Exhibit 10(pp)
EQUITY CASH FLOW PARTICIATION AGREEMENT
EQUITY CASH FLOW PARTICIPATION AGREEMENT, dated as of August 4, 1998 (this
"AGREEMENT"), among BROOKLYN NAVY YARD POWER LLC (the "BNY GUARANTOR"), WARBASSE
POWER I LLC ("Warbasse I"), WARBASSE POWER II LLC ("Warbasse II" and together
with Warbasse I, the "Warbasse Guarantor"). NEW WORLD POWER TEXAS RENEWABLE
ENERGY LIMITED PARTNERSHIP (the "Big Spring Guarantor"). YORK T&T HOLDINGS,
INC. ("York T&T" and together with the BNY Guarantor the Warbasse Guarantor and
the Big Spring Guarantor, the "Assignors") and THE BANK OF NEW YORK, as
administrative agent hereunder for the benefit of the Holders listed on Schedule
I hereto (the "Agent"). Capitalized terms used by not otherwise defined herein
shall have the meanings set forth in the Purchase Agreement referred to below.
WHEREAS, York Power Funding (Cayman) Limited ("Funding Company") is a
limited liability company established for the sole purpose of issuing the
Securities in its individual capacity as principal and as agent acting on behalf
of the U.S. Guarantors pursuant to the Indenture and to make loans to the
Project Borrowers pursuant to the Project Loan Agreement;
WHEREAS, Funding Company, the U.S. Guarantors and Credit Suisse First
Boston Corporation ("CSFBC") have entered into the Purchase Agreement, dated as
of July 30, 1998 (the "Purchase Agreement"), pursuant to which CSFBC has agreed
to purchase the Securities; and
WHEREAS, the Holders wish to purchase $150,000,000 of the Securities from
CSFBC.
NOW, THEREFORE, for and in consideration of the premises and mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto,
intending to be legally bound, do hereby covenant and agree as follows:
1. The Assignors hereby assigns to the Agent on behalf of the Holders
(and their assignees hereunder), on a joint and several basis, 10% in the
aggregate (the "HOLDERS' PERCENTAGE") of the aggregate amount of distributions
received by the Assignors pursuant to, either directly or indirectly, the
Depositary Agreements (or any successor agreement entered into with any
refinancing). The benefits hereunder shall be represented by a single global
Equity Cash Flow Participation Certificate, which shall be held by the Agent on
behalf of each of the Holders or their assignees. The Agent shall distribute
the Holders' Percentage to the Holders (or their assignees hereunder) on a pro
rata basis (based on such Holder's respective percentage as set forth on
Schedule I) as promptly as practicable upon receipt of the Holders' Percentage
from the Assignors. In order to facilitate the receipt and payment of the
Holders' Percentage hereunder, the Agent shall establish a non-interest bearing
trust account (the "Agent's Account"). No investments will be made by the Agent
from the funds deposited in the Agent's Account.
2. The Holders shall list on Schedule I all relevant information as the
Agent may request, including the correct names, addresses, taxpayer
identification numbers and payment instructions sufficient to enable the Agent
to maintain its books and records with respect to the
Holders. Holders may assign the benefits hereunder, either in whole or in part,
without the consent of the Assignors or any other Person: PROVIDED, that each
Holder hereby agrees that any such assignment shall comply with the terms and
conditions set forth under the heading "TRANSFER RESTRICTIONS" in the Offering
Circular and for all purposes herein, any references to "Securities" herein
shall be deemed to be a reference to the benefits hereunder and the Holders
further agree that any assignee shall agree to be bound by the terms and
conditions of this Agreement. The representations, terms and conditions and
agreements set forth under the heading "TRANSFER RESTRICTIONS" in the Offering
Circular are incorporated herein in their entirety. The Holders shall promptly
notify the Agent of any such assignment and all relevant information of such
assignee entitled to the benefits hereunder based on information furnished to
it. Each Holder further acknowledges that the rights hereunder shall not be
included in any Registration Statement filed with respect to the Securities, do
not have the benefits of any registration rights and shall not be eligible for
trading in the PORTAL market or any other similar market and may be sold only in
accordance with the terms set forth under the heading "TRANSFER RESTRICTIONS" in
the Offering Circular. Each Holder and the Agent hereby agree that any
instrument of transfer with respect to the benefits hereunder shall bear a
legend substantially similar to the legend set forth on this Agreement
3. The Holders hereby appoint THE BANK OF NEW YORK as their agent
hereunder and authorize the Agent to administer the Holders' Percentage in
accordance with the terms set forth herein. The Holders jointly and severally
agree to compensate and reimburse the Agent upon its request for all expenses,
disbursements and advances incurred or made by the Agent in accordance with any
provision of or otherwise in connection with this Agreement (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its gross negligence or bad faith, and to indemnify the Agent
for, and to hold it harmless against, any and all loss, liability, claim,
damage, or expense (including Taxes other than Taxes based on the income of the
Agent) incurred without gross negligence, willful misconduct or bad faith on its
part, arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. All indemnifications and
releases from liability granted hereunder to the Agent shall extend to its
officers, directors, employees, agents, successors and assigns. Further rights,
benefits, privileges and immunities of the Agent shall be as set forth in the
"Terms and Conditions" stated in Schedule II attached hereto.
4. Each of the parties hereto acknowledges that CSFBC is not acting as
underwriter in any capacity with respect to this Agreement and makes no
representations whatsoever with respect to this Agreement.
5. This Agreement may be executed in any number of counterparts, all of
which, taken together, shall constitute one and the same instrument and any of
the parties hereto may execute this Agreement by signing any such counterpart.
6. This Agreement is a contract made under the laws of the State of New
York of the United States and shall for all purposes be governed by and
construed in accordance with the
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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).
EACH HOLDER UNDERSTANDS THAT THE BENEFITS HEREUNDER HAVE NOT BEEN AND WILL NOT
BE REGISTERED UNDER THE SECURITIES ACT AND THAT SUCH BENEFITS MAY ONLY BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) INSIDE THE UNITED
STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (B)
OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION COMPLYING WITH
THE PROVISIONS OF RULE 904 UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES
ACT") AND SUBJECT TO THE FUNDING COMPANY'S AND THE BOND TRUSTEE'S RIGHT PRIOR TO
ANY SUCH REOFFER, RESALE OR TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION OR OTHER INFORMATION REASONABLY SATISFACTORY TO EACH OF
THEM THAT SUCH REOFFER, RESALE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES
ACT AND OTHER APPLICABLE LAWS, AND (C) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER RULE 144 OF THE SECURITIES ACT (IF AVAILABLE).
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed by their duly authorized officers, all as of the date first written
above.
BROOKLYN NAVY YARD POWER LLC
By: B-41 ASSOCIATES, L.P.,
its Managing Member
By: B-41 MANAGEMENT CORPORATION
its General Partner
By:
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Name:
Title:
WARBASSE POWER LLC
By: COGENERATION TECHNOLOGIES, INC.
its General Partner
By:
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Name:
Title:
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WARBASSE POWER LLC
By: YORK COGEN PARTNERS, L.P.
its General Partner
By: RRR'S VENTURES, LTD.
its General Partner
By:
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Name:
Title:
NEW WORLD POWER TEXAS RENEWABLE ENERGY
LIMITED PARTNERSHIP
By: BIG SPRINGS TEXAS ENERGY
MANAGEMENT, INC.
Managing General Partner
By:
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Name:
Title:
YORK T&T HOLDINGS, INC.
By:
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Name:
Title:
THE BANK OF NEW YORK,
as Agent
By:
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Name:
Title:
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