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Exhibit No. 10.140
EQUITY CONTRIBUTION AGREEMENT
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This EQUITY CONTRIBUTION AGREEMENT is dated as of August 28, 1998
among LSP BATESVILLE HOLDING, LLC (the "Equity Contributor"), LSP ENERGY LIMITED
PARTNERSHIP, a Delaware limited partnership (the "Partnership") and IBJ XXXXXXXX
BANK & TRUST COMPANY, as collateral agent (together with its successors in such
capacity, the "Collateral Agent") for the Secured Parties pursuant to the
Collateral Agency Agreement, dated as of August 28, 1998 (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 Administrative
Agent, the Collateral Agent, the Intercreditor Agent, the Securities
Intermediary and the other Secured Parties party thereto.
RECITALS
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A. The Partnership has entered or will enter into certain Project
Documents and Credit Documents providing for, among other things, the ownership,
development, construction, operation, maintenance and financing of a nominal 800
MW gas-fired combined cycle electric generating facility to be located in
Batesville, Mississippi.
B. Pursuant to the Power Purchase Agreements, the Partnership has
agreed to render, and Aquila and VEPCO, respectively, have agreed to receive and
pay for, the service of providing capacity and energy for the term of each of
the Power Purchase Agreements on the terms and conditions set forth therein.
C. The Partnership and the Contractor have entered into the
Construction Contract, providing for the construction of the Project on a fixed
price, date certain basis on the terms and conditions set forth therein.
D. Pursuant to the Tranche A Facility Credit Agreement, the
Tranche A Facility Lenders will make Construction Loans and Term Loans to the
Partnership on the terms and conditions set forth therein.
E. Pursuant to the Tranche B Facility Purchase Agreement and the
Tranche B Facility Indenture, the Funding Corporation and the Partnership will
issue and sell the Tranche B Facility Bonds to the Initial Purchaser. It is
currently contemplated that the Tranche B Facility Bonds will be refinanced as
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contemplated in the Letter Agreement, dated as of August 28, 1998 (the
"Refinancing Letter"), among the Partnership, the Funding Corporation, Holding
and the Initial Purchaser.
F. Pursuant to the Tranche C Facility Purchase Agreement and the
Tranche C Facility Indenture, Holding will issue and sell the Tranche C Facility
Bonds to the Initial Purchaser. It is currently contemplated that the Tranche C
Facility Bonds will be refinanced as contemplated in the Refinancing Letter.
Holding will use the net proceeds of the Tranche C Facility Bonds to make an
equity contribution to the Partnership.
G. Pursuant to the Letter of Credit Agreement, the Letter of
Credit Issuer has agreed to issue, for the account of the Partnership, the
Letters of Credit for use by the Partnership as security in connection with the
Project.
H. The Partnership, the Funding Corporation, Holding, the Secured
Parties, the Administrative Agent, the Collateral Agent, the Intercreditor
Agent, the Securities Intermediary and the Facility Agents have entered into the
Common Agreement, dated as of August __, 1998 (as amended, restated, modified or
otherwise supplemented from time to time in accordance with the terms thereof,
the "Common Agreement"), to provide for, among other things, (i) the mechanics
for and allocation of the Partnership's request for drawdowns among the various
Facility Agreements, (ii) the conditions precedent to the Closing and to the
initial and each subsequent drawdown under the Facility Agreements, (iii) common
representations and warranties of the Partnership, the Funding Corporation and
Holding running in favor of the Secured Parties, (iv) common covenants and
Events of Default of the Partnership, the Funding Corporation and Holding
running in favor of the Secured Parties and (v) the mechanics for the deposit
and application of Project Revenues and other proceeds.
I. The Partnership, the Funding Corporation, the Administrative
Agent, the Collateral Agent, the Intercreditor Agent, the Securities
Intermediary and the Senior Secured Parties have entered into the Collateral
Agency Agreement which authorizes and directs the Collateral Agent to (i) enter
into the individual Senior Collateral Documents on behalf of the Senior Secured
Parties and (ii) take action under the individual Senior Collateral Documents in
accordance with instructions given by the Intercreditor Agent, acting pursuant
to the Intercreditor Agreement.
J. The Partnership, the Funding Corporation, Holding, the
Administrative Agent, the Collateral Agent, the Intercreditor Agent, the
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Securities Intermediary and the Facility Agents have entered into the
Intercreditor Agreement pursuant to which the parties to the Credit Documents
set forth certain intercreditor provisions, including the method of voting and
decision making for the Senior Secured Parties, the arrangements applicable to
joint consultation and actions in respect of approval rights and waivers, the
limitations on rights of enforcement upon default, the application of proceeds
upon enforcement and the appointment of the Intercreditor Agent for the purposes
set forth therein.
K. The Equity Contributor owns, directly or indirectly, 100% of
the equity interests in the Partnership.
L. The Common Agreement contemplates the execution, delivery and
implementation of this Agreement and it is a condition precedent to the Closing
and to the making of Disbursements under the Common Agreement and the Facility
Agreements that the Equity Contributor shall have entered into this Agreement.
AGREEMENT
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NOW THEREFORE, in consideration of the Senior Secured Parties
entering into the Credit Documents and to induce the Senior Secured Parties to
make the Loans, release the proceeds of the issuance and sale of the Tranche B
Facility Bonds, issue the Letters of Credit and extend certain other credit to
the Partnership and the Funding Corporation under the Credit Documents, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. (a) Unless otherwise defined herein, terms
defined in Exhibit A to the Common Agreement shall have such defined meanings
when used herein.
(b) The following terms shall have the following respective
meanings:
"Equity Amount" shall mean $50,000,000.
"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.
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"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 Equity Amount and (c) shall expire on
the date upon which the Equity Contributor has indefeasibly paid in full an
Equity Contribution equal to the Equity Amount pursuant to Section 2.
"Equity Requisition Certificate" shall mean a certificate in the
form of Exhibit B attached hereto.
"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 Moody's.
2. Capital Contributions. (a) The Equity Contributor shall
contribute or cause to be contributed to the Partnership from time to time an
Equity Contribution on the date and in an 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 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 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 under the Common
Agreement 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 Construction Loans
and the Bonds shall have been disbursed from the Construction Account to pay
Project Costs in accordance with Section 7.2 of the Common Agreement, if the
Partnership has not requested an Equity Contribution in an amount necessary to
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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
Construction Loan and Bond proceeds from the Construction Account;
(iv) the date on which Completion shall have occurred;
(v) the Date Certain;
(vi) the date which is thirty (30) days after the date on which
the Letter of Credit Issuer 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 Letter of Credit Issuer fails to be a Qualified
Letter of Credit Issuer, the Equity Contributor shall provide the Collateral
Agent with a replacement Equity Letter of Credit, satisfactory in all respects
to the Collateral Agent, from 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, satisfactory in all
respects to the Collateral Agent, 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.
(b) Any Equity Contributions made pursuant to clause (b)(i) or
(ii) of Section 2 shall be paid directly to the Collateral Agent for the benefit
of the Senior Secured Parties. The Collateral Agent, acting at the direction of
(x) the Intercreditor Agent acting pursuant to the Intercreditor Agreement or
(y) the Senior Secured Parties acting pursuant to Section 7.16 of the
Intercreditor Agreement, shall apply such amounts to (i) the payment of Project
Costs and/or (ii) the prepayment of outstanding Senior Secured Obligations, in
such proportions as Intercreditor Agent or the Senior Secured Parties, as the
case may be, shall specify.
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4. Interest. Any amount which is not paid when due pursuant to
Section 2 shall bear interest at a rate equal to the 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 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 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 otherwise satisfying all requirements of the Credit
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 obligation 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:
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(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 Partnership, 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 any Bankruptcy Law;
(iii) the invalidity, irregularity or unenforceability of or any
change in or amendment to, any Operative Document, including, without
limitation, the Partnership Agreement;
(iv) the institution or absence of any action to enforce any
Operative 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; or
(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,
counterclaim or recoupment whatsoever or any right to any thereof, and shall not
be released, discharged or in any way affected by any reorganization,
arrangement, compromise or plan affecting the Partnership, any Partner or any
Affiliate thereof.
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(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 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 Credit 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
Operative 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 Operative 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 otherwise
have; and
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(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 any Bankruptcy Law. 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 Partnership, 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.
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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;
(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 principals 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, or (iii)
conflict with any Governmental Rules applicable to it or any of its properties
or assets, or any order, writ, injunction or decree of any court or Governmental
Authority binding on it or its properties or assets;
(e) no Permits or other consents or approvals are required in
connection with the execution, delivery and performance by it of this Agreement;
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(f) it is in compliance with all Governmental Rules applicable to
it except to the extent that the failure to comply therewith could not
materially affect its ability to perform its obligations under this Agreement;
and
(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 could reasonably be expected to material 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
reasonable 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 Default Rate. 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 any such notice shall become effective if given in accordance with,
and at the addresses specified in, the provisions of Section 12.1 of the Common
Agreement.
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 Partnership, 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.
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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 7.16 of the Intercreditor
Agreement, or as otherwise expressly provided herein. Any such 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 their respective 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 7.16 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
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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 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
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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
satisfactory to the Collateral 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 Credit 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 Operative Document brought before the
foregoing courts on the basis of forum non-conveniens or improper venue.
Section 20.a 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,
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STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE OTHER PARTIES HERETO.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE COLLATERAL AGENT TO ENTER INTO
THIS AGREEMENT.
21. 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.
22. Third Party Beneficiaries. The agreements of the parties
hereto are intended to benefit the Senior Secured Parties and their respective
successors and assigns.
23. 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 Collateral 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 Credit Document or now or hereafter existing at
law or in equity or by statute.
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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/ XXXXXXX XXXXX
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Name: Xxxxxxx Xxxxx
Title: President
LSP ENERGY LIMITED PARTNERSHIP
By: LSP Energy, Inc.,
its general partner
By: /s/ XXXXXXX XXXXX
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Name: Xxxxxxx Xxxxx
Title:
IBJ XXXXXXXX BANK & TRUST COMPANY,
as the Collateral Agent
By: /s/ J.R. XXXXX
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Name: J.R. Xxxxx
Title: Vice President
Signature Page to Equity Contribution Agreement
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Exhibit B to
Equity Contribution Agreement
FORM OF EQUITY REQUISITION CERTIFICATE
[DATE]
LSP Batesville Holding, LLC
c/o LS Power, LLC
Xxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
This Equity Requisition Certificate is delivered to you pursuant to Section
2(a) of that certain Equity Contribution Agreement, dated as of August __, 1998
(the "Equity Contribution Agreement"), by and among you (the "Equity
Contributor"), the undersigned (the "Partnership") and IBJ Xxxxxxxx Bank & Trust
Company, 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 Equity Amount less the amount specified in clause (1)
immediately above is $_______________.
The Partnership hereby requests that the Equity Contributor make an Equity
Contribution to the Partnership on the date and in the amount requested below
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(the "Requested Equity Contribution Amount"), which amount is to be paid to
the Construction Account:
Date of funding: _________________________
Amount of
Contribution: $________________________
Very truly yours,
LSP ENERGY LIMITED PARTNERSHIP
By: LSP Energy, Inc.,
its Managing General Partner
By: ______________________
Name:
Title:
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: September 25, 1998 AMP Incorporated
By: _______________________
Name: Xxxxxx Xxxx
Title: Chairman and Chief
Executive Officer
