Exhibit 4.13
SECOND AMENDED AND RESTATED
EQUITY CONTRIBUTION AGREEMENT
This SECOND AMENDED AND RESTATED EQUITY CONTRIBUTION AGREEMENT,
dated as of May 21, 1999 (as amended, restated, modified or otherwise
supplemented from time to time in accordance with the terms hereof, this
"Agreement"), is among LSP BATESVILLE HOLDING, LLC (the "Equity Contributor"),
LSP ENERGY LIMITED PARTNERSHIP, a Delaware limited partnership (the
"Partnership") and THE BANK OF NEW YORK, as collateral agent (together with its
successors in such capacity, the "Collateral Agent") for the Senior Secured
Parties pursuant to the Second Amended and Restated Collateral Agency Agreement,
dated as of the date hereof (as amended, restated, modified or otherwise
supplemented from time to time in accordance with the terms thereof, the
"Collateral Agency Agreement"), among the Partnership, LSP Batesville Funding
Corporation (the "Funding Corporation"), the Trustee, the VEPCO L/C Agent, the
Collateral Agent, the Intercreditor Agent, the Administrative Agent and the
other Senior Secured Parties from time to time party thereto.
RECITALS
A. 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.
B. The Equity Contributor owns, directly or indirectly, 100% of the
limited and general partnership interests in the Partnership.
C. 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.
D. 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 Equity Contributor
executed the Equity Contribution Agreement, dated as of August 28, 1998 (the
"Initial Equity Contribution Agreement"), in favor of the Partnership and IBJ
▇▇▇▇▇▇▇▇ Bank & Trust Company, as
collateral agent, pursuant to which the Equity Contributor agreed to make cash
equity contributions to the Partnership from time to time in accordance with the
terms of the Initial Equity Contribution Agreement.
E. 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 Supple mental 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.
F. 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
Equity Contributor executed the Amended and Restated Equity Contribution
Agreement, dated as of the December 15, 1998 (the "Supplemental Equity
Contribution Agreement"), in favor of the Partnership and Credit Suisse First
Boston, as collateral agent, pursuant to which the Equity Contributor agreed to
make cash equity contributions to the Partnership from time to time in
accordance with the terms of the Supplemental Equity Contribution Agreement.
G. 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 Trust Indenture, dated as of the date hereof
(the "Indenture"), among the Partnership, the Funding Corporation and The Bank
of New York, as trustee (the "Trustee").
H. 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.
I. In connection with the issuance and sale of the Bonds and the
execution of the related Financing Documents, the Equity Contributor, the
Partnership and
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the Collateral Agent would like to amend and restate the Supplemental Equity
Contribution Agreement in its entirety.
AGREEMENT
NOW THEREFORE, in consideration of the Senior Secured Parties
entering into the Financing Documents and to induce the Holders to purchase the
Bonds, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the Supplemental Equity Contribution Agreement
is hereby amended and restated in its entirety as follows:
1. Definitions; Principles of Construction. (a) Unless otherwise
defined herein, terms defined in the Indenture shall have such defined meanings
when used herein.
(b) The following terms shall have the following respective
meanings:
"Default Equity Contribution" shall mean any Equity Contribution
made pursuant to Section 2(b)(i) or (ii).
"Equity Contribution" shall mean a cash capital contribution or any
other cash payment to the Partnership required to be made by the Equity
Contributor to the Partnership in accordance with Section 2.
"Equity Letter of Credit" shall mean an irrevocable letter of credit
issued by a Qualified Letter of Credit Issuer, naming Cogentrix/Batesville as
the account party and the Collateral Agent as beneficiary, which (a) shall be
substantially in the form of Exhibit A hereto, (b) shall have a face amount
equal to the Total Equity Amount and (c) shall expire on the date upon which the
Equity Contributor has indefeasibly paid in full Equity Contributions in an
aggregate amount equal to the Total Equity Amount pursuant to Section 2.
"Equity Requisition Certificate" shall mean a certificate in the
form of Exhibit B attached hereto.
"Ordinary Equity Contribution" shall mean any Equity Contribution
made pursuant to Section 2(a) or Section 2(b)(iii), (iv), (v), (vi) or (vii).
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"Qualified Letter of Credit Issuer" shall mean a bank or other
financial institution whose long-term unsecured debt is rated "A" or higher by
S&P and "A2" or higher by ▇▇▇▇▇'▇.
"Total Equity Amount" shall mean $54,000,000.
(c) Unless otherwise expressly stated herein, the principles of
construction set forth in the Indenture shall apply to this Agreement.
2. Capital Contributions. (a) The Equity Contributor shall
contribute or cause to be contributed to the Partnership from time to time, for
the benefit of the Senior Secured Parties, an Equity Contribution on the date
and in the amount specified in any Equity Requisition Certificate delivered by
the Partnership to the Equity Contributor; provided, however, that the aggregate
amount of such Equity Contribution, together with the amount of all previous
Equity Contributions made pursuant to this Section 2(a), shall not exceed the
Total Equity Amount.
(b) The Equity Contributor shall contribute or cause to be
contributed to the Partnership, for the benefit of the Senior Secured Parties,
an Equity Contribution in an amount equal to the Total Equity Amount less the
aggregate amount of all previous Equity Contributions, if any, made pursuant to
Section 2(a), on the earliest to occur of the following:
(i) the date on which an Event of Default shall have occurred;
(ii) the date on which a Bankruptcy Event shall have occurred with
respect to the Equity Contributor;
(iii) the date on which all proceeds of the Bonds shall have been
disbursed from the Construction Account to pay Project Costs in accordance with
Section 3.1 of the Common Agreement, if the Partnership has not requested an
Equity Contribution in an amount necessary to pay all or a portion of the
remaining Project Costs pursuant to Section 2(a) within forty-five (45) days
after the date of the final disbursement of the proceeds of the Bonds from the
Construction Account;
(iv) the Completion Date;
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(v) the Date Certain;
(vi) the date which is thirty (30) days after the date on which the
issuer of the Equity Letter of Credit fails to be a Qualified Letter of Credit
Issuer; provided that the Equity Contributor shall not be required to make an
Equity Contribution pursuant to this clause (vi) if, during the thirty (30) day
period after the date on which the issuer of the Equity Letter of Credit fails
to be a Qualified Letter of Credit Issuer, the Equity Contributor shall provide
the Collateral Agent with a replacement Equity Letter of Credit issued by a
Qualified Letter of Credit Issuer; and
(vii) the date which is thirty (30) days prior to the date of
expiration of the Equity Letter of Credit; provided that the Equity Contributor
shall not be required to make an Equity Contribution pursuant to this clause
(vii) if on or prior to such date the Equity Contributor shall have provided to
the Collateral Agent a replacement Equity Letter of Credit issued by a Qualified
Letter of Credit Issuer.
3. Application of Funds.
(a) Any Equity Contributions made pursuant to clause (a) or clause
(b)(iii), (iv), (v), (vi) or (vii) of Section 2 shall be paid directly to the
Construction Account for application in accordance with Section 3.1 of the
Common Agreement.
(b) Any Equity Contributions made pursuant to clause (b)(i) or (ii)
of Section 2 shall be paid directly to the Proceeds Account for application in
accordance with Section 3.10 of the Common Agreement.
4. Interest. Any amount which is not paid when due pursuant to
Section 2 shall bear interest at a rate equal to the Post Default Rate
(calculated quarterly in arrears and based upon a 360 day year) until paid in
full.
5. Equity Letter of Credit. (a) On or before the Closing Date, the
Equity Contributor shall deliver to the Collateral Agent an Equity Letter of
Credit issued by a Qualified Letter of Credit Issuer in support of its
obligations under this Agreement.
(b) In the event that the Equity Contributor shall fail to make an
Equity Contribution when due in accordance with Section 2, the Collateral Agent,
upon receipt of notice from the Administrative Agent that such failure has
occurred, shall make a demand
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for payment under the Equity Letter of Credit in the amount of such Equity
Contribution; provided that the Collateral Agent's failure to make such demand
for payment under the Equity Letter of Credit shall not relieve the Equity
Contributor of its obligations under this Agreement. Any payment made directly
to the Collateral Agent under the Equity Letter of Credit shall be deemed to be
an Equity Contribution under Section 2 and shall satisfy the obligation of the
Equity Contributor to the Partnership and the Senior Secured Parties hereunder.
(c) The Equity Contributor shall cause the Equity Letter of Credit
(and all renewals, extensions and replacements thereof) to be outstanding until
the date on which the Equity Contributor's obligations under this Agreement
shall have been indefeasibly satisfied and performed in full.
(d) Until the expiration date of the Equity Letter of Credit set
forth in clause (c) immediately above, the Equity Contributor shall cause to be
renewed, extended or replaced the Equity Letter of Credit (or any renewed,
extended or replaced Equity Letter of Credit) within thirty (30) days prior to
any expiration date thereof with a new, extended or replacement Equity Letter of
Credit of like tenor with and substantially in the form of the original Equity
Letter of Credit and other wise satisfying all requirements of the Financing
Documents relating to the Equity Letter of Credit. Any such renewed, extended or
replacement Equity Letter of Credit shall be issued by a Qualified Letter of
Credit Issuer.
6. Obligations Unconditional; Waivers. (a) The obligations of the
Equity Contributor under Section 2 shall be absolute, unconditional and
irrevocable under any and all circumstances, and shall be performed by the
Equity Contributor regardless of:
(i) the existence of any indebtedness owing by the
Partnership, any Partner or any Affiliate thereof to the Equity
Contributor or of any setoff, abatement, counterclaim, recoupment, defense
or other right or claim which the Equity Contributor may have against the
Partnership, any Partner, any Affiliate thereof or any other Person;
(ii) the occurrence of a Bankruptcy Event of the Partner ship,
any Partner, any Affiliate thereof or any other Person or the pendency
against the Partnership, any Partner, any Affiliate thereof or any other
Person of any case, suit or proceeding under the Bankruptcy Code;
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(iii) the invalidity, irregularity or unenforceability of or
any change in or amendment to, any Transaction Document, including,
without limitation, the Partnership Agreement;
(iv) the institution or absence of any action to enforce any
Transaction Document or the waiver or consent by the Equity Contributor or
any Senior Secured Party with respect to the provisions thereof, the
obtaining of any judgment against the Partnership, any Partner or any
Affiliate thereof, or any action to enforce such judgment, or the
inability to recover from the Partnership, any Partner or any Affiliate
thereof because of any statue of limitations, laches or otherwise;
(v) the failure to complete or the destruction of the Project
or any other circumstance which might otherwise constitute a legal or
equitable discharge of or a defense to the Equity Contributor's
undertakings hereunder; or
(vi) any other circumstances whatsoever which might otherwise
constitute an excuse for nonperformance of the obligations of the Equity
Contributor under Section 2, whether similar or dissimilar to any of the
circumstances herein specified.
(b) The obligation of the Equity Contributor to make or cause to be
made an Equity Contribution as provided in Section 2 shall not be affected by
any abatement, reduction, limitation, impairment, termination, setoff, defense,
counter claim or recoupment whatsoever or any right to any thereof, and shall
not be re leased, discharged or in any way affected by any reorganization,
arrangement, compromise or plan affecting the Partnership, any Partner or any
Affiliate thereof.
(c) The Equity Contributor hereby unconditionally:
(i) waives notice of acceptance hereof, of any action taken or
omitted in reliance hereon and of any defaults by the Partnership, any
Partner or any Affiliate thereof in the payment of any amounts due,
diligence, protest, presentment, filing of claims with a court in
connection with a Bankruptcy Event of the Partnership, any Partner or any
Affiliate thereof, any right to require a proceeding first against the
Partnership, any Partner or any Affiliate thereof or that the Partnership,
any Partner or any Affiliate thereof be joined in any bankruptcy or
similar
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proceeding, any marshalling of assets of the Partnership, any Partner or
any Affiliate thereof, the Partnership's, any Partner's or any such
Affiliate's providing security for the Financing Documents or any notice
of default with respect thereto, or any other act or omission or thing or
delay to do any other act or thing which might in any manner or to any
extent vary the risk of the Equity Contributor or which might otherwise
operate as a discharge to the Equity Contributor;
(ii) agrees that this Agreement shall remain in full force and
effect without regard to, and shall not be affected or impaired by, any
invalidity, irregularity or unenforceability in whole or in part of any of
the Transaction Documents, including, without limitation, the Partnership
Agreement, which may now or hereafter be caused or imposed in any manner
whatsoever;
(iii) agrees that no failure or delay on the part of the
Partnership or any Senior Secured Party or any other Person in exercising
any right, power or privilege hereunder or under any other Transaction
Document and no course of dealing between the Equity Contributor on the
one hand, and the Partnership, any Partner, any Affiliate thereof or any
Senior Secured Party, on the other hand, shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder;
(iv) agrees that the rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies which the
Partnership, any Partner, any Affiliate thereof or any Senior Secured
Party would other wise have; and
(v) agrees that this Agreement shall be discharged only by
complete performance and payment in full of the obligations contained
herein and that the Equity Contributor shall have no right to withhold or
set-off against any payments due for any reason.
7. Bankruptcy. Unless and until all of the Senior Secured
Obligations shall have been paid in full, the Equity Contributor agrees not to
bring any proceeding or join with any creditor in bringing any proceeding
against the Partnership under the Bankruptcy Code. If the Equity Contributor, in
violation of the provisions set forth herein, shall commence, prosecute or
participate in any suit, action or proceeding against the Partner-
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ship, the Collateral Agent may (but shall not be obligated to) intervene and
interpose such defense or plea in its own name or in the name of the Partnership
and may, in any event, have standing to restrain the enforcement of any right or
remedy of the Equity Contributor, insofar as any such right or remedy is being
exercised by the Equity Contributor against assets of the Partnership, in its
own name or in the name of the Partnership, in the same suit, action or
proceeding or in any independent suit, action or proceeding.
8. Modification of Obligations. The Equity Contributor agrees that
the Senior Secured Parties may, at any time and from time to time, without the
consent of or notice to the Equity Contributor, without incurring responsibility
to the Equity Contributor and without impairing or releasing any of the Senior
Secured Parties' rights or any of the obligations of the Equity Contributor
under this Agreement:
(a) change the amount, manner, place or terms of payment or change
or extend the time of payment or renew or alter the Senior Secured Obligations
in any manner or enter into or amend in any manner any agreement relating to the
Senior Secured Obligations;
(b) sell, exchange, release or otherwise deal with any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever securing,
any of the Senior Secured Obligations;
(c) release anyone liable in any manner for payment or collection of
the Senior Secured Obligations; and
(d) exercise or refrain from exercising any rights against the
Partnership or any other Person.
9. Representations and Warranties: The Equity Contributor hereby
represents and warrants that:
(a) it is a limited liability company duly formed, validly existing
and in good standing under the laws of the jurisdiction of its formation, and it
is duly qualified and authorized to do business and is in good standing as a
foreign limited liability company in each jurisdiction in which it owns or
leases real property or in which the nature of its business requires it to be so
qualified;
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(b) it has all necessary power and authority to execute and deliver
this Agreement and to perform all of its obligations hereunder, and its
execution, delivery and performance of this Agreement have been duly authorized
by all necessary action on its part and do not require any approval or consent
of any holder (or any trustee for or agent of any holder) of any indebtedness or
other obligation of it or any other person or entity, other than approvals or
consents which have previously been obtained and which are in full force and
effect;
(c) it has duly executed and delivered this Agreement, and this
Agreement constitutes the valid and binding obligation of it enforceable against
it in accordance with its terms, except as enforceability may be limited by
general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights of
creditors generally;
(d) the execution and delivery by it and the performance by it of
its obligations hereunder do not (i) conflict with its certificate of formation
or operating agreement, (ii) conflict with or result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of (or the obligation to create or impose)
any lien upon any of its properties or assets pursuant to the terms of, any
indenture, mortgage, deed of trust, agreement or other instrument to which it is
a party or by which it or any of its properties or assets is bound, except to
the extent that such conflict, breach, default, creation or imposition would not
reasonably be expected to materially and adversely affect its ability to perform
its obligations under this Agreement, or (iii) conflict with any Applicable
Laws, or any order, writ, injunction or decree of any court or Governmental
Authority binding on it or its properties or assets, except to the extent such
conflict would not reasonably be expected to materially and adversely affect its
ability to perform its obligations under this Agreement;
(e) no Governmental Approvals or other consents or approvals are
required in connection with the execution, delivery and performance by it of
this Agreement other than those which have previously been obtained and which
are in full force and effect;
(f) it is in compliance with all Applicable Laws except to the
extent that the failure to comply therewith would not reasonably be expected to
materially and adversely affect its ability to perform its obligations under
this Agreement; and
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(g) no litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the best of its
knowledge, threatened against it or any of its properties, rights, revenues or
assets which would reasonably be expected to materially and adversely affect its
ability to perform its obligations under this Agreement.
10. Expenses. The Equity Contributor shall pay to the Collateral
Agent, on or prior to five (5) days after the Collateral Agent makes a demand
for such payment, the amount of any and all reasonable expenses, including the
reason able fees and expenses of its counsel, which the Collateral Agent may
incur in connection with (a) the exercise or enforcement of any of the rights of
the Collateral Agent hereunder or (b) the failure by the Equity Contributor to
perform or observe any of the provisions hereof, together with interest thereon
from the date when due at a rate per annum equal to the Post Default Rate
applicable to the Series A Bonds. Any amount payable by the Equity Contributor
pursuant to this Section 10 shall be payable as specified in the preceding
sentence and shall constitute Senior Secured Obligations.
11. Notices. Unless otherwise specifically herein provided, all
notices required or permitted under the terms and provisions hereof shall be in
writing and delivered personally, or by registered or certified first-class mail
with postage prepaid, or made, given or furnished in writing by confirmed
telecopy or facsimile transmission, or by prepaid courier service to the
appropriate party as set forth below:
Equity Contributor: LSP Batesville Holding, LLC
c/o LS Power Management, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Partnership: LSP Energy Limited Partnership
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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Collateral Agent: The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Trustee
Administration
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may change its address by giving notice of such change in the manner
set forth herein. Any notice given to a party by mail or by courier shall be
deemed delivered upon receipt thereof (unless the party refuses to accept
delivery, in which case the party shall be deemed to have accepted delivery upon
presentation). Any notice given to a party by telecopy or facsimile transmission
shall be deemed effective on the date it is actually sent to the intended
recipient by confirmed telecopy or facsimile transmission to the telecopier
number specified above.
12. Reinstatement. This Agreement shall continue to be effective or
be reinstated, as the case may be, if at any time any amount received by the
Collateral Agent hereunder or pursuant hereto is rescinded or must otherwise be
restored or returned by the Collateral Agent upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Equity Contributor, the
Partnership, any Partner or any Affiliate thereof or upon the appointment of any
intervenor or conservator of, or trustee or similar official for, the Equity
Contributor, the Partner ship, any Partner or any Affiliate thereof, or any
substantial part of the Equity Contributor's, the Partnership's, any Partner's
or any such Affiliate's assets, or upon the entry of an order by any court
avoiding the payment of such amount, or otherwise, all as though such payments
had not been made.
13. Amendments. No waiver, amendment, modification or termination of
any provision of this Agreement, or consent to any departure by the Equity
Contributor therefrom, shall in any event be effective without the prior written
consent of the Collateral Agent, acting upon directions from (x) the
Intercreditor Agent acting pursuant to the Intercreditor Agreement or (y) the
Senior Secured Parties acting pursuant to Section 7.15 of the Intercreditor
Agreement, or as otherwise expressly provided herein. Any such
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waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
14. Successors and Assigns. This Agreement shall be binding upon the
Equity Contributor and its successors and assigns and shall inure to the benefit
of the Partnership and the Collateral Agent and their respective successors and
assigns. The Equity Contributor may not assign or otherwise transfer any of its
rights or obligations under this Agreement without the written consent of the
Collateral Agent, acting upon directions from (x) the Intercreditor Agent acting
pursuant to the Intercreditor Agreement or (y) the Senior Secured Parties acting
pursuant to Section 7.15 of the Intercreditor Agreement, or as otherwise
expressly provided herein.
15. Survival. All agreements, statements, representations and
warranties made by the Equity Contributor herein or in any certificate or other
instrument delivered by the Equity Contributor or on its behalf under this
Agreement shall be considered to have been relied upon by the Collateral Agent
and the other Senior Secured Parties and shall survive the execution and
delivery of this Agreement until the satisfaction in full by the Equity
Contributor of its obligations hereunder.
16. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
17. Headings Descriptive. The headings of the several Sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
18. Severability. In case any provision contained in or obligation
under this Agreement shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
19. Governing Law. This Agreement shall be governed by 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
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conflict of law rules thereof other than Section 5-1401 of the New York General
Obligations Law.
20. Consent to Jurisdiction. Any legal action or proceeding by or
against the Equity Contributor with respect to or arising out of this Agreement
may be brought in or removed to the courts of the State of New York, in and for
the County of New York, or of the United States of America for the Southern
District of New York. By execution and delivery of this Agreement, the Equity
Contributor accepts, for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts for legal proceedings
arising out of or in connection with this Agreement and irrevocably consents to
the appointment of CT Corporation System, with offices on the date hereof at
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its agent to receive service of
process in New York, New York. If for any reason such agent shall cease to be
available to act as such, the Equity Contributor agrees to appoint a new agent
on the terms and for the purposes of this provision. Nothing herein shall affect
the right to serve process in any other manner permitted by law or any right to
bring legal action or proceedings in any other competent jurisdiction. The
Equity Contributor further agrees that the aforesaid courts of the State of New
York and of the United States of America for the Southern District of New York
shall have exclusive jurisdiction with respect to any claim or counterclaim of
the Equity Contributor based upon the assertion that the rate of interest
charged by or under this Agreement or under the other Financing Documents is
usurious. The Equity Contributor hereby waives any right to stay or dismiss any
action or proceeding under or in connection with the Project, this Agreement or
any other Transaction Document brought before the foregoing courts on the basis
of forum non-conveniens or improper venue.
21. Waiver of Jury Trial. EACH OF THE EQUITY CONTRIBUTOR, THE
PARTNERSHIP AND THE COLLATERAL AGENT HEREBY KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN), OR ACTIONS OF THE OTHER PARTIES HERETO. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT.
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22. Entire Agreement. This Agreement, together with any other
agreement executed in connection herewith, is intended by the parties as a final
expression of their agreement as to the matters covered hereby and is intended
as a complete and exclusive statement of the terms and conditions thereof.
23. Third Party Beneficiaries. The agreements of the parties hereto
are intended to benefit the Senior Secured Parties and their respective
successors and assigns.
24. Consent. By its execution and delivery hereof, each of the
Equity Contributor and the Partnership consents to the assignment of this
Agreement to the Collateral Agent for the benefit of the Senior Secured Parties,
and the grant to the Collateral Agent of a security interest in all of the
Partnership's right, title and interest in and to this Agreement, pursuant to
the Senior Security Documents. The Partnership and the Equity Contributor hereby
agree that (a) pursuant to the exercise of remedies, the Collateral Agent or its
designee or transferee may succeed to the rights, powers, privileges, interests
and remedies of the Partnership, whether arising under this Agreement or by
statute or in law or in equity or otherwise and (b) the Collateral Agent shall
have the right to enforce directly the provisions hereof against each of the
parties hereto. In addition to, and not in derogation of, the foregoing, the
Collateral Agent may, in addition to proceeding in its name, or otherwise,
proceed to protect and enforce the rights of the Partnership under this
Agreement by suit in equity, action at law or other appropriate proceedings,
whether for the specific performance of any covenant or agreement contained in
this Agreement or otherwise. Each and every right of the Collateral Agent shall,
to the extent permitted by law, be cumulative and shall be in addition to any
right or remedy granted in any Financing Document or now or hereafter existing
at law or in equity or by statute.
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the date first written above.
LSP BATESVILLE HOLDING, LLC
By: LS Power Management, LLC,
its manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and
Secretary
LSP ENERGY LIMITED PARTNERSHIP
By: LSP Energy, Inc.,
its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and
Secretary
THE BANK OF NEW YORK,
as the Collateral Agent
By: /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
Exhibit A to
Equity Contribution Agreement
FORM OF IRREVOCABLE STANDBY LETTER OF CREDIT
Beneficiary:
The Bank of New York,
as collateral agent (the "Collateral Agent")
Gentlemen:
We hereby establish for the account of Cogentrix/Batesville, LLC (the "Account
Party") our Irrevocable Standby Letter of Credit No. __________ in favor of the
Collateral Agent pursuant to the Second Amended and Restated Equity Contribution
Agreement, dated as of May 21, 1999 (the "Equity Contribution Agreement"), among
LSP Batesville Holding, LLC (the "Equity Contributor"), LSP Energy Limited
Partnership (the "Partnership") and the Collateral Agent, in the aggregate
amount of fifty-four million dollars ($54,000,000). Unless expressly stated
other wise, capitalized terms used but not defined herein shall have the
meanings given to such terms in the Equity Contribution Agreement (including
terms incorporated therein from the Indenture (as defined below)).
The stated amount of this Letter of Credit shall be reduced by (i) drawings made
hereunder and (ii) Equity Contributions made by the Equity Contributor pursuant
to Section 2 of the Equity Contribution Agreement.
Funds under this Letter of Credit are available in whole or in part against your
draft drawn at sight on us accompanied by the following document(s):
Your signed and dated statement as follows:
"The undersigned officer of the Collateral Agent hereby certifies that:
We hereby request a drawing in the amount of $__________ (the "Requested
Drawing") and the Requested Drawing, together with all previous drawings
hereunder and all Equity
Contributions made by the Equity Contributor pursuant to the Equity Contribution
Agreement, does not exceed the stated amount of this Letter of Credit.
[Insert Option A, Option B, Option C, Option D, Option E, Option F, Option G
and/or Option H].
Option A: "The Equity Contributor has failed to make an Equity Contribution to
the Partnership in the amount of the Requested Drawing as requested in the
Equity Requisition Certificate, dated ________ __, ____, submitted by the
Partnership to the Equity Contributor."
Option B: "An Event of Default has occurred under the Trust Indenture, dated as
of May 21, 1999 (the "Indenture"), among the Partnership, LSP Batesville Funding
Corporation and The Bank of New York, as Trustee, and the Equity Contributor has
failed to make an Equity Contribution as required by Section 2(b)(i) of the
Equity Contribution Agreement."
Option C: "A Bankruptcy Event with respect to the Equity Contributor has
occurred and the Equity Contributor has failed to make an Equity Contribution as
required by Section 2(b)(ii) of the Equity Contribution Agreement."
Option D: "All proceeds of the Bonds were withdrawn from the Construction
Account on ________ __, ____ and the Partnership has not submitted an Equity
Requisition Certificate to the Equity Contributor within the time period
specified in and as contemplated by Section 2(b)(iii) of the Equity Contribution
Agreement, and the Equity Contributor has failed to make an Equity Contribution
as required by Section 2(b)(iii) of the Equity Contribution Agreement."
Option E: "The Completion Date has occurred and the Equity Contributor has
failed to make an Equity Contribution as required by Section 2(b)(iv) of the
Equity Contribution Agreement."
Option F: "The Date Certain has occurred and the Equity Contributor has failed
to make an Equity Contribution as required by Section 2(b)(v) of the Equity
Contribution Agreement."
Option G: "The long-term unsecured debt of the Issuer of this Letter of Credit
is not rated "A" or better by Standard & Poor's Ratings Group and "A2" or better
by ▇▇▇▇▇'▇ Investors Services, Inc. and a replacement Equity Letter of Credit,
satisfactory in all respects to
the Collateral Agent, from a Qualified Letter of Credit Issuer was not provided
to the Collateral Agent within thirty (30) days after the loss of such rating,
and the Equity Contributor has failed to make an Equity Contribution as required
by Section 2(b)(vi) of the Equity Contribution Agreement."
Option H: "The Equity Contributor has failed to renew this Letter of Credit or
replace this Letter of Credit with a replacement Equity Letter of Credit,
satisfactory in all respects to the Collateral Agent, from a Qualified Letter of
Credit Issuer, in either case within thirty (30) days prior to the expiration
hereof, and the Equity Contributor has failed to make an Equity Contribution as
required by Section 2(b)(vii) of the Equity Contribution Agreement."
Partial drawings under this Letter of Credit are permitted.
All banking charges are for the account of the Account Party.
Reference in this Letter of Credit to the Equity Contribution Agreement (as
defined above) and the Indenture (as defined above) is for identification
purposes only. Neither the Equity Contribution Agreement nor the Indenture is
incorporated in or made a part of this Letter of Credit.
Our obligation under this Letter of Credit shall not be affected by any
circumstance, claim or defense, real or personal, as to the enforceability of
the Equity Contribution Agreement or any other document executed and delivered
in connection therewith; it being understood that our obligation shall be that
of a primary obligor and not that of a surety guarantor or accommodation maker.
Drafts and documents must be presented on or before _________ __, ____.
We hereby agree with the drawers, endorsers and bona fide holders of drafts
drawn under and in compliance with the terms of this Letter of Credit that such
drafts shall be duly honored on presentation and delivery of the documents
specified at our office at _______________________.
This Letter of Credit sets forth in full the terms of our undertaking, and such
under taking shall not in any way be modified, amended or amplified by reference
to any document, instrument or agreement referred to herein or in which this
Letter of Credit relates and any
such reference shall not be deemed to incorporate herein by reference any
document, instrument or agreement.
This Letter of Credit is subject to the Uniform Customs and Practice for
Documentary Credits, ICC Publication No. 500 ("UCP"). Except to the extent
applicable provisions of the UCP shall prevail, this Letter of Credit shall be
governed by and construed in accordance with the laws of the United States of
America and the State of New York, including the Uniform Commercial Code as in
effect in the State of New York.
Sincerely,
Exhibit B to
Equity Contribution Agreement
FORM OF EQUITY REQUISITION CERTIFICATE
[DATE]
LSP Batesville Holding, LLC
c/o LS Power Management, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This Equity Requisition Certificate is delivered to you pursuant to
Section 2(a) of that certain Second Amended and Restated Equity Contribution
Agreement, dated as of May 21, 1999 (the "Equity Contribution Agreement"), by
and among you (the "Equity Contributor"), the undersigned (the "Partnership")
and The Bank of New York, in its capacity as Collateral Agent (the "Collateral
Agent"). Capitalized terms used herein but not otherwise defined herein shall
have the meanings assigned to them in the Equity Contribution Agreement.
The Partnership hereby certifies as follows:
1. The aggregate amount of the Equity Contribution requested
pursuant to this Equity Requisition Certificate and all Equity
Contributions previously made by you pursuant to Section 2 of the Equity
Contribution Agreement is $_______________; and
2. The Total Equity Amount less the amount specified in clause (1)
immediately above is $_______________.
B-1
The Partnership hereby requests that the Equity Contributor make an Equity
Contribution to the Partnership on the date and in the amount requested below
(the "Requested Equity Contribution Amount"), which amount is to be paid to the
Construction Account:
Date: ___________________________
Amount: $___________________________
Very truly yours,
LSP ENERGY LIMITED PARTNERSHIP
By: LSP Energy, Inc.,
its general partner
By: _________________________________
Name:
Title:
B-2
