1
Exhibit 4.7
COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT
Dated as of March 30, 2000
among
NRG SOUTH CENTRAL GENERATING LLC, as the Issuer,
LOUISIANA GENERATING LLC, as the Subsidiary
Guarantor,
THE CHASE MANHATTAN BANK, as the Bond Trustee,
THE CHASE MANHATTAN BANK, as the Depositary Bank,
and
THE CHASE MANHATTAN BANK, as the Collateral Agent
2
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINED TERMS: PRINCIPALS OF CONSTRUCTION 2
Section 1.1 Defined Terms 2
Section 1.2 Principles of Construction 5
ARTICLE 2
COLLATERAL AGENT; RELATIONS
AMONG SECURED PARTIES 5
Section 2.1 Appointment and Duties of Collateral Agent 5
Section 2.2 Rights of Collateral Agent 6
Section 2.3 Lack of Reliance on the Collateral Agent 9
Section 2.4 Indemnification; Bankruptcy 10
Section 2.5 Resignation or Removal of the Collateral Agent 12
Section 2.6 Documents 12
Section 2.7 Authorization 13
Section 2.8 Additional Collateral Agents 14
Section 2.9 Power of Attorney from Secured Parties 16
Section 2.10 The Issuer as a Secured Party 17
Section 2.11 Additional Guarantors 17
Section 2.12 Assignment of Rights, No Assumption of Duties 17
Section 2.13 Miscellaneous 17
ARTICLE 3
DEPOSITARY BANK 18
Section 3.1 Appointment of Depositary Bank, Powers and Immunities 18
Section 3.2 Reliance by Depositary Bank 20
Section 3.3 Court Orders 21
Section 3.4 Resignation or Removal 21
Section 3.5 Expenses; Indemnification; Fees 22
Section 3.6 Direction to Depositary Bank 23
Section 3.7 Action by Depositary Bank 23
Section 3.8 Merger of Depositary Bank 23
i
3
ARTICLE 4
ADMINISTRATION OF THE COLLATERAL 23
Section 4.1 Administration of the Collateral 23
Section 4.2 Priority of Security Interests 24
Section 4.3 Modification of Certain Documents 24
ARTICLE 5
EVENTS OF DEFAULT; TRIGGER EVENTS 25
Section 5.1 Exercise of Rights 25
Section 5.2 Actions Upon A Trigger Event 26
Section 5.3 Exercise of Remedies and Application of Proceeds 26
Section 5.4 Receipt of Money or Proceeds 29
Section 5.5 Additional Secured Parties 30
Section 5.6 Event of Loss; Title Event 30
ARTICLE 6
MISCELLANEOUS 31
Section 6.1 Amendments 31
Section 6.2 Assignment 32
Section 6.3 Severability 32
Section 6.4 Notices 32
Section 6.5 Successors and Assigns 33
Section 6.6 Counterparts 33
Section 6.7 Governing Law; Submission to Jurisdiction; Waiver of Jury
Trial 33
Section 6.8 No Impairments of Other Rights 34
Section 6.9 Headings 34
Section 6.10 Termination 34
Section 6.11 Entire Agreement 35
Section 6.12 Execution in Lieu of Agent 35
Section 6.13 Conflicts with Other Security Documents 35
Section 6.14 Scope of Duties; Limits on Liability 35
Section 6.15 Notice of Adverse Claim 35
ii
4
COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT (this
"Agreement") dated as of March 30, 2000 among NRG SOUTH CENTRAL GENERATING LLC
(the "Issuer"), a Delaware limited liability company, LOUISIANA GENERATING LLC
(the "Subsidiary Guarantor"), a Delaware limited liability company, THE CHASE
MANHATTAN BANK acting in its capacity as the bond trustee under the Indenture
(together with its successors and assigns, the "Bond Trustee"), THE CHASE
MANHATTAN BANK acting in its capacity as the depositary bank (together with its
successors and assigns, the "Depositary Bank"), any trustees or agents under any
other Finance Documents on behalf of the holders of the indebtedness or
obligations evidenced by such Finance Documents and THE CHASE MANHATTAN BANK
acting in its capacity as the collateral agent appointed hereunder for the
Secured Parties (together with its successors and assigns, the "Collateral
Agent").
W I T N E S S E T H:
WHEREAS, the Subsidiary Guarantor is acquiring the Project
from Cajun;
WHEREAS, the Issuer is a limited liability company established
for the sole purposes of (a) issuing the Bonds under the Indenture and incurring
other Permitted Issuer Indebtedness, (b) owning the membership interests in the
Subsidiary Guarantor and any Additional Subsidiaries or additional assets as
permitted under the Indenture, (c) making a loan to the Subsidiary Guarantor
pursuant to the Guarantor Loan Agreement and (d) entering into those
transactions incident thereto; and
WHEREAS, the Issuer has simultaneously with the execution and
delivery of this Agreement issued and sold the Initial Bonds 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 Bonds will be
serviced by repayment of the Guarantor Loan and guaranteed (subject to certain
limitations) by the Subsidiary Guarantor; and
WHEREAS, the Issuer, the Subsidiary Guarantor, the Members,
the Collateral Agent for the behalf of the Secured Parties, and the Depositary
Bank are
5
entering into the other Security Documents, pursuant to which the Collateral
Agent, acting on behalf of the Secured Parties, will obtain a continuing Lien on
and perfected Security Interest in the Collateral;
WHEREAS, the Issuer and the Subsidiary Guarantor may incur
additional Permitted Indebtedness which may be secured by the Collateral;
WHEREAS, the parties hereto desire to enter into this
Agreement to set forth their mutual understanding with respect to (a) the
exercise of certain rights, remedies and options by the respective parties
hereto under the above described documents, (b) the priority of their respective
Security Interests created by the Security Documents, (c) the appointment of the
Collateral Agent and (d) the appointment of the Depositary Bank.
NOW, THEREFORE, for and in consideration of the premises and
mutual covenants herein contained, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto, intending to be legally bound, do hereby covenant and agree as
follows:
ARTICLE 1
DEFINED TERMS: PRINCIPALS OF CONSTRUCTION
Section 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 Trust Indenture, dated as of March 30, 2000, among the Issuer, the
Subsidiary Guarantor and the Bond Trustee; provided, however that to the extent
a definition is incorporated herein by reference, no amendment or modification
to that definition will be effective under this Agreement without the prior
written consent of the Working Capital Facility Agent if such amendment or
modification would adversely effect the Working Capital Facility Banks.
(b) The following terms shall have the following respective
meanings:
2
6
"Additional Collateral Agent" shall have the meaning given to
that term in Section 2.8(a).
"Agreement" shall mean this Agreement in its entirety.
"Arrearages" shall have the meaning specified in Section 5.4.
"Collateral Agent Claims" shall mean all obligations of the
Secured Parties, the Subsidiary Guarantor and the Issuer now or hereafter
existing, to pay fees, costs and expenses to the Collateral Agent pursuant to
Sections 2.2(e) and 2.4 and the other Finance Documents.
"Combined Exposure" shall mean, as of any date of calculation,
the sum (calculated without duplication) of the following to the extent the same
is held by or represented by a Secured Party: (i) the aggregate principal amount
of all Outstanding Bonds as of the calculation date, (ii) the aggregate
principal amount of all loans (if any) outstanding as of such calculation date
under the Working Capital Facility and (iii) the aggregate amount of all undrawn
financing commitments as of such calculation date under the Working Capital
Facility which, as of such calculation date, the lenders party to the Working
Capital Agreement have no right to terminate.
"Damages" shall have the meaning specified in Section 2.4(b).
"Debt Termination Date" shall mean the date on which all
Finance Liabilities, other than contingent liabilities and obligations which are
unasserted at such date, have been paid and satisfied in full and all Finance
Commitments have been terminated.
"Designation Letter" shall mean any letter executed and
delivered pursuant to Section 5.5 and substantially in the form of Exhibit A
hereto.
"Designation Letter (Additional Guarantor)" shall mean any
letter executed and delivered pursuant to Section 2.11 and substantially in the
form of Exhibit B hereto.
"Event of Default" shall mean an "event of default" (or
correlative term) under any Finance Document.
3
7
"Finance Commitment" shall mean any commitment pursuant to any
of the Finance Documents (or any other similar agreement entered into by the
Issuer, the Subsidiary Guarantor or any Additional Guarantor with respect to
the incurrence of Permitted Indebtedness (other than the Bonds)) to provide
credit to the Issuer, the Subsidiary Guarantor or Additional Guarantor, as the
case may be.
"Finance Liabilities" shall mean all Indebtedness, liabilities
and obligations of the Issuer, the Subsidiary Guarantor and any Additional
Guarantor (including, but not limited to, principal, interest, fees,
reimbursement obligations, penalties, indemnities and legal and other expenses,
whether due after acceleration or otherwise) to the Secured Parties (of
whatsoever nature and howsoever evidenced) under or pursuant to the Indenture,
the Bonds, the Guarantor Security Documents, any Additional Bonds, the Working
Capital Facility and any other Finance Document (or any other similar agreement
entered into by the Issuer, the Subsidiary Guarantor or Additional Guarantor
with respect to the incurrence of Permitted Indebtedness (other than the
Bonds)), to the extent arising on or prior to the Debt Termination Date, in each
case, direct or indirect, primary or secondary, fixed or contingent, now or
hereafter arising out of or relating to any such agreements; and also shall mean
all interest owed to the Secured Parties and accrued following the commencement
of a case (whether voluntary or involuntary) under the Federal Bankruptcy Code
with respect to the Issuer, the Subsidiary Guarantor or Additional Guarantor.
"Indemnified Depositary Bank Party" shall have the meaning
specified in Section 3.5.
"Indemnified Party" shall have the meaning specified in
Section 2.4(b).
"Indenture" shall mean the Trust Indenture, dated as of March
30, 2000, by and among the Issuer, the Subsidiary Guarantor and the Bond
Trustee.
"Post-Default Rate" means the rate of interest from time to
time announced by The Chase Manhattan Bank, a New York banking corporation (or
such other financial institution that is at such time serving as the Collateral
Agent) at its principal office in New York, New York as its prime commercial
lending rate (the "Prime Rate") plus 1%. Each change in any interest rate
provided for herein or in the Security Documents based upon the Prime Rate
resulting from a change in the Prime Rate shall take effect at the time of such
change in the Prime Rate.
4
8
"Required Secured Parties" shall mean, at any time, at least
33 1/3% of the Combined Exposure in the case of a payment default and at least
66 2/3% of the Combined Exposure in the case of any other default or any other
action required to be taken hereunder.
"Security Interest" shall mean any perfected and enforceable
Lien on the Collateral granted to the Collateral Agent pursuant to the
requirements of any applicable Finance Document.
"Trigger Event" shall mean 67% of the Combined Exposure shall
have been declared to be, or shall automatically have become, due and payable
(and shall not have been rescinded) under the Finance Documents, and the
Collateral Agent shall have, upon the written direction from the Required
Secured Parties, declared such event to be a Trigger Event.
"Trigger Event Date" shall have the meaning set forth in
Section 5.3(a).
Section 1.2 Principles of Construction. For all purposes of
this Agreement, the principles of construction set forth in Section 1.1 of the
Indenture shall apply.
ARTICLE 2
COLLATERAL AGENT; RELATIONS
AMONG SECURED PARTIES
Section 2.1 Appointment and Duties of Collateral Agent. (a)
Each of the Secured Parties hereby designates and appoints The Chase Manhattan
Bank to act as the Collateral Agent under this Agreement and the other Finance
Documents to which the Collateral Agent is a party, and each of the Secured
Parties hereby authorizes the Collateral Agent to take such actions on its
behalf under the provisions of this Agreement and the other Finance Documents to
which the Collateral Agent is a party and to exercise such powers and perform
such duties as are expressly delegated to the Collateral Agent by the terms of
this Agreement and the other Finance Documents to which the Collateral Agent is
a party, together with such other powers as are reasonably incidental thereto.
The execution of this Agreement by the Collateral Agent shall be deemed an
acceptance by the Collateral Agent of the
5
9
appointment made under this Section 2.1 and an agreement to act as agent on
behalf of the Secured Parties. Notwithstanding any provision to the contrary
elsewhere in this Agreement and the other Finance Documents to which the
Collateral Agent is a party, the Collateral Agent shall not have any duties or
responsibilities, except those expressly set forth in this Agreement and the
other Finance Documents to which the Collateral Agent is a party, or any
fiduciary relationship with any Secured Party, and no implied covenants,
functions or responsibilities shall be read into this Agreement or any other
Finance Document to which the Collateral Agent is a party or otherwise exist
against the Collateral Agent. The Collateral Agent shall not be liable for any
action taken or omitted to be taken by it hereunder or under any other Finance
Document to which the Collateral Agent is a party, or in connection herewith or
therewith, or in connection with the Collateral, unless caused by its gross
negligence or willful misconduct. The Collateral Agent shall not be obligated to
expend or risk its own assets or property in connection with its administration
of this Agreement or its appointment hereunder.
(b) Notwithstanding anything to the contrary in this Agreement
or any other Finance Document to which the Collateral Agent is a party, the
Collateral Agent shall not exercise any rights or remedies under this Agreement
(except as set forth in the proviso to Section 5.2(b)) or any other Finance
Document to which the Collateral Agent is a party or give any consent under this
Agreement or any other Finance Document to which the Collateral Agent is a party
or enter into any agreement amending, modifying, supplementing or waiving any
provision of this Agreement or any other Finance Document to which the
Collateral Agent is a party unless it shall have been directed to do so in
writing by the Required Secured Parties; provided, however, that the Collateral
Agent shall consent to the release of Collateral contemplated by the Finance
Documents, and shall enter into any amendments, waivers or supplements with
respect to the Finance Document to which the Collateral Agent is a party to the
extent not inconsistent with the provisions of the other Finance Documents and
which would not result in a Material Adverse Effect (as evidenced by an
Officer's Certificate signed by an Authorized Officer of the Issuer).
Section 2.2 Rights of Collateral Agent. (a) The Collateral
Agent may execute any of its duties under this Agreement or any other Finance
Document to which the Collateral Agent is a party by or through agents,
custodians, nominees or attorneys-in-fact. The Collateral Agent may consult
with counsel and the advice or any opinion of counsel shall be full and
complete authorization and protection in respect of any action taken or omitted
by it hereunder in good faith and in accordance with such advice or opinion of
counsel.
6
10
(b) Neither the Collateral Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall (i) be
liable for any action lawfully taken or omitted to be taken by it under or in
connection with this Agreement or any other Finance Document to which the
Collateral Agent is a party (except for its gross negligence or willful
misconduct) or (ii) be responsible in any manner to any of the Secured Parties
for any recitals, statements, representations or warranties made by the Issuer,
the Subsidiary Guarantor or any Additional Guarantor contained in this Agreement
or any other Finance Document to which the Collateral Agent is a party or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Collateral Agent under or in connection with, this Agreement
or any other Finance Document to which the Collateral Agent is a party or for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any other Finance Document to which the Collateral Agent is
a party or for any failure of the Issuer, the Subsidiary Guarantor or any
Additional Guarantor to perform their respective obligations hereunder or
thereunder. The Collateral Agent shall not be under any obligation to any
Secured Party to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Finance Document to which the Collateral Agent is a party, or to inspect
the properties, books or records of the Issuer, the Subsidiary Guarantor or any
Additional Guarantor.
(c) The Collateral Agent and its employees, agents,
attorneys-in-fact, and affiliates shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed
by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice or statements of legal counsel
(including, without limitation, counsel to the Issuer), independent accountants
and other experts selected by the Collateral Agent. In connection with any
request of the Required Secured Parties, the Collateral Agent shall be fully
protected in relying on a certificate of any Secured Party, signed by an
Authorized Officer of such Secured Party, setting forth the amount owed by the
Issuer, the Subsidiary Guarantor or any Additional Guarantor, to such Person as
of the date of such certificate, which certificate shall state that the Person
signing such certificate is an Authorized Officer of such Person and shall
state specifically the Finance Document and provision thereof pursuant to which
the Collateral Agent is being directed to act. The Collateral Agent shall be
entitled to rely, and shall be fully protected in relying on such certificate.
The Collateral Agent shall be fully justified in failing or refusing to take
any action under this Agreement or any other Finance Document to
7
11
which the Collateral Agent is a party (i) if such action would, in the
reasonable opinion of the Collateral Agent, be contrary to law or the terms of
this Agreement or the other Finance Documents, (ii) if such action is not
specifically provided for in this Agreement or such other Finance Document, it
shall not have received any such advice or concurrence of the Required Secured
Parties as it deems appropriate or, (iii) if, in connection with the taking of
any such action that would constitute an exercise of remedies under this
Agreement or such other Finance Document, it shall not first be indemnified to
its satisfaction by the Secured Parties (other than the Bond Trustee (in its
individual capacity), the Collateral Agent (in its individual capacity), the
Depositary Bank (in its individual capacity) or any other agent or trustee under
any of the Finance Documents (in its individual capacity)) against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Collateral Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement or
any other Finance Document to which the Collateral Agent is a party in
accordance with a written request of the Required Secured Parties (to the extent
that the Required Secured Parties are expressly authorized to direct the
Collateral Agent to take or refrain from taking such action), and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Secured Parties.
(d) The Collateral Agent shall not be deemed to have actual,
constructive, direct or indirect knowledge or notice of the occurrence of any
Event of Default or Trigger Event unless and until an Authorized Officer of the
Collateral Agent has received a written notice or a certificate from any Secured
Party, the Issuer, the Subsidiary Guarantor or any Additional Guarantor stating
that an Event of Default or Trigger Event has occurred and describing such
event. The Collateral Agent shall have no obligation whatsoever either prior to
or after receiving such notice or certificate to inquire whether an Event of
Default or Trigger Event has in fact occurred and shall be entitled to rely
conclusively, and shall be fully protected in so relying, on any such notice or
certificate so furnished to it. In the event that the Collateral Agent receives
such a notice of or certificate regarding the occurrence of any Trigger Event or
Event of Default, the Collateral Agent shall give notice thereof to the Secured
Parties. The Collateral Agent shall take such action with respect to such
Trigger Event as so requested pursuant to Sections 5.1, 5.2 and 5.3 hereof. The
agreements in this Section shall survive the payment or satisfaction in full of
the Finance Liabilities and the resignation or removal of the Collateral Agent
or the termination of this Agreement.
8
12
(e) The Issuer shall pay to the Collateral Agent upon demand
the amount of any and all reasonable out-of-pocket expenses, including the
reasonable fees and expenses of its counsel (and any local counsel) and of any
experts and agents (including the Depositary Bank) which the Collateral Agent
may incur in connection with (i) the acceptance or administration of this
Agreement and the other Finance Documents to which the Collateral Agent is a
party, (ii) the custody or preservation of, or the sale of, collection from, or
other realization upon, any of the Collateral, (iii) the exercise or enforcement
(whether through negotiations, legal proceedings or otherwise) of any of the
rights of the Collateral Agent or the other Secured Parties hereunder or under
the other Finance Documents to which the Collateral Agent is a party or (iv) the
failure by the Issuer, the Subsidiary Guarantor or any Additional Guarantor to
perform or observe any of the provisions hereof or of any of the other Finance
Documents to which the Collateral Agent is a party.
(f) Notwithstanding any other provision of this Agreement to
the contrary, the Collateral Agent shall be under no obligation to take any
action pursuant to any request or direction of any party hereto if it shall
receive conflicting instructions from another party hereto; provided that the
Collateral Agent shall inform such parties of the conflict.
(g) The Collateral Agent shall not be under any obligation to
take any action which is discretionary with the Collateral Agent pursuant to
this Agreement or in any other Finance Document.
Section 2.3 Lack of Reliance on the Collateral Agent. Each of
the other Secured Parties expressly acknowledges that neither the Collateral
Agent nor any of its officers, directors, employees, agents or attorneys-in-fact
has made any representations or warranties to it and that no act by the
Collateral Agent hereinafter taken, including, without limitation, any review of
the Project or of the affairs of the Issuer, the Subsidiary Guarantor or any
Additional Guarantor, shall be deemed to constitute any representation or
warranty by the Collateral Agent to any other Secured Party. Each Secured Party
represents to the Collateral Agent that it has, independently and without
reliance upon the Collateral Agent or any other Secured Party, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property, financial and
other condition and creditworthiness of the Project, the Issuer, the Subsidiary
Guarantor and any Additional Guarantor. Each Secured Party also represents that
it will, independently and without reliance upon the Collateral Agent or any
other Secured Party, and based on such documents and information as it shall
9
13
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement,
and to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Project, the Issuer, the Subsidiary Guarantor and any
Additional Guarantor. Except for notices, reports and other documents expressly
required to be furnished to the other Secured Parties by the Collateral Agent
hereunder, the Collateral Agent shall not have any duty or responsibility to
provide any other Secured Party with any credit or other information concerning
the business, operations, property, financial and other condition or
creditworthiness of the Project, the Issuer, the Subsidiary Guarantor or any
Additional Guarantor which may come into the possession of the Collateral Agent
or any of its officers, directors, employees, agents or attorneys-in-fact.
Section 2.4 Indemnification; Bankruptcy. (a) The other Secured
Parties severally agree to indemnify the Collateral Agent and its agents,
officers, directors, representatives and attorneys-in-fact, including, but not
limited to, the Depositary Bank, each in its capacity as such (to the extent not
reimbursed by the Issuer, the Subsidiary Guarantor or any Additional Guarantor
and without limiting the obligation of the Issuer, the Subsidiary Guarantor or
any Additional Guarantor to do so), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time be
imposed on, incurred by or asserted against the Collateral Agent in its capacity
as such in any way relating to or arising out of this Agreement or the other
Finance Documents to which the Collateral Agent is a party, or the performance
of its duties as Collateral Agent hereunder or thereunder or any action taken or
omitted by the Collateral Agent in its capacity as such under or in connection
with any of the foregoing (including, but not limited to, any claim that the
Collateral Agent is the owner or operator of any of the Project and liable as
such pursuant to any Environmental Laws); provided that the other Secured
Parties shall not be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements to the extent that any of the foregoing result from
the Collateral Agent's gross negligence or willful misconduct.
(b) Without limiting the obligations of the Issuer, the
Subsidiary Guarantor and any Additional Guarantor under any other Finance
Document, the Issuer, the Subsidiary Guarantor and each Additional Guarantor
jointly and severally indemnify the Collateral Agent and each other Secured
Party and, in their capacity as such, their officers, directors, shareholders,
controlling persons, employees, agents,
10
14
officers, directors, representatives and servants (each an "Indemnified Party")
from and against any and all claims, damages, losses, liabilities, obligations,
penalties, actions, causes of action, judgments, suits, costs, expenses or
disbursements (including, without limitation, reasonable attorneys' and
consultants' fees and expenses) (collectively "Damages") of any kind or nature
whatsoever which may at any time be imposed on, incurred by or asserted against
any Indemnified Party (or which may be claimed against any Indemnified Party by
any Person) by reason of, in connection with or in any way relating to or
arising out of any Transaction Document, the Collateral or any other documents
or transactions in connection with or relating thereto (including, without
limitation, Damages in connection with the presence, release or threatened
release of Environmentally Regulated Materials at, on, under, to or from the
Project or any disposal sites to which wastes from the Project have been taken),
unless due to the gross negligence or willful misconduct of such Indemnified
Party. The Issuer and the Subsidiary Guarantor further shall, upon demand by any
Indemnified Party, jointly and severally pay to such Indemnified Party all
reasonable costs and expenses incurred by such Indemnified Party in enforcing
any rights under any of the Transaction Documents, including reasonable fees and
expenses of counsel (including local counsel).
(c) The Secured Parties hereby agree that, except upon the
written consent of the Required Secured Parties, (i) no Secured Party shall
authorize the Issuer, the Subsidiary Guarantor or any Additional Guarantor (A)
to commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to the Issuer, the Subsidiary
Guarantor or the Additional Guarantor, as the case may be, under any bankruptcy,
insolvency or other similar law now or hereafter in effect in any jurisdiction
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of the Issuer, the Subsidiary Guarantor or the Additional
Guarantor or (B) to consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against the Issuer, the Subsidiary Guarantor or any
Additional Guarantor to make a general assignment for the benefit of any Secured
Party or any other creditor of the Issuer, the Subsidiary Guarantor or the
Additional Guarantor, and (ii) none of the Secured Parties shall commence or
join with any other Person in commencing any proceeding against the Issuer, the
Subsidiary Guarantor or any Additional Guarantor under any bankruptcy,
reorganization, liquidation or insolvency law or statute now or hereafter in
effect in any jurisdiction.
Section 2.5 Resignation or Removal of the Collateral Agent.
The Collateral Agent may resign as Collateral Agent upon sixty (60) days' notice
to the
11
15
Secured Parties and may be removed at any time with or without cause upon sixty
(60) days' written notice by the Required Secured Parties, with any such
resignation or removal to become effective only upon the appointment of a
successor Collateral Agent under this Section 2.5; provided, however, that if no
successor Collateral Agent shall have been so appointed within sixty (60) days,
the resigning Collateral Agent may petition any court of competent jurisdiction
for the appointment of a new Collateral Agent; provided further, however, that
if at any time prior to the occurrence of a Trigger Event, the Collateral Agent
is the same Person as the Bond Trustee, the Issuer, at the reasonable request of
Persons who become Secured Parties after the Closing Date, shall have the right
to remove the Collateral Agent upon 60 days' notice to the Secured Parties with
or without cause, effective upon the appointment of a successor Collateral Agent
under this Section 2.5. If the Collateral Agent shall resign or be removed as
Collateral Agent by the Required Secured Parties or the Issuer, as applicable,
then the Required Secured Parties shall (and if no such successor shall have
been appointed within sixty (60) days of the Collateral Agent's resignation or
removal, the Collateral Agent may) appoint a successor agent for the Secured
Parties, which successor agent shall be reasonably acceptable to the Issuer,
whereupon such successor agent shall succeed to the rights, powers and duties of
the Collateral Agent, and the term "Collateral Agent" shall mean such successor
agent effective upon its appointment, and the former Collateral Agent's rights,
powers and duties as Collateral Agent shall be terminated, without any other or
further act or deed on the part of such former Collateral Agent (except that the
resigning Collateral Agent shall deliver all Collateral then in its possession
to the successor Collateral Agent) or any of the other Secured Parties. After
any retiring Collateral Agent's resignation or removal hereunder as Collateral
Agent, the provisions of this Agreement shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Collateral Agent.
Section 2.6 Documents. The Collateral Agent will forward
promptly after the Collateral Agent's receipt thereof (and will use its best
efforts to forward within five (5) Business Days of such receipt) to the Bond
Trustee and the Working Capital Facility Agent (a) a copy of each document
furnished to the Collateral Agent for such Secured Party under the Finance
Documents and (b) any written notice delivered to the Collateral Agent pursuant
to any Third Party Consent. The Collateral Agent will forward to each Secured
Party, promptly upon such Secured Party's written request therefor, a copy of
any other document furnished to the Collateral Agent under any Finance Document
to which the Collateral Agent is a party.
12
16
Section 2.7 Authorization. (a) The Collateral Agent is hereby
authorized by each Secured Party, for itself and as a Secured Party (i) to
execute, deliver and perform each of the Finance Documents (other than the
Working Capital Facility) to which the Collateral Agent or the Secured Parties
are or are intended to be a party and (ii) subject to the terms of the Finance
Documents, to draw on, or otherwise act under any letter of credit or guarantee
delivered to the Collateral Agent for the benefit of the Secured Parties and
each of the other Secured Parties agrees to be bound by all the agreements of
the Collateral Agent contained in, and all of the terms and conditions of, the
Finance Documents for which the Collateral Agent is acting as its agent
hereunder.
(b) Without the prior written consent of, or direction from,
each of the Secured Parties, the Collateral Agent shall not (i) consent to any
modification, supplement or waiver (other than to cure any ambiguity, defect or
inconsistency upon advice of counsel) under any of the Finance Documents to
which the Collateral Agent is a party, (ii) except as permitted pursuant to
Section 2.1(b), release any Collateral or otherwise terminate any Lien under any
Finance Document (except that the Collateral Agent may release funds from the
Depositary Accounts in accordance with the terms and provisions of Article 6 of
the Indenture), (iii) consent to any modification of this Section 2.7 or of the
definition of Secured Obligation or Secured Party, (iv) release any letter of
credit, guarantee or other instrument securing the obligations of any Person
under any Transaction Document, (v) consent to any Lien under any Security
Document securing obligations other than Secured Obligations or (iv) consent to
any item requiring the consent of the One Hundred Percent Holders as set forth
in Section 8.2 of the Indenture or all of the Working Capital Facility Banks, as
set forth in Section 10.2(b) of the Working Capital Facility.
(c) For the avoidance of doubt, nothing in this Section 2.7 or
elsewhere in this Agreement or in any other Finance Document or other
Transaction Document shall limit the obligations of the Issuer, the Subsidiary
Guarantor or any Additional Guarantor under any of the Transaction Documents,
including, without limitation, any obligation of the Issuer, the Subsidiary
Guarantor or the Additional Guarantor to obtain any consent or approval of any
of the Secured Parties, obtained or required to be obtained by the Issuer, the
Subsidiary Guarantor or the Additional Guarantor prior to any amendment of,
modification or supplement to or waiver under any Finance Document or other
Transaction Document, and the Collateral Agent shall not consent to any
amendment of, modification of or supplement to or waiver under any Finance
Document or other Transaction Document unless and until the Issuer, the
Subsidiary Guarantor or the Additional Guarantor shall have first obtained
13
17
all such required consents and approvals and provided the Collateral Agent with
written certification of the same.
Section 2.8 Additional Collateral Agents. (a) Whenever the
Collateral Agent shall deem it necessary or prudent in order either to conform
to any law of any jurisdiction in which all or any part of the Collateral shall
be situated or to make any claim or bring any suit with respect to the
Collateral, or the Collateral Agent shall have been advised by counsel that it
is so necessary or prudent in the interests of the Secured Parties, the
Collateral Agent shall take such action (including, to the extent required, the
execution and delivery of an agreement supplemental hereto and such other
instruments and agreements) as may be necessary or proper to constitute another
bank or trust company, or one or more Persons approved by the Collateral Agent
and, unless an Event of Default has occurred and is continuing, reasonably
acceptable to the Issuer, either to act as an additional collateral agent of all
or any part of the Collateral, jointly with the Collateral Agent, or to act as a
separate collateral agent or trustee of all or any part of the Collateral (any
such additional or separate agent or trustee being herein called an "Additional
Collateral Agent"), in any such case with such powers as may be granted pursuant
to such action, and to vest in such bank, trust company or Person as an
Additional Collateral Agent any property, title, right or power of the
Collateral Agent deemed necessary or advisable by the Collateral Agent, subject
to the remaining provisions of this Section 2.8. The Collateral Agent may
execute, deliver and perform any deed, conveyance, assignment or other
instrument in writing as may be required by any Additional Collateral Agent for
more fully and certainly vesting in and confirming to it, him or her any
property, title, right or power which by the terms of such agreement
supplemental hereto is expressed to be conveyed or conferred to or upon such
Additional Collateral Agent.
(b) Each Additional Collateral Agent shall, to the extent
permitted by law, be appointed and act, and the Collateral Agent shall act,
subject to the following provisions and conditions:
(i) all powers, duties, obligations and rights
conferred or imposed upon the Collateral Agent in respect of the
receipt, custody, investment and payment of moneys shall be exercised
solely by the Collateral Agent;
(ii) all other rights, powers, duties and obligations
conferred or imposed upon the Collateral Agent may be conferred or
imposed
14
18
upon and exercised or performed by the Additional Collateral Agent
jointly with the Collateral Agent, except to the extent that under any
law of any jurisdiction in which any particular act or acts are to be
performed, the Collateral Agent shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to any part of the
Collateral in any such jurisdiction) shall be exercised and performed
by such Additional Collateral Agent;
(iii) no power hereby given to, or with respect to
which it is hereby provided may be exercised by, any such Additional
Collateral Agent shall be exercised hereunder by such Additional
Collateral Agent except jointly with, or with the consent of, the
Collateral Agent;
(iv) such Additional Collateral Agent shall act only
upon and to the extent of written instructions from the Collateral
Agent and no other party, and the Additional Collateral Agent shall not
be required to take and shall not be responsible for taking any action
as Additional Collateral Agent under any Security Document or this
Agreement unless it has received such written instructions from the
Collateral Agent; and
(v) the Collateral Agent shall not be personally
liable by reason of any act or omission of any Additional Collateral
Agent hereunder, nor shall such Additional Collateral Agent be
personally liable by reason of any act or omission of the Collateral
Agent or any other Additional Collateral Agent hereunder.
If at any time the Collateral Agent shall deem it no longer necessary or prudent
in order to conform to any such law or take any such action or shall be advised
by counsel that it is no longer so necessary or prudent in the interest of the
Secured Parties to appoint an Additional Collateral Agent, the Collateral Agent
shall execute and deliver an agreement supplemental hereto and all other
instruments and agreements necessary or proper to remove any Additional
Collateral Agent.
(c) Any Additional Collateral Agent may at any time by an
instrument in writing constitute the Collateral Agent its agent or
attorney-in-fact, with full power and authority, to the extent which may be
authorized by law, to do all acts and things and exercise all discretion which
it is authorized or permitted to do or exercise, for and in its behalf and in
its name. In case any such Additional Collateral Agent shall die, become
incapable of acting, resign or be removed, all the assets,
15
19
property, rights, powers, trusts, duties and obligations of such Additional
Collateral Agent, so far as permitted by law, shall vest in and be exercised by
the Collateral Agent, without the appointment of a new successor to such
Additional Collateral Agent unless and until a successor is appointed in the
manner hereinbefore provided.
(d) Any request, approval or consent in writing by the
Collateral Agent to any Additional Collateral Agent shall be sufficient to
warrant such Additional Collateral Agent to take such action as may be so
requested, approved or consented.
(e) Each Additional Collateral Agent appointed pursuant to
this Section 2.8 shall be subject to, and shall have the benefits of, the
provisions of this Agreement insofar as they apply to the Collateral Agent.
Section 2.9 Power of Attorney from Secured Parties. Each
Secured Party hereby gives a power of attorney, coupled with an interest, to the
Collateral Agent, and appoints, makes, constitutes and designates the Collateral
Agent its true and lawful attorney-in-fact, subject to Section 2.7, to consent
on its behalf (in its capacity as a Secured Party) under the Transaction
Documents to the extent that the consent of the Collateral Agent or such Secured
Party is required thereunder, and to take such actions on its behalf (in its
capacity as a Secured Party) under the provisions of such Transaction Documents
as are reasonably incidental thereto, to execute and deliver in the name of and
on behalf of such Secured Party, or in its own name, as the case may be, all
documents required to be executed by such Secured Party (in its capacity as
such) in connection therewith and to do, take and perform all and every act and
thing whatsoever requisite, proper or necessary to be done, in the exercise of
any of the rights and powers herein granted, as fully to all intents and
purposes as such Secured Party (in its capacity as such) might or could do, with
full power of substitution or revocation, hereby ratifying and confirming all
that said attorney-in-fact, or its substitute or substitutes, shall lawfully do
or cause to be done by virtue of this power of attorney and the rights and
powers herein granted; provided that the Collateral Agent shall not so consent
or take such other actions other than in accordance with this Agreement and the
Security Documents. This Section 2.9 is to be construed and interpreted as a
general power of attorney coupled with an interest. The enumeration of specific
items, rights, acts or powers herein is not intended to, nor does it limit or
restrict, and is not to be construed or interpreted as limiting or restricting,
the general powers herein granted to said attorney-in-fact. The rights, powers,
and authority of said attorney-in-fact herein granted shall commence and be in
full force and effect as of the Closing Date, and such rights,
16
20
powers and authority shall remain in full force and effect thereafter until the
Debt Termination Date.
Section 2.10 The Issuer as a Secured Party. The Issuer hereby
collaterally assigns, transfers and conveys all of its rights hereunder, either
now existing or hereafter arising, to the Bond Trustee for the benefit of the
Holders, as security for its obligations under the Finance Documents. The Bond
Trustee shall, subject to the terms of the Indenture, be entitled to vote on all
matters under this Agreement in accordance with the direction of the Holders of
the aggregate principal amount of the Outstanding Bonds required to take action
under the Indenture.
Section 2.11 Additional Guarantors. If the Issuer acquires or
creates an Additional Subsidiary that is an Additional Guarantor pursuant to the
Finance Documents, the Issuer will cause such Subsidiary to execute the
Designation Letter (Additional Guarantor) attached as Exhibit B hereto.
Section 2.12 Assignment of Rights, No Assumption of Duties.
Anything herein contained to the contrary notwithstanding, (i) each of the
Issuer, the Subsidiary Guarantor and any Additional Guarantor shall remain
liable under each of the Transaction Documents to which it is a party to the
extent set forth therein to perform all of its duties and obligations
thereunder to the same extent as if this Agreement had not been executed, (ii)
the exercise by the Collateral Agent of any of its rights, remedies or powers
hereunder shall neither release the Issuer, the Subsidiary Guarantor nor any
Additional Guarantor from any of its duties or obligations under each of the
Transaction Documents to which it is a party and (c) the Collateral Agent shall
have no obligation or liability under any of the Transaction Documents to which
each of the Issuer, the Subsidiary Guarantor and any Additional Guarantor is a
party by reason of or arising out of this Agreement, nor shall the Collateral
Agent be obligated to perform any of the obligations or duties of the Issuer,
the Subsidiary Guarantor or any Additional Guarantor thereunder, except as
expressly provided herein.
Section 2.13 Miscellaneous. (a) None of the provisions of this
Agreement shall require the Collateral Agent to expend or risk its own funds or
otherwise to incur any liability, financial or otherwise, in the performance of
any of its duties hereunder, or in the exercise of any of its rights or powers
if it shall have reasonable grounds for believing that repayment of such funds
or indemnity satisfactory to it against such risk or liability is not assured to
it.
17
21
(b) Whenever in the administration of the provisions of this
Agreement, the Collateral Agent shall deem it necessary or desirable that a
matter be provided or established prior to taking or suffering any action to be
taken hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of gross negligence or bad faith on
the part of the Collateral Agent, be deemed to be conclusively proved and
established by a certificate signed by any of the Secured Parties and delivered
to the Collateral Agent and such certificate, in the absence of gross negligence
or bad faith on the part of the Collateral Agent, shall be full warrant to the
Collateral Agent for any action taken, suffered or omitted by it under the
provisions of this Agreement upon the faith thereof.
(c) The Collateral Agent shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, entitlement
order, approval or other paper or document.
(d) The Collateral Agent may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, attorneys, custodians or nominees appointed with due care, and
shall not be responsible for any willful misconduct or negligence on the part
of any new agent, attorney, custodian or nominee so appointed.
(e) Any corporation into which the Collateral Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Collateral
Agent shall be a party, or any corporation succeeding to the business of the
Collateral Agent shall be the successor of the Collateral Agent hereunder
without the execution or filing of any paper with any party hereto or any
further act on the part of any of the parties hereto except where an instrument
of transfer or assignment is required by law to effect such succession,
anything herein to the contrary notwithstanding.
ARTICLE 3
DEPOSITARY BANK
Section 3.1 Appointment of Depositary Bank, Powers and
Immunities.
18
22
(a) The Depositary Bank may execute any of its duties under
this Agreement and the Indenture by or through agents or attorneys-in-fact. The
Depositary Bank may consult with counsel and the advice or any opinion of
counsel shall be full and complete authorization and protection in respect of
any action taken or omitted by it hereunder in good faith and in accordance
with such advice or opinion of counsel.
(b) The Collateral Agent on behalf of the Secured Parties
under this Agreement hereby appoints the Depositary Bank to act as depositary
bank and "securities intermediary" hereunder with such powers as are expressly
delegated to the Depositary Bank by the terms of this Agreement and the
Indenture. The Depositary Bank shall not have any duties or responsibilities
except those expressly set forth in this Agreement and the Indenture. Without
limiting the generality of the foregoing, the Depositary Bank shall take all
actions as the Collateral Agent shall direct it to perform in accordance with
the express provisions of this Agreement and the Indenture or as the Collateral
Agent may otherwise direct it to perform in accordance with the provisions of
this Agreement and the Indenture. Notwithstanding anything to the contrary
contained herein, the Depositary Bank shall not be required to take any action
which is contrary to this Agreement, the Indenture or Applicable Law. Neither
the Depositary Bank nor any of its Affiliates shall be responsible to any
Secured Party for any recitals, statements, representations or warranties made
by the Issuer, the Subsidiary Guarantor or any Additional Guarantor contained
in this Agreement or any other Finance Document or in any certificate or other
document referred to or provided for in, or received by any Secured Party
under, the Indenture, this Agreement or any other Finance Document for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement, the Indenture or any other document referred to or provided for
herein or therein or for any failure by the Issuer, the Subsidiary Guarantor or
any Additional Guarantor to perform their respective obligations hereunder or
thereunder. The Depositary Bank shall not be required to ascertain or inquire
as to the performance by the Issuer, the Subsidiary Guarantor or any Additional
Guarantor of any of their respective obligations under the Indenture, this
Agreement, any other Finance Document or any other document or agreement
contemplated hereby or thereby. The Depositary Bank shall not be (a) required
to initiate or conduct any litigation or collection proceeding hereunder or
under any other Security Document or (b) responsible for any action taken or
omitted to be taken by it hereunder (except for its own gross negligence or
willful misconduct) or in connection with any other Security Document. Except
as otherwise provided under this Agreement, the Working Capital Facility or the
Indenture, the Depositary Bank shall take action under this Agreement and the
19
23
Indenture only as it shall be directed in writing by the Collateral Agent.
Whenever in the administration of this Agreement or the Indenture, the
Depositary Bank shall deem it necessary or desirable that a factual matter be
proved or established in connection with the Depositary Bank taking, suffering
or omitting to take any action hereunder or thereunder, such matter (unless
other evidence in respect thereof is herein specifically prescribed) may be
deemed to be conclusively proved or established by a certificate of any
Authorized Officer of the Issuer or the Collateral Agent, if appropriate. The
Depositary Bank shall have the right at any time to seek instructions concerning
the administration of this Agreement and the Indenture from the Collateral Agent
or any court of competent jurisdiction. The Depositary Bank shall have no
obligation to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or under the
Indenture.
Section 3.2 Reliance by Depositary Bank. The Depositary Bank
shall be entitled to rely upon and shall not be bound to make any investigation
into the facts or matters stated in any Officer's Certificate of the Issuer, the
Subsidiary Guarantor, any Additional Guarantor or the Collateral Agent or any
other notice or other document (including any cable, telegram, telecopy or
telex) believed by it to be genuine and to have been signed or sent by or on
behalf of the proper Person or Persons, and upon advice or statement of legal
counsel, independent accountants and other experts selected by the Depositary
Bank and shall have no liability for its actions taken thereupon, unless due to
the Depositary Bank's willful misconduct or gross negligence. Without limiting
the foregoing, the Depositary Bank shall be required to make payments to the
Secured Parties only as set forth herein. The Depositary Bank shall be fully
justified in failing or refusing to take any action under this Agreement or the
Indenture (i) if such action would, in the reasonable opinion of the Depositary
Bank, be contrary to Applicable Law or the terms of this Agreement or the
Indenture, (ii) if such action is not specifically provided for in this
Agreement or the Indenture, it shall not have received any such advice or
concurrence of the Collateral Agent as it deems appropriate or (iii) if, in
connection with the taking of any such action that would constitute an exercise
of remedies under this Agreement or the Indenture (whether such action is or is
intended to be an action of the Depositary Bank or the Collateral Agent), it
shall not first be indemnified to its satisfaction by the Secured Parties (other
than the Bond Trustee (in its individual capacity) or the Collateral Agent (in
its individual capacity) or any other agent or trustee under any of the Finance
Documents (in their respective individual capacities)) against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Depositary Bank shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement or
the Indenture in
20
24
accordance with a request of the Collateral Agent, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Secured Parties.
Section 3.3 Court Orders. The Depositary Bank is hereby
authorized, in its exclusive discretion, to obey and comply with all writs,
orders, judgments or decrees issued by any court or administrative agency
affecting any money, documents or things held by the Depositary Bank. The
Depositary Bank shall not be liable to any of the parties hereto or any other
Secured Party, their successors, heirs or personal representatives by reason of
the Depositary Bank's compliance with such writs, orders, judgments or decrees,
notwithstanding that such writ, order, judgment or decree is later reversed,
modified, set aside or vacated.
Section 3.4 Resignation or Removal.
(a) Except during the continuation of a Default or Event of
Default (as such term is defined in such document) under any Finance Document,
the Issuer shall have the right to remove the Depositary Bank upon thirty (30)
days' prior written notice to the Secured Parties with or without cause,
effective upon the appointment of a successor Depositary Bank under this Section
3.4, which is reasonably acceptable to the Bond Trustee, the Working Capital
Facility Agent and the Collateral Agent.
(b) Subject to the appointment and acceptance of a successor
Depositary Bank as provided below, the Depositary Bank may resign at any time by
giving thirty (30) days' prior written notice thereof to the Collateral Agent
and the Issuer, provided that in the event the Depositary Bank is also the
Collateral Agent, it must also at the same time resign as Collateral Agent. The
Depositary Bank may be removed at any time with cause by the Collateral Agent.
In the event that the Depositary Bank shall decline to take any action without
first receiving adequate indemnity from the Issuer, the Subsidiary Guarantor, an
Additional Guarantor, the other Secured Parties or the Collateral Agent, as the
case may be, and, having received an indemnity, shall continue to decline to
take such action, the Collateral Agent shall be deemed to have sufficient cause
to remove the Depositary Bank. In the event that the Depositary Bank is also the
Bond Trustee, the Collateral Agent shall have the right to remove the Depositary
Bank with or without cause. Upon any such resignation or removal, the Collateral
Agent shall have the right to appoint a successor Depositary Bank, which
Depositary Bank (except during the continuation of a Default or Event of Default
(as such term is defined in such document) under any Finance Document) shall be
reasonably acceptable to the Issuer. If no successor
21
25
Depositary Bank shall have been appointed by the Collateral Agent and shall have
accepted such appointment within thirty (30) days' after the retiring Depositary
Bank's giving of notice of resignation or removal of the retiring Depositary
Bank, then (i) the retiring Depositary Bank may petition a court of competent
jurisdiction for the appointment of a successor Depositary Bank or (ii) the
retiring Depositary Bank may appoint a successor Depositary Bank, which shall be
a bank or trust company reasonably acceptable to the Collateral Agent and the
Issuer. Upon the acceptance of any appointment as Depositary Bank hereunder by
the successor Depositary Bank, (a) such successor Depositary Bank shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Depositary Bank, and the retiring Depositary Bank
shall be discharged from its duties and obligations hereunder and (b) the
retiring Depositary Bank shall promptly transfer all Depositary Accounts within
its possession or control to the possession or control of the successor
Depositary Bank and shall execute and deliver such notices, instructions and
assignments as may be necessary or desirable to transfer the rights of the
Depositary Bank with respect to the Depositary Accounts to the successor
Depositary Bank. After the retiring Depositary Bank's resignation or removal
hereunder as Depositary Bank, the provisions of this Article 3 shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as Depositary Bank.
Section 3.5 Expenses; Indemnification; Fees.
(a) The Issuer and the Subsidiary Guarantor jointly and
severally agree to pay or reimburse all reasonable out-of-pocket expenses of the
Depositary Bank (including reasonable fees and expenses for legal services) in
respect of, or incident to, the execution, administration or enforcement of any
of the provisions of this Agreement or the Indenture or in connection with any
amendment, waiver or consent relating to this Agreement, the Working Capital
Facility or the Indenture. The obligations contained in this Section 3.5 shall
survive the termination of this Agreement, the Working Capital Facility and the
Indenture or the resignation or removal of the Depositary Bank.
(b) The Issuer and the Subsidiary Guarantor jointly and
severally agree to indemnify the Depositary Bank in its capacity as such, and,
in their capacity as such, its officers, directors, shareholders, controlling
persons, employees, agents and servants (each an "Indemnified Depositary Bank
Party") from and against any and all claims, losses, liabilities and expenses
(including the reasonable fees and expenses of counsel) arising out of or
resulting from this Agreement, the Working
22
26
Capital Facility or the Indenture (including, without limitation, performance
under or enforcement of this Agreement, the Working Capital Facility or the
Indenture, but excluding any such claims, losses or liabilities resulting from
the Indemnified Depositary Bank Party's gross negligence or willful misconduct).
This indemnity shall survive the termination of this Agreement, the Working
Capital Facility and the Indenture and the resignation or removal of the
Depositary Bank. This indemnity is extended in addition to, and not in
derogation or limitation of, the provisions of Section 2.4.
(c) On the Closing Date, and on each anniversary of the
Closing Date to and including the Debt Termination Date, the Issuer shall pay
the Depositary Bank an annual fee in an amount mutually agreed on by the Issuer
and the Depositary Bank.
Section 3.6 Direction to Depositary Bank. Unless otherwise
provided herein, any instruction or direction given to the Depositary Bank with
respect to the transfer, withdrawal, deposit or payment of any funds under this
Agreement, the Working Capital Facility or the Indenture shall be in writing and
shall state with specificity the dollar amount, source and disposition of any
such funds.
Section 3.7 Action by Depositary Bank. Notwithstanding any
provisions to the contrary in this Agreement, the Working Capital Facility or
the Indenture, if any transfer, withdrawal, deposit or payment of any funds by
the Depositary Bank, or any other action to be taken by the Depositary Bank,
under this Agreement, the Working Capital Facility or the Indenture is to be
made or taken on a day which is not a Business Day, such transfer, withdrawal,
deposit, payment or other action shall be made or taken on the next succeeding
Business Day.
Section 3.8 Merger of Depositary Bank. Any corporation into
which the Depositary Bank may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Depositary Bank shall be a party, or any corporation
succeeding to the business of the Depositary Bank shall be the successor of the
Depositary Bank hereunder without the execution or filing of any paper with any
party hereto or any further act on the part of any of the parties hereto except
where an instrument of transfer or assignment is required by law to effect such
succession, anything herein to the contrary notwithstanding.
23
27
ARTICLE 4
ADMINISTRATION OF THE COLLATERAL
Section 4.1 Administration of the Collateral. (a) The
Collateral Agent shall hold the Collateral and any Lien thereon for the benefit
of the Secured Parties pursuant to the terms of this Agreement, the Security
Documents and any other Finance Document to which the Collateral Agent is a
party. The Collateral Agent shall administer the Collateral in the manner
contemplated by the Security Documents and the other Finance Documents and shall
apply the balances from time to time held in the Depositary Accounts in the
manner provided in this Agreement, the Indenture, the Working Capital Facility
and the other Finance Documents. The Collateral Agent shall exercise such rights
and remedies with respect to the Collateral as are granted to it under the
Security Documents, the other Finance Documents and Applicable Law. Except as
otherwise expressly provided herein, no Secured Party and no class or classes
thereof shall have any right to direct the Collateral Agent to take any action
in respect of the Collateral and no Secured Party shall have any right to sell,
exchange or otherwise deal with any property at any time pledged, assigned or
mortgaged to secure the Secured Obligations or take action with respect to the
Collateral independently of the Collateral Agent.
(b) The Collateral Agent shall have no responsibility with
respect to the recording, re-recording, filing, or refiling under the laws of
any jurisdiction under this Agreement, the other Finance Documents, or any other
document or statement that may be required or permitted to be recorded,
re-recorded, filed or re-filed under any such laws to perfect or protect the
security interests created by or pursuant to the Security Documents, or the
payment of any fees or taxes in connection therewith.
Section 4.2 Priority of Security Interests. (a) Each Secured
Party agrees that the Security Interest of each Secured Party in any Collateral
ranks and shall rank equally in priority with the Security Interest of the other
Secured Parties in the same Collateral.
(b) Notwithstanding anything to the contrary in clause (a),
the priorities specified in this Agreement and in the Indenture with respect to
(i) the Collateral, (ii) all proceeds of the Collateral (including without
limitation all Loss Proceeds to the extent received by the Collateral Agent
after giving effect to the limitations and deductions permitted under the
Indenture with respect to such
24
28
proceeds) and (iii) all amounts and funds retained in accordance with the
Indenture, in each case are applicable irrespective of any statement to the
contrary in any Finance Document or any other agreement, the time or order or
method of attachment or perfection of Liens, the time or order of filing of
financing statements, or the giving or failure to give notice of the acquisition
or expected acquisition of purchase money or other security interests, and to
the extent not provided for in this Agreement, the rights and priorities of the
Secured Parties shall be determined in accordance with Applicable Law.
Section 4.3 Modification of Certain Documents. Neither the
Issuer, the Subsidiary Guarantor nor the Bond Trustee shall agree or consent to
any material termination, modification, supplement or waiver of any material
provision of Sections 6.2, 6.3, 6.4, 6.5, 6.7 or 6.11 of the Indenture (or any
material definition applicable thereto) without the prior written consent of the
Working Capital Facility Agent.
ARTICLE 5
EVENTS OF DEFAULT; TRIGGER EVENTS
Section 5.1 Exercise of Rights. So long as any Finance
Liabilities remain outstanding, each of the Secured Parties hereby acknowledges
and agrees as follows:
(a) The Collateral Agent shall administer the Collateral in
the manner contemplated by the Security Documents and this Agreement and only
upon the occurrence and continuance of a Trigger Event (subject to the
requirement that the Collateral Agent shall have received written notice
pursuant to Article 5.2(a)), the Collateral Agent shall exercise, upon the
written instruction of, and on behalf of, the Required Secured Parties in
accordance with the terms and provisions of this Article 5, such rights and
remedies with respect to the Collateral as are granted to it under this
Agreement, the Security Documents and Applicable Law.
(b) No Secured Party and no class or classes of Secured
Parties shall have any right, other than in accordance with the terms and
provisions of this Article 5, to (i) sell, exchange, release, not perfect and
otherwise deal with any property at any time pledged, assigned or mortgaged to
secure the Finance Liabilities, (ii) exercise or refrain from exercising any
rights to direct the Collateral Agent to take any action in respect of the
Collateral, or (iii) take any other action with
25
29
respect to the Collateral (A) independently of the Collateral Agent or (B) other
than to direct the Collateral Agent to take action in accordance with the terms
and provisions of this Article 5. Subject to Section 2.7, any of the Secured
Parties may, at any time and from time to time (i) amend in any manner any
outstanding Finance Documents to which they are a party in accordance with the
terms thereof, (ii) release anyone liable in any manner under or in respect of
such Secured Party's Finance Liabilities in accordance with the terms of the
Finance Documents to which they are a party and (iii) apply any sums from time
to time received for payment or satisfaction of such Secured Party's Finance
Liabilities except as otherwise provided in Section 5.4.
(c) Each Secured Party hereby agrees that upon the request of
the Collateral Agent it will give the Collateral Agent notice of the aggregate
amount of outstanding Indebtedness owed by the Issuer, the Subsidiary Guarantor
and any Additional Guarantor to such Secured Party under the applicable Finance
Documents and any other information that the Collateral Agent may reasonably
request.
Section 5.2 Actions Upon A Trigger Event. So long as any
Finance Liability remains outstanding, the following provisions shall apply:
(a) Each Secured Party hereby agrees to give each other
Secured Party and the Collateral Agent written notice of the occurrence of an
Event of Default under such Secured Party's Finance Documents and of the
occurrence of an acceleration under such Secured Party's Finance Documents
wherein such Secured Party's Finance Liabilities have been declared to be or
have automatically become due and payable earlier than the scheduled maturity
thereof and such notice shall set forth the aggregate amount of Finance
Liabilities that have been so accelerated under such Finance Documents, in each
case as soon as practicable after the occurrence thereof; provided, however,
that the failure to provide such notice shall not limit or impair the rights of
the Secured Parties hereunder or under any of the other Finance Documents.
(b) The Issuer and the Subsidiary Guarantor hereby agree that
if a Trigger Event shall have occurred and is continuing, the Collateral Agent
is hereby irrevocably authorized and empowered to act as the attorney-in-fact
for the Issuer, the Subsidiary Guarantor and the Additional Guarantor with
respect to the giving of any instructions or notices under the Finance
Documents; provided, however that if a bankruptcy event set forth in the
Indenture, the Working Capital Facility or any other Finance Document in respect
of the Issuer, the Subsidiary Guarantor, or any Addi-
26
30
tional Guarantor has caused the Trigger Event, the Collateral Agent shall
automatically and irrevocably be authorized and empowered to act as the
attorney-in-fact for the Issuer, the Subsidiary Guarantor and the Additional
Guarantor with respect to the giving of such instructions or notices. The
Collateral Agent hereby agrees that, upon the written request of the Required
Secured Parties, it shall give such notices and instructions under the Finance
Documents to the Depositary Bank. The Depositary Bank hereby agrees that it
shall accept such notices and instructions from the Collateral Agent.
Section 5.3 Exercise of Remedies and Application of Proceeds.
Notwithstanding the provisions of Article 6 of the Indenture, so long as any
Finance Liability remains outstanding to more than one Secured Party, the
following provisions shall apply:
(a) If a Trigger Event shall have occurred and be continuing
(subject to the requirement that the Collateral Agent shall have received
written notice pursuant to Section 5.2(a)), upon the written request of the
Required Secured Parties, the Collateral Agent, on behalf of the Secured
Parties, shall give the Depositary Bank a written notice that a Trigger Event
has occurred (the date of such notice, the "Trigger Event Date") and direct the
Depositary Bank to render an accounting of the current balance of each
Depositary Account and of any other Monies of the Issuer, the Subsidiary
Guarantor and any Additional Guarantor administered by such Depositary Bank. No
Secured Party shall be deemed to have knowledge or notice of the occurrence of
any Event of Default until such Secured Party has received a written notice of
such Event of Default from the Issuer, the Subsidiary Guarantor, an Additional
Guarantor or any other Person for whom such Secured Party is acting as agent or
trustee.
(b) If a Trigger Event shall have occurred and be continuing
(subject to the requirement that the Collateral Agent shall have received
written notice pursuant to Section 5.2(a)), and only in such event, upon the
written request of the Required Secured Parties, the Collateral Agent shall be
authorized to take any and all actions and to exercise any and all rights,
remedies and options which it may have under the Security Documents or which the
Required Secured Parties direct it to take under this Agreement, including
realization and foreclosure on the Collateral; provided, however, that if a
bankruptcy event set forth in the Indenture, the Working Capital Facility or any
other Finance Document in respect of the Issuer, the Subsidiary Guarantor or any
Additional Guarantor has caused the Trigger Event, the
27
31
Collateral Agent shall automatically be authorized to take such action without
the written request of the Required Secured Parties.
(c) The proceeds of any sale, disposition or other realization
or foreclosure by the Collateral Agent upon the Collateral or any portion
thereof pursuant to the Security Documents shall be governed by this Section
5.3(c). Any non-cash proceeds resulting from such liquidation of the Collateral
shall be held by the Collateral Agent for the benefit of the Secured Parties
until later sold or otherwise converted into cash, at which time the Collateral
Agent shall apply such cash in accordance with the next sentence of this Section
5.3(c). The Collateral Agent shall transfer any cash proceeds net of expenses
resulting from liquidation of the Collateral to the Revenue Account from which
such proceeds shall be distributed by the Depositary Bank in accordance with the
terms and provisions of the Indenture in the following order of priority:
first, to the payment of (a) all reasonable costs and expenses
relating to the sale of the Collateral and the collection of all
amounts owing hereunder, including reasonable attorneys' fees and
disbursements and the just compensation of the Collateral Agent for
services rendered in connection therewith or in connection with any
proceeding to sell if a sale is not completed, in each case whether
arising hereunder or under the other Security Documents or other
Finance Documents, (b) all charges, expenses and advances incurred or
made by the Collateral Agent in order to protect the Liens of the
Security Documents, the Security Interests in the Collateral or the
security afforded thereby, and (c) all liabilities incurred by the
Collateral Agent which are covered by the indemnity provisions of this
Agreement or the other Security Documents or other Finance Documents
together with interest at the rate per annum equal to the Post Default
Rate;
second, to the payment to the Bond Trustee and the Working
Capital Facility Agent for all fees and expenses due and owing under
the applicable Finance Documents;
third, to the payment to the remaining Secured Parties not set
forth in priority second, for all fees and expenses due and owing under
the applicable Finance Documents;
fourth, to the payment to the Secured Parties (for the benefit
of themselves and the lenders under the related Finance Documents, as
applica-
28
32
ble) of the sum of accrued and unpaid interest on the Bonds, the Working
Capital Facility and any other Secured Obligations and on any commitment
fees, pro rata in accordance with the respective amounts of unpaid interest
and commitment fees owed to such Person to be applied by each such Person
in accordance with the related Finance Documents pursuant to which such
unpaid interest is payable;
fifth, to the payment to the Secured Parties (for the benefit of
themselves and the lenders under the related Finance Documents, as
applicable) of principal owed to the Secured Parties (for the benefit of
themselves and the lenders under the related Finance Documents, as
applicable), respectively, hereunder or under any other Finance Document,
pro rata, in accordance with the respective amounts of principal owed to
such Person to be applied by each such Person in accordance with the
related Finance Documents pursuant to which such principal is payable;
sixth, to the payment to the Secured Parties (for the benefit of
themselves and the lenders under the related Finance Documents, as
applicable) of make-whole premiums, if any, and breakage costs, if any,
owed to the Secured Parties (for the benefit of themselves and the lenders
under the related Finance Documents, as applicable) respectively, hereunder
or under any other Finance Document, pro rata, in accordance with the
respective amounts of make-whole premiums and breakage costs owed to such
Person to be applied by each such Person in accordance with the related
Finance Documents pursuant to which such make-whole premiums and breakage
costs are payable;
seventh, to the payment to the Secured Parties (for the benefit of
themselves and the lenders under the related Finance Documents, as
applicable), of the other Secured Obligations owed to the Secured Parties
(for the benefit of themselves and the lenders under the related Finance
Documents, as applicable), respectively, hereunder or under any Finance
Document, pro rata in accordance with the respective outstanding unpaid
fees, charges and other unpaid Secured Obligations, owed to such Person to
be applied by each such Person in accordance with the related Finance
Document pursuant to which such Secured Obligations were incurred; and
finally, to the payment to the Issuer, or its successors or
assigns, or as a court of competent jurisdiction may direct, of any surplus
then remaining.
29
33
(d) The proceeds of any sale, disposition or other realization
with respect to Collateral held for the benefit of some but not all of the
Secured Parties, if applicable, shall be applied to the payment of obligations
owed to the parties for whose benefit the specific Collateral was held.
Section 5.4 Receipt of Money or Proceeds. The Secured Parties
and the Depositary Bank hereby agree that if, at any time during the term of
this Agreement, any Secured Party receives any payment or distribution of
assets of the Issuer, the Subsidiary Guarantor or an Additional Guarantor of
any kind or character, whether monies or cash proceeds, resulting from
liquidation of the Collateral, other than in accordance with the terms of this
Agreement, the Working Capital Facility and the Indenture, the Secured Party
shall hold such payment or distribution in trust for the benefit of the Secured
Parties and shall immediately remit such payment or distribution to the
Depositary Bank and the Depositary Bank shall deposit such monies or proceeds
in the Revenue Fund for application or distribution, as the case may be, in
accordance with the terms of the Indenture, the Working Capital Facility and
this Agreement. If any Secured Party shall certify in writing to the Collateral
Agent that any Permitted Indebtedness in respect of which such Secured Party is
the trustee or agent has not been paid when due and after the giving of any
applicable notice or the passage of any applicable grace period (such amount
referred to herein as "Arrearages"), then in any such event, and upon the
written request of such Secured Party, the Collateral Agent shall make demand
for payment of such Arrearages where such demand may be made by the terms
thereof.
Section 5.5 Additional Secured Parties. The Issuer and the
Subsidiary Guarantor shall cause each Person replacing any of the Secured
Parties and each Person (or trustee or agent thereof) providing Permitted
Indebtedness to the Issuer, the Subsidiary Guarantor or any Additional
Guarantor that is to be secured by all or any portion of the Collateral to
execute a Designation Letter, and upon such execution, such Person shall become
a party to this Agreement, and any Person which executes and delivers a
counterpart to this Agreement or is designated as a Secured Party pursuant to
the terms of a Designation Letter, shall become a party hereto and shall be
bound by and subject to the terms and conditions hereof and the covenants,
stipulations and agreements contained herein.
Section 5.6 Event of Loss; Title Event. (a) If an Event of
Loss or Title Event shall occur with respect to the Project, the Issuer and/or
the Subsidiary Guarantor, as the case may be, shall (i) diligently pursue all of
its rights to compensation against the appropriate Person, as the case may be,
in respect of such
30
34
Event of Loss or Title Event, (ii) compromise, settle or consent to the
settlement of any claim against the appropriate Person, as the case may be, and
(iii) deposit any Loss Proceeds from such Event of Loss or proceeds from such
Title Event, as the case may be, after deducting all reasonable expenses
incurred by it in litigating, arbitrating, compromising, settling or consenting
to the settlement of any claims against the appropriate Person into the Revenue
Account pursuant to Section 6.5 of the Indenture.
(b) If an Event of Loss shall occur, as soon as reasonably
practicable, but no later than fifteen (15) days after the date of
receipt by the Issuer and/or the Subsidiary Guarantor (or the
Collateral Agent on their behalf) of Loss Proceeds, the Issuer and/or
the Subsidiary Guarantor (or the Collateral Agent on their behalf), as
the case may be, shall make a reasonable good faith determination as to
whether the property affected by such Event of Loss can be rebuilt,
repaired or restored.
(c) If (x) an Event of Loss occurs and the Issuer and/or the
Subsidiary Guarantor has either (i) determined that the property
affected by such Event of Loss cannot be repaired, rebuilt or replaced
or (ii) decided not to repair, rebuild or replace the property affected
by such Event of Loss and (y) Loss Proceeds exceed $10,000,000, all
Loss Proceeds in excess of $10,000,000 shall be distributed pro rata
among the Secured Parties; provided that the pro rata share of Loss
Proceeds owing to holders of Outstanding Bonds will be applied to a pro
rata redemption of the Bonds in accordance with Section 3.2 of the
Indenture.
(d) In the event that the Issuer and/or the Subsidiary
Guarantor has determined that the property affected by the Event of
Loss be repaired, rebuilt or replaced and the amount of the Loss
Proceeds remaining after the payment of the actual total cost of such
repair, rebuilding or replacement exceeds $5,000,000, the amount by
which all the Loss Proceeds exceeds the actual total cost of such
repair, rebuilding or replacement of the property affected by the Event
of Loss which is in excess of $5,000,000, shall be distributed pro rata
among the Secured Parties; provided that the pro rata share of Loss
Proceeds owing to holders of Outstanding Bonds will be applied to a pro
rata redemption of the Bonds in accordance with Section 3.2 of the
Indenture.
31
35
ARTICLE 6
MISCELLANEOUS
Section 6.1 Amendments. No amendment or waiver of any
provision of this Agreement shall be effective unless the same shall be in
writing and signed by each of the Secured Parties, the Issuer, the Subsidiary
Guarantor and all other parties hereto, which consents from all such parties
shall not be unreasonably withheld, and any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
it is given. No failure to exercise, and no delay in exercising, any right,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
or require any other or future exercise thereof or the exercise of any other
right, power or privilege. All rights, powers and remedies granted to any party
hereto and all other agreements, instruments and documents executed in
connection with this Agreement shall be cumulative, may be exercised singly or
concurrently and shall not be exclusive of any rights or remedies provided by
law. The Collateral Agent may, but shall not be obligated to, execute and
deliver any supplement, modification or amendment of this Agreement which
modifies its rights, powers, duties, immunities or indemnities hereunder. In
executing any supplement, modification or amendment to this Agreement, the
Collateral Agent shall be entitled to receive and shall be fully protected in
relying upon, an opinion of counsel stating that the execution of such
supplement, modification or amendment is authorized or permitted by this
Agreement.
Section 6.2 Assignment. Any Secured Party may at any time
assign, transfer, grant or sell participations in its rights and interests under
the Security Documents, subject, however, to the restrictions imposed on the
assignment, transfer, grant or sale of participation in the Secured Obligations
owing to such Secured Party pursuant to the agreement giving rise to such
Secured Obligations or any other agreement relating thereto. In the event of any
such assignment or transfer, the term "Secured Party" as used in this Agreement
shall be deemed to mean any such assignee or transferee, as the case may be.
Notwithstanding anything above to the contrary, no assignment nor transfer may
be made by the Issuer, the Subsidiary Guarantor nor any Additional Guarantor
without the prior written consent of the Collateral Agent, acting pursuant to
the provisions of this Agreement.
32
36
Section 6.3 Severability. In case any provision in or
obligation under this Agreement shall be invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected and/or impaired
thereby.
Section 6.4 Notices. Except as otherwise expressly provided
herein, (a) all notices and other communications provided for hereunder shall be
provided in writing (including telegraphic, telex, facsimile or cable
communication) and shall be sent by telecopy, telex, telegraph or cable with the
original of such communication dispatched by (if inland) overnight or (if
overseas) international courier and, if such courier service is not available,
by registered airmail (or, if inland, registered first-class mail) with postage
prepaid to the Issuer, the Subsidiary Guarantor, any Additional Guarantor, the
Secured Parties, the Depositary Bank and the Collateral Agent at their
respective addresses specified on Schedule III to the Indenture or Section 10.01
of the Working Capital Facility or in any Designation Letter, or at such other
address as shall be designated by such Person in a written notice to the other
parties hereto and (b) all such notices and communications shall, when mailed,
telegraphed, telexed, telecopied, cabled or sent by overnight courier, be
effective seven (7) days after being deposited in the mail in the manner as
aforesaid, when delivered to the telegraph company or cable company (if inland),
one (1) day or (if overseas) three (3) days after delivery to a courier in the
manner as aforesaid, as the case may be, or when sent by telex (with the correct
answer back) or telecopier (after confirmation of receipt).
Section 6.5 Successors and Assigns. All of the covenants,
promises and agreements in this Agreement by or on behalf of the respective
parties hereto shall bind and inure to the benefit of their respective
successors and assigns, regardless of whether so expressed.
Section 6.6 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.
Section 6.7 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
33
37
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 the Issuer, the
Subsidiary Guarantor or an Additional Guarantor with respect to this Agreement
or any other Finance Document may be brought in the courts of the State of New
York in the County of New York or of the United States for the Southern District
of New York and, by execution and delivery of this Agreement, the Issuer and the
Subsidiary Guarantor each hereby irrevocably submits and accepts for itself and
in respect of its property, generally and unconditionally, the jurisdiction of
the aforesaid courts. The Issuer and the Subsidiary Guarantor agree that a
judgment in connection with this Agreement, after exhaustion of all available
appeals, in any such action or proceeding shall be conclusive and binding upon
the Issuer, the Subsidiary Guarantor and an Additional Guarantor, as the case
may be. The Issuer and the Subsidiary Guarantor each hereby irrevocably
designates, appoints and empowers CT Corporation System with offices on the date
hereof at 111 Eighth Avenue, New York, N.Y. 10011, 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, notice
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 agent, the Issuer and the Subsidiary Guarantor each 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 Collateral Agent. The Issuer and
the Subsidiary Guarantor each further 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 the Issuer, the Subsidiary Guarantor or any Additional Guarantor, as
the case may be, at their respective address referred to in Section 6.4, such
service to become effective thirty (30) days after such mailing. Nothing herein
shall affect the right of any Secured Party or any other Person to serve process
in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Issuer, the Subsidiary Guarantor or an Additional
Guarantor in any other jurisdiction.
(c) The Issuer and the Subsidiary Guarantor each 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
34
38
action or proceeding brought in any such court has been brought in an
inconvenient forum.
(d) WITH REGARD TO THIS AGREEMENT, EACH PARTY HERETO HEREBY
WAIVES THE RIGHT TO A TRIAL BY JURY.
Section 6.8 No Impairments of Other Rights. Nothing in this
Agreement is intended or shall be construed to impair, diminish or otherwise
adversely affect any other rights the Secured Parties may have or may obtain
against the Issuer, the Subsidiary Guarantor or any Additional Guarantor.
Section 6.9 Headings. Headings herein are for convenience only
and shall not be relied upon in interpreting or enforcing this Agreement.
Section 6.10 Termination. This Agreement shall remain in full
force and effect until the Debt Termination Date. Following the Debt Termination
Date or the resignation or removal of the Collateral Agent, Sections 2.4(a) and
(b) and Sections 3.5(a) and (b) shall remain in full force and effect.
Section 6.11 Entire Agreement. This Agreement, including the
documents referred to herein, embodies the entire agreement and understanding of
the parties hereto and supersedes all prior agreements and understandings of the
parties hereto relating to the subject matter herein contained.
Section 6.12 Execution in Lieu of Agent. To the extent that
any lenders under the Working Capital Facility or holders of Permitted
Indebtedness incurred subsequent to the date hereof are not represented by an
agent that is a party to this Agreement, such lender under the Working Capital
Facility or holder of such Permitted Indebtedness shall be permitted to execute
this Agreement and the Designation Letter on its own behalf in lieu of any agent
on its behalf.
Section 6.13 Conflicts with Other Security Documents.
Notwithstanding any provision hereof, in the event of any conflict between the
terms of this Agreement and the other Security Documents (other than the
Indenture), the provisions of this Agreement shall control.
Section 6.14 Scope of Duties; Limits on Liability. Without
limiting any other provision hereof, the duties and obligations of the
Collateral Agent shall be determined solely by the express provisions of this
Agreement; the Collateral Agent
35
39
shall not be liable except for the performance of such duties and obligations as
are specifically set forth herein. Anything in this Agreement to the contrary
notwithstanding, in no event shall the Collateral Agent be liable for special,
indirect or consequential loss or damage of any kind whatsoever (including but
not limited to lost profits), even if the Collateral Agent has been advised of
the likelihood of such loss or damage and regardless of the form of action.
Section 6.15 Notice of Adverse Claim. Except for the claims
and interest of the Secured Parties in the Depositary Accounts, the Collateral
Agent does not know of any claim to, or interest in, the Depositary Accounts or
in any "financial asset" (as defined in Section 8-102(a) of the UCC) credited
thereto. If any person asserts any lien, encumbrance or adverse claim (including
any writ, garnishment, judgment, warrant of attachment, execution or similar
process) against the Depositary Accounts or in any financial asset carried
therein, the Collateral Agent will promptly notify the Secured Parties, the
Issuer, the Subsidiary Guarantor and any Additional Guarantor thereof.
36
40
IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be duly executed by their duly authorized officers, all as of the date first
written above.
NRG SOUTH CENTRAL GENERATING LLC
By: /s/ Craig A. Matczynski
---------------------------------
Name: Craig A. Matczynski
Title: President
LOUISIANA GENERATING LLC
By: /s/ Craig A. Matczynski
---------------------------------
Name: Craig A. Matczynski
Title: Vice President
THE CHASE MANHATTAN BANK, as Bond Trustee
By: /s/ Annette M. Marsula
---------------------------------
Name: Annette M. Marsula
Title: Vice President
THE CHASE MANHATTAN BANK, as Collateral Agent
By: /s/ Annette M. Marsula
---------------------------------
Name: Annette M. Marsula
Title: Vice President
37
41
THE CHASE MANHATTAN BANK,
as the Depositary Bank
By: /s/ Annette M. Marsula
---------------------------------
Name: Annette M. Marsula
Title: Vice President
38
42
Exhibit A to the
Intercreditor Agreement
[FORM OF DESIGNATION LETTER]
[Date]
[Collateral Agent]
Re: NRG South Central Generating LLC
Ladies and Gentlemen:
Reference is made to (i) the Collateral Agency and
Intercreditor Agreement (the "Intercreditor Agreement") dated as of March 30,
2000 among NRG South Central Generating LLC (the "Issuer"), Louisiana Generating
LLC (the "Subsidiary Guarantor"), the Bond Trustee, the Depositary Bank, the
Collateral Agent and any trustees or agents under any other Finance Documents
and (ii) [Describe New Credit Documents]. Capitalized terms used herein and not
defined herein shall have the meanings set forth in Appendix A to the Indenture
(the "Indenture") dated as of March 30, 2000 between the Issuer, the Subsidiary
Guarantor and the Bond Trustee.
The undersigned is the [Bank/Lender][agent for the [Banks]
[Lenders]] under the [New Credit Document].
The undersigned is delivering this Designation Letter pursuant
to Section 5.5 of the Intercreditor Agreement in order to permit the undersigned
[and the [Banks][Lenders] under the New Credit Document] to become Secured
Parties under the Intercreditor Agreement and the other Finance Documents and to
benefit from the Collateral under the Finance Documents in accordance with the
terms of the Intercreditor Agreement and the other Finance Documents.
The undersigned [on behalf of itself and the [Banks][Lenders]]
accedes to and agrees to be bound by all of the terms and provisions of the
43
Intercreditor Agreement and the other Finance Documents. In furtherance thereof,
the undersigned [on behalf of itself and the [Banks][Lenders] agrees to execute
a counterpart of the Intercreditor Agreement.
Our address for notices is:
[Insert Information]
Our wire transfer instructions are:
[Insert Information]
We agree that any extensions of credit under the [New Credit
Documents] shall be deposited with the Depositary Bank, to the extent required
by Section 6.5 of the Indenture.
This Designation Letter may be executed in any number of
counterparts, each executed counterpart constituting an original but all
counterparts together constituting only one instrument.
THIS DESIGNATION LETTER 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).
[CREDITOR]
By:
---------------------------
Name:
Title:
Consented to by:
- -------------------,
as Collateral Agent
Exhibit A-2
44
By:
---------------------
Name:
Title:
Exhibit A-3
45
Exhibit B to the
Intercreditor Agreement
[FORM OF DESIGNATION LETTER (ADDITIONAL GUARANTOR)]
[Date]
[Collateral Agent]
[Issuer]
Re: NRG South Central Generating LLC
Ladies and Gentlemen:
Reference is made to (i) the Collateral Agency and Intercreditor
Agreement (the "Intercreditor Agreement") dated as of March 30, 2000 among NRG
South Central Generating LLC (the "Issuer"), Louisiana Generating LLC (the
"Subsidiary Guarantor"), the Bond Trustee, the Depositary Bank, the Collateral
Agent and any trustees or agents under any other Finance Documents and (ii)
[Describe New Credit Documents]. Capitalized terms used herein and not defined
herein shall have the meanings set forth in Appendix A to the Indenture (the
"Indenture") dated as of March 30, 2000 between the Issuer, the Subsidiary
Guarantor and the Bond Trustee.
The undersigned is an Additional Guarantor pursuant to the
Indenture.
The undersigned is delivering this Designation Letter pursuant to
Section 2.11 of the Intercreditor Agreement in order to permit the undersigned
to become an Additional Guarantor under the Intercreditor Agreement.
By executing this letter, the undersigned shall be deemed to
be an Additional Guarantor (as defined in the Indenture) and accedes to and
agrees to be bound by all of the terms and provisions of the Intercreditor
Agreement relating to the Subsidiary Guarantor. All obligations of the
Subsidiary Guarantor under the Intercreditor Agreement shall be deemed to be the
obligations of the undersigned. In
46
furtherance thereof, the undersigned agrees to execute a counterpart of the
Intercreditor Agreement.
Our address for notices is:
[Insert Information]
This Designation Letter (Additional Guarantor) may be executed in
any number of counterparts, each executed counterpart constituting an original
but all counterparts together constituting only one instrument.
THIS DESIGNATION LETTER (ADDITIONAL GUARANTOR) 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).
[ADDITIONAL GUARANTOR]
By:
--------------------------
Name:
Title:
Consented to by:
- -----------------------------
as Collateral Agent
By:
--------------------------
Name:
Title:
- -----------------------------,
as Issuer
By:
--------------------------
Name:
Title:
Exhibit B-2