EQUITY CONTRIBUTION GUARANTEE
EQUITY CONTRIBUTION GUARANTEE, dated as of July 20, 2001, made by COGENTRIX ENERGY, INC., a North Carolina corporation (the "Equity Guarantor"), in favor of CALENDNIA GENERATING, LLC (the "Borrower") and First Union National Bank, a national banking association, as security agent (in such capacity, the "Security Agent") for General Electric Capital Corporation, as letter of credit provider (the "Letter of Credit Provider"), General Electric Capital Corporation and the other banks and financial institutions ("Lenders") parties to the Loan and Reimbursement Agreement, dated as of July 20, 2001 (as amended, supplemented or otherwise modified from time to time, the "Loan Agreement"), among the Borrower, the Issuing Bank, the Lenders and General Electric Capital Corporation, as administrative agent (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Loan Agreement, the Lenders have severally agreed to make Loans to the Borrower and the Issuing Bank has agreed to provide the Credit Support Letters of Credit for the account of the Borrower upon the terms and subject to the conditions set forth therein;
WHEREAS, Cogentrix Caledonia Holdings I, Inc. ("the "Equity Contributor") owns directly or indirectly 100% of the limited liability interests in the Borrower and will enter into the Equity Contribution Agreement (the "Equity Contribution Agreement"), together with Equity Guarantor and First Union National Bank, as Security Agent, pursuant to which the Equity Contributor will make cash equity contributions to the Borrower upon the terms and subject to the conditions set forth therein;
WHEREAS, the Equity Guarantor is the direct or indirect parent of the Equity Contributor and the Borrower, and it is to the advantage of the Equity Guarantor that the Lenders make the Loans to the Borrower and the Issuing Bank provide the Credit Support Letters of Credit; and
WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective Loans to the Borrower and the Issuing Bank to provide the Credit Support Letters of Credit under the Loan Agreement that the Equity Contributor shall have executed and delivered the Equity Contribution Agreement and that the Equity Guarantor shall have executed and delivered this Equity Contribution Guarantee to the Security Agent for the ratable benefit of the Secured Parties.
NOW, THEREFORE, in consideration of the premises and to induce the Lenders and the Issuing Bank to enter into the Loan Agreement and to induce the Lenders to make their respective Loans to the Borrower and the Issuing Bank to provide the Credit Support Letters of Credit under the Loan Agreement, the Equity Guarantor hereby agrees with the Borrower, the Security Agent, for the ratable benefit of the Secured Parties, as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms defined in Annex A to the Loan Agreement or the in Equity Contribution Agreement, as applicable, and used herein shall have the meanings given to them in Annex A to the Loan Agreement or in the Equity Contribution Agreement, as applicable.
(b) As used herein, "Obligations" means the collective reference to the unpaid amount of the Equity Contributions plus interest accruing at the then applicable rate provided in the Equity Contribution Agreement after the Equity Contributions are due, and interest accruing at the then applicable rate provided in the Equity Contribution Agreement after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Equity Contributor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding, due under the Equity Contribution Agreement; provided that the Equity Guarantor's liability for the Obligations under this Equity Contribution Guarantee shall in no event exceed US$55,556,632.00 (the "Maximum Guaranteed Amount").
(c) The words "hereof," "herein" and "hereunder" and words of similar import when used in this Equity Contribution Guarantee shall refer to this Equity Contribution Guarantee as a whole and not to any particular provision of this Equity Contribution Guarantee, and section and paragraph references are to this Equity Contribution Guarantee unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
2. Guarantee. (a) The Equity Guarantor hereby unconditionally and irrevocably guarantees to the Borrower and the Security Agent, for the ratable benefit of the Secured Parties and their respective successors, indorsees, transferees and assigns, the prompt and complete payment by the Equity Contributor when due of the Obligations up to the Maximum Guaranteed Amount.
(b) The Equity Guarantor further agrees to pay any and all expenses (including, without limitation, all reasonable fees and disbursements of counsel) which may be paid or incurred by the Borrower, the Security Agent or any Secured Party in enforcing, or obtaining advice of counsel in respect of, any rights with respect to, or collecting against, the Equity Guarantor under this Equity Contribution Guarantee.
(c) The Equity Guarantor agrees that whenever, at any time, or from time to time, it shall make any payment to the Security Deposit Agent on account of its liability hereunder, it will notify the Security Agent in writing that such payment is made under this Equity Contribution Guarantee for such purpose.
3. Right of Set-off. The Security Agent and each Secured Party is hereby irrevocably authorized at any time and from time to time without notice to the Equity Guarantor, any such notice being expressly waived by the Equity Guarantor, to set off and appropriate and apply any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by the Security Agent or such Secured Party to or for the credit or the account of the Equity Guarantor, or any part thereof in such amounts as the Security Agent or such Secured Party may elect, against or on account of the obligations and liabilities of the Equity Guarantor to the Security Agent or such Secured Party hereunder, whether or not the Security Agent or such Secured Party has made any demand for payment and although such obligations, liabilities and claims may be contingent or unmatured; provided that the aggregate of such amount so set off, appropriated and applied, plus the aggregate of the amounts paid by the Equity Guarantor hereunder in respect of the Obligations, shall in no event exceed the Maximum Guaranteed Amount. The Security Agent and each Secured Party shall notify the Equity Guarantor promptly of any such set-off and the application made by the Security Agent or such Secured Party, as the case may be, of the proceeds thereof; provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of the Security Agent and each Secured Party under this paragraph are in addition to other rights and remedies (including, without limitation, other rights of set-off) which the Security Agent or such Secured Party may have.
4. No Subrogation. Notwithstanding any payment or payments made by the Equity Guarantor hereunder, or any set-off or application of funds of the Equity Guarantor by the Security Agent or any Secured Party, the Equity Guarantor shall not be entitled to be subrogated to any of the rights of the Security Agent or any Secured Party against the Equity Contributor or against any collateral security or guarantee or right of offset held by the Security Agent or any Secured Party for the payment of the Obligations, nor shall the Equity Guarantor seek or be entitled to seek any contribution or reimbursement from the Equity Contributor in respect of payments made by the Equity Guarantor hereunder, until all amounts owing to the Security Agent and the Secured Parties on account of the Obligations and the Secured Obligations are paid in full. If any amount shall be paid to the Equity Guarantor on account of such subrogation rights at any time when all of the Obligations and the Secured Obligations shall not have been paid in full, such amount shall be held by the Equity Guarantor in trust for the Security Agent and the Secured Parties, segregated from other funds of the Equity Guarantor, and shall, forthwith upon receipt by the Equity Guarantor, be turned over to the Security Agent in the exact form received by the Equity Guarantor (duly indorsed by the Equity Guarantor to the Security Agent, if required), to be applied against the Obligations, whether matured or unmatured, in such order as the Security Agent may determine. After all amounts owing to the Security Agent and the Secured Parties on account of the Obligations and the Secured Obligations are paid in full, the Equity Guarantor shall be subrogated to the rights of the Security Agent and the Secured Parties against the Equity Contributor.
5. Amendments, etc. with respect to the Obligations; Waiver of Rights. The Equity Guarantor shall remain obligated hereunder notwithstanding that, without any reservation of rights against the Equity Guarantor, and without notice to or further assent by the Equity Guarantor, any demand for payment of any of the Obligations made by the Borrower, the Security Agent or any Secured Party may be rescinded by the Borrower, the Security Agent or such Secured Party, and any of the Obligations continued, and the Obligations, or the liability of any other party upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or released by the Borrower, the Security Agent or any Secured Party, and the Equity Contribution Agreement, the Loan Agreement, any Notes, and the other Financing Documents and any other documents executed and delivered in connection therewith may be amended, modified, supplemented or terminated, in whole or in part, as the Borrower or the Security Agent (or the Required Lenders, as the case may be) may deem advisable from time to time, and any collateral security, guarantee or right of offset at any time held by the Security Agent or any Secured Party for the payment of the Obligations may be sold, exchanged, waived, surrendered or released. Neither the Security Agent nor any Secured Party shall have any obligation to protect, secure, perfect or insure any Lien at any time held by it as security for the Obligations or for this Equity Contribution Guarantee or any property subject thereto. When making any demand hereunder against the Equity Guarantor, the Borrower, the Security Agent or any Secured Party may, but shall be under no obligation to, make a similar demand on the Equity Contributor or any other guarantor, and any failure by the Borrower, the Security Agent or any Secured Party to make any such demand or to collect any payments from the Equity Contributor or any such other guarantor or any release of the Equity Contributor or such other guarantor shall not relieve the Equity Guarantor of its obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of law, of the Borrower, the Security Agent or any Secured Party against the Equity Guarantor. For the purposes hereof "demand" shall include the commencement and continuance of any legal proceedings.
6. Guarantee Absolute and Unconditional. The Equity Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Borrower, the Security Agent or any Secured Party upon this Equity Contribution Guarantee or acceptance of this Equity Contribution Guarantee, and the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Equity Contribution Guarantee; and all dealings between the Equity Contributor or the Equity Guarantor, on the one hand, and the Borrower, the Security Agent and the Secured Parties, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Equity Contribution Guarantee. The Equity Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Equity Contributor or the Equity Guarantor with respect to the Obligations. This Equity Contribution Guarantee shall be construed as a continuing, absolute and unconditional guarantee of payment without regard to (a) the validity, regularity or enforceability of the Equity Contribution Agreement, the Loan Agreement, any Note, or any other Financing Document, any of the Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Borrower, the Security Agent or any Secured Party, (b) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Equity Contributor against the Borrower, the Security Agent or any Secured Party, or (c) any other circumstance whatsoever (with or without notice to or knowledge of the Equity Contributor or the Equity Guarantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Equity Contributor for the Obligations, or of the Equity Guarantor under this Equity Contribution Guarantee, in bankruptcy or in any other instance. When pursuing its rights and remedies hereunder against the Equity Guarantor, the Borrower, the Security Agent and any Secured Party may, but shall be under no obligation to, pursue such rights and remedies as it may have against the Equity Contributor or any other Person or against any collateral security or guarantee for the Obligations or any right of offset with respect thereto, and any failure by the Borrower, the Security Agent or any Secured Party to pursue such other rights or remedies or to collect any payments from the Equity Contributor or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Equity Contributor or any such other Person or of any such collateral security, guarantee or right of offset, shall not relieve the Equity Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Borrower, the Security Agent or any Secured Party against the Equity Guarantor.
7. Reinstatement. This Equity Contribution Guarantee shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Obligations is rescinded or must otherwise be restored or returned by the Borrower, the Security Agent or any Secured Party upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower, the Equity Contributor or any other Person or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower, the Equity Contributor or any such other Person or any substantial part of its property, or otherwise, all as though such payments had not been made.
8. No Commencement of Bankruptcy Proceedings. The Equity Guarantor shall not commence or join with any other Person (other than the Secured Parties) in commencing any proceeding against the Equity Contributor or the Borrower under any bankruptcy, reorganization, liquidation or insolvency law or statute now or hereafter in effect in any jurisdiction.
Payments. The Equity Guarantor hereby agrees that all payments of the Obligations will be paid to the Security Deposit Agent on or before the first Business Day after such payments are due and shall be made by wire transfer of immediately available funds in Dollars to the Security Deposit Agent at First Union National Bank, Attn: Corporate Trust - Bond Administration, ▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, ABA No. ▇▇▇▇▇▇▇▇▇, Account No. 5000000016439, Attention: ▇▇▇▇▇ ▇▇▇▇, Branch 898, Reference: Caledonia, 1072006994, or at such other address as the Security Deposit Agent may designate in writing from time to time.
9. Representations and Warranties. The Equity Guarantor represents and warrants to the Security Agent and the Secured Parties that:
(a) Financial Statements. The balance sheet of the Equity Guarantor as at September 30, 2000, and the related statements of income and cash flows for the period then ended, heretofore furnished to the Administrative Agent and certified by a Responsible Officer of the Equity Guarantor, are the most recent financial statements prepared by the Equity Guarantor prior to the execution and delivery of this Equity Contribution Guarantee, and are complete and correct in all material respects and fairly present the financial condition, results of operations and changes in cash flows of the Equity Guarantor on such date and for such interim period then ended, in conformity with GAAP applied on a consistent basis. All material liabilities, direct and contingent, of the Equity Guarantor on such date are either disclosed in such balance sheet or have been disclosed in writing by the Equity Guarantor to the Administrative Agent prior to the execution and delivery of this Equity Contribution Guarantee. On the Closing Date, there are no undisclosed material liabilities, direct or contingent, which have accrued since the date of such financial statements or such subsequent disclosure.
(b) Corporate Existence and Business. The Equity Guarantor is a corporation duly organized and validly existing in good standing under the laws of the jurisdiction of its incorporation, is duly qualified to do business and is in good standing in each other jurisdiction where the failure to so qualify could reasonably be expected to have a material adverse effect on its ability to perform hereunder. As of the Closing Date, the Equity Guarantor directly or indirectly owns 100% of the equity interests in the Equity Contributor.
(c) Power and Authorization; Enforceable Obligations. The Equity Guarantor has full power and authority and the legal right to own its properties and to conduct its business as now conducted and proposed to be conducted by it, to execute, deliver and perform this Equity Contribution Guarantee and the other Transaction Documents to which it is a party and to take all action as may be necessary to complete the transactions contemplated hereunder and thereunder. The Equity Guarantor has taken all necessary corporate action to authorize the execution, delivery and performance of this Equity Contribution Guarantee and the other Transaction Documents to which it is a party. No consent or authorization of, filing with, or other act by or in respect of any other Person (including any of its stockholders or creditors) is required in connection with its execution, delivery or performance or the validity or enforceability as to it of this Equity Contribution Guarantee and the other Transaction Documents to which it is a party. This Equity Contribution Guarantee and each of the other Transaction Documents to which the Equity Guarantor is a party has been duly executed and delivered by it and constitutes a legal, valid and binding obligation enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity.
(d) No Legal Bar. The execution, delivery and performance by the Equity Guarantor of this Equity Contribution Guarantee and the other Transaction Documents to which it is a party and the making of any payments hereunder by it will not violate any Requirement of Law applicable to it or its properties or any of its contractual obligations and will not result in, or require, the creation or imposition of any Lien on any of its properties or revenues pursuant to any applicable law or contractual obligation.
(e) No Proceeding or Litigation. No litigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the best of the Equity Guarantor's knowledge, threatened against or affecting it or against or affecting any of its properties, rights, revenues or assets or the transactions contemplated by this Equity Contribution Guarantee and the other Transaction Documents which could reasonably be expected to have a material adverse effect on the Equity Guarantor's ability to perform its obligations hereunder.
(f) Investment Company Act. The Equity Guarantor is not an "investment company" or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.
(g) The Equity Guarantor agrees that the foregoing representations and warranties shall be deemed to have been made by the Equity Guarantor on the date of each borrowing by the Borrower under the Loan Agreement on and as of such date of borrowing as though made hereunder on and as of such date.
10. Covenants. The Equity Guarantor hereby covenants and agrees with the Security Agent and the Secured Parties that, from and after the date of this Equity Contribution Guarantee until the Obligations are paid in full:
(a) Financial Statements; Other Information. The Equity Guarantor shall furnish or cause to be furnished to the Administrative Agent and each Secured Party:
(1) (i) as soon as available, but in any event within 120 days after the end of each fiscal year of the Equity Guarantor, a copy of the audited balance sheet of the Equity Guarantor as of the end of such fiscal year and the related audited statements of operations, changes in shareholders' equity and of cash flow of the Equity Guarantor for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, certified without a "going concern" or like qualification or exception, or qualification as to the scope of the audit, by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLC or another independent public accounting firm of national standing selected by the Equity Guarantor and which is reasonably acceptable to the Administrative Agent; and
(ii) as soon as available, but in any event within 45 days after the end of each of the first three quarterly periods of each fiscal year of the Equity Guarantor, the unaudited balance sheet of the Equity Guarantor as of the end of such quarterly period and the related unaudited statements of operations and changes in shareholder's equity and of cash flow of the Equity Guarantor for such quarterly period and for the portion of the fiscal year through the end of such fiscal quarter, setting forth in each case in comparative form the figures for the previous period, certified by the chief executive officer or chief financial officer of the Equity Guarantor as fairly stating in all material respects the financial condition of the Equity Guarantor as at the end of such quarterly period and the results of its operations and its cash flows for such period (subject to normal year-end audit adjustments),
all such financial statements to be complete and correct in all material respects and to be prepared in reasonable detail and in accordance with GAAP applied consistently throughout the periods reflected therein (except for changes approved or required by the independent public accountants certifying such statements and disclosed therein);
(2) concurrently with the delivery of the financial statements of the Equity Guarantor referred to in clauses (1)(i) and (ii) of this Section 5.2(a), a certificate of a Responsible Officer of the Equity Guarantor, stating that, to the best of such Responsible Officer's knowledge after due inquiry, the Equity Guarantor during the period covered by such financial statements has observed and performed in all material respects all of its covenants and other agreements contained in this Equity Contribution Guarantee and the other Transaction Documents to which it is a party, and that such Responsible Officer is not aware of any Default or Event of Default under any Transaction Document to which it is a party at any time during such period or on the date of such certificate (or, if any such Default or Event of Default shall have occurred, a statement setting forth the nature thereof and the steps being taken by the Equity Guarantor to remedy the same); and
(3) promptly, such additional information regarding the business, affairs, operations and financial condition of the Equity Guarantor as any Secured Party may reasonably request.
(b) Maintenance of Existence, Properties, Etc. The Equity Guarantor shall at all times preserve and maintain its legal existence as a validly existing corporation under the laws of its jurisdiction of incorporation, its qualification to do business in each other jurisdiction where the failure to so qualify could reasonably be expected to have a material adverse effect on its ability to perform its obligations hereunder and other material rights, franchises, privileges and consents necessary for the maintenance of its existence and the conduct of its business.
11. Authority of Security Agent. (a) The Equity Guarantor acknowledges that the rights and responsibilities of the Security Agent under this Equity Contribution Guarantee with respect to any action taken by the Security Agent or the exercise or non-exercise by the Security Agent of any option, right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Equity Contribution Guarantee shall, as between the Security Agent and the Secured Parties, be governed by the Loan Agreement, the other Financing Documents and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Security Agent and the Equity Guarantor, the Security Agent shall be conclusively presumed to be acting as Security Agent for the Secured Parties with full and valid authority so to act or refrain from acting, and the Equity Guarantor shall not be under any obligation, or entitlement, to make any inquiry respecting such authority.
(b) The Equity Guarantor agrees that the Security Agent (acting for the benefit of the Secured Parties) and any assignee thereof shall be entitled to enforce this Equity Contribution Guarantee in its own name and to exercise any and all rights of the Borrower under this Equity Contribution Guarantee in accordance with the terms hereof (either in its own name or in the name of the Borrower as the Security Agent may elect), and the Equity Guarantor and the Borrower agree to comply and cooperate in all respects with such exercise. Without limiting the generality of the foregoing, the Security Agent and any assignee thereof shall have the full right and power to enforce directly against the Equity Guarantor all obligations of the Equity Guarantor under this Equity Contribution Guarantee, and otherwise to exercise all remedies available to the Borrower hereunder and to make all demands and give all notices and make all requests (either in its own name or in the name of the Borrower, as the Security Agent may elect) required or permitted to be made or given by the Borrower under this Equity Contribution Guarantee, and the Equity Guarantor acknowledges and agrees that any such action taken by the Security Agent shall be deemed effective for all purposes of this Equity Contribution Guarantee to the same extent as if such action had been taken directly by the Borrower. If the Equity Guarantor shall receive inconsistent directions from the Borrower and the Security Agent, the directions of the Security Agent shall be deemed the effective directions, and the Equity Guarantor shall accordingly comply with such directions of the Security Agent.
12. Consent. The Equity Guarantor hereby consents to the terms and provisions of the Borrower Security Agreement and each of the other Transaction Documents, including, without limitation, the assignment by the Borrower of all of its right, title and interest in, to and under this Equity Contribution Guarantee to the Security Agent pursuant to the terms of the Borrower Security Agreement.
13, Notices. All notices, requests and demands to or upon the Security Agent, any Secured Party or the Equity Guarantor to be effective shall be in writing (or by telex, fax or similar electronic transfer confirmed in writing) and shall be deemed to have been duly given or made when delivered by hand or if given by mail, when deposited in the mails by certified mail, return receipt requested, or if by telex, fax or similar electronic transfer, when sent and receipt has been confirmed, addressed as follows:
(a) if to the Borrower, the Security Agent or any Secured Party, at its address or transmission number for notices provided in subsection 12.2 of the Loan Agreement; and
(b) if to the Equity Guarantor, at its address or transmission number for notices set forth under its signature below.
The Security Agent, each Secured Party and the Equity Guarantor may change its address and transmission numbers for notices by notice in the manner provided in this Section.
14. Severability. Any provision of this Equity Contribution Guarantee which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
15. Integration. This Equity Contribution Guarantee represents the agreement of the Equity Guarantor with respect to the subject matter hereof and there are no promises or representations by the Borrower, the Security Agent or any Secured Party relative to the subject matter hereof not reflected herein.
16. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None of the terms or provisions of this Equity Contribution Guarantee may be waived, amended, supplemented or otherwise modified except by a written instrument executed by the Equity Guarantor, the Borrower and the Security Agent, provided that any provision of this Equity Contribution Guarantee may be waived by the Security Agent and the Secured Parties in a letter or agreement executed by the Security Agent or by telex or facsimile transmission from the Security Agent.
(b) Neither the Borrower, the Security Agent nor any Secured Party shall by any act (except by a written instrument pursuant to paragraph (a) hereof), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default or in any breach of any of the terms and conditions hereof. No failure to exercise, nor any delay in exercising, on the part of the Borrower, the Security Agent or any Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by the Borrower, the Security Agent or any Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which the Borrower, the Security Agent or such Secured Party would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.
17. Section Headings. The section headings used in this Equity Contribution Guarantee are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.
18. Successors and Assigns. This Equity Contribution Guarantee shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, provided that neither the Equity Guarantor nor the Borrower may assign nor otherwise transfer any of its rights or obligations hereunder (other than the assignments by the Borrower in favor of the Security Agent pursuant to the Security Agreement) without the prior written consent of each of the Lenders.
19. Governing Law. This Equity Contribution Guarantee shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.
20. Counterparts. This Equity Contribution Guarantee may be executed by one or more of the parties hereto on any number of counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Equity Contribution Guarantee signed by all the parties shall be lodged with the Borrower and the Security Agent.
21. Submission to Jurisdiction; Waivers. The Equity Guarantor hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this Equity Contribution Guarantee and the other Transaction Documents, or for recognition and enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of the State of New York, the courts of the United States of America for the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that nothing herein shall affect the right to effect service of process in any manner permitted by law or shall limit the right to ▇▇▇ in any other jurisdiction; and
(d) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section any special, exemplary, punitive or consequential damages.
22. WAIVER OF JURY TRIAL. THE EQUITY GUARANTOR, THE BORROWER AND THE SECURITY AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS EQUITY CONTRIBUTION GUARANTEE OR ANY OTHER TRANSACTION DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the undersigned has caused this Equity Contribution Guarantee to be duly executed and delivered by its duly authorized officer as of the day and year first above written.
COGENTRIX ENERGY, INC.
By: s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President - Project Finance
Address for Notices:
Cogentrix Energy, Inc.
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Cogentrix Caledonia Holdings I, Inc.
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Attention: General Counsel
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Acknowledged and Agreed:
CALEDONIA GENERATING, LLC, as Borrower
By: COGENTRIX CALEDONIA HOLDINGS I, INC.,
its Manager
By: s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President - Project Finance
FIRST UNION NATIONAL BANK,
as Security Agent
By: s/▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Assistant Vice President