Exhibit 10(ww)
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TRINIDAD PROJECT NOTE PLEDGE AGREEMENT
DATED AS OF AUGUST 4, 1998
BETWEEN
YORK POWER FUNDING (CAYMAN) LIMITED
AND
THE BANK OF NEW YORK, AS COLLATERAL AGENT
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RECITALS ...........................................................................................1
Section 1. Construction; Definitions...............................................................2
1.1 Defined Terms.....................................................................2
1.2 Principles of Construction........................................................2
Section 2. Representations and Warranties..........................................................2
Section 3. Collateral..............................................................................3
Section 4. Further Assurances; Remedies............................................................4
4.1 Delivery and Other Perfection.....................................................4
4.2 Other Financing Statements and Liens..............................................5
4.3 Preservation of Rights............................................................5
4.4 Trinidad Project Note Collateral..................................................5
4.5 Events of Default.................................................................6
4.6 Deficiency........................................................................7
4.7 Removals..........................................................................7
4.8 Private Sale......................................................................8
4.9 Application of Proceeds...........................................................8
4.10 Attorney-in-Fact..................................................................8
4.11 Perfection........................................................................8
4.12 Security Interest Absolute........................................................9
4.13 Bankruptcy Filing, etc............................................................9
4.14 Governmental Authority Requirement................................................9
4.15 Indemnification...................................................................9
4.16 Termination......................................................................10
4.17 Further Assurances...............................................................10
4.18 Limitation of Liability..........................................................10
Section 5. Miscellaneous..........................................................................10
5.1 No Waiver........................................................................10
5.2 Notices..........................................................................10
5.3 Expenses.........................................................................11
5.4 Amendments.......................................................................11
5.5 Role of Collateral Agent.........................................................11
5.6 Successors and Assigns...........................................................11
5.7 Headings Descriptive.............................................................11
5.8 Counterparts.....................................................................12
5.9 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial..................12
5.10 No Third Party Beneficiaries.....................................................13
5.11 Reinstatement....................................................................13
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5.12 Agents and Attorneys-in-Fact.....................................................13
5.13 Severability.....................................................................13
5.14 Conflicts with the Intercreditor Agreement or Depositary Agreements..............13
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TRINIDAD PROJECT NOTE PLEDGE AGREEMENT (this "AGREEMENT") dated as of
August 4, 1998 between YORK POWER FUNDING (CAYMAN) LIMITED, a limited liability
company incorporated under the laws of the Cayman Islands ("FUNDING COMPANY")
and THE BANK OF NEW YORK, a New York banking corporation, as collateral agent
for the benefit of the Secured Parties (together with its successors and assigns
in such capacity, the "COLLATERAL AGENT").
RECITALS
WHEREAS, Funding Company is a limited liability company
established for the sole purpose of issuing the Securities in its individual
capacity as principal and as agent acting on behalf of the U.S. Guarantors
pursuant to the Indenture and to make loans to the Project Borrowers pursuant to
the Project Loan Agreements;
WHEREAS, Funding Company has simultaneously with the execution
and delivery of this Agreement issued and sold the Initial Securities pursuant
to the Indenture;
WHEREAS, payments of the principal of, premium (if any),
interest on and any other amounts due with respect to the Initial Securities
will be partially serviced by repayment of the Trinidad Project Loan and
guaranteed by the Trinidad Guarantor;
WHEREAS, the Secured Parties, the Trinidad Finance Parties and
certain other parties are entering into a Collateral Agency and Intercreditor
Agreement appointing the Collateral Agent and setting forth certain rights and
remedies of the Collateral Agent acting on behalf of the Secured Parties with
respect to the Collateral, including, without limitation, the Trinidad
Depositary Accounts established pursuant to the Trinidad Depositary Agreement;
WHEREAS, Funding Company and the Trinidad Finance Parties are
entering into the Trinidad Depositary Agreement in order to, among other things,
appoint the Depositary Bank to hold and administer the proceeds of certain
insurance and revenues generated and distributed to Funding Company and the
Trinidad Finance Parties; and
WHEREAS, it is a condition precedent to the purchase of the
Initial Securities by the Initial Purchaser that Funding Company shall have
pledged the Trinidad Project Note Collateral (as defined below) pursuant to, and
granted the assignment and security interests contemplated by, this Agreement.
NOW, THEREFORE, in consideration of the premises and covenants
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Funding Company hereby agrees with
the Collateral Agent for its benefit and for the benefit of the Secured Parties
as follows:
Section 1. CONSTRUCTION; DEFINITIONS.
1.1 DEFINED TERMS.
(a) For all purposes of this Agreement, capitalized terms used
but not otherwise defined herein shall have the meaning set forth in APPENDIX A
to the Indenture.
(b) The following term shall have the following meaning:
"TRINIDAD PROJECT NOTE COLLATERAL" shall have the meaning set
forth in SECTION 3 hereof.
1.2 PRINCIPLES OF CONSTRUCTION. For all purposes of this Agreement, the
principles of construction set forth in SECTION 1.1 (Definitions; Construction)
of the Indenture shall apply.
Section 2. REPRESENTATIONS AND WARRANTIES. Funding Company represents
and warrants to the Collateral Agent and the other Secured Parties that:
(a) Funding Company is a limited liability company duly
incorporated, validly existing and in good standing under the laws of
the Cayman Islands.
(b) Funding Company has all requisite power and authority to
execute and deliver this Agreement and to perform its obligations
hereunder.
(c) Funding Company has taken all necessary action on its part
to authorize its execution, delivery and performance of this Agreement.
(d) The execution, delivery and performance by Funding Company
of this Agreement does not and will not (i) require any consent of the
board of directors or any shareholder of Funding Company or any other
Person that has not been obtained, (ii) violate any Applicable Law,
except any such violation which could not reasonably be expected to
have a Material Adverse Effect, (iii) result in any breach of, or
constitute a default under, or result in the creation or imposition of
(or the obligation to create or impose) any Lien (other than the Liens
created hereunder) upon any of the property or assets of Funding
Company pursuant to, any of the terms or provisions of any agreement or
instrument to which it is a party or by which it or any of its property
or assets is bound or to which it may be subject, except for any
breaches, defaults, creations or impositions of Liens, contraventions,
violations or conflicts which could not reasonably be expected to have
a Material Adverse Effect or (iv) violate or conflict with any
provision of the Memorandum of Association or Articles of Association
of Funding Company.
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(e) This Agreement has been duly executed and delivered by
Funding Company and constitutes the legal, valid and binding obligation
of Funding Company, enforceable against Funding Company in accordance
with its terms except as such enforceability (i) may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws of general
applicability affecting the enforcement of creditors' rights generally
and (ii) is subject to applicable general principles of equity and the
effect of public policy (regardless of whether enforceability is
considered in a proceeding in law or equity).
(f) Funding Company is the sole beneficial owner of the
Trinidad Project Note Collateral and no Lien exists or will exist upon
the Trinidad Project Note Collateral at any time (and no right or
option to acquire the same exists in favor of any other Person), except
for Permitted Liens. The pledge and security interest created by this
Agreement constitutes, upon delivery of the Trinidad Project Note
Collateral to, and holding by, the Collateral Agent for the benefit of
itself and the other Secured Parties, a first priority perfected pledge
and security interest in and to all of the Trinidad Project Note
Collateral.
Section 3. COLLATERAL. As collateral security for the prompt payment in
full and performance when due (whether at stated maturity, by acceleration or
otherwise) of any and all of the Secured Obligations of Funding Company now
existing or hereafter arising, and howsoever evidenced, Funding Company hereby
pledges, assigns, hypothecates, transfers, delivers and grants to the Collateral
Agent for the benefit of the Secured Parties, a Lien on and security interest in
all of Funding Company's rights, title and interests in and to the following
property, whether now existing or hereafter coming into existence (all being
collectively referred to herein as the "TRINIDAD PROJECT NOTE COLLATERAL"):
(a) the Trinidad Project Note, including without limitation
(i) all rights of Funding Company to receive moneys due and to become
due under or pursuant to the Trinidad Project Note, (ii) all rights of
Funding Company to receive proceeds of insurance, payment and/or
performance bond, indemnity, warranty or guaranty with respect to the
Trinidad Project Note, (iii) all claims of Funding Company for damages
arising out of or for breach of or default under the Trinidad Project
Note and (iv) any security interest in the Depositary Accounts granted
to Funding Company by the Trinidad Project Borrower to secure payments
due under the Trinidad Project Note; and
(b) to the extent not included in the foregoing, all proceeds
of and to any of the property of Funding Company described in the
preceding clause (a) and, to the extent related to any property
described in said clause or such proceeds, all books, correspondence,
credit files, invoices and other papers.
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Notwithstanding anything herein to the contrary, for purposes of this
Agreement, Funding Company agrees that it shall not be considered a Secured
Party hereunder and the amounts owed to it by the Trinidad Project Borrower
shall not be considered Secured Obligations.
Section 4. FURTHER ASSURANCES; REMEDIES. In furtherance of the grant of
the pledge and security interest pursuant to SECTION 3 hereof, Funding Company
hereby agrees with the Collateral Agent and each other Secured Party as follows:
4.1 DELIVERY AND OTHER PERFECTION. Funding Company shall:
(a) if any of the property required to be pledged or assigned
by Funding Company under SECTION 3 hereof is received by Funding
Company forthwith either (i) transfer and deliver to the Collateral
Agent such property so received by Funding Company (endorsed in blank
and accompanied by such instruments of assignment and transfer as the
Collateral Agent may reasonably request) all of which thereafter shall
be held by the Collateral Agent, pursuant to the terms of this
Agreement and the Intercreditor Agreement, as part of the Trinidad
Project Note Collateral or (ii) take such other action as the
Collateral Agent may reasonably request as is necessary or appropriate
to duly record the Lien created hereunder in such property in said
SECTION 3 hereof;
(b) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that
may be necessary or desirable to create, preserve or validate the
pledge and security interest granted pursuant hereto or to enable the
Collateral Agent to exercise and enforce its rights hereunder with
respect to such pledge and security interest, including, without
limitation, causing any or all of the Trinidad Project Note Collateral
to be transferred of record into the name of the Collateral Agent or
its nominee (and the Collateral Agent agrees that if any Trinidad
Project Note Collateral is transferred into its name or the name of its
nominee, the Collateral Agent will thereafter promptly give to Funding
Company, copies of any notices and communications received by it with
respect to the Trinidad Project Note Collateral).
(c) keep full and accurate books and records relating to the
Trinidad Project Note Collateral, and stamp or otherwise xxxx such
books and records in such manner as the Collateral Agent may reasonably
require in order to reflect the security interests granted by this
Agreement; and
(d) permit representatives of the Collateral Agent, at the
expense of Funding Company and upon five (5) days written notice, at
any time during normal business hours to inspect and make abstracts
from its books and records pertaining to the Trinidad Project Note
Collateral.
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4.2 OTHER FINANCING STATEMENTS AND LIENS.
(a) Other than with respect to Permitted Liens, Funding
Company shall not file or suffer to be on file, or authorize or permit
to be filed or to be on file, in any jurisdiction, any financing
statement or like instrument with respect to the Trinidad Project Note
Collateral in which the Collateral Agent is not named as the sole
secured party for the benefit of itself and the other Secured Parties.
(b) Funding Company hereby authorizes the Collateral Agent to
file one or more financing statements, and amendments thereto, relating
to all or any part of the Trinidad Project Note Collateral without the
signature of Funding Company where permitted by Applicable Law if
necessary or appropriate to perfect the Liens granted hereunder. Copies
of such statement or amendment thereto shall promptly be delivered to
Funding Company.
4.3 PRESERVATION OF RIGHTS. The Collateral Agent shall not be required
to take steps necessary to preserve any rights against prior parties to any of
the Trinidad Project Note Collateral, including, without limitation, making
determinations as to whether, when and how to perfect a security interest in the
Trinidad Project Note Collateral.
4.4 TRINIDAD PROJECT NOTE COLLATERAL.
(a) So long as no Trigger Event shall have occurred and be
continuing, Funding Company shall have the right to exercise all
rights and powers of ownership pertaining to the Trinidad Project Note
Collateral; PROVIDED that Funding Company agrees that it will not
exercise such rights and powers in any manner that is inconsistent with
the terms of this Agreement or any other Finance Document and the
Collateral Agent shall execute and deliver to Funding Company or cause
to be executed and delivered to Funding Company all such powers of
attorney and other orders, and all such instruments, without recourse,
as Funding Company may reasonably request for the purpose of enabling
Funding Company to exercise the rights and powers that it is entitled
to exercise pursuant to this SECTION 4.4(a).
(b) If any Trigger Event shall have occurred and be
continuing, then so long as such Trigger Event shall continue, all
payments and other distributions in respect of the Trinidad Project
Note Collateral shall be paid directly to the Collateral Agent and
retained by it as part of the Trinidad Project Note Collateral, subject
to the terms of this Agreement, and if the Collateral Agent shall so
request in writing, Funding Company agrees to execute and deliver to
the Collateral Agent appropriate additional orders and documents to
that end; PROVIDED that if such Trigger Event is cured, any such
payment or distribution theretofore paid to the Collateral Agent shall,
upon request of Funding Company (except to the extent
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theretofore applied to the Secured Obligations), be returned by the
Collateral Agent to Funding Company.
(c) After the occurrence and during the continuance of any
Trigger Event, Funding Company shall not take any action to revoke,
amend or supersede any instructions delivered by the Collateral Agent
on behalf of Funding Company to the Trinidad Guarantor or the Bond
Trustee directing the Trinidad Guarantor or the Bond Trustee to make
payments or other distributions payable to Funding Company directly to
the Collateral Agent.
(d) The exercise by the Collateral Agent of its rights
hereunder shall not constitute an election by the Collateral Agent to
retain the Trinidad Project Note Collateral in satisfaction of the
Secured Obligations or affect the Collateral Agent's rights to any
other collateral or against Funding Company or any other Person.
4.5 EVENTS OF DEFAULT. Subject to the Intercreditor Agreement, upon the
occurrence and during the continuance of a Trigger Event:
(a) the Collateral Agent shall have all of the rights and
remedies with respect to the Trinidad Project Note Collateral of a
secured party under the Uniform Commercial Code (whether or not said
code is in effect in the jurisdiction where the rights and remedies are
asserted) and such additional rights and remedies to which a secured
party is entitled under the Applicable Laws in effect in any
jurisdiction where any rights and remedies hereunder may be asserted
including, without limitation, the right, to the maximum extent
permitted by Applicable Law, to exercise all voting, consensual and
other powers of ownership pertaining to the Trinidad Project Note
Collateral as if the Collateral Agent were the sole and absolute owner
thereof (and Funding Company agrees to take all such action as may be
appropriate to give effect to such right);
(b) the Collateral Agent in its sole discretion may, in its
name or in the name of Funding Company or otherwise, demand, xxx for,
collect or receive any money or property at any time payable or
receivable on account of or in ex change for any of the Trinidad
Project Note Collateral, but shall be under no obligation to do so; and
(c) the Collateral Agent may, upon ten (10) Business Days
prior written notice to Funding Company of the time and place, with
respect to the Trinidad Project Note Collateral or any part thereof,
sell, lease, assign or other wise dispose of all or any part of such
Trinidad Project Note Collateral, at such place or places as the
Collateral Agent reasonably deems best, and for cash or for credit or
for future delivery (without thereby assuming any credit risk), at
public
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or private sale, without demand of performance or notice of intention
to effect any such disposition or of the time or place thereof (except
such notice as is required above or by Applicable Law and cannot be
waived), and the Collateral Agent or anyone else may be the purchaser,
lessee, assignee or recipient of any or all of the Trinidad Project
Note Collateral so disposed of at any public sale (or, to the extent
permitted by Applicable Law, at any private sale) and thereafter hold
the same absolutely, free from any claim or right of whatsoever kind,
including any right of equity or redemption (statutory or otherwise),
of Funding Company, any such demand, notice and right or equity being
hereby expressly waived and released. The Collateral Agent may, without
notice or publication, adjourn any public or private sale or cause the
same to be adjourned from time to time by announcement at the time and
place fixed for the sale, and such sale may be made at any time or
place to which the sale may be so adjourned. The proceeds of each
collection, sale or other disposition under this SECTION 4.5 shall be
applied in accordance with SECTION 4.9 hereof.
Funding Company recognizes that, by reason of certain prohibitions contained in
the Securities Act and applicable state securities laws, the Collateral Agent
may be compelled, with respect to any sale of all or any part of the Trinidad
Project Note Collateral, to limit purchasers to those who will agree, among
other things, to acquire the Trinidad Project Note Collateral for their own
account, for investment purposes only and not with a view to the distribution or
resale thereof. Funding Company acknowledges that any such private sales may be
at prices and on terms less favorable to the Collateral Agent than those
obtainable by the Collateral Agent through a public sale without such
restrictions, and, notwithstanding such circumstances, agrees that any such
private sale shall be deemed to have been made in a commercially reasonable
manner and that the Collateral Agent shall have no obligation to engage in
public sales and no obligation to delay the sale of any of the Trinidad Project
Note Collateral for the period of time necessary for Funding Company or any
issuer thereof to register it for public sale.
4.6 DEFICIENCY. If the proceeds of sale, collection or other
realization of or upon the Trinidad Project Note Collateral pursuant to SECTION
4.5 hereof are insufficient to cover the reasonable costs and expenses of such
realization and the payment in full of the Secured Obligations, Funding Company
shall, subject to SECTION 4.18, remain liable for any deficiency.
4.7 REMOVALS. Without at least thirty (30) days' prior written notice
to the Collateral Agent, Funding Company shall not (i) maintain any of its books
and records with respect to the Trinidad Project Note Collateral at any office
or maintain its principal place of business at any place other than at the
address indicated in SECTION 5.2 hereof or (ii) change its corporate name, or
the name under which it does business, from the name shown on the signature
pages hereto.
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4.8 PRIVATE SALE. The Collateral Agent shall not incur any liability as
a result of the sale of the Trinidad Project Note Collateral, or any part
thereof, at any private sale pursuant to SECTION 4.5 hereof conducted in a
commercially reasonable manner. To the extent permitted by Applicable Law,
Funding Company hereby waives any claims against the Collateral Agent arising by
reason of the fact that the price at which the Trinidad Project Note Collateral
may have been sold at a private sale was less than the price that might have
been obtained at a public sale or was less than the aggregate amount of the
Secured Obligations even if the Collateral Agent accepts the first offer
received and does not offer such Trinidad Project Note Collateral to more than
one offeree.
4.9 APPLICATION OF PROCEEDS. Except as otherwise expressly provided in
the Intercreditor Agreement, the proceeds of any collection, sale or other
realization of all or any part of the Trinidad Project Note Collateral pursuant
hereto, and any other cash at the time held by the Collateral Agent under this
SECTION 4, shall, after the occurrence and during the continuance of a Trigger
Event, be applied by the Collateral Agent in accordance with SECTION 4.3 of the
Intercreditor Agreement.
As used in this SECTION 4, "PROCEEDS" of Trinidad Project Note
Collateral shall mean cash, securities and other property realized in respect
of, and distributions in-kind of, Trinidad Project Note Collateral, including
any thereof received under any reorganization, liquidation or adjustment of
debt of Funding Company, or any issuer or obligor on any of the Trinidad Project
Note Collateral.
4.10 ATTORNEY-IN-FACT. Without limiting any rights or powers granted by
this Agreement to the Collateral Agent while no Event of Default has occurred
and is continuing, upon the occurrence and during the continuance of any Event
of Default, the Collateral Agent is hereby appointed the attorney-in-fact of
Funding Company for the purpose of carrying out the provisions of this SECTION 4
and taking any action and executing any instruments that the Collateral Agent
may deem necessary or advisable to accomplish the purposes hereof, which
appointment as attorney-in-fact is irrevocable and coupled with an interest.
Without limiting the generality of the foregoing, so long as the Collateral
Agent shall be entitled under this SECTION 4 to make collections in respect of
the Trinidad Project Note Collateral, the Collateral Agent shall have the right
and power (subject to the Intercreditor Agreement and Depositary Agreements) to
receive, endorse and collect all instruments made payable to the order of
Funding Company representing any dividend, payment or other distribution in
respect of the Trinidad Project Note Collateral or any part thereof and to give
full discharge for the same.
4.11 PERFECTION. Prior to or concurrently with the execution and
delivery of this Agreement, Funding Company shall deliver to the Collateral
Agent the Trinidad Project Note accompanied by undated bond powers duly executed
in blank.
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4.12 SECURITY INTEREST ABSOLUTE. All the rights of the Collateral Agent
hereunder and the security interest and all obligations of Funding Company
hereunder shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any of the
Transaction Documents or any other agreement or instrument relating
thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Secured Obligations, or any
other amendment or waiver or any consent to any departure from any of
the Transaction Documents;
(c) any exchange or release of any Trinidad Project Note
Collateral or any other collateral, or the non-perfection of any
Security Interest, or any release or amendment or waiver of or consent
to or departure from any guaranty, for all or any of the Secured
Obligations;
(d) to the full extent permitted by Applicable Law, any other
circumstance that might otherwise constitute a defense available to,
or a discharge of, Funding Company or any third party pledgor; or
(e) the failure by Funding Company to fulfill its obligations
under this Agreement.
4.13 BANKRUPTCY FILING, ETC. Neither Funding Company nor any of its
Affiliates shall commence or join with any other Person (other than the Secured
Parties) in commencing any proceeding against Funding Company under any
bankruptcy, reorganization, liquidation or insolvency law or statute now or
hereafter in effect in any jurisdiction.
4.14 GOVERNMENTAL AUTHORITY REQUIREMENT. Funding Company shall not take
or omit to take (or suffer such taking or omission of) any action (unless
ordered to do so by a competent Governmental Authority having jurisdiction) in
respect of itself and its businesses if, as a consequence directly or indirectly
of such action or omission, Funding Company becomes subject to regulation by any
Governmental Authority as a "public utility," and "electric utility," an
"electric utility holding company," a "public utility company" or a subsidiary
company or affiliate of any of the foregoing under PUHCA, The Federal Power Act
of 1920 or PURPA, or as a "holding company" within the meaning of PUHCA.
4.15 INDEMNIFICATION. The Trinidad Project Borrower shall defend,
indemnify and hold harmless the Collateral Agent and each of the other Secured
Parties (other than Funding Company) and their officers, directors and
employees, from and against any and all costs, expenses, disbursements,
liabilities, obligations, losses, damages, injunctions, judgments, suits,
actions, causes of action, fines, penalties, claims and demands, of every
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kind or nature (including, without limitation, reasonable attorney's fees and
expenses) which are occasioned by or result from any (i) failure by Funding
Company to perform any of the terms, agreements or covenants to be performed by
Funding Company under this Agreement and (ii) proceeding or action brought by
the Collateral Agent pursuant to this Agreement or which arise out of this
Agreement except to the extent due to the gross negligence or willful misconduct
of the Collateral Agent.
4.16 TERMINATION. This Agreement shall create a continuing assignment,
pledge and first priority security interest in the Trinidad Project Note
Collateral and shall remain in full force for the benefit of the Collateral
Agent until the Debt Termination Date. Upon such Debt Termination Date, (i) the
Lien of the Collateral Agent on the Trinidad Project Note Collateral granted
hereunder shall terminate and all of the Trinidad Project Note Collateral shall
be released without any further action by the Collateral Agent or any other
Person and (ii) the Collateral Agent shall forthwith cause to be assigned,
transferred and delivered, against receipt but without any recourse, warranty or
representation whatsoever, any remaining Trinidad Project Note Collateral and
money received in respect thereof, to or on the order of Funding Company.
4.17 FURTHER ASSURANCES. Funding Company agrees that, from time to
time, Funding Company will execute and deliver such further documents and do
such other acts and things as are necessary or as the Collateral Agent may
reasonably request in order fully to effect the purposes of this Agreement.
4.18 LIMITATION OF LIABILITY. Notwithstanding anything herein to the
contrary, recourse for the Secured Obligations and all liabilities and
obligations arising hereunder shall be limited as provided in SECTION 11.11 of
the Indenture.
Section 5. MISCELLANEOUS.
5.1 NO WAIVER. No failure on the part of the Collateral Agent or any
other Secured Party to exercise, and no course of dealing with respect to, and
no delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Collateral Agent
or any other Secured Party of any right, power or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
5.2 NOTICES. Except as otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be sufficiently given and
shall be deemed given when delivered or mailed by registered or certified mail,
postage prepaid, or sent by overnight delivery or telecopy, addressed to Funding
Company, the Secured Parties, and the Collateral Agent at their respective
addresses specified on SCHEDULE III to
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the Indenture, or at such other address as shall be designated by such Person in
a written notice to the other parties hereto.
5.3 EXPENSES. Funding Company agrees to reimburse the Collateral Agent
for all reasonable costs and expenses of the Collateral Agent and each of the
other Secured Parties (including, without limitation, the reasonable fees and
expenses of legal counsel) in connection with (i) any Event of Default and any
enforcement or collection proceeding resulting therefrom, including, without
limitation, all manner of participation in or other involvement with (A)
performance by the Collateral Agent of any obligation of Funding Company in
respect of the Trinidad Project Note Collateral that Funding Company has failed
or refused to perform, (B) bankruptcy, insolvency, receivership, foreclosure,
winding up or liquidation proceedings, or any actual or attempted sale, or any
exchange, enforcement, collection, compromise or settlement in respect of any of
the Trinidad Project Note Collateral, and for the care of the Trinidad Project
Note Collateral and defending or asserting rights and claims of the Collateral
Agent in respect thereof, by litigation or otherwise, (C) judicial or regulatory
proceedings and (D) workout, restructuring or other negotiations or proceedings
(whether or not the workout, restructuring or transaction contemplated thereby
is consummated) and (ii) the enforcement of this SECTION 5.3, and all such costs
and expenses shall be Secured Obligations entitled to the benefits of the
collateral security provided pursuant to SECTION 3 hereof.
5.4 AMENDMENTS. The terms of this Agreement may be waived, altered or
amended only by an instrument in writing duly executed by each of Funding
Company and the Collateral Agent (with the consent of the other Secured Parties
pursuant to the Intercreditor Agreement). Any such amendment or waiver shall be
binding upon the Collateral Agent, each holder of any of the Secured Obligations
and Funding Company.
5.5 ROLE OF COLLATERAL AGENT. The rights, duties, liabilities and
immunities of the Collateral Agent and its appointment and replacement hereunder
shall be governed by the Intercreditor Agreement and the terms and provisions of
such are expressly incorporated herein by reference thereto.
5.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of each of Funding
Company and the Collateral Agent (PROVIDED, HOWEVER, that Funding Company shall
not assign or transfer its rights hereunder without the prior written consent of
the Collateral Agent).
5.7 HEADINGS DESCRIPTIVE. The headings of the several Sections and
subsections of this Agreement are for convenience only and shall not in any way
affect the meaning or construction of any provision of this Agreement.
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5.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which, taken together, shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
5.9 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) This Agreement is a contract made under the laws of the State of New York of
the United States and shall for all purposes be governed by and construed in
accordance with the laws of such State without regard to the conflict of law
rules thereof (other than Section 5-1401 of the New York General Obligations
Law).
(b) Any legal action or proceeding against Funding Company
with respect to this Agreement may be brought in the courts of the State of New
York in the County of New York or of the United States District Court for the
Southern District of New York and, by execution and delivery of this Agreement,
Funding Company hereby irrevocably submits and accepts for itself and in respect
of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. Funding Company agrees that a judgment, after exhaustion of
all available appeals, in any such action or proceeding shall be conclusive and
binding upon Funding Company and may be enforced in any other jurisdiction, by a
suit upon such judgment, a certified copy of which shall be conclusive evidence
of the judgment. Funding Company hereby irrevocably designates, appoints and
empowers Corporation Service Company with offices on the date hereof at 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, as its designee, appointee and
agent to receive, accept and acknowledge for and on its behalf, and in respect
of its property, service of any and all legal process, summons, notices and
documents which may be served in any such action or proceeding. If for any
reason such designee, appointee and agent shall cease to be available to act as
such, Funding Company agrees to designate a new designee, appointee and agent in
New York City on the terms and for the purposes of this provision satisfactory
to the Bond Trustee. Funding Company irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered or certified mail, postage
prepaid, to Funding Company at its address referred to in SECTION 5.2 such
service to become effective thirty (30) days after such mailing. Nothing herein
shall affect the right of any Secured Party to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
Funding Company in any other jurisdiction.
(c) Funding Company hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Agreement in the courts referred to in clause (b) above and hereby further
irrevocably waives and agrees not to plead or claim in any such court that any
such action or proceeding brought in any such court has been brought in an
inconvenient forum.
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(d) WITH REGARD TO THIS AGREEMENT, FUNDING COMPANY, EACH
SECURED PARTY AND THE COLLATERAL AGENT HEREBY WAIVE THE RIGHT TO A TRIAL BY
JURY.
5.10 NO THIRD PARTY BENEFICIARIES. The agreements of the parties hereto
are solely for the benefit of Funding Company, the Collateral Agent and the
other Secured Parties, and no Person (other than the parties hereto and their
successors and assigns permitted hereunder) shall have any rights hereunder.
5.11 REINSTATEMENT. This Agreement and the Lien created hereunder shall
automatically be reinstated if and to the extent that for any reason any payment
by or on behalf of any of Funding Company in respect of the Secured Obligations
is rescinded or must otherwise be restored by any holder of the Secured
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and Funding Company shall indemnify the Collateral
Agent or demand for all reasonable costs and expenses (including, without
limitation, fees of counsel) incurred by the Collateral Agent in connection with
such recision or restoration.
5.12 AGENTS AND ATTORNEYS-IN-FACT. The Collateral Agent may employ
agents and attorneys-in-fact in connection herewith and shall not be responsible
for the negligence or misconduct (other than the gross negligence or willful
misconduct) of any such agents or attorneys-in-fact selected by it in good
faith.
5.13 SEVERABILITY. If any provision hereof is invalid and unenforceable
in any jurisdiction, then, to the fullest extent permitted by law, (i) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in favor of the Collateral Agent in order to carry
out the intentions of the parties hereto as nearly as may be possible and (ii)
the invalidity or unenforceability of any provision hereof in any jurisdiction
shall not affect the validity or enforceability of such provision in any other
jurisdiction.
5.14 CONFLICTS WITH THE INTERCREDITOR AGREEMENT OR DEPOSITARY
AGREEMENTS. Notwithstanding any other provision hereof, in the event of any
conflict between the terms of this Agreement and the Intercreditor Agreement or
the Depositary Agreements, the provisions of the Intercreditor Agreement or the
Depositary Agreements will control.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as a deed by their duly authorized officers, all
as of the date first written above.
YORK POWER FUNDING (CAYMAN)
LIMITED
By: /s/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: Director
In the presence of:
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
THE BANK OF NEW YORK,
as Collateral Agent
By: /s/ Xxxxxx Xxxxx
--------------------------------
Name: XXXXXX XXXXX
Title: VICE PRESIDENT
Acknowledged and agreed
with respect to Section 4.15
YORK EX INTERNATIONAL SRL
By: /S/ Xxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
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BOND POWER
FOR VALUE RECEIVED, YORK POWER FUNDING (CAYMAN) LIMITED hereby assigns
and transfers unto _________________________________________ one promissory note
of YORK EX INTERNATIONAL SRL, a Barbados exempt society with restricted
liability, in the principal amount of One Hundred Millon Dollars ($100,000,000),
dated August 4, 1998, and does hereby irrevocably constitute and appoint
________________________ attorney to transfer the said promissory note with full
power of substitution in the premises.
DATED:
----------------------
YORK POWER FUNDING (CAYMAN)
LIMITED
By: /S/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: Director
In presence of:
---------------------
15
EXHIBIT A
TRINIDAD PROJECT NOTE
US$100,000,000 August 4, 1998
For value received, the undersigned, YORK EX INTERNATIONAL
SRL, a Barbados exempt society with restricted liability (the "TRINIDAD
PROJECT BORROWER"), by this promissory note promises to pay to the order of
York Power Funding (Cayman) Limited, ("FUNDING COMPANY") a limited liability
company incorporated and existing under the laws of the Cayman Islands, at
the office of The Bank of New York, a bank organized and existing under the
laws of the State of New York, located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, in lawful currency of the United States of America and in
immediately available funds, the principal amount of ONE HUNDRED MILLION
DOLLARS (US$100,000,000), or if less, the aggregate unpaid and outstanding
principal amount of this Trinidad Project Note advanced by Funding Company to
the Trinidad Project Borrower pursuant to that certain Trinidad Project Loan
Agreement, dated as of August 4, 1998 (the "TRINIDAD PROJECT LOAN
AGREEMENT"), by and among the Trinidad Project Borrower and Funding Company,
and as the same may be amended from time to time, and all other amounts owed
by the Trinidad Project Borrower to Funding Company hereunder.
This is one of the Trinidad Project Notes entered into
pursuant to the Trinidad Project Loan Agreement and is entitled to the benefits
thereof and is subject to all terms, provisions and conditions thereof.
Capitalized terms used and not defined herein shall have the meanings set forth
in APPENDIX A of that certain Trust Indenture, dated as of August 4, 1998 (the
"INDENTURE"), by and between Funding Company and The Bank of New York, a bank
organized and existing under the laws of the State of New York, as Bond Trustee.
Reference is hereby made to the Indenture and the Security
Documents for the provisions, among others, with respect to the custody and
application of the Collateral, the nature and extent of the security provided
thereunder, the rights, duties and obligations of the Trinidad Project Borrower
and the rights of the holder of this Trinidad Project Note.
The principal amount hereof is payable in accordance with the
Trinidad Project Loan Agreement, and such principal amount may be prepaid solely
in accordance with the Trinidad Project Loan Agreement.
The Trinidad Project Borrower further agrees to pay, in lawful
currency of the United States of America and in immediately available funds,
interest from the date hereof on the unpaid and outstanding principal amount
hereof until such unpaid and outstand ing principal amount shall become due and
payable (whether at stated maturity, by accelera tion or otherwise) at the rates
of interest and at the times set forth in the Trinidad Project Loan Agreement,
and the Trinidad Project Borrower agrees to pay all other amounts
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due, including, without limitation, fees and costs, as stated in the Trinidad
Project Loan Agreement.
Upon the occurrence of any one or more Trinidad Events of
Default (as defined in SECTION 5.1 (Events of Default Defined)), all amounts
then remaining unpaid under this Trinidad Project Note may become or be declared
to be immediately due and payable as provided in the Trinidad Project Loan
Agreement, without notice of default, presentment or demand for payment, protest
or notice of nonpayment or dishonor, or notices or demands of any kind, all of
which are expressly waived by the Trinidad Project Borrower.
The obligations hereunder are subject to the limitations set
forth in SECTION 6.10 (Limitation of Liability) of the Trinidad Project Loan
Agreement, the provisions of which are hereby incorporated by reference.
THIS TRINIDAD PROJECT NOTE IS A CONTRACT MADE UNDER THE LAWS
OF THE STATE OF NEW YORK OF THE UNITED STATES OF AMERICA AND SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE
WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF (OTHER THAN SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW).
This Trinidad Project Note may be executed in any number of
counterparts, all of which, taken together, shall constitute one and the same
instrument and any of the parties hereto may execute this Trinidad Project Note
by signing any such counterpart.
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IN WITNESS WHEREOF, the Trinidad Project Borrower has caused
this Trinidad Project Note to be duly executed.
YORK EX INTERNATIONAL SRL
By: Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
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