuant to the terms of the Partnership Security Agreement.
The termination of this Agreement shall not terminate the Securities Accounts or
alter the obligations of the Securities Intermediary to the
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Debtors pursuant to any other agreement with respect to the Securities Accounts.
Section 13. Counterparts. This Agreement may be executed in any
number of counterparts, all of which shall constitute one and the same
instrument, and any party hereto may execute this Agreement by signing and
delivering one or more counterparts.
Section 14. References to Securities Account Control Agreement. On
and after the date hereof, each reference in any of the Transaction Documents to
the "Securities Account Control Agreement" shall mean the Securities Account
Control Agreement as amended and restated hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amended and Restated Securities Account Control Agreement to be executed by
their respective officers or representatives hereunto duly authorized as of the
day and year first above written.
LSP ENERGY LIMITED PARTNERSHIP
By: LSP Energy, Inc.,
its general partner
By: /s/ Xxxxx Xxxxxxxxxxx
------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Senior Vice President and
Secretary
LSP BATESVILLE FUNDING CORPORATION
By: /s/ Xxxxx Xxxxxxxxxxx
------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Senior Vice President and
Secretary
THE BANK OF NEW YORK,
not in its individual capacity but solely as
Collateral Agent
By: /s/ Xxxx Xxxx Xxxxxxx
------------------------
Name: Xxxx Xxxx Xxxxxxx
Title: Assistant Vice President
Signature Page to Securities Account Control Agreement
THE BANK OF NEW YORK
not in its individual capacity but solely as
Administrative Agent
By: /s/ Xxxx Xxxx Xxxxxxx
------------------------
Name: Xxxx Xxxx Xxxxxxx
Title: Assistant Vice President
Signature Page to Securities Account Control Agreement
Schedule I
SECURITIES ACCOUNTS
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Account Number Name of Account
-------------- ---------------
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220776 Batesville - Revenue Acct. - BoNY as Coll. Agent
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220775 Batesville - Constr. Acct. - BoNY as Coll. Agent
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220781 Batesville - MMR Acct. - BoNY as Coll. Agent
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220777 Batesville - O&M Acct. - BoNY as Coll. Agent
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220785 Batesville - Prcd. Acct. - BoNY as Coll. Agent
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220778 Batesville - DSP Acct. - BoNY as Coll. Agent
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220779 Batesville - DSR Acct. - BoNY as Coll. Agent
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220780 Batesville - DSR LOC Acct. - BoNY as Coll. Agent
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220783 Batesville - Dist. Susp. Acct. - BoNY as Coll. Agent
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Exhibit A
[Letterhead of Collateral Agent]
[Date]
The Bank of New York,
as Securities Intermediary
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee
Administration
Re: Termination of Securities Account Control Agreement
You are hereby notified that the Second Amended and Restated
Securities Account Control Agreement (the "Agreement") between you, LSP
Batesville Funding Corporation, LSP Energy Limited Partnership and the
undersigned (a copy of which is attached) is terminated and you have no further
obligations to the undersigned pursuant to such agreement. Notwithstanding any
previous instructions to you, you are hereby instructed to accept all future
directions with respect to the accounts listed on Schedule I to the Agreement
from either LSP Batesville Funding Corporation or LSP Batesville Limited
Partnership. This notice terminates any obligations you may have to the
undersigned with respect to such accounts under the Agreement, however nothing
contained in this notice shall alter any obligations which you may otherwise owe
to LSP Batesville Funding Corporation or LSP Energy Limited Partnership pursuant
to any other agreement.
You are instructed to deliver a copy of this notice by facsimile
transmission to both LSP Batesville Funding Corporation and LSP Energy Limited
Partnership.
Very truly yours,
The Bank of New York,
not in its individual capacity, but solely
as Collateral Agent
By: _____________________
Name:
Title:
A-1
