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EXHIBIT 10.174
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PLEDGE AGREEMENT
Dated as of March 20, 1998
between
COGENTRIX WHITEWATER, LLC
and
THE CHASE MANHATTAN BANK
as Collateral Agent
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PLEDGE AGREEMENT (this "Agreement") dated as of March 20, 1998, between
COGENTRIX WHITEWATER, LLC, a limited liability company duly formed and validly
existing under the laws of the State of Delaware (the "Pledgor") and THE CHASE
MANHATTAN BANK, as agent for the Secured Parties under the Intercreditor
Agreement referred to below (in such capacity, together with its successors in
such capacity, the "Collateral Agent") .
W I T N E S S E T H:
WHEREAS, LSP-Whitewater Limited Partnership, a limited partnership
duly organized and validly existing under the laws of the State of Delaware (the
"Partnership") owns and operates a dispatchable, intermediate load,
combined-cycle natural gas-fired cogeneration facility designed to generate
approximately 245 megawatts of electrical capacity and a maximum of 190,000
pounds per hour of steam and related property and facilities (collectively the
"Project");
WHEREAS, the Partnership has financed the acquisition, construction
and equipping of the Project through, among other things, a private placement by
LS Power Funding Corporation (the "Funding Corporation") of bonds, the proceeds
of which have been used to purchase the Initial Bonds of the Partnership;
WHEREAS, the Partnership has duly authorized the creation and issuance
of bonds (the "Bonds") pursuant to the Trust Indenture dated as of May 1, 1995
(as amended, supplemented or modified and in effect from time to time, the
"Trust Indenture") between the Partnership and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust
Company, as Trustee (in such capacity together with its successors in such
capacity, the "Trustee");
WHEREAS, in order to satisfy certain requirements of the Partnership
under the Project Agreements, the Partnership may incur indebtedness as
permitted under the Trust Indenture and the other Financing Documents in
connection with the issuance of letters of credit by the Credit Banks pursuant
to the Credit Bank Reimbursement Agreement;
WHEREAS, in order to pay Operating Expenses, the Partnership may incur
indebtedness as permitted under the Trust Indenture and the other Financing
Documents in the
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form of revolving working capital loans made by the Credit Banks under the
Credit Bank Working Capital Agreement;
WHEREAS, the Partnership may, in accordance with the Trust
Indenture and the other Financing Documents, incur additional indebtedness,
including, without limitation, bonds, debentures, promissory notes or other
evidences of such indebtedness, as permitted under the Trust Indenture and the
other Financing Documents to finance certain modifications and enhancements to
the Project in the future;
WHEREAS, the Partnership, The Chase Manhattan Bank (National
Association), as Depositary Agent (in such capacity, together with its
successors in such capacity, the "Depositary Agent") and the Collateral Agent
have entered into the Deposit and Disbursement Agreement dated as of May 1, 1995
(as amended, supplemented or modified and in effect from time to time, the
"Depositary Agreement") in order to, among other things, appoint the Depositary
Agent to hold and administer the proceeds of the issuance of the Bonds, the
proceeds of the revolving working capital loans made by the Credit Banks under
the Credit Bank Working Capital Agreement, the proceeds of capital contributions
to the Partnership and the proceeds of insurance and revenues generated by the
Project;
WHEREAS, all obligations of the Partnership under the Credit
Bank Reimbursement Agreement, the Credit Bank Working Capital Agreement, the
Trust Indenture, the Interest Rate Protection Agreements and the Additional
Permitted Debt Documents have been secured as set forth in the Security
Documents;
WHEREAS, the Partnership, the Depositary Agent, the Collateral
Agent and certain other parties referred to therein have entered into the
Collateral Agency and Intercreditor Agreement dated as of May 1, 1995 (as
amended, supplemented or modified and in effect from time to time, the
"Intercreditor Agreement") in order to set forth their mutual understanding with
respect to (a) the exercise of certain rights, remedies and options by the
respective parties thereto under the above described documents, (b) the priority
of their respective security interests created by the Security Documents and (c)
the appointment of, and the rights and obligations of, the Collateral Agent;
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WHEREAS, Granite Power Partners, L.P. ("Granite") has
previously executed and delivered a Pledge Agreement, dated as of May 1, 1995,
between Granite and the Collateral Agent, by the terms of which Granite has
pledged the shares of capital stock of the Issuer owned by Granite at that time;
WHEREAS, pursuant to a certain Securities Purchase Agreement,
dated as of March 6, 1998, between LS Power Corporation, Granite, Cogentrix
Mid-America, Inc., Cogentrix Cottage Grove, LLC, Cogentrix Energy, Inc. and the
Pledgor, the Pledgor has acquired all of the capital stock of the Issuer from
Granite;
WHEREAS, as of the date hereof, the Pledgor owns 100% of the
issued and outstanding capital stock of the Issuer;
WHEREAS, the terms of the Trust Indenture require, in order to
better secure the benefits of the other collateral subject of the Security
Documents, that the Pledgor pledge the shares of issued and outstanding capital
stock of the Issuer owned by the Pledgor from time to time; and
WHEREAS, the Pledgor is not guaranteeing or otherwise
furnishing support for the Secured Obligations;
NOW, THEREFORE, in consideration of the premises and covenants
contained herein and for other good and valuable consideration, the receipt and
the adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions. Capitalized terms that are defined
herein shall have the meanings herein specified and such definitions shall be
equally applicable to the singular and plural forms of the terms defined.
Capitalized terms not otherwise defined herein shall have the meanings set forth
in, and the interpretations applicable thereto under, the Intercreditor
Agreement, the Trust Indenture as in existence on the date hereof and the
Depositary Agreement. All terms used herein which are not defined herein or in
the Trust Indenture, the Intercreditor Agreement or the Depository Agreement and
are defined in the Uniform Commercial Code shall have the meanings therein
stated. Unless otherwise stated, any agreement, contract or document defined or
referred to herein shall mean such agreement, contract or document and all
schedules, exhibits and attachments thereto as in effect as of the date hereof,
as the same may thereafter be
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amended, supplemented or modified and in effect from time to time and shall
include any agreement, contract or document in substitution or replacement of
any of the foregoing. Any reference to any Person shall include its permitted
successors and assigns, and in the case of any Governmental Authority, any
Persons succeeding to its functions and capacities. The words "herein", "hereof"
and "hereunder" and other words of similar import refer to this Agreement as a
whole and not to any particular Article, Section or other subdivision.
"Collateral" shall have the meaning assigned to such term in
Section 3 hereof.
"Good Faith Contest" shall mean the contest of an item if (i)
the item is diligently contested in good faith by appropriate
proceedings timely instituted, (ii) adequate reserves are established
in accordance with GAAP with respect to the contested item and held in
cash or Permitted Investments, if the contested item individually or
when taken together with all other contested items for which reserves
are not at the time being held in cash or Permitted Investments would
reasonably be expected to result in liability of the Pledgor in excess
of $1,000,000, (iii) during the period of such contest, the enforcement
of any contested item is effectively stayed, unless such enforcement
would not reasonably be expected to result in a Material Adverse
Change, (iv) any Lien filed in connection therewith shall have been
removed from the record by bonding arrangements by a reputable surety
company, or cash deposits are otherwise provided to assure the
discharge of the Pledgor's obligation in connection therewith and of
any additional charge, penalty or expense arising from or incurred as a
result of such contest, (v) such payment in respect of any Tax, Lien or
claim shall have been made as is necessary to prevent the recordation
of a tax deed or other similar instrument conveying the property of the
Pledgor or any portion thereof, (vi) the failure to pay or comply with
the contested item during the period of such Good Faith Contest would
not reasonably be expected to result in a Material Adverse Change and
(vii) the Pledgor has no knowledge of any actual or proposed deficiency
or additional assessment in connection therewith not otherwise
satisfying the requirements of clauses (i) through (vi).
"Issuer" shall mean LSP-Whitewater I, Inc., a corporation duly
organized and validly existing under the laws of the State of Delaware
and a general partner of the Partnership.
"Material Adverse Change" shall mean a material change in the
business, operations, properties or financial condition of the Pledgor
or any event or occurrence of whatever nature which would materially
adversely affect (i) the ability of the Pledgor to perform its
obligations under any Financing Document to
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which the Pledgor is a party or (ii) the Liens under any Collateral
Document to which the Pledgor is a party.
"Pledgor Permitted Liens" shall mean (a) Liens imposed by any
Governmental Authority for Taxes which are not yet due or which are
being contested in a Good Faith Contest and (b) Liens created pursuant
to this Agreement.
"Pledged Stock" shall have the meaning assigned to such term
in Section 3(a) hereof.
"Records" shall have the meaning assigned to such term in
Section 2(a) hereof.
"Secured Obligations" shall mean, as at any date, all
indebtedness, liabilities and obligations of the Partnership, of
whatsoever nature and however evidenced (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 under or pursuant to
the Trust Indenture, the Bonds, the Credit Bank Working Capital
Agreement, the Credit Bank Reimbursement Agreement, any Additional
Permitted Debt Documents, any Interest Rate Protection Agreements, the
Security Documents or any other Financing Document, 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.
"Secured Parties" shall mean the Trustee (as trustee for and
representative of the Holders of the Bonds), the L/C Facility Agent (as
agent for and representative of the Credit Banks party to the Credit
Bank Reimbursement Agreement), the Working Capital Agent (as agent for
and representative of the Credit Banks party to the Credit Bank Working
Capital Agreement), each Additional Permitted Debt Agent (as agent for
and representative of the holders of Additional Permitted Debt) and
each Other Representative (as agent for and representative of the
holders of debt under the related financing documents), in each case to
the extent the same is, or by operation of Section 14(a) of the
Intercreditor Agreement becomes, a party thereto.
"Uniform Commercial Code" shall mean the Uniform Commercial
Code as in effect from time to time in the State of New York.
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Section 2. Representations and Warranties. The Pledgor
represents and warrants to the Secured Parties that:
(a) The chief place of business and chief executive office of
the Pledgor and the office where the Pledgor keeps its records
concerning the Collateral, including the registration book in which all
shares of capital stock of the Issuer and pledges and transfers thereof
are recorded (hereinafter, collectively called the "Records") is
located at ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(b) The Pledgor is a limited liability company duly formed,
validly existing and in good standing under the laws of the State of
Delaware and is duly qualified to do business and is in good standing
in the State of Delaware and in all other places where necessary in
light of the transactions contemplated by this Agreement except where
the failure to so qualify would not reasonably be expected to result in
a Material Adverse Change.
(c) The Pledgor has the full power, authority and legal right
to execute, deliver and perform its obligations under this Agreement.
The execution, delivery and performance by the Pledgor of this
Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary member and limited liability
company action. This Agreement has been duly executed and delivered by
the Pledgor, is in full force and effect and is the legal, valid and
binding obligation of the Pledgor, enforceable against the Pledgor in
accordance with its terms, except as such enforceability may be limited
by (i) applicable bankruptcy, insolvency, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and (ii)
general principles of equity (regardless of whether enforcement thereof
is sought in a proceeding at law or in equity).
(d) The execution, delivery and performance by the Pledgor of
this Agreement and the consummation of the transactions contemplated
hereby and thereby do not and will not (i) require any consent or
approval of the members of the Pledgor or any other Person that has not
been duly obtained and each such consent or approval that has been
obtained is in full force and effect, (ii) violate any provision of any
of the certificate of limited liability company or the limited
liability company agreement of the Pledgor or any Law or Governmental
Approval applicable to the Pledgor, (iii) conflict with, result in a
breach of or constitute a default under any of the certificate of
limited liability company or the limited liability company agreement of
the Pledgor or any indenture or loan or credit agreement or other
agreement, lease or instrument to which the Pledgor is a party or by
which it or any of its property may be bound or affected except any
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such conflict, breach or default that would not reasonably be expected
to result in a Material Adverse Change or (iv) result in, or require
the creation or imposition of, any Lien (other than Pledgor Permitted
Liens), upon or with respect to any of the properties now owned or
hereafter acquired by the Pledgor.
(e) This Agreement creates in favor of the Collateral Agent
for the equal and ratable benefit of the Secured Parties, a valid Lien
on and security interest in all of the Collateral, subject to no Lien
other than Pledgor Permitted Liens, securing the payment and
performance of the Secured Obligations, and all filings and other
actions necessary or desirable to create, preserve, validate, perfect
and protect such Lien and the priority thereof have been duly made or
taken.
(f) No Governmental Approval by, and no filing with, any
Governmental Authority is required to be obtained by the Pledgor in
connection with this Agreement and the transactions contemplated hereby
and thereby (except for such Governmental Approvals and such filings
heretofore obtained or made and in full force and effect and for the
filing of financing statements in the relevant jurisdictions).
(g) The Pledgor is the sole legal and beneficial owner of the
Collateral in which it purports to grant a security interest pursuant
to Section 3 hereof, and no Lien exists or will exist upon the
Collateral at any time (and, with respect to the Collateral, no right
or option to acquire the same exists in favor of any other Person),
except for Pledgor Permitted Liens and except for the pledge and
security interest in favor of the Collateral Agent for the benefit of
the Secured Parties created or provided for herein.
(h) There is no action, suit or proceeding at law or in equity
or by or before any Governmental Authority, arbitral tribunal or other
body now pending, or to the knowledge of the Pledgor, threatened,
against or affecting the Pledgor or any of the Collateral which would
reasonably be expected to result in a Material Adverse Change with
respect to the Pledgor.
(i) The Pledgor has filed, or caused to be filed, all tax and
information returns that are required to have been filed by it in any
jurisdiction, and has paid (prior to their delinquency dates) all Taxes
shown to be due and payable on such returns and all other Taxes payable
by it, to the extent that the same have become due and payable, except
to the extent there is a Good Faith Contest thereof by the Pledgor.
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(j) The Pledged Stock evidenced by the certificates identified
in Annex 1 hereto is, and all other Pledged Stock in which the Pledgor
shall hereafter grant a security interest pursuant to Section 3 hereof
will be, duly authorized, validly existing, fully paid and
non-assessable and none of such Pledged Stock is or will be subject to
any contractual restriction, or any restriction under the charter or
by-laws of the Issuer of such Pledged Stock, upon the transfer of such
Pledged Stock (except for any such restriction contained herein).
(k) The Pledged Stock evidenced by the certificates identified
in Annex 1 hereto constitutes all of the issued and outstanding shares
of capital stock of any class of the Issuer beneficially owned by the
Pledgor on the date hereof (whether or not registered in the name of
the Pledgor) and said Annex 1 correctly identifies, as at the date
hereof, the Issuer of such Pledged Stock, the respective class and par
value of the shares comprising such Pledged Stock and the respective
number of shares (and registered owners thereof) evidenced by each such
certificate.
(l) The Pledgor owns 100% of the issued and outstanding
capital stock of the Issuer as of the date hereof.
Section 3. The Pledge. As collateral security for the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the Secured Obligations, the Pledgor hereby pledges, assigns,
hypothecates transfers, delivers and grants to the Collateral Agent for the
equal and ratable benefit of the Secured Parties, and hereby grants to the
Collateral Agent for the equal and ratable benefit of the Secured Parties a lien
on and security interest in, all of the Pledgor's right, title and interest in,
to and under the following, whether now owned by the Pledgor or hereafter
acquired and whether now existing or hereafter coming into existence and
wherever located (all being collectively referred to herein as "Collateral"):
(a) the shares of capital stock of the Issuer evidenced by the
certificates identified in Annex 1 hereto and all other shares of
capital stock of whatever class of the Issuer, now or hereafter owned
by the Pledgor, in each case together with the certificates evidencing
the same (collectively, the "Pledged Stock");
(b) all shares, securities, moneys or property representing a
dividend on any of the Pledged Stock, or representing a distribution or
return of capital upon or in respect of the Pledged Stock, or resulting
from a split-up, revision, reclassification or other like change of the
Pledged Stock or otherwise received in
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exchange therefor, and any subscription warrants, rights or options
issued to the holders of, or otherwise in respect of, the Pledged
Stock;
(c) without affecting the obligations of the Pledgor, the
Issuer or the Partnership under any provision prohibiting such action
hereunder or under the Intercreditor Agreement, in the event of any
consolidation or merger in which the Issuer is not the surviving
corporation, all shares owned by the Pledgor of each class of the
capital stock of the successor corporation formed by or resulting from
such consolidation or merger;
(d) all proceeds of and to any of the property of the Pledgor
described in the preceding clauses of this Section 3 and, to the extent
related to any property described in said clauses or such proceeds, all
books, correspondence, credit files, records, invoices and other
papers; and
(e) to the extent not included in the foregoing, all products,
offspring, rents, revenues, issues, profits, royalties, income,
benefits, accessions, additions, substitutions and replacements of and
to any and all of the foregoing.
Section 4. Covenants. The Pledgor covenants and agrees that,
until the Debt Termination Date:
(a) The Pledgor shall preserve and maintain its legal
existence and form and all of its rights, privileges and franchises
that are necessary for the maintenance of its existence and the
performance of all of its obligations under this Agreement.
(b) The Pledgor shall not create, incur, assume or suffer to
exist any Lien upon any of the Collateral other than Pledgor Permitted
Liens.
(c) The Pledgor shall promptly but in no case later than five
Business Days upon obtaining knowledge of any action, suit or
proceeding at law or in equity by or before any Governmental Authority,
arbitral tribunal or other body pending or threatened against the
Pledgor which would reasonably be expected to result in a Material
Adverse Change, furnish to the Collateral Agent a notice of such event
describing the same in reasonable detail and, together with such notice
or as soon thereafter as possible, a description of the action that the
Pledgor has taken and proposes to take with respect thereto.
(d) The Pledgor shall not sell, assign, transfer or otherwise
dispose of all or any part of the Collateral, or consent to the
issuance of any capital stock
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of any class by the Issuer in a manner so as to cause the occurrence of
an Event of Default under Section 8.1(c) (but solely as the same
relates to Section 6.21(a) of the Trust Indenture), 8.1(p), 8.1(q) or
8.1(r) of the Trust Indenture (or the occurrence of an Event of Default
(as defined in the Intercreditor Agreement) under the correlative
provisions of any other Financing Document).
Section 5. Further Assurances; Remedies. In furtherance of the
grant of the pledge and security interest pursuant to Section 3 hereof, the
Pledgor hereby agrees with the Secured Parties as follows:
5.1 Delivery and Other Perfection. The Pledgor shall:
(a) if any of the certificates, warrants, shares, securities,
moneys, rights, options or other property required to be pledged by the
Pledgor under Section 3 hereof are received by the Pledgor, forthwith
(i) transfer and deliver to the Collateral Agent such certificates,
warrants, shares, securities, moneys, rights, options or other property
so received by the Pledgor (together with the certificates for any such
shares and securities duly endorsed in blank or accompanied by undated
stock powers duly executed in blank), all of which thereafter shall be
held by the Collateral Agent, pursuant to the terms of this Agreement,
as part of the Collateral and/or (ii) take such other action as the
Collateral Agent shall deem necessary or appropriate to duly record the
Lien created hereunder in such certificates, warrants, shares,
securities, moneys, rights, options or other property;
(b) give, execute, deliver, file and/or record any financing
statement, continuation statement, notice, instrument, document,
agreement or other papers that may be reasonably required to create,
preserve, perfect or validate the security interest granted pursuant
hereto or to enable the Collateral Agent to exercise and enforce its
rights hereunder with respect to such pledge and security interest,
including, without limitation, causing any or all of the Collateral to
be transferred of record into the name of the Collateral Agent or its
nominee (and the Collateral Agent agrees that if any Collateral is
transferred into its name or the name of its nominee, the Collateral
Agent shall thereafter promptly give to the Pledgor copies of any
notices and communications received by it with respect to the
Collateral). Without limiting the generality of the foregoing, the
Pledgor shall, if any Collateral shall be evidenced by a promissory
note or other instrument, deliver and pledge to the Collateral Agent
for the equal and ratable benefit of the Secured Parties such note or
instrument duly endorsed or accompanied by duly executed instruments of
transfer or assignment, all in such form and substance as will allow
the Collateral Agent to realize upon the Collateral pursuant to Section
5.5 hereof;
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(c) maintain, hold and preserve full and accurate Records, and
stamp or otherwise ▇▇▇▇ such Records in such manner as may be
reasonably required in order to reflect the security interests granted
by this Agreement; and
(d) permit representatives of the Collateral Agent, upon
reasonable notice, at any time during normal business hours to inspect
and make abstracts from its Records.
5.2 Other Financing Statements and Liens. Without the prior
consent of the Collateral Agent (granted with the written authorization of the
Secured Parties), the Pledgor shall not file or suffer to be on file, or
authorize or permit to be filed or to be on file, in any jurisdiction, any
financing statement or like instrument with respect to the Collateral in which
the Collateral Agent is not named as the sole secured party for the benefit of
the Secured Parties.
5.3 Preservation of Rights. The Collateral Agent shall not be
required to take steps necessary to preserve any rights against prior parties to
any of the Collateral.
5.4 Collateral.
(a) The Pledgor shall cause the Collateral to constitute at
all times 100% of the total number of shares of each class of capital stock of
the Issuer then outstanding owned by the Pledgor.
(b) So long as no Trigger Event shall have occurred and be
continuing, the Pledgor shall have the right to exercise all voting, consensual
and other powers of ownership pertaining to the Collateral for all purposes not
inconsistent with the terms of this Agreement, any other Project Document or any
other Financing Documents; and the Collateral Agent shall execute and deliver to
the Pledgor or cause to be executed and delivered to the Pledgor all such
proxies, powers of attorney, dividend and other orders, and all such
instruments, without recourse, as the Pledgor may reasonably request for the
purpose of enabling the Pledgor to exercise the rights and powers which it is
entitled to exercise pursuant to this Section 5.4(b).
(c) Unless and until a Trigger Event has occurred and is
continuing, the Pledgor shall be entitled to receive, retain and distribute as
dividends or otherwise any dividends on the Collateral paid in cash out of
earned surplus.
(d) If any Trigger Event shall have occurred and be
continuing, and whether or not the Collateral Agent or any other Secured Party
exercises any available right to declare any Secured Obligation due and payable
or seeks or pursues any other
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relief or remedy available to it under applicable law or under this Agreement or
any other Project Document, all dividends and other distributions on the
Collateral to which the Pledgor is entitled shall be paid directly to the
Collateral Agent and retained by it as part of the Collateral, subject to the
terms of this Agreement, and, if the Collateral Agent shall so request, the
Pledgor agrees to execute and deliver to the Collateral Agent appropriate
additional dividend, distribution and other orders and documents to that end,
provided that if such Trigger Event is waived or cured, any such dividend or
distribution theretofore paid to the Collateral Agent shall, upon request of the
Pledgor (except to the extent theretofore applied to the Secured Obligations),
be returned by the Collateral Agent to the Pledgor.
5.5 Trigger Events. If any Trigger Event shall have occurred
and be continuing:
(a) the Collateral Agent shall have the rights and the
obligations with respect to this Agreement as more particularly
provided in the Intercreditor Agreement;
(b) the Pledgor shall, at the request of the Collateral Agent,
assemble the Collateral owned by it at such place or places, reasonably
convenient to both the Collateral Agent and the Pledgor, designated in
its request;
(c) the Collateral Agent shall have all of the rights and
remedies with respect to the Collateral of a secured party under the
Uniform Commercial Code (whether or not said Code is in effect in the
jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is entitled
under the laws in effect in any jurisdiction where any rights and
remedies hereunder may be asserted, including, without limitation, the
right, to the maximum extent permitted by applicable law, to exercise
all voting, consensual and other powers of ownership pertaining to the
Collateral as if the Collateral Agent were the sole and absolute owner
thereof (and the Pledgor agrees to take all such action as may be
appropriate to give effect to such right);
(d) the Collateral Agent may make any reasonable compromise or
settlement deemed desirable with respect to any of the Collateral and
may extend the time of payment, arrange for payment in installments, or
otherwise modify the terms, of any of the Collateral;
(e) the Collateral Agent in its discretion may, in its name or
in the name of the Pledgor or otherwise, demand, ▇▇▇ for, collect or
receive any money or property at any time payable or receivable on
account of or in exchange for any of the Collateral, but shall be under
no obligation to do so; and
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(f) the Collateral Agent may, upon ten Business Days' prior
notice to the Pledgor of the time and place, with respect to the
Collateral or any part thereof which shall then be or shall thereafter
come into the possession, custody or control of the Collateral Agent,
the other Secured Parties or any of their respective agents, sell,
lease, assign or otherwise dispose of all or any part of such
Collateral, at such place or places as the Collateral Agent deems best,
and for cash or for credit or for future delivery (without thereby
assuming any credit risk), at public or private sale, without demand of
performance or notice of intention to effect any such disposition or of
the time or place thereof (except such notice as is required above or
by applicable statute and cannot be waived), and the Collateral Agent
or any other Secured Party or anyone else may be the purchaser, lessee,
assignee or recipient of any or all of the Collateral so disposed of at
any public sale (or, to the maximum extent permitted by applicable law,
at any private sale) and thereafter hold the same absolutely, free from
any claim or right of whatsoever kind, including any right or equity of
redemption (statutory or otherwise), of the Pledgor, any such demand,
notice and right or equity being hereby expressly waived and released
to the maximum extent permitted by applicable law. The Collateral Agent
may, without notice or publication, adjourn any public or private sale
or cause the same to be adjourned from time to time by announcement at
the time and place fixed for the sale, and such sale may be made at any
time or place to which the sale may be so adjourned.
The proceeds of each collection, sale or other disposition under this Section
5.5 shall be applied in accordance with Section 5.8 hereof.
The Pledgor recognizes that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Collateral Agent may be compelled, with respect to any sale
of all or any part of the Collateral, to limit purchasers to those who will
agree, among other things, to acquire the Collateral for
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their own account, for investment and not with a view to the distribution or
resale thereof. The Pledgor acknowledges that any such private sale may be at
prices and on terms less favorable to the Collateral Agent than those obtainable
through a public sale without such restrictions, and, notwithstanding such
circumstances, agrees that any such private sale shall be deemed to have been
made in a commercially reasonable manner and that the Collateral Agent shall
have no obligation to engage in public sales and no obligation to delay the sale
of any Collateral for the period of time necessary to permit the respective
issuer thereof to register it for public sale.
5.6 Removals, Etc. Without at least 30 days' prior notice to
the Collateral Agent, the Pledgor shall not (a) maintain any of its Records at
any office or maintain its principal place of business at any place other than
at the address for notices set forth on the signature pages hereto or (b) change
its corporate name, or the name under which it does business, from the name
shown on the signature pages hereto.
5.7 Private Sale. The Collateral Agent and the other Secured
Parties shall incur no liability as a result of the sale of the Collateral, or
any part thereof, at any private sale pursuant to Section 5.5 hereof conducted
in a commercially reasonable manner. The Pledgor hereby waives, to the maximum
extent permitted by applicable law, any claims against the Collateral Agent or
any other Secured Party arising by reason of the fact that the price at which
the Collateral may have been sold at such a commercially reasonable private sale
was less than the price which might have been obtained at a public sale or was
less than the aggregate amount of the Secured Obligations, even if, to the
extent that it is commercially reasonable to do so, the Collateral Agent accepts
the first offer received and does not offer the Collateral to more than one
offeree.
5.8 Application of Proceeds.
(a) Except as otherwise herein expressly provided, the
proceeds of any collection, sale or other realization of all or any
part of the Collateral pursuant hereto shall be remitted to the
Depositary Agent in the form received with all necessary endorsements
and, to the maximum extent permitted by applicable law, be applied in
accordance with the Depositary Agreement and the Intercreditor
Agreement.
(b) No sale or other disposition of all or any part of the
Collateral pursuant to Section 5.2 shall be deemed to relieve the
General Partner of its obligations under any Project Documents to which
it is party except to the extent the proceeds thereof are applied to
the payment of such obligations.
5.9 Attorney-in-Fact. Without limiting any rights or powers
granted by this Agreement to the Collateral Agent while no Trigger Event has
occurred and is
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continuing, upon the occurrence and during the continuance of any Trigger Event
the Collateral Agent is hereby appointed the attorney-in-fact of the Pledgor for
the purpose of carrying out the provisions of this Section 5 and taking any
action and executing any instruments which may be reasonably required to
accomplish the purposes hereof, which appointment as attorney-in-fact is
irrevocable and coupled with an interest. Without limiting the generality of the
foregoing, so long as the Collateral Agent shall be entitled under this Section
5 to make collections in respect of the Collateral, the Collateral Agent shall
have the right and power to receive, endorse and collect all checks made payable
to the order of the Pledgor representing any dividend, payment or other
distribution in respect of the Collateral or any part thereof and to give full
discharge for the same.
5.10 Perfection. Concurrently with the execution of this Agreement, the
Pledgor shall deliver to the Collateral Agent all certificates identified in
Annex 1 hereto, accompanied by undated stock powers duly executed in blank. The
Pledgor hereby authorizes the Collateral Agent to file one or more financing or
continuation statements, and amendments thereto, relating to all or any part of
the Collateral without the signature of the Pledgor where permitted by
applicable law. Copies of any such statement or amendment thereto shall promptly
be delivered to the Pledgor. Prior to or within 10 days after the date of this
Agreement, the Pledgor shall file such financing statements and other documents
in such offices as the Collateral Agent may request to perfect the security
interests granted by Section 3 of this Agreement. The Pledgor hereby authorizes
the Collateral Agent to file one or more financing or continuation statements,
and amendments thereto, relating to all or any part of the Collateral without
the signature of the Pledgor where permitted by applicable law. Copies of any
such statement or amendment thereto shall promptly be delivered to the Pledgor.
5.11 Termination.
(a) Upon any transfer of the Collateral permitted by the Trust
Indenture and the other Financing Documents, the Collateral Agent shall, upon
the written request of (and at the sole cost and expense of) the Pledgor,
promptly cause to be assigned, transferred and delivered, against receipt but
without any recourse, warranty or representation whatsoever, such Collateral and
shall promptly execute and deliver to the Pledgor such Uniform Commercial Code
termination statements and such other documentation as shall be requested by the
Pledgor to effect the termination and release of the Liens on such Collateral.
(b) Upon the Debt Termination Date the security interest
created by this Agreement shall terminate and all rights to the Collateral shall
revert to the Pledgor, and the Collateral Agent shall forthwith cause to be
assigned, transferred and delivered, against receipt but without any recourse,
warranty or representation whatsoever, any remaining Collateral and money
received in respect thereof, to or on the order of the
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Pledgor. The Collateral Agent shall also execute and deliver to the Pledgor upon
such termination such Uniform Commercial Code termination statements and such
other documentation as shall be requested by the Pledgor to effect the
termination and release of the Liens on the Collateral.
5.12 Expenses. The Pledgor agrees to pay to the Collateral Agent all
reasonable fees and out-of-pocket expenses (including reasonable fees and
expenses for legal services) of, or incident to, the enforcement of any of the
provisions of this Section 5, or performance by the Collateral Agent of any
obligations of the Pledgor in respect of the Collateral which the Pledgor has
failed or refused to perform, or any actual or attempted sale, or any exchange,
enforcement, collection, compromise or settlement in respect of any of the
Collateral, and for the care of the Collateral and defending or asserting rights
and claims of the Collateral Agent in respect thereof, by litigation or
otherwise, and all such fees and expenses, together with interest thereon at the
applicable Post-Default Rate shall be Secured Obligations to the Collateral
Agent secured under Section 3 hereof.
5.13 Further Assurances. The Pledgor agrees that, from time to time
upon the request of the Collateral Agent, the Pledgor shall execute and deliver
such further documents and do such other acts and things as the Collateral Agent
may reasonably request in order fully to effectuate the purposes of this
Agreement.
Section 6. Miscellaneous.
6.1 No Waiver. No failure on the part of the Collateral Agent or any of
its agents to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or remedy hereunder shall operate as a waiver
thereof, and no single or partial exercise by the Collateral Agent or any of its
agents of any right, power or remedy hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
The remedies provided herein are cumulative and are not exclusive of any
remedies provided by applicable law.
6.2 Notices. All notices, requests and other communications provided
for herein (including, without limitation, any modifications of, or waivers or
consents under, this Agreement) shall be given or made in writing in the manner
set forth in Section 16 of the Intercreditor Agreement. Unless otherwise so
changed by the respective parties hereto, all notices, requests and other
communications to each party hereto shall be sent to the address for notices of
such parties set forth on the signature pages hereto.
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6.3 Waivers, Etc. This Agreement may be amended, supplemented or
modified only by an instrument in writing signed by the Pledgor and the
Collateral Agent acting with the consent of the Secured Parties as provided in
Section 8(c) of the Intercreditor Agreement, and any provision of this Agreement
may be waived by the Collateral Agent acting with consent of the Secured Parties
or the Secured Parties as provided in Section 8(c) of the Intercreditor
Agreement; provided that no amendment, supplement, modification or waiver shall,
unless by an instrument in writing signed by all of the Secured Parties or by
the Collateral Agent acting with the consent of all of the Secured Parties,
alter the terms of this Section 6.3. Any waiver shall be effective only in the
specific instance and for the specified purpose for which it was given.
6.4 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the Pledgor,
the Collateral Agent, the other Secured Parties and each holder of any of the
Secured Obligations (provided, however, that the Pledgor shall not assign or
transfer its rights hereunder without the prior consent of the Collateral
Agent).
6.5 Counterparts; Effectiveness. This Agreement may be executed in any
number of counterparts, all of which when taken together shall constitute one
and the same instrument and either of the parties hereto may execute this
Agreement by signing any such counterpart. This Agreement shall become effective
at such time as the Collateral Agent shall have received counterparts hereof
signed by all of the intended parties hereto.
6.6 Agents, Etc. The Collateral Agent may employ agents and
attorneys-in-fact in connection herewith and shall not be responsible for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
in good faith. In accordance with the Intercreditor Agreement and the Depositary
Agreement, the Collateral Agent has appointed the Depositary Agent as its agent
for purposes of the Depositary Agreement. The Pledgor acknowledges that it has
received a copy of the Depositary Agreement and acknowledges and agrees to the
terms and conditions of the Depositary Agreement as the same apply hereto.
6.7 Severability. If any provision hereof is invalid or unenforceable
in any jurisdiction, then, to the fullest extent permitted by applicable law,
(a) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Collateral Agent
and the other Secured Parties in order to carry out the intentions of the
parties hereto as nearly as may be possible and (b) the invalidity or
unenforceability of any provision hereof in any jurisdiction shall not affect
the validity or enforceability of such provision in any other jurisdiction.
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6.8 The Collateral Agent. As provided in Section 8 of the Intercreditor
Agreement, each Secured Party has appointed The Chase Manhattan Bank (National
Association) as its Collateral Agent for purposes of this Agreement. Following
the Debt Termination Date, the provisions of said Section 8 shall be deemed to
continue in full force and effect for the benefit of the Collateral Agent under
this Agreement.
6.9 Headings. Headings appearing herein are used solely for convenience
of reference and are not intended to affect the interpretation of any provision
of this Agreement.
6.10 Limitation of Liability. The liability of the Pledgor for the
payment and performance of the Secured Obligations shall be limited as and to
the extent provided under Section 27 of the Intercreditor Agreement.
6.11 Security Interest Absolute. The rights and remedies of the
Collateral Agent hereunder, the Liens created hereby and the obligations of the
Pledgor hereunder are absolute, irrevocable and unconditional, irrespective of:
(a) the validity or enforceability of any of the Secured Obligations,
any other Project Document or any other agreement or instrument relating
thereto;
(b) any amendment to, waiver of, consent to or departure from, or
failure to exercise any right, remedy, power or privileges under or in respect
of, any of the Secured Obligations, any other Project Document or any other
agreement or instrument relating thereto;
(c) the acceleration of the maturity of any of the Secured Obligations
or any other modification of the time of payment thereof;
(d) any substitution, release or exchange of any other security for or
guarantee of any of the Secured Obligations or the failure to create, preserve,
validate, perfect or protect any other Lien granted to, or purported to be
granted to, or in favor of, the Collateral Agent or any other Secured Party; or
(e) any other event or circumstance whatsoever which might otherwise
constitute a legal or equitable discharge of a surety or a guarantor, it being
the intent of this Section 6.11 that the obligations of the Pledgor hereunder
shall be absolute, irrevocable and unconditional under any and all
circumstances.
6.12 Subrogation. The Pledgor shall not exercise, and hereby
irrevocably waives, any claim, right or remedy that it may now have or may
hereafter acquire against the Partnership arising under or in connection with
this Agreement,
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including, without limitation, any claim, right or remedy of subrogation,
contribution, reimbursement, exoneration, indemnification or participation
arising under contract, by Law or otherwise in any claim, right or remedy of the
Collateral Agent or the Secured Parties against the Partnership or any other
Person or any Collateral which the Collateral Agent or any Secured Party may now
have or may hereafter acquire. If, notwithstanding the preceding sentence, any
amount shall be paid to the Pledgor on account of such subrogation rights at any
time when any of the Secured Obligations shall not have been paid in full, such
amount shall be held by the Pledgor in trust for the Collateral Agent and the
Secured Parties, segregated from other funds of the Pledgor and 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, whether matured or unmatured, in accordance with the Trust
Indenture and the Security Documents.
6.13 Reinstatement. This Agreement and the Lien created hereunder shall
automatically be reinstated if and to the extent that for any reason any payment
by or on behalf of the Partnership in respect of the Secured Obligations is
rescinded or must otherwise be restored by any holder of the Secured
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and the Pledgor shall indemnify the Collateral
Agent and its employees, officers and agents on demand for all reasonable fees,
costs and expenses (including, without limitation, fees, costs and expenses of
counsel) incurred by the Collateral Agent or its employees, officers or agents
in connection with such rescission or restoration.
6.14 NO THIRD PARTY BENEFICIARIES. THE AGREEMENTS OF THE PARTIES HERETO
ARE SOLELY FOR THE BENEFIT OF THE PLEDGOR, THE COLLATERAL AGENT AND THE OTHER
SECURED PARTIES, AND NO PERSON (OTHER THAN THE PARTIES HERETO, THE OTHER SECURED
PARTIES AND THEIR SUCCESSORS AND ASSIGNS PERMITTED HEREUNDER) SHALL HAVE ANY
RIGHTS HEREUNDER.
6.15 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, EXCEPT AS REQUIRED BY
MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT THE VALIDITY OR
PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, ARE
GOVERNED BY THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
COGENTRIX WHITEWATER, LLC
By Cogentrix Mid-America, Inc.,
its manager
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
Address for Notices:
Cogentrix Whitewater, LLC
c/o Cogentrix Energy, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ BANK,
as Collateral Agent
By /s/ ▇▇▇▇▇ ▇. Safer
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Name : ▇▇▇▇▇ Safer
Title: Vice President
Address for Notices:
The Chase Manhattan Bank,
as Collateral Agent
Global Trust Services
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ Safer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ WHITEWATER, LLC
Issuer: LSP-Whitewater I, Inc.
Share Certificate No.: 2
Class: Common
Par Value: $0.01
Number of Shares: 20
Registered Owner: Cogentrix Whitewater, LLC