Exhibit 4.15
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PLEDGE AND SECURITY AGREEMENT
(Funding Corporation Stock)
dated as of May 21, 1999
between
LSP BATESVILLE HOLDING, LLC
and
THE BANK OF NEW YORK,
as Collateral Agent
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TABLE OF CONTENTS
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RECITALS.......................................................................1
AGREEMENT......................................................................2
ARTICLE 1: DEFINITIONS; PRINCIPLES OF CONSTRUCTION
Section 1.1 Definitions................................................2
Section 1.2 Principles of Construction.................................2
ARTICLE 2: PLEDGE
Section 2.1 Pledged Collateral.........................................3
Section 2.2 Delivery of Stock Collateral...............................4
Section 2.3 Pledgor's Rights...........................................4
(a) Distributions..............................................4
(b) Other Rights...............................................5
(c) Turnover ...............................................5
(d) Proxies, etc...............................................5
Section 2.4 Collateral Agent Not Liable................................6
Section 2.5 Attorney-in-Fact...........................................6
Section 2.6 Collateral Agent May Perform...............................6
Section 2.7 Reasonable Care............................................7
Section 2.8 Security Interest Absolute.................................7
ARTICLE 3: REPRESENTATIONS AND WARRANTIES
Section 3.1 Pledged Shares.............................................8
Section 3.2 Ownership of Pledged Collateral............................8
Section 3.3 Nature of Security Interest................................8
Section 3.4 Consents, etc..............................................8
Section 3.5 Chief Executive Office.....................................8
ARTICLE 4: COVENANTS
Section 4.1 Sale of Pledged Collateral.................................9
Section 4.2 No Other Liens.............................................9
Section 4.3 Issuance of Shares.........................................9
Section 4.4 Chief Executive Office.....................................9
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Section 4.5 Supplements; Further Assurances, etc.......................9
Section 4.6 Stock Certificates........................................10
Section 4.7 Records; Statements and Schedules.........................10
Section 4.8 Improper Distributions....................................10
Section 4.9 Bankruptcy................................................10
ARTICLE 5: EXERCISE OF REMEDIES UPON AN EVENT OF DEFAULT
Section 5.1 Remedies Generally........................................11
Section 5.2 Sale of Pledged Collateral................................11
Section 5.3 Purchase of Pledged Collateral............................13
Section 5.4 Application of Proceeds...................................13
ARTICLE 6: MISCELLANEOUS PROVISIONS
Section 6.1 Notices...................................................13
Section 6.2 Continuing Security Interest..............................13
Section 6.3 Release...................................................13
Section 6.4 Reinstatement.............................................13
Section 6.5 Independent Security......................................14
Section 6.6 Amendments................................................14
Section 6.7 Successors and Assigns....................................15
Section 6.8 Survival..................................................15
Section 6.9 No Waiver; Remedies Cumulative............................15
Section 6.10 Counterparts..............................................15
Section 6.11 Headings Descriptive......................................16
Section 6.12 Severability..............................................16
Section 6.13 Governing Law. ...........................................16
Section 6.14 Consent to Jurisdiction. .................................16
Section 6.15 Waiver of Jury Trial. ....................................17
Section 6.16 Entire Agreement..........................................17
Section 6.17 Third Party Beneficiaries.................................17
Section 6.18 Independent Obligations...................................17
Section 6.19 Waiver of Defenses........................................17
Section 6.20 Subrogation, Etc..........................................17
Section 6.21 Limitation of Liability...................................18
Section 6.22 Collateral Agency Agreement...............................18
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PLEDGE AND SECURITY AGREEMENT
(Funding Corporation Stock)
This PLEDGE AND SECURITY AGREEMENT (this "Agreement"), dated as of
May 21, 1999, is made by LSP BATESVILLE HOLDING, LLC, a Delaware limited
liability company (the "Pledgor"), to THE BANK OF NEW YORK, as collateral agent
(together with its successors in such capacity, the "Collateral Agent") for the
benefit of the Senior Secured Parties pursuant to the Second Amended and
Restated Collateral Agency Agreement, dated as of May 21, 1999 (the "Collateral
Agency Agreement"), among (as of the date hereof) LSP Energy Limited Partnership
(the "Partnership"), LSP Batesville Funding Corporation (the "Funding
Corporation"), the Trustee, the VEPCO L/C Agent, the Collateral Agent, the
Intercreditor Agent and the Administrative Agent.
RECITALS
WHEREAS, the Partnership was formed for the purpose of developing,
financing, constructing, owning and operating an approximately 837 MW (net)
natural gas-fired combined-cycle electric generation facility located in
Batesville, Mississippi (the "Project");
WHEREAS, the Pledgor owns 100% of the issued and outstanding
capital stock of the Funding Corporation;
WHEREAS, the Partnership and the Funding Corporation have determined
to issue (i) $150,000,000 aggregate principal amount of their 7.164% Series A
Senior Secured Bonds due January 15, 2014 (the "Series A Bonds") and (ii)
$176,000,000 aggregate principal amount of their 8.160% Series B Senior Secured
Bonds due July 15, 2025 (the "Series B Bonds" and, collectively with the Series
A Bonds, the "Bonds") pursuant to the Trust Indenture, dated as of the date
hereof (the "Indenture"), among the Partnership, the Funding Corporation and The
Bank of New York, as trustee (the "Trustee");
WHEREAS, the Partnership and the Funding Corporation will use the
proceeds of the Bonds to (i) repay in full the Indebtedness outstanding under
the Amended and Restated Bank Facility Credit Agreement and, dated as of
December 15, 1998, by and among the Partnership, the banks and other financial
institutions party thereto and Credit Suisse First Boston as agent, and (ii) pay
the remaining Project Costs;
WHEREAS, the execution by the Grantor of this Agreement is a
condition precedent to the issuance and sale of the Bonds and the execution by
the Senior Secured Parties of the related Financing Documents.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Grantor hereby agrees with the Collateral Agent as follows:
ARTICLE 1
DEFINITIONS; PRINCIPLES OF CONSTRUCTION
Section 1.1 Definitions. (a) Unless otherwise defined herein, terms
defined in the Indenture shall have such defined meanings when used herein.
(b) The following terms shall have the following respective
meanings:
"Additional Shares" shall have the meaning ascribed thereto in
Section 2.1(a)(ii).
"Default" shall have the meaning ascribed thereto in the
Intercreditor Agreement.
"Event of Default" shall have the meaning ascribed thereto in the
Intercreditor Agreement.
"Pledged Collateral" shall have the meaning ascribed thereto in
Section 2.1(a).
"Pledged Shares" shall have the meaning ascribed thereto in Section
2.1(a)(i).
"Secured Obligations" shall mean the Senior Secured Obligations.
"Securities Act" shall have the meaning ascribed thereto in Section
5.2(b).
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"Stock Collateral" shall have the meaning ascribed thereto in
Section 2.1(a)(ii).
Section 1.2 Principles of Construction. Except as otherwise expressly
provided herein, the principles of construction set forth in the Indenture shall
apply to this Agreement.
ARTICLE 2
PLEDGE
Section 2.1 Pledged Collateral. (a) As collateral security for the prompt
and complete payment and performance when due, whether at stated maturity, by
acceleration or otherwise (including the payment of amounts which would become
due but for the operation of the automatic stay under Section 362(a) of the U.S.
Bankruptcy Code, 11 U.S.C. ss. 362(a)), of all of the Secured Obligations,
whether now existing or hereafter arising and howsoever evidenced, the Pledgor
hereby pledges, grants, assigns, hypothecates, transfers and delivers to the
Collateral Agent on behalf of and for the ratable benefit of all of the Senior
Secured Parties, a first priority security interest in the following, whether
now existing or hereafter from time to time acquired (collectively, the "Pledged
Collateral"):
(i) all of the Pledgor's right, title and interest in and to
all shares (the "Pledged Shares") of capital stock of the Funding
Corporation, and the certificates, if any, representing the Pledged
Shares, and all dividends, distributions, cash, instruments and other
property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the Pledged
Shares;
(ii) all additional shares (the "Additional Shares") of
capital stock of any issuer of any Pledged Shares from time to time
acquired by the Pledgor in any manner (including, without limitation, any
shares of preferred stock issued by any such issuer), and the
certificates, if any, representing such additional shares, and all
dividends, distributions, cash, instruments and other property or proceeds
from time to time received, receivable or otherwise distributed in respect
of or in exchange for any or all of such shares (the certificates
representing the shares referred to in clause (i) above and this clause
(ii), the "Stock Collateral");
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(iii) all other rights appurtenant to the property described
in clauses (i) and (ii) above (including, without limitation, voting
rights); and
(vi) all proceeds of any and all of the foregoing, and in
addition, all dividends, distributions, cash, instruments and other
property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the foregoing.
(b) As used herein, the term "proceeds" shall be construed in its
broadest sense and shall include whatever is received or receivable when any of
the Pledged Collateral, or any proceeds thereof, is sold, collected, exchanged
or other wise disposed of, whether voluntarily or involuntarily, and shall
include, without limitation, all rights to payment, including interest and
premiums, with respect to any of the Pledged Collateral or any proceeds thereof.
Section 2.2 Delivery of Stock Collateral. All certificates or instruments
representing or evidencing the Stock Collateral shall be delivered to and held
by or on behalf of the Collateral Agent pursuant hereto and shall be in suitable
form for transfer by delivery, or shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to the Collateral Agent. The Collateral Agent shall have the
right, at any time following the occurrence and during the continuation of an
Event of Default, without notice to the Pledgor, to transfer to or to register
in its name or in the name of any of its nominees any or all of the Stock
Collateral. In addition, the Collateral Agent shall have the right at any time
to exchange certificates or instruments representing or evidencing any of the
Stock Collateral for certificates or instruments of smaller or larger
denominations.
Section 2.3 Pledgor's Rights. (a) Distributions. Unless an Event of
Default shall have occurred and be continuing, the Pledgor shall be entitled to
receive and retain any and all distributions paid in respect of the Stock
Collateral in compliance with the terms of the Transaction Documents; provided,
however, that any and all
(i) distributions paid or payable in respect of any Stock
Collateral (whether paid in cash, securities or other property) in
connection with (A) any partial or total liquidation or dissolution of the
Funding Corporation, (B) any distribution of capital of the Funding
Corporation, (C) any recapitalization or reclassification of the capital
of the Funding Corporation or (D) any reorganization of the Funding
Corporation, and
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(ii) all property (whether cash, securities or other property)
paid, payable or otherwise distributed in redemption of, or in exchange
for, the property described in clause (i) immediately above,
shall be, and shall be forthwith delivered to the Collateral Agent to hold as,
Stock Collateral and shall, if received by the Pledgor, be received in trust for
the benefit of the Collateral Agent, be segregated from the other property or
funds of the Pledgor, and be forthwith delivered to the Collateral Agent as
Stock Collateral in the same form as so received (with any necessary
endorsement). Upon the occurrence and during the continuance of an Event of
Default, all rights of the Pledgor to receive the distributions which it would
otherwise be authorized to receive and retain pursuant to the preceding sentence
shall cease, and all such rights shall thereupon become vested in the Collateral
Agent which shall thereupon have the sole right to receive and hold as Stock
Collateral such distributions.
(b) Other Rights. Unless an Event of Default shall have occurred and
be continuing, the Pledgor shall be entitled to exercise all voting and other
rights with respect to the Stock Collateral; provided, however, that no vote
shall be cast, right exercised or other action taken which would knowingly have
a material adverse effect on the Stock Collateral or which would knowingly be
inconsistent with or knowingly result in any violation of any provision of this
Agreement or any other Financing Document. Upon the occurrence and during the
continuance of an Event of Default and upon election by the Collateral Agent, as
directed by the Intercreditor Agent, acting pursuant to the Intercreditor
Agreement, all voting and other rights of the Pledgor with respect to the Stock
Collateral which the Pledgor would otherwise be entitled to exercise pursuant to
the terms of this Agreement shall cease, and all such rights shall be vested in
the Collateral Agent which shall thereupon have the sole right to exercise such
rights.
(c) Turnover. All distributions and other amounts which are received
by the Pledgor contrary to the provisions of this Agreement shall be received in
trust for the benefit of the Collateral Agent, shall be segregated from other
funds of the Pledgor and shall be forthwith paid over to the Collateral Agent as
Stock Collateral in the same form as so received (with any necessary
endorsement).
(d) Proxies, etc. The Pledgor shall, if necessary to permit the
Collateral Agent to exercise the voting and other rights which it may be
entitled to exercise pursuant to clause (b) above and to receive all dividends
and distributions which it may be entitled to receive under clause (a) above,
execute and deliver to the Collateral Agent, from time to
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time and upon written notice of the Collateral Agent, appropriate proxies,
dividend payment orders and other instruments as the Collateral Agent may
reasonably request. The foregoing shall not in any way limit the Collateral
Agent's power and authority granted pursuant to Section 2.5.
Section 2.4 Collateral Agent Not Liable. Neither the Collateral Agent nor
any of its directors, officers, employees, affiliates or agents shall have any
obligations or liability under or with respect to any Pledged Collateral by
reason of or arising out of this Agreement or the receipt by the Collateral
Agent of any payment relating to any Pledged Collateral, nor shall the
Collateral Agent or any of its directors, officers, employees, affiliates or
agents be obligated in any manner to (a) perform any of the obligations of the
Pledgor under or pursuant to any agreement to which the Pledgor is a party, (b)
make any payment or to inquire as to the nature or sufficiency of any payment or
performance with respect to any Pledged Collateral, (c) present or file any
claim or collect the payment of any amounts or take any action to enforce any
performance with respect to the Pledged Collateral or (d) take any other action
whatsoever with respect to the Pledged Collateral.
Section 2.5 Attorney-in-Fact. (a) The Pledgor hereby appoints the
Collateral Agent or any Person, officer or agent whom the Collateral Agent may
designate, as its true and lawful attorney-in-fact and proxy, with full
irrevocable power and authority in the place and stead of the Pledgor and in the
name of the Pledgor or in its own name, at the Pledgor's cost and expense, from
time to time to take any action and to execute any instrument which may be
necessary or advisable to enforce its rights under this Agreement, including,
without limitation, authority to receive, endorse and collect all instruments
made payable to the Pledgor representing any distribution, interest payment or
other payment in respect of the Pledged Collateral or any part thereof and to
give full discharge for the same, and to vote or grant any consent in respect of
the Pledged Shares authorized by Section 2.2(b).
(b) The Pledgor hereby ratifies all that said attorney shall
lawfully do or cause to be done by virtue hereof, in each case pursuant to the
powers granted hereunder. The Pledgor hereby acknowledges and agrees that the
Collateral Agent shall have no fiduciary duties to the Pledgor and the Pledgor
hereby waives any claims or rights of a beneficiary of a fiduciary relationship
hereunder.
Section 2.6 Collateral Agent May Perform. If the Pledgor fails to perform
any agreement contained herein after receipt of a written request to do so from
the Collateral Agent, the Collateral Agent may (but shall not be obligated to)
itself perform, or cause
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performance of, such agreement, and the expenses of the Collateral Agent,
including the reasonable fees and expenses of its counsel, incurred in
connection therewith shall be payable by the Pledgor under Section 5.5 of the
Collateral Agency Agreement; provided that if a Bankruptcy Event shall have
occurred with respect to the Pledgor, the written request described in this
Section 2.6 shall not be required and shall be deemed to have been delivered
upon the failure of the Pledgor to perform such agreement.
Section 2.7 Reasonable Care. The Collateral Agent shall be deemed to have
exercised reasonable care in the custody and preservation of the Pledged
Collateral in its possession if the Pledged Collateral is accorded treatment
substantially equivalent to that which the Collateral Agent accords its own
property of the type of which the Pledged Collateral consists, it being
understood that the Collateral Agent shall have no responsibility for (a)
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Pledged Collateral,
whether or not the Collateral Agent has or is deemed to have knowledge of such
matters, or (b) taking any necessary steps to preserve rights against any
parties with respect to any Pledged Collateral.
Section 2.8 Security Interest Absolute. All rights of the Collateral Agent
and security interests hereunder, and all obligations of the Pledgor hereunder,
shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any of the Financing
Documents or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from the Financing
Documents or any other agreement or instrument relating thereto;
(c) any exchange, release or non-perfection of any other collateral,
or any release or amendment or waiver of or consent to any departure from
any guaranty, for all or any of the Secured Obligations; or
(d) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Pledgor, except as otherwise
provided herein.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES
The Pledgor represents and warrants as follows, which representations and
warranties shall survive the execution and delivery of this Agreement and the
making and repayment of the Secured Obligations:
Section 3.1 Pledged Shares. The Pledged Shares (a) have been duly
authorized and validly issued, (b) are fully paid and non-assessable and (c)
constitute all of the issued and outstanding shares of stock of the Funding
Corporation.
Section 3.2 Ownership of Pledged Collateral. The Pledgor is the sole legal
and beneficial owner of the Pledged Shares, free and clear of any Lien other
than the Lien created pursuant to this Agreement and other Permitted Liens.
Section 3.3 Nature of Security Interest. The pledge and grant of the
Pledged Collateral pursuant to this Agreement creates a valid and perfected
first priority security interest in the Pledged Collateral in favor of the
Collateral Agent, securing the payment of all of the Secured Obligations.
Section 3.4 Consents, etc. No consent, authorization, approval or other
action by, and no notice to or filing with, any governmental authority is
required either (i) for the pledge by the Pledgor of the Pledged Collateral
pursuant to this Agreement or for the due execution, delivery or performance of
this Agreement by the Pledgor, or (ii) for the exercise by the Collateral Agent
of the voting or other rights provided for in this Agreement or of the remedies
in respect of the Pledged Collateral pursuant to this Agreement, except as may
be required in connection with the disposition of the Stock Collateral by laws
affecting the offering and sale of securities generally.
Section 3.5 Chief Executive Office. The chief executive office of the
Pledgor and the office where the Pledgor keeps its records concerning the
Pledged Collateral is located at:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
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ARTICLE 4
COVENANTS
The Pledgor hereby covenants and agrees from and after the date of this
Agreement until the termination of this Agreement in accordance with the
provisions of Section 6.3:
Section 4.1 Sale of Pledged Collateral. The Pledgor shall not sell or
other wise dispose of, or grant any option or warrant with respect to, any of
the Pledged Collateral, except to the extent the same would not violate the
terms and provisions of the Financing Documents, provided that the Pledged
Collateral shall at all times remain subject to the pledge of this Agreement
following any sale or disposition thereof.
Section 4.2 No Other Liens. The Pledgor shall not create, incur or permit
to exist, shall defend the Pledged Collateral against, and shall take such other
action as is reasonably necessary to remove, any Lien or claim on or to the
Pledged Collateral (other than the Lien created pursuant to this Agreement), and
shall defend the right, title and interest of the Collateral Agent in and to any
of the Pledged Collateral against the claims and demands of all Persons
whomsoever, except with respect to any sale or disposition of any of the Pledged
Collateral not in violation of the Financing Documents.
Section 4.3 Issuance of Shares. The Pledgor agrees that it will cause the
Funding Corporation (a) not to issue to the Pledgor any shares of stock or other
securities in addition to or in substitution for the Pledged Shares, (b) not to
sell or otherwise dispose of, or grant any option or warrant with respect to,
any of its assets or properties, and (c) not to create or permit to exist any
Lien, security interest, option or other charge or encumbrance upon any of its
assets or properties, in each case except to the extent the same are expressly
permitted by the terms of this Agreement and the other Financing Documents.
Section 4.4 Chief Executive Office. The Pledgor shall not establish a new
location for its chief executive office or change its name until (i) it has
given to the Collateral Agent not less than sixty (60) days prior written notice
of its intention so to do, clearly describing such new location or specifying
such new name, as the case may be, and (ii) with respect to such new location or
such new name, as the case may be, it shall have taken all action necessary to
maintain the security interest of the Collateral Agent in the Pledged Collateral
intended to be granted hereby at all times fully perfected and in full force and
effect.
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Section 4.5 Supplements; Further Assurances, etc. The Pledgor shall at any
time and from time to time, at the expense of the Pledgor, promptly execute and
deliver all further instruments and documents, and take all further action, that
may be necessary or desirable, or that the Collateral Agent may reasonably
request, in order to perfect and protect any security interest granted or
purported to be granted hereby or to enable the Collateral Agent to exercise and
enforce its rights and remedies hereunder with respect to any Pledged
Collateral.
Section 4.6 Stock Certificates. The Pledgor shall deliver all
certificates, instruments or other documents representing the Pledged Collateral
to the Collateral Agent with all necessary stock transfer or other powers duly
indorsed in blank. In the event the Pledgor obtains possession of any other
stock certificates, or other securities or instruments forming a part of the
Pledged Collateral, the Pledgor shall promptly deliver same to the Collateral
Agent together with all necessary stock transfer or other powers duly indorsed
in blank. Prior to any such delivery, any Pledged Collateral in the Pledgor's
possession shall be held by the Pledgor in trust for the Collateral Agent.
Section 4.7 Records; Statements and Schedules. The Pledgor shall keep and
maintain, at its own cost and expense, records of the Pledged Collateral,
including, but not limited to, records of all payments received with respect
thereto, and the Pledgor shall make the same available to the Collateral Agent
for inspection at the Pledgor's chief executive office, at the Pledgor's own
cost and expense, at any and all times upon demand. The Pledgor shall furnish to
the Collateral Agent from time to time statements and schedules further
identifying and describing the Pledged Collateral and such other reports in
connection with the Pledged Collateral as the Collateral Agent may reasonably
request, all in reasonable detail.
Section 4.8 Improper Distributions. Notwithstanding any other provision
contained in this Agreement, the Pledgor shall not accept any distributions,
dividends or other payments (or any collateral in lieu thereof) in respect of
the Pledged Collateral, except to the extent the same are expressly permitted
by the terms of this Agreement and the other Financing Documents.
Section 4.9 Bankruptcy. The Pledgor shall not authorize or permit the
Funding Corporation to (a) commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to the Funding
Corporation or the Funding Corporation's debts under any Bankruptcy Law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of the
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Funding Corporation or any substantial part of the Funding Corporation's
property, (b) 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 Funding Corporation or (c) make a general assignment for
the benefit of the Funding Corporation's creditors. The Pledgor shall not
commence or join with any other Person (other than the Collateral Agent and the
other Senior Secured Parties) in commencing any proceeding against the Funding
Corporation under any Bankruptcy Law now or hereafter in effect in any
jurisdiction.
ARTICLE 5
EXERCISE OF REMEDIES UPON AN EVENT OF DEFAULT
The provisions of this Article 5 shall apply only upon the occurrence and
during the continuance of an Event of Default.
Section 5.1 Remedies Generally. Subject to the terms of the Intercreditor
Agreement, if an Event of Default shall have occurred and be continuing, the
Collateral Agent, upon directions from (x) the Intercreditor Agent acting
pursuant to the Intercreditor Agreement or (y) the Senior Secured Parties acting
pursuant to Section 7.15 of the Intercreditor Agreement, or as otherwise
expressly provided herein, may exercise, in addition to all other rights and
remedies granted in this Agreement and in any other instrument or agreement
securing, evidencing or relating to the Secured Obligations, all rights and
remedies of a secured party under the Uniform Commercial Code in effect from
time to time in any relevant jurisdiction and all other rights and remedies
available at law or in equity.
Section 5.2 Sale of Pledged Collateral. (a) Without limiting the
generality of Section 5.1, the Collateral Agent, upon directions from (x) the
Intercreditor Agent acting pursuant to the Intercreditor Agreement or (y) the
Senior Secured Parties acting pursuant to Section 7.15 of the Intercreditor
Agreement, or as otherwise expressly provided herein, may, without notice except
as specified below, sell the Pledged Collateral or any part thereof in one or
more parcels at public or private sale or at the Collateral Agent's corporate
trust office or elsewhere, for cash, on credit or for future delivery, and at
such price or prices and upon such other terms as is commercially reasonable,
irrespective of the impact of any such sales on the market price of the Pledged
Collateral at any such sale. Each purchaser at any such sale shall hold the
property sold absolutely, free from any claim or right on the part of the
Pledgor, and the Pledgor hereby waives (to the extent permitted by law) all
rights of redemption, stay and/or appraisal which it now has or may at any time
in the future have under any rule of law or statute now existing or hereafter
enacted. The
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Pledgor agrees that, to the extent notice of sale shall be required by law, at
least ten (10) days' notice to the Pledgor of the time and place of any public
sale or the time after which any private sale is to be made shall constitute
reasonable notification. The Collateral Agent shall not be obligated to make any
sale of Pledged Collateral regardless of notice of sale having been given. The
Collateral Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned. The
Collateral Agent shall incur no liability as a result of the sale of the Pledged
Collateral, or any part thereof, at any public or private sale. The Pledgor
hereby waives any claims against the Collateral Agent arising by reason of the
fact that the price at which any Pledged Collateral may have been sold at such a
private sale, if commercially reasonable, was less than the price which might
have been obtained at a public sale, even if the Collateral Agent accepts the
first offer received and does not offer such Pledged Collateral to more than one
offeree.
(b) The Pledgor recognizes that the Collateral Agent, upon
directions from (x) the Intercreditor Agent acting pursuant to the Intercreditor
Agreement or (y) the Senior Secured Parties acting pursuant to Section 7.15 of
the Intercreditor Agreement, or as otherwise expressly provided herein, may
elect to sell all or a part of the Stock Collateral to one or more purchasers in
privately negotiated transactions in which the purchasers will be obligated to
agree, among other things, to acquire the Stock Collateral for their own
account, for investment and not with a view to the distribution or resale
thereof. The Pledgor acknowledges that any such private sales may be at prices
and on terms less favorable than those obtainable through a public sale
(including, without limitation, a public offering made pursuant to a
registration statement under the Securities Act of 1933, as amended (the
"Securities Act")), and the Pledgor and the Collateral Agent agree that such
private sales shall be made in a commercially reasonable manner and that the
Collateral Agent has no obligation to engage in public sales and no obligation
to delay sale of any Stock Collateral to permit the issuer thereof to register
the Stock Collateral for a form of public sale requiring registration under the
Securities Act. If the Collateral Agent, upon directions from (x) the
Intercreditor Agent acting pursuant to the Intercreditor Agreement or (y) the
Senior Secured Parties acting pursuant to Section 7.15 of the Intercreditor
Agreement, or as otherwise expressly provided herein, determines to exercise its
right to sell any or all of the Stock Collateral, upon written request, the
Pledgor shall, from time to time, furnish to the Collateral Agent all such
information necessary in order to determine the number of shares and other
instruments included in the Stock Collateral which may be sold by the Collateral
Agent as exempt transactions under the Securities Act and rules of
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the Securities and Exchange Commission thereunder, as the same are from time to
time in effect.
Section 5.3 Purchase of Pledged Collateral. The Collateral Agent may be a
purchaser of the Pledged Collateral or any part thereof or any right or interest
therein at any sale thereof, whether pursuant to foreclosure, power of sale or
otherwise hereunder and the Collateral Agent may apply the purchase price to the
payment of the Secured Obligations. Any purchaser of all or any part of the
Pledged Collateral shall, upon any such purchase, acquire good title to the
Pledged Collateral so purchased, free of the security interests created by this
Agreement.
Section 5.4 Application of Proceeds. The Collateral Agent shall apply any
proceeds from time to time held by it and the net proceeds of any collection,
recovery, receipt, appropriation, realization or sale with respect to the
Pledged Collateral in accordance Article IV of the Collateral Agency Agreement.
For avoidance of doubt, it is understood that the Partnership and the Funding
Corporation shall remain liable to the extent of any deficiency between the
amount of proceeds of the Pledged Collateral and the aggregated amount of the
Secured Obligations in accordance with the Financing Documents.
ARTICLE 6
MISCELLANEOUS PROVISIONS
Section 6.1 Notices. Unless otherwise specifically herein provided, all
notices required or permitted under the terms and provisions hereof shall be in
writing and any such notice shall become effective if given in accordance with
the provisions of Section 1.4 of the Indenture (and, in the case of notices to
the Pledgor, addressed to the Pledgor's chief executive office as determined
herein).
Section 6.2 Continuing Security Interest. This Agreement shall create a
continuing security interest in the Pledged Collateral until the release thereof
pursuant to Section 6.3.
Section 6.3 Release. Upon the indefeasible payment in full of the Secured
Obligations in cash or cash equivalents and the termination of all commitments
of the Senior Secured Parties under the Financing Documents, the Collateral
Agent, upon the request, and at the expense, of the Pledgor, and acting pursuant
to instructions from the Pledgor shall execute and deliver all such
documentation as the Pledgor may request to release the Lien created pursuant to
this Agreement.
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Section 6.4 Reinstatement. This Agreement shall continue to be effective
or be reinstated, as the case may be, if at any time any amount received by the
Collateral Agent hereunder or pursuant hereto is rescinded or must otherwise be
restored or returned by the Collateral Agent upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Pledgor, the Partnership or
the Funding Corporation or upon the appointment of any intervenor or
conservator of, or trustee or similar official for, the Pledgor, the Partnership
or the Funding Corporation or any substantial part of the Pledgor's, the
Partnership's or the Funding Corporation's assets, or upon the entry of an order
by any court avoiding the payment of such amount, or otherwise, all as though
such payments had not been made.
Section 6.5 Independent Security. The security provided for in this
Agreement shall be in addition to and shall be independent of every other
security which the Collateral Agent may at any time hold for any of the Secured
Obligations hereby secured, whether or not under the Senior Security Documents.
The execution of any other Senior Security Document shall not modify or
supersede the security interest or any rights or obligations contained in this
Agreement and shall not in any way affect, impair or invalidate the
effectiveness and validity of this Agreement or any term or condition hereof.
The Pledgor hereby waives its rights to plead or claim in any court that the
execution of any other Senior Security Document is a cause for extinguishing,
invalidating, impairing or modifying the effectiveness and validity of this
Agreement or any term or condition contained herein. The Collateral Agent shall
be at liberty to accept further security from the Pledgor or from any third
party and/or release such security without notifying the Pledgor and without
affecting in any way the obligations of the Pledgor under the Senior Security
Documents or the other Financing Documents. The Collateral Agent, upon
directions from (x) the Intercreditor Agent acting pursuant to the Intercreditor
Agreement or (y) the Senior Secured Parties acting pursuant to Section 7.15 of
the Intercreditor Agreement, or as otherwise expressly provided herein, shall
determine if any security conferred upon the Collateral Agent under the Senior
Security Documents shall be enforced by the Collateral Agent, as well as the
sequence of securities to be so enforced.
Section 6.6 Amendments. No waiver, amendment, modification or termination
of any provision of this Agreement, or consent to any departure by the Pledgor
therefrom, shall in any event be effective without the prior written consent of
the Collateral Agent, acting upon directions from (x) the Intercreditor Agent
acting pursuant to the Intercreditor Agreement or (y) the Senior Secured Parties
acting pursuant to Section 7.15 of the Intercreditor Agreement, or as otherwise
expressly provided herein, and none of the Pledged Collateral shall be released
without the written consent of the Collateral Agent, acting upon directions from
(x) the Intercreditor Agent acting pursuant to the Intercreditor
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Agreement or (y) the Senior Secured Parties acting pursuant to Section 7.15 of
the Intercreditor Agreement, or as otherwise expressly provided herein. Any such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
Section 6.7 Successors and Assigns. This Agreement shall be binding upon
the Pledgor and its successors and assigns and shall inure to the benefit of the
Collateral Agent and its successors and assigns. The Pledgor may not assign or
otherwise transfer any of their respective rights or obligations under this
Agreement without the written consent of the Collateral Agent, acting upon
directions from (x) the Intercreditor Agent acting pursuant to the Intercreditor
Agreement or (y) the Senior Secured Parties acting pursuant to Section 7.15 of
the Intercreditor Agreement, or as otherwise expressly provided herein; provided
that the obligations of the Pledgor hereunder shall be equally binding on any
transferee of the Pledgor (or its successors) with respect to the Pledged
Collateral.
Section 6.8 Survival. All agreements, statements, representations and
warranties made by the Pledgor herein or in any certificate or other instrument
delivered by the Pledgor or on their behalf under this Agreement shall be
considered to have been relied upon by the Collateral Agent and the other Senior
Secured Parties and shall survive the execution and delivery of this Agreement
and the other Financing Documents until termination thereof or the indefeasible
payment in full in cash or cash equivalents of all of the Secured Obligations
and the termination of all commitments of the Senior Secured Parties under the
Financing Documents regardless of any investigation made by the Collateral Agent
or the other Senior Secured Parties or made on their behalf.
Section 6.9 No Waiver; Remedies Cumulative. No failure or delay on the
part of the Collateral Agent in exercising any right, power or privilege
hereunder and no course of dealing between the Pledgor and the Collateral Agent
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder or
thereunder. The rights and remedies herein expressly provided are cumulative and
not exclusive of any rights or remedies which the Collateral Agent would
otherwise have.
Section 6.10 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
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Section 6.11 Headings Descriptive. The headings of the several Sections
and subsections of this Agreement are inserted for convenience only and shall
not in any way affect the meaning or construction of any provision of this
Agreement.
Section 6.12 Severability. In case any provision contained in or
obligation under this Agreement shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
Section 6.13 Governing Law. This Agreement shall be governed by the laws
of the State of New York of the United States of America and shall for all
purposes be governed by and construed in accordance with the laws of such state
without regard to the conflict of law rules thereof other than Section 5-1401 of
the New York General Obligations Law.
Section 6.14 Consent to Jurisdiction. Any legal action or proceeding by or
against the Pledgor with respect to or arising out of this Agreement may be
brought in or removed to the courts of the State of New York, in and for the
County of New York, or of the United States of America for the Southern District
of New York. By execution and delivery of this Agreement, the Pledgor accepts,
for itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts for legal proceedings arising out of or in
connection with this Agreement and irrevocably consents to the appointment of CT
Corporation System, with offices on the date hereof at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its agent to receive service of process in New York, New
York. If for any reason such agent shall cease to be available to act as such,
the Pledgor agrees to appoint a new agent on the terms and for the purposes of
this provision. Nothing herein shall affect the right to serve process in any
other manner permitted by law or any right to bring legal action or proceedings
in any other competent jurisdiction, including judicial or non-judicial
foreclosure of real property interests which are part of the Pledged Collateral.
The Pledgor further agrees that the aforesaid courts of the State of New York
and of the United States of America for the Southern District of New York shall
have exclusive jurisdiction with respect to any claim or counterclaim of the
Pledgor based upon the assertion that the rate of interest charged by or under
this Agreement or under the other Financing Documents is usurious. The Pledgor
hereby waives any right to stay or dismiss any action or proceeding under or in
connection with the Project, this Agreement or any other Transaction Document
brought before the foregoing courts on the basis of forum non-conveniens or
improper venue.
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Section 6.15 Waiver of Jury Trial. EACH OF THE PLEDGOR AND THE COLLATERAL
AGENT HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING
OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE
OTHER PARTIES HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE COLLATERAL
AGENT TO ENTER INTO THIS AGREEMENT.
Section 6.16 Entire Agreement. This Agreement, together with any other
agreement executed in connection herewith, is intended by the parties as a final
expression of their agreement as to the matters covered hereby and is intended
as a complete and exclusive statement of the terms and conditions thereof.
Section 6.17 Third Party Beneficiaries. The agreements of the parties
hereto are intended to benefit the Senior Secured Parties and their respective
successors and assigns.
Section 6.18 Independent Obligations. The Pledgor's obligations under this
Agreement are independent of those of the Partnership and the Funding
Corporation. The Collateral Agent may bring a separate action against the
Pledgor without first proceeding against the Partnership, the Funding
Corporation or any other Person or any other security held by the Collateral
Agent and without pursuing any other remedy.
Section 6.19 Waiver of Defenses. The Pledgor hereby waives: (a) any
defense of a statute of limitations; (b) any defense based on the legal
disability of the Partnership or the Funding Corporation or any discharge or
limitation of the liability of the Partnership or the Funding Corporation to the
Collateral Agent or the other Senior Secured Parties, whether consensual or
arising by operation of law; (c) presentment, demand, protest and notice of any
kind (other than as expressly provided by the Financing Documents); and (d) any
defense based upon or arising out of any defense which the Partnership or the
Funding Corporation may have to the payment or performance of any part of the
Secured Obligations.
Section 6.20 Subrogation, Etc. Notwithstanding any payment or payments
made by the Pledgor or the exercise by the Collateral Agent of any of the
remedies provided under this Agreement or any other Financing Document, until
the Secured Obligations have been indefeasibly paid in full in cash or cash
equivalents and all commitments of the Senior
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Secured Parties under the Financing Documents shall have terminated, the Pledgor
shall have no claim (as defined in 11 U.S.C. ss. 101(5)) of subrogation to any
of the rights of the Collateral Agent against the Partnership, the Funding
Corporation, the Pledged Collateral or any guaranty held by the Collateral Agent
for the satisfaction of any of the Secured Obligations, nor shall the Pledgor
have any claims (as defined in 11 U.S.C. ss. 101(5)) for reimbursement,
indemnity, exoneration or contribution from the Partnership or the Funding
Corporation in respect of payments made by the Pledgor hereunder.
Notwithstanding the foregoing, if any amount shall be paid to the Pledgor on
account of such subrogation, reimbursement, indemnity, exoneration or
contribution rights at any time, such amount shall be held by the Pledgor in
trust for the Collateral Agent segregated from other funds of the Pledgor, and
shall be turned over to the Collateral Agent in the exact form received by the
Pledgor (duly endorsed by the Pledgor to the Collateral Agent if required) to be
applied against the Secured Obligations in such amounts and in such order as the
Collateral Agent, upon directions from (x) the Intercreditor Agent acting
pursuant to the Intercreditor Agreement or (y) the Senior Secured Parties acting
pursuant to Section 7.15 of the Intercreditor Agreement, or as otherwise
expressly provided herein, may elect.
Section 6.21 Limitation of Liability. The provisions of Section 14.1 of
the Indenture shall apply to this Agreement.
Section 6.22 Collateral Agency Agreement. The rights, benefits, privileges
and immunities given to the Collateral Agent and set forth in the Collateral
Agency Agreement are expressly incorporated herein by reference thereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge and
Security Agreement to be duly executed and delivered by their officers thereunto
duly authorized as of the date first above written.
LSP BATESVILLE HOLDING, LLC
By: LS Power Management, LLC,
its manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and
Secretary
THE BANK OF NEW YORK,
not in its individual capacity but
solely as Collateral Agent
By: /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
Signature Page to Funding Corporation Stock Pledge Agreement