Exhibit 10.58
AGENCY AGREEMENT
This Agency Agreement (the "AGREEMENT"), dated as of August
4,1998, among York Power Funding (Cayman) Limited, a limited liability company
incorporated under the laws of the Cayman Islands ("FUNDING COMPANY"), Brooklyn
Navy Yard Power LLC, a Delaware limited liability company (the "BNY GUARANTOR"),
Warbasse Power I LLC, a Delaware limited liability company ("WARBASSE I"),
Warbasse Power II LLC, a Delaware limited liability company ("WARBASSE II" and
together with Warbasse I, the "WARBASSE GUARANTOR"), New World Power Texas
Renewable Energy Limited Partnership, a Delaware limited partnership (the "BIG
SPRING GUARANTOR"and together with the BNY Guarantor and the Warbasse Guarantor,
the "U.S. GUARANTORS").
W I T N E S S E T H :
WHEREAS, Funding Company is a limited liability company
established for the purpose of issuing the Securities (the "SECURITIES")
pursuant to a Trust Indenture (the "INDENTURE") to be entered into between
Funding Company and the Bond Trustee the proceeds of which will be used in part
to make loans to the U.S. Guarantors pursuant to the U.S. Project Loan
Agreement, payments with respect to such loans received by Funding Company will
be paid to the Holders. All terms not otherwise defined herein shall have the
meanings given to such terms in APPENDIX A of the Indenture.
WHEREAS, each of the U.S. Guarantors wishes to have Funding
Company act as agent for each of them in the issuance of the Securities to the
extent of each of the U.S. Guarantors' obligations in respect of the Securities.
WHEREAS, Funding Company wishes to act as agent with respect
to the Securities, on behalf of and for each of the U.S. Guarantors, and
pursuant to the terms and conditions set forth in this Agreement and the
Indenture (Funding Company serving in such capacity, the "Agent").
NOW, THEREFORE, in consideration of the mutual covenants and
conditions contained herein, the parties hereby agree as follows:
AGREEMENT
1. DESIGNATION. Effective as of the date hereof, each of the
U.S. Guarantors hereby designates Funding Company as its Agent and Funding
Company shall act as nominee of, and Agent for, each of the U.S. Guarantors in
accordance with the terms and conditions set forth in this Agreement. Funding
Company hereby accepts such designation and agrees to serve as Agent for each of
the U.S. Guarantors hereunder and under the Indenture in accordance with the
terms and conditions set forth in this Agreement.
2. SCOPE OF AGENCY. Funding Company shall, under its own name,
act for the account of each of the U.S. Guarantors as its Agent hereunder and
under the Indenture, solely for the purpose of issuing the Securities to the
extent of the U.S. Guarantors' obligations thereunder, to be paid from payments
made pursuant to the U.S. Project Loan Agreement (including any Additional
Securities issued for the benefit of the U.S. Guarantors pursuant to SECTION 2.3
of the Indenture). Funding Company may also take any other action, in its
capacity as Agent of the U.S. Guarantors, which it deems necessary or
appropriate for the purposes specified herein, including, without limitation,
(i) the offer and sale of the Securities in a public offering or private
placement transaction and (ii) the taking of such actions, the execution and
delivery of such other documents and instruments and the consummation of such
other transactions as may be contemplated by the Finance Documents.
3. LIMITATIONS ON LIABILITY. Notwithstanding anything to the
contrary contained herein, the duties and responsibilities of Funding Company as
Agent under this Agreement are limited to those specifically set forth in this
Agreement and recourse solely to the Funding Company's interest in the Funding
Collateral following application of the Funding Company Collateral in or towards
the discharge of the Secured Obligations and the obligations of Funding Company
under each other Transaction Document, and Funding Company shall have no
liability for any act done or omitted in connection with this Agreement or the
Indenture, except for any failure to exercise at least ordinary care or any
failure to comply with any material Applicable Law. Funding Company, as Agent,
shall not be obligated to ascertain or verify the terms or conditions of any
underlying contract or agreement between any of the U.S. Guarantors and any
third party, nor shall Funding Company, as Agent, be responsible for the
sufficiency, correctness, genuineness or validity of any document deposited with
it hereunder or under the Indenture, or the form or execution of such document,
or the identity, authority or right of any entity executing or depositing such
document.
4. INDEMNITEES AND EXPENSES. Each of the U.S. Guarantors
hereby agrees to pay the costs and expenses of, and to indemnify and hold
harmless, Funding Company in accordance with the provisions set forth in the
Finance Documents as in effect as of the date hereof. No amendment to such
provision or termination of such Agreement shall affect the terms of such
provisions as they apply to this Agreement without the consent of the parties in
accordance with the terms of this Agreement.
5. CONTROVERSIES. If any controversy arises between any of the
U.S. Guarantors and any third Person with respect to the subject matter of this
Agreement, Funding Company, as Agent, shall not be required to determine the
same or take any action, but may await the settlement of the controversy by
written instructions of the U.S. Guarantors satisfactory to it, or by
appropriate legal proceedings, or otherwise.
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6. AMENDMENTS/COUNTERPARTS. Any amendment to this Agreement
shall be in writing signed by the parties hereto. This Agreement and any
amendments hereto may be executed in counterparts, each of which so executed
shall be deemed an original, irrespective of the date of its execution and
delivery, and said counterparts together shall constitute one and the same
instrument.
7. NOTICES. All notices, payments, requests, reports,
information and other communications between the parties hereto shall be
addressed in accordance with the addresses set forth on SCHEDULE III to the
Indenture or to such other address as any party may from time to time specify in
writing to the other parties.
8. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
the conflict of law rules thereof (other than Section 5-1401 of the New York
General Obligations Law).
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IN WITNESS WHEREOF, the parties hereto have executed this
Agency Agreement as of the day and year first above written.
YORK POWER FUNDING (CAYMAN) LIMITED
By: /s/ Xxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxx Xxxxx
Title: Director
BROOKLYN NAVY YARD POWER LLC
By: B-41 ASSOCIATES, L.P.,
its Managing Member
By: B-41 MANAGEMENT CORPORATION,
its General Partner
By: /s/ Xxxxxxx Xxxxxxxxxxxx
---------------------------------------------
Name : Xxxxxxx Xxxxxxxxxxxx
Title: Vice President
WARBASSE POWER I LLC
By: COGENERATION TECHNOLOGIES, INC.
its Managing Member
By: /s/ Xxxxxxx Xxxxxxxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Executive Vice President
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WARBASSE POWER II LLC
By: YORK COGEN PARTNERS, L.P.
its Managing Member
By: RRR's VENTURES, LTD.
its General Partner
By: /s/ Xxxxxxx Xxxxxxxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Vice President
NEW WORLD POWER TEXAS RENEWABLE
ENERGY LIMITED PARTNERSHIP
By: BIG SPRINGS TEXAS ENERGY
MANAGEMENT, INC.
Managing General Partner
By: /s/ Xxxxxxx Xxxxxxxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Vice President
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