EXHIBIT 10.17
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AMENDED AND RESTATED
SECURITY DEPOSIT AGREEMENT
AND ESCROW AGREEMENT
dated as of September 17, 1992
among
COGEN TECHNOLOGIES LINDEN VENTURE, L.P.,
a Delaware Limited Partnership,
COGEN TECHNOLOGIES LINDEN, LTD.,
a Texas Limited Partnership,
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION (not in its individual
capacity but solely as Owner Trustee),
as Limited Partner,
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION (not in its individual
capacity but solely as Owner Trustee),
as Lender,
and
MIDLANTIC NATIONAL BANK,
as Security Agent and
as Escrow Agent
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TABLE OF CONTENTS
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Page
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ARTICLE I
Definitions..................... 3
ARTICLE II
Appointment of Escrow Agent;
Appointment of Security Agent;
Establishment of Accounts
Section 2.01. Appointment of Escrow Agent and Security Agent... 8
Section 2.02. Creation of Accounts............................. 9
Section 2.03. Security Interest................................ 10
Section 2.04. No Control over Accounts......................... 10
ARTICLE III
Deposits into Accounts
Section 3.01. Deposits on Second Capital Contribution Date.... 11
Section 3.02. Revenues........................................ 11
Section 3.03. Information to Accompany Amounts Delivered to
Escrow Agent or Security Agent;
Deposits Irrevocable....................... 11
Section 3.04. Books of Account; Statements.................... 12
ARTICLE IV
Payments from Accounts
Section 4.01. Revenue Account-Monthly Transfers............... 12
Section 4.02. Revenue Account-Monthly Payments................ 14
Section 4.03. Debt Service Account............................ 17
Section 4.04. Completion Account.............................. 18
Section 4.05. Insurance and Condemnation Proceeds Account..... 18
Section 4.06. Operation and Maintenance Account............... 19
Section 4.07. Windup Account.................................. 20
Section 4.08. Interest in All Accounts........................ 20
Section 4.09. Delivery of Officer's Certificates; Timing of
Payments...................................... 21
Section 4.10. Shortfalls...................................... 21
Section 4.11. Required Payments Account....................... 21
Section 4.12. Escrow Required Payments Account................ 22
Section 4.13. Special Events.................................. 23
Section 4.14. Distributions to the Lender or the Limited
Partner....................................... 23
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ARTICLE V
Investment...................... 24
ARTICLE VI
Agent
Section 6.01. Rights, Duties, Etc.............................. 24
Section 6.02. Resignation or Removal........................... 25
ARTICLE VII
Determinations
Section 7.01. Value............................................ 26
Section 7.02. Other Determinations............................. 26
Section 7.03. Cash Available................................... 27
ARTICLE VIII
Representations and Warranties
Section 8.01. Representations.................................. 27
Section 8.02. Indemnification.................................. 27
ARTICLE IX
Miscellaneous
Section 9.01. Fees and Indemnification of Agent................ 28
Section 9.02. Termination...................................... 28
Section 9.03. Severability..................................... 28
Section 9.04. Counterparts..................................... 29
Section 9.05. Amendments....................................... 29
Section 9.06. APPLICABLE LAW................................... 29
Section 9.07. Notices.......................................... 29
Section 9.08. Benefit of Agreement............................. 29
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AMENDED AND RESTATED SECURITY DEPOSIT AGREEMENT AND ESCROW AGREEMENT
dated as of September 17, 1992, among Cogen Technologies Linden Venture, L.P., a
Delaware limited partnership (the "Partnership") of which Cogen Technologies
Linden, Ltd. (d/b/a Cogen Technologies Linden, Limited Partnership, in the State
of New Jersey), a Texas limited partnership, is the general partner (until such
time as the Limited Partner defined below notifies the Agent defined below of a
successor or substitute, the "General Partner" or the "Managing General
Partner"), the General Partner, State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity but solely as
trustee under the Trust Agreement (as defined below) (together with its
successors and assigns, the "Owner Trustee"), as the limited partner of the
Partnership (in such capacity, the "Limited Partner"), the Owner Trustee, as
lender under the General Partner Credit Agreement referred to below (in such
capacity, the "Lender"), and Midlantic National Bank, as security agent (in such
capacity, the "Security Agent") and as escrow agent hereunder (in such capacity,
the "Escrow Agent"; together with the Security Agent, the "Agent").
W I T N E S S E T H
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WHEREAS, the Partnership, General Electric Power Funding Corporation
("GEPFC") and the Security Agent are parties to the Security Deposit Agreement,
dated as of February 15, 1990 (as amended, supplemented or otherwise modified to
the date hereof, the "Original Security Deposit Agreement");
WHEREAS, pursuant to the Capital Contribution Agreement, dated as of
February 15, 1990 (as amended, supplemented or otherwise modified from time to
time, the "Capital Contribution Agreement"), among the Partnership, the General
Partner, the Owner Trustee, as assignee of GEPFC, GEPFC and the Lender Agent (as
hereinafter defined), the Owner Trustee, as assignee of GEPFC, agreed, subject
to the satisfaction of certain conditions precedent, to make capital
contributions to the Partnership on the Initial Capital Contribution Date (as
defined in the Capital Contribution Agreement) in exchange for a limited
partnership interest in the Partnership and, subject to the satisfaction of
certain other conditions precedent, to make additional capital contributions to
the Partnership on or prior to the Second Capital Contribution Date (as defined
in the Capital Contribution Agreement);
WHEREAS, it is a condition precedent to the making by the Owner
Trustee of its capital contributions on the Initial Capital Contribution Date
that the General Partner, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "Initial Limited Partner") and
the Limited Partner shall have executed and delivered the Amended and Restated
Agreement of Limited Partnership substantially in the form of Exhibit A to the
Capital Contribution Agreement (as amended,
2
supplemented or otherwise modified from time to time, the "Partnership
Agreement");
WHEREAS, it is a condition precedent to the making by the Owner
Trustee of its capital contributions on the Second Capital Contribution Date
that the parties hereto shall have executed and delivered this Agreement, which
provides for the deposit, investment and disbursement of revenues, cash,
payments, insurance and condemnation proceeds, securities, investments and other
amounts during the term of the Partnership;
WHEREAS, pursuant to the terms of the Original Security Deposit
Agreement, upon the satisfaction of the conditions precedent to the Second
Capital Contribution Date (including, without limitation, the execution and
delivery of this Agreement), the terms and conditions of the accounts created
pursuant to the Original Security Deposit Agreement are to be governed by this
Agreement;
WHEREAS, the Lender and the General Partner are parties to an Amended
and Restated Term Loan Agreement, dated as of September 15, 1992 (as amended,
supplemented or otherwise modified from time to time, the "General Partner
Credit Agreement"), pursuant to which the Lender has agreed to make
pre-completion loans, post-completion loans and working capital loans (the
"Loans") to the General Partner;
WHEREAS, the obligations of the General Partner under the General
Partner Credit Agreement, including its obligation to repay the Loans with
interest thereon, are secured by a pledge of the General Partner's general
partner interest in the Partnership, including, without limitation, the General
Partner's right to receive a management fee from the Partnership pursuant to the
Partnership Agreement;
WHEREAS, in order to give effect to said pledge, the General Partner
has agreed that (i) the portion of the distributions in respect of its general
partner interest in the Partnership which is equal to interest due and payable
on each Interest Payment Date (as hereinafter defined) and interest and
principal due and payable on each Installment Payment Date (as hereinafter
defined) and (ii) from time to time, upon the occurrence of certain events, all
of the distributions to be made by the Partnership to the General Partner, in
each case, shall be paid directly to the Security Agent, as agent for the
Lender, held by the Security Agent in trust as collateral security for the
obligations referred to in the preceding recital, and distributed by the
Security Agent as provided herein;
WHEREAS, the General Partner has agreed that, under certain
circumstances after the fifteenth anniversary of the Second Capital Contribution
Date, amounts which would otherwise be distributions in respect of its general
partner interest in
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the Partnership shall be held in an escrow account maintained by the Escrow
Agent;
WHEREAS, effective upon repayment of the loans made under the
Construction Loan Agreement, dated as of February 15, 1990 (as amended,
supplemented or otherwise modified from time to time the "Construction Loan
Agreement"), among the Partnership, the lenders parties thereto and GEPFC, as
agent (in such capacity, the "Lender Agent"), the Lender Agent shall release its
liens on and security interest in the revenues and other amounts on deposit in
the accounts created pursuant to the Original Security Deposit Agreement, such
release to be evidenced by the Lender Agent's written consent to the execution
and delivery of this Agreement;
WHEREAS, the parties to the Original Security Deposit Agreement have
agreed to amend and restate the Original Security Deposit Agreement as
hereinafter set forth;
WHEREAS, Midlantic National Bank has agreed to act as security agent
and as escrow agent pursuant to the term of this Agreement;
NOW, THEREFORE, in consideration of the premises and of other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
hereto hereby agree to amend and restate the Original Security Deposit Agreement
in its entirety as follows:
ARTICLE I
Definitions
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Unless otherwise defined herein, capitalized terms used herein shall
have the meanings assigned to them in the Partnership Agreement (such
definitions to be equally applicable to the singular and plural forms of the
terms defined).
In addition, the following terms when used herein shall have the
following meanings:
"Accounts": the collective reference to the Debt Service Account,
Escrow Required Payments Account, Required Payments Account, Insurance and
Condemnation Proceeds Account, Revenue Account, Operation and Maintenance
Account, Completion Account and Windup Account.
"Agreement", "hereto", "hereunder" and words of similar import: this
Amended and Restated Security Deposit Agreement, as the same may from time
to time be amended, supplemented or otherwise modified in accordance with
the provisions hereof.
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"Annual Period": any twelve month period commencing with the Second
Capital Contribution Date and each anniversary thereof.
"Cash Equivalents": (a) obligations of, or guaranteed as to interest
and principal by, the United States of America or any agency thereof, in
each case maturing within one year from the date of acquisition thereof,
(b) open market commercial paper of any corporation incorporated under the
laws of the United States of America or any state thereof and not an
Affiliate of the Partnership or the General Partner maturing no more than
one year from the date of creation thereof which paper is rated "prime-2"
or its equivalent by ▇▇▇▇▇'▇ Investors Service Inc. or "A-2" or its
equivalent by Standard & Poor's Corporation, (c) certificates of deposit
issued by any domestic commercial bank of recognized stature having capital
and surplus in excess of $500,000,000 or any domestic branch of any foreign
commercial bank of recognized stature having capital and surplus in excess
of $500,000,000 in each case maturing within one year from the date of
acquisition thereof, (d) repurchase agreements fully collateralized by
obligations described in clause (a) above in each case maturing within one
year from the date of acquisition thereof, or (e) money market funds
invested in instruments that meet the criteria above, such money market
funds may include funds registered under the Investment Company Act of
1940, as amended, having Midlantic National Bank as investment advisor for
which it may receive compensation from such funds in addition to its fee as
Security Agent; provided, however, that the aggregate amount at any one
time so invested (A) in open market commercial paper issued by any
corporation shall not exceed $5,000,000 and (B) in certificates of deposit
issued by any one bank shall not exceed $10,000,000.
"Completion Account": the special account designated by that name
established by the Escrow Agent pursuant to Section 2.02.
"Completion Budget": the budget delivered to, and approved by, GEPFC
and the Owner Trustee pursuant to the Capital Contribution Agreement.
"Debt Service Account": the special account designated by that name
established by the Security Agent pursuant to Section 2.02.
"Eighth Year Required Payments Ratio": the ratio of:
(a) the sum of (i) Distributable Cash for the Annual Period commencing
with the seventh anniversary of the Second Capital Contribution Date, (ii)
the aggregate amount of cash income from Permitted Investments earned on
the Working Capital Fund during such Annual Period and (iii) the
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aggregate amount of interest paid by the Partnership to the General Partner
on loans made from the Working Capital Fund during such Annual Period to
(b) the sum of (i) the aggregate distributions of Distributable Cash
projected to be made pursuant to Section 4.3(a) of the Partnership
Agreement during the Annual Period commencing with the ninth anniversary of
the Second Capital Contribution Date, plus (ii) the sum of (x) the
aggregate amount of interest projected to be payable on the Loans during
such Annual Period and (y) the aggregate amount of scheduled repayments
projected to be made on the Post-Completion Note during such Annual Period
(such projections to be prepared by the General Partner to the satisfaction
of the Lender on the basis of the interest rate and amortization schedule
in effect with respect to the General Partner Credit Agreement at the time
of calculation).
"Escrow Accounts": all Accounts other than the Debt Service Account
and the Required Payments Account.
"Escrow Required Payments Account": the special account designated by
that name established by the Escrow Agent pursuant to Section 2.02.
"First Year Required Payments Ratio": the ratio of:
(a) the sum of (i) Distributable Cash for the Annual Period commencing
with the Second Capital Contribution Date, (ii) the aggregate amount of
cash income from Permitted Investments earned on the Working Capital Fund
during such Annual Period and (iii) the aggregate amount of interest paid
by the Partnership to the General Partner on loans made from the Working
Capital Fund during the Annual Period to
(b) the sum of (i) the aggregate distributions of Distributable Cash
projected to be made pursuant to Section 4.3(a) of the Partnership
Agreement during the Annual Period commencing with the second anniversary
of the Second Capital Contribution Date, plus (ii) the sum of (x) the
aggregate amount of interest projected to be payable on the Loans during
such Annual Period and (y) the aggregate amount of scheduled repayments
projected to be to be made on the Post-Completion Note during such Annual
Period (such projections to be prepared by the General Partner to the
satisfaction of the Lender on the basis of the interest rate and
amortization schedule in effect with respect to the General Partner Credit
Agreement at the time of calculation).
"Fixed Charge Coverage Ratio": as defined in the General Partner
Credit Agreement.
"Installment Payment Date": as defined in the General Partner Credit
Agreement.
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"Insurance and Condemnation Proceeds Account": the special account
designated by that name established by the Escrow Agent pursuant to Section
2.02.
"Insurance and Condemnation Proceeds Deposits": as defined in Section
4.05(b).
"Interest Payment Date": as defined in the General Partner Credit
Agreement.
"Loans": as defined in the General Partner Credit Agreement.
"Obligations": as defined in the General Partner Credit Agreement.
"Operation and Maintenance Account": the special account designated by
that name established by the Escrow Agent pursuant to Section 2.02.
"Operation and Maintenance Account Deposit Amount": defined in Section
4.01(b).
"Permitted Investments": (a) securities issued or directly and fully
guaranteed or insured by the United States Government or any agency or
instrumentality thereof having maturities of not more than six months from
the date of acquisition, (b) certificates of deposit and eurodollar time
deposits with maturities of six months or less from the date of
acquisition, bankers' acceptances with maturities not exceeding six months
and overnight bank deposits, in each case, with the Lender or with any
domestic commercial bank of recognized stature having capital and surplus
in excess of $500,000,000, (c) repurchase obligations with a term of not
more than one year for underlying securities of the types described in
clauses (a) and (b) above entered into with any financial institution
meeting the qualifications specified in clause (b) above, (d) commercial
paper issued by GEPFC or the parent corporation of GEPFC, and commercial
paper rated at least A-2 or the equivalent thereof by Standard & Poor's
Corporation or at least P-2 or the equivalent thereof by ▇▇▇▇▇'▇ Investors
Service, Inc. and in each case maturing within six months after the date of
acquisition, and (e) money market funds invested in instruments that meet
the criteria above, such money market funds may include funds registered
under the Investment Company Act of 1940, as amended, having Midlantic
National Bank as investment advisor for which it may receive compensation
from such funds in addition to its fee as Security Agent.
"Post-Completion Note": as defined in the General Partner Credit
Agreement.
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"Quarterly Required Payments Ratio": with respect to any calendar
quarter after the Second Capital Contribution Date, the ratio of:
(a) the sum of (i) Distributable Cash for such calendar quarter, (ii)
the aggregate amount of cash income from Permitted Investments earned on
the Working Capital Fund during such calendar quarter and (iii) the
aggregate amount of interest paid by the Partnership to the General Partner
on loans made from the Working Capital Fund during such calendar quarter to
(b) the sum of (i) the aggregate distributions of Distributable Cash
made pursuant to Section 4.3(a) of the Partnership Agreement during such
calendar quarter, plus (ii) the sum of (x) the aggregate amount of interest
payable on the Loans during such calendar quarter and (y) the aggregate
amount of scheduled repayments to be made on the Post-Completion Note
during such calendar quarter.
"Required Payments Account": the special account designated by that
name established by the Security Agent pursuant to Section 2.02.
"Revenue Account": the special account designated by that name
established by the Escrow Agent pursuant to Section 2.02.
"Revenues": all revenues and all other payments at any time received
by or on behalf of the Partnership (other than (i) Working Capital
Proceeds, (ii) the proceeds of capital contributions received from any of
the Partners and (iii) the proceeds of insurance or of a Taking payable
into the Insurance and Condemnation Proceeds Account pursuant to Section
4.05), including, without limitation, all interest and other income on
funds on deposit in the Escrow Accounts, all payments received by the
Partnership under the Power Purchase Agreement and the Steam Supply
Agreement and all other payments received by the Partnership from the sale
of electricity, heat and/or steam produced by the Facility.
"Taking": a taking of title to, or use or occupancy of, all or any
part of the Project as a result of the exercise of the right of
condemnation or power of eminent domain or similar power or the exercise by
a governmental body of a non-contractual right to purchase all or any part
of the Project, or a sale or other transfer of all or any part of the
Project in lieu of condemnation or exercise of power of eminent domain.
"Transaction Documents": as defined in the General Partner Credit
Agreement.
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"Value": as described in Section 7.01.
"Windup Account": the special account designated by that name
established by the Escrow Agent pursuant to Section 2.02.
"Working Capital Fund": as defined in the General Partner Credit
Agreement.
"Working Capital Fund Deposit Amount": as defined in Section 4.01(c).
"Working Capital Loan": as defined in the General Partner Credit
Agreement.
"Working Capital Proceeds": the proceeds of any loans made by the
General Partner for working capital purposes from amounts on deposit in the
Working Capital Fund.
ARTICLE II
Appointment of Escrow Agent;
Appointment of Security Agent;
Establishment of Accounts
Section 2.01. Appointment of Escrow Agent and Security Agent. (a)
Midlantic National Bank is hereby appointed by the Partnership, the General
Partner and the Limited Partner as escrow agent hereunder, and the Escrow Agent
hereby agrees to act as such and to accept all revenues, cash, payments,
insurance and condemnation proceeds, securities, investments and other amounts
to be delivered to or held by the Escrow Agent in the Escrow Accounts pursuant
to the terms of this Agreement. The Escrow Agent shall hold and safeguard the
Escrow Accounts (and the revenues, cash, payments, insurance and condemnation
proceeds, instruments, securities and other amounts on deposit therein) during
the term of this Agreement as agent for the Partnership, and shall administer
the Escrow Accounts strictly in accordance with the terms hereof and of the
other Operative Documents. The Escrow Agent shall act as agent for the
Partnership and shall not be deemed to be an agent for any Partner, in its
individual capacity, for any purposes hereunder.
(b) Midlantic National Bank is hereby appointed by the Lender and the
General Partner as security agent hereunder, and the Security Agent hereby
agrees to act as such and to accept all payments to be delivered to or held by
the Security Agent in the Debt Service Account and the Required Payments Account
pursuant to the terms of this Agreement. The Security Agent shall hold and
safeguard the Debt Service Account (and the cash, payments, instruments,
securities and other amounts on deposit therein) and the Required Payments
Account (and the cash, payments instruments, securities and other amounts on
deposit therein)
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during the term of this Agreement as agent for the Lender, and shall administer
the Debt Service Account and the Required Payments Account strictly in
accordance with the terms hereof and of the other Transaction Documents. In
addition, the Security Agent shall treat the cash, instruments and securities in
the Debt Service Account and the Required Payments Account as funds, instruments
and securities pledged by the General Partner to the Lender, to be held by the
Security Agent, as agent of the Lender, in trust in accordance with the
provisions hereof.
Section 2.02. Creation of Accounts. (a) The Escrow Agent hereby
establishes the following six special, segregated and irrevocable escrow
accounts which shall be maintained at all times until the termination of this
Agreement (except the Completion Account which shall be closed after giving
effect to the transfer required to be made by the Escrow Agent pursuant to the
last sentence of Section 4.04):
(1) Revenue Account (Account No. ▇▇▇▇▇▇▇▇),
(2) Insurance and Condemnation Proceeds Account
(Account No. ▇▇▇▇▇▇▇▇),
(3) Operation and Maintenance Account (Account
No. 11014973),
(4) Completion Account (Account No. ▇▇▇▇▇▇▇▇),
(5) Windup Account (Account No. ▇▇▇▇▇▇▇▇), and
(6) Escrow Required Payments Account (Account No. ▇▇▇▇▇▇▇▇).
All moneys, investments and securities at any time on deposit in any of the
Escrow Accounts shall constitute escrow funds to be held in the custody of the
Escrow Agent for the purposes and on the terms set forth in this Agreement.
(b) The Security Agent hereby establishes a special, segregated and
irrevocable cash collateral account (Account No. ▇▇▇▇▇▇▇▇) entitled the "Debt
Service Account" which shall be maintained at all times until the earlier of (i)
the termination of this Agreement with respect to the Debt Service Account and
(ii) the payment in full of all Loans and any other amounts owing to the Lender
under the General Partner Credit Agreement and the termination of the General
Partner Credit Agreement. All moneys, investments and securities at any time on
deposit in the Debt Service Account shall constitute trust funds to be held in
the custody of the Security Agent for the purposes and on the terms set forth in
this Agreement.
(c) The Security Agent hereby establishes a special, segregated and
irrevocable cash collateral account (Account No. ▇▇▇▇▇▇▇▇) entitled the
"Required Payments Account" which shall be maintained at all times until the
earlier of (i) the termination of this Agreement with respect to the Required
Payments Account and (ii) the payment in full of all Loans and any other amounts
owing to the Lender under the General Partner Credit Agreement and the
termination of the General Partner Credit Agreement. All
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moneys, investments and securities at any time on deposit in the Required
Payments Account shall constitute trust funds to be held in the custody of the
Security Agent for the purposes and on the terms set forth in this Agreement.
(d) The Lender shall notify the Security Agent of the payment in full
of all Loans and the termination of the General Partner Credit Agreement and of
the Debt Service Account.
Section 2.03. Security Interest. In order to secure the performance by
the General Partner of all of its covenants, agreements and obligations under
the General Partner Credit Agreement and the other Transaction Documents (other
than the Partnership Agreement and the Partnership Agreement (as defined in the
General Partner Credit Agreement)) and the payment by the General Partner of all
Obligations, this Agreement is intended to create, and the General Partner
hereby grants and pledges to, and creates in favor of the Lender, a security
interest in and to, all of its right, title and interest in and to (i) the Debt
Service Account and the Required Payments Account, and (ii) all cash, cash
equivalents, instruments, investments and other securities at any time on
deposit in the Debt Service Account and the Required Payments Account, and all
proceeds of any of the foregoing. All such moneys, cash equivalents,
instruments, investments and securities at any time on deposit in the Debt
Service Account and the Required Payments Account shall constitute collateral
security for the payment by the General Partner of the Obligations and the
performance and observance by the General Partner of all the covenants and
conditions contained herein with respect to the Debt Service Account and the
Required Payments Account, in the General Partner Credit Agreement and in the
other Transaction Documents (other than the Partnership Agreement and the
Partnership Agreement (as defined in the General Partner Credit Agreement)), and
shall at all times be subject to the control of the Lender, acting through the
Security Agent, pursuant to the terms hereof, and shall be held in the custody
of the Security Agent in trust for the purposes of, and on the terms set forth
in, this Agreement. For the purpose of perfecting the foregoing security
interest of the Lender in and to the Debt Service Account and the Required
Payments Account and all cash, investments and securities at any time on deposit
in the Debt Service Account and the Required Payments Account, the Security
Agent shall be deemed to be the agent of the Lender.
Section 2.04. No Control over Accounts. Neither the Partnership nor
the General Partner shall have any rights or powers with respect to any amounts
in the Accounts or any part thereof except (i) as provided in Sections 4.01(a),
4.02 (to the extent of distributions to the General Partner), 4.04, 4.05(d),
4.05(e), 4.06, 4.07(b) (to the extent of distributions to the General Partner),
4.08(a)(ii), 4.11(b), 4.11(c), 4.12(b), 4.12(c) and in Article V hereof and (ii)
the right to have such amounts applied in accordance with the provisions hereof.
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ARTICLE III
Deposits into Accounts
----------------------
Section 3.01. Deposits on Second Capital Contribution Date. (a) On the
Second Capital Contribution Date, after making all payments required to be made
on such date pursuant to Sections 4.02(a) and 4.03(a) of the Original Security
Deposit Agreement, the Escrow Agent shall transfer all remaining amounts on
deposit in the accounts maintained pursuant to the Original Security Deposit
Agreement to the Completion Account.
(b) On the Second Capital Contribution Date, the Owner Trustee shall
transfer or cause to be transferred to the Escrow Agent for deposit in the
Completion Account, the amount referred to in Section 2(a)(ii)(x)(B) of the
Capital Contribution Agreement.
Section 3.02. Revenues. The Managing General Partner shall instruct
each other Person from whom the Partnership receives any Revenues to pay such
Revenues directly to the Escrow Agent for deposit in the Revenue Account, and if
the Partnership or the Managing General Partner shall receive any Revenues it
shall deliver such Revenues in the exact form received (but with the
Partnership's or the Managing General Partner's endorsement, if necessary) to
the Escrow Agent for deposit in the Revenue Account not later than the second
Business Day after the Partnership's or the Managing General Partner's receipt
thereof. The Escrow Agent shall have the right to receive all Revenues directly
from the Persons owing the same. All Revenues received by the Escrow Agent shall
be deposited in the Revenue Account. After the occurrence of a Special Event,
upon receipt of a certificate of a Responsible Officer of the Limited Partner
stating that the Limited Partner chooses to dissolve the Partnership, the Escrow
Agent shall deposit all payments into the Windup Account.
Section 3.03. Information to Accompany Amounts Delivered to Escrow
Agent or Security Agent; Deposits Irrevocable. (a) All amounts delivered to the
Escrow Agent or the Security Agent shall be accompanied by information in
reasonable detail specifying the source of the amounts and the Account or
Accounts into which such amounts are to be deposited.
(b) Any deposit made into any Escrow Account hereunder shall be
irrevocable and the amount of such deposit and any instrument or security held
in such Account hereunder and all interest thereon shall be held in escrow by
the Escrow Agent and applied solely as provided herein. Any deposit made into
the Debt Service Account or the Required Payments Account hereunder shall be
irrevocable and the amount of such deposit and any instrument or security held
in such Accounts hereunder and all interest therein shall be held in trust by
the Security Agent and applied solely as provided herein.
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Section 3.04. Books of Account; Statements. (a) The Escrow Agent shall
maintain books of account for the Partnership on a cash basis and record therein
all deposits into and transfers to and from the Escrow Accounts and all
investment transactions effected by the Escrow Agent pursuant to Article V. The
Escrow Agent shall make such books of account available during normal business
hours with reasonable advance notice for inspection and audit by any Partner and
its representatives.
(b) The Security Agent shall maintain books of account for the General
Partner on a cash basis and record therein all deposits into and transfers to
and from the Debt Service Account and the Required Payments Account and all
investment transactions effected by the Security Agent pursuant to Article V.
The Security Agent shall make such books of account available during normal
business hours with reasonable advance notice for inspection and audit by the
General Partner and the Lender and their representatives.
(c) Not later than the fifteenth Business Day of each month, the Agent
shall deliver to each of the Partners and the Lender, a statement setting forth
the transactions in each Account during the preceding month and specifying the
Revenues, Insurance and Condemnation Proceeds Deposits, Cash Equivalents,
Permitted Investments and other amounts held in each Account at the close of
business on the last Business Day of the preceding month and the Value thereof
at such time.
ARTICLE IV
Payments from Accounts
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Section 4.01. Revenue Account--Monthly Transfers. (a) Except as
provided in paragraph (d) below, on the first Business Day of each calendar
month (a "Transfer Date"), the Escrow Agent shall transfer, from the cash
available in the Revenue Account, to the Managing General Partner the amount,
certified in a certificate of a Responsible Officer of the Managing General
Partner and accompanied by an accounting of the cumulative draws hereunder for
the current fiscal year and a certificate of such Responsible Officer to the
effect that no Special Event has occurred and is continuing, set forth in the
Operating Budget to be equal to the excess of (i) the Partnership's estimated
amounts payable pursuant to the Operating Budget for such month (other than in
respect of expenses provided for in Section 4.04) for operating, maintenance and
improvement expenses (excluding, to the extent of cash available in the
Operation and Maintenance Account, any operating, maintenance and improvement
expenses that are required to be paid out of the Operation and Maintenance
Account), taxes (other than income taxes) and payments in lieu of taxes,
insurance premiums, any other similar amount payable by the Managing General
Partner or the Partnership under any Project Document, payments due under
contracts which are permitted under the terms of the Operative Documents to
which the Partnership is
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a party, payments required by FERC and any other governmental entity, fees and
expenses of trustees and escrow agents and other reasonable expenses incurred in
connection with the Project, and the Cost Portion of the Management Fee
(including, without limitation, costs incurred in connection with the
procurement of gas for the Facility), over (ii) the sum of (A) the Operation and
Maintenance Account Deposit Amount, (B) the Working Capital Fund Deposit Amount,
(C) the amount of any funds previously transferred to the Managing General
Partner pursuant to this Section 4.01 that remain unspent and (D) the amount of
interest and other income on funds previously transferred to the Managing
General Partner pursuant to this Section 4.01; provide that if the Limited
Partner shall have delivered a certificate to the Escrow Agent stating that a
Special Event shall have occurred and be continuing or that the Arrears Account
has a positive balance, the amount set forth in clause (i) above shall be
reduced by the amount set forth in the Operating Budget for such month in
respect of the Cost Portion of the Management Fee; provided, further, that the
foregoing proviso shall not be applicable if the Preferred Limited Partner shall
have appointed a substitute Managing General Partner pursuant to Section 14.2 of
the Partnership Agreement.
(b) On each Transfer Date, after giving effect to the transfers to be
made on such date pursuant to paragraph (a) above, the Escrow Agent shall
transfer, from the cash available in the Revenue Account, to the Operation and
Maintenance Account, an amount (the "Operation and Maintenance Account Deposit
Amount"), certified in a certificate of a Responsible Officer of the Managing
General Partner, equal to $0.0005 per net kilowatt hour for the aggregate number
of kilowatt hours generated by the Facility during such calendar month.
(c) On each Transfer Date following the first Quarterly Period, after
giving effect to the transfers to be made on such date pursuant to paragraphs
(a) and (b) above, the Escrow Agent shall transfer, from the cash available in
the Revenue Account, to the General Partner for deposit in the Working Capital
Fund an amount (the "Working Capital Fund Deposit Amount"), certified in a
certificate of a Responsible Officer of the Managing General Partner, equal to
the aggregate unpaid principal amount of all loans made by the General Partner
to the Partnership for working capital purposes from amounts on deposit in the
Working Capital Fund, together with accrued interest thereon.
(d) If, as of the last Business Day of any Quarterly Period, as
determined within five Business Days after the end of such Quarterly Period, the
Fixed Charge Coverage Ratio is less than 1.5 to 1.0 or, if projections provided
by the Partnership during the course of any fiscal year show that the Fixed
Charge Coverage Ratio for any Quarterly Period will be less than 1.5 to 1.0, the
Escrow Agent, on the first Business Day of each succeeding calendar month
(unless the last sentence of this
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paragraph (d) shall be applicable), upon receipt from the Limited Partner of a
certificate to such effect, shall distribute on behalf of the Partnership, from
the cash available in the Revenue Account, to the Persons entitled thereto and
in the respective amounts as certified in writing by the Managing General
Partner, the excess of (i) amounts then due and owing by the Partnership in
respect of operating, maintenance and improvement expenses (excluding, to the
extent of cash available in the Operation and Maintenance Account, any operating
maintenance and improvement expenses that are required to be paid out of the
Operation and Maintenance Account), taxes (other than income taxes) and payments
in lieu of taxes, insurance premiums, any other similar amount payable by the
Managing General Partner or the Partnership under any Project Document, payments
due under contracts which are permitted under the terms of the Operative
Documents to which the Partnership is a party, payments required by FERC and any
other governmental entity, fees and expenses of trustees and escrow agents and
other reasonable expenses incurred in connection with the Project, over (ii) the
sum of (A) the Operation and Maintenance Account Deposit Amount and (B) the
Working Capital Fund Deposit Amount. Upon receipt by the Escrow Agent of a
certificate from the Limited Partner to the effect that the Fixed Charge
Coverage Ratio for the Quarterly Period then ended was equal to or greater than
1.5 to 1.0 and revised projections show that the Fixed Charge Coverage Ratio for
each of the remaining Quarterly Periods in the current fiscal year will be equal
to or greater than 1.5 to 1.0, the Escrow Agent shall comply with the provisions
of paragraph (a) of this Section 4.01.
(e) For the purposes of this Section 4.01, cash available in the
Revenue Account shall not include any check or other instrument which may be
deposited therein until the final collection thereof.
Section 4.02. Revenue Account--Monthly Payments. (a) Subject to the
provisions of paragraphs (b)-(e) below, once a month on a Business Day (each a
"Monthly Distribution Date") not later than the fifteenth day of such calendar
month (or if any such day is not a Business Day, on the next preceding Business
Day), after giving effect to all the transfers to be made on or prior to that
date pursuant to Section 4.01, the Escrow Agent shall transfer, from the Revenue
Account, the Distributable Cash of the Partnership to the Partners, and the
Profit Portion for such month to the General Partner, in each case in such
amounts and in such order of priority as are specified in the Partnership
Agreement and as are certified in a certificate of a Responsible Officer of the
Managing General Partner, accompanied by a certificate of such Responsible
Officer to the effect that no Special Event has occurred and is continuing;
provided, however, that the amount to be distributed to the General Partner
pursuant to Sections 4.3(a), 4.3(b) and 4.5 of the Partnership Agreement and the
amount to be paid as the Profit Portion, in each case as certified in such
certificate of such Responsible Officer, shall be reduced by the amounts
specified in clauses
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first and second below, which amounts shall also be certified in the aforesaid
certificate and shall be transferred by the Escrow Agent to the Debt Service
Account; provided, further, that if a Special Event shall have occurred and be
continuing, as certified by the Preferred Limited Partner, the Escrow Agent
shall make such transfers in such amounts and in such order of priority as are
specified in the Partnership Agreement and as are certified in a certificate of
a Responsible Officer of the Preferred Limited Partner or the substitute
Managing General Partner appointed pursuant to Section 14.2(b) of the
Partnership Agreement; provided, further, that if the Lender shall have notified
the Escrow Agent that a Default or Event of Default under the General Partner
Credit Agreement shall have occurred and be continuing, all amounts required to
be distributed to the General Partner pursuant to this Section shall be
transferred to the Debt Service Account;
first, an amount equal to one-third of the aggregate amount of accrued
and unpaid interest on the Loans which is due and payable (other than any
such interest which is due and payable in connection with a payment to be
made pursuant to clause second below) on the next succeeding Interest
Payment Date (together with any deficiency in accumulation of such amount
during any preceding month or months since the last Interest Payment Date),
plus, if such Interest Payment Date will occur on or before the last
Business Day of the next succeeding month, an amount equal to the excess of
(A) the aggregate amount of interest on the Loans which will be due and
payable (other than any such interest which is due and payable in
connection with a payment to be made pursuant to clause second below) on
such Interest Payment Date over (B) the aggregate amount then on deposit in
the Debt Service Account for the purpose of paying such interest; and
second, commencing with the first month immediately succeeding the
second anniversary of the Second Capital Contribution Date, an amount equal
to one-third of the aggregate principal amount of and interest on the Loans
(other than the Working Capital Loan) which is due and payable on the next
succeeding Installment Payment Date (together with any deficiency in
accumulation of such amount during any preceding month or months since the
last Installment Payment Date), plus, if such Installment Payment Date
will occur on or before the last Business Day of the next succeeding month,
an amount equal to the excess of (A) the aggregate principal amount of and
interest on the Loans which will be due and payable on such Installment
Payment Date over (B) the aggregate amount then on deposit in the Debt
Service Account for the purpose of paying such principal and interest
amount.
(b) If, as of the end of any calendar quarter, the Quarterly Required
Payments Ratio is less than (i) 1.1 to
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1.0 during the period from and including the Second Capital Contribution
Date to but excluding the date which is six years after the Second Capital
Contribution Date (the "First Period") or (ii) 1.2 to 1.0 during the period
from and including the date which is six years after the Second Capital
Contribution Date to but excluding the date which is fifteen years after
the Second Capital Contribution Date (the "Second Period"), the Escrow
Agent, on the Monthly Distribution Date of the third month in such calendar
quarter and on each succeeding Monthly Distribution Date (unless the last
sentence of this paragraph (b) shall be applicable), upon receipt from the
Lender of a certificate to such effect, shall transfer all amounts that
would otherwise be distributed to the General Partner pursuant to Section
4.02(a) hereof (except for the amount in respect of the Profit Portion
which shall be paid, in accordance with the provisions of Section 4.02(a),
to the General Partner) to the Required Payments Account. Upon receipt by
the Escrow Agent of (i) a certificate from the Lender (except if paragraph
(c) or (d) of this Section 4.02 is applicable) to the effect that the
Quarterly Required Payments Ratio for the calendar quarter then ended was
greater than (x) 1.1 to 1.0 during the First Period or (y) 1.2 to 1.0
during the Second Period or (ii) a certificate from the Lender to the
effect that a Default or Event of Default under the General Partner Credit
Agreement shall have occurred and be continuing, the Escrow Agent shall
comply with the provisions of Section 4.02(a) hereof.
(c) If the First Year Required Payments Ratio is less than 1.1 to 1.0,
as certified in writing by the Lender, the Escrow Agent, on the Monthly
Distribution Date of each calendar month in the succeeding fiscal year,
shall transfer all amounts that would otherwise be distributed to the
General Partner pursuant to Section 4.02(a) hereof (except for the amount
in respect of the Profit Portion which shall be paid, in accordance with
the provisions of Section 4.02(a), to the General Partner) to the Required
Payments Account; provided, that if the Lender shall have notified the
Escrow Agent that a Default or Event of Default under the General Partner
Credit Agreement shall have occurred and be continuing, all such amounts
(including the Profit Portion) shall be transferred to the Debt Service
Account.
(d) If the Eighth Year Required Payments Ratio is less than 1.2 to
1.0, as certified in writing by the Lender, the Escrow Agent, on the
Monthly Distribution Date of each calendar month in the succeeding fiscal
year, shall transfer all amounts that would otherwise be distributed to the
General Partner pursuant to Section 4.02(a) hereof (except for the amount
in respect of the Profit Portion which shall be paid, in
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accordance with the provisions of Section 4.02(a), to the General Partner)
to the Required Payments Account; provided, that if the Lender shall have
notified the Escrow Agent that a Default or Event of Default under the
General Partner Credit Agreement shall have occurred and be continuing, all
such amounts (including the Profit Portion) shall be transferred to the
Debt Service Account.
(e) If, as of the end of any calendar quarter after the fifteenth
anniversary of the Second Capital Contribution Date, the ratio of: (x)
Distributable Cash for such calendar quarter to (y) the aggregate
distributions of Distributable Cash made pursuant to Section 4.3(a) of the
Partnership Agreement during such calendar quarter is less than 1.2 to 1.0,
the Escrow Agent, on the Monthly Distribution Date of the third month of
such quarter and on the Monthly Distribution Date of each succeeding
calendar month (unless the last sentence of this paragraph (e) shall be
applicable), upon receipt from the Limited Partner of a certificate to such
effect, shall transfer all amounts that would otherwise be distributed to
the General Partner pursuant to Section 4.02(a) hereof (except for the
amount in respect of the Profit Portion which shall be paid, in accordance
with the provisions of Section 4.02(a), to the General Partner) to the
Escrow Required Payments Account, provided that, if, at any time during
such period, any transfer would cause the amount on deposit in the Escrow
Required Payments Account to exceed $12,000,000, the amount of such
transfer attributable to such excess shall be paid to the General Partner
in accordance with the provisions of Section 4.02(a) and shall not be
transferred to the Escrow Required Payments Account pursuant to this
Section 4.02(e). Upon receipt by the Escrow Agent of a certificate from the
Limited Partner to the effect that the ratio described in the preceding
sentence for the calendar quarter then ended was greater than 1.2 to 1.0,
the Escrow Agent shall comply with the provisions of Section 4.02(a)
hereof.
Section 4.03. Debt Service Account. (a) On each Interest Payment Date,
the Security Agent shall distribute to the Lender for payment of interest on the
Loans from the cash available in the Debt Service Account, an amount equal to
such interest then due and payable as specified in writing by the Lender.
(b) On each Installment Payment Date, the Security Agent shall
distribute to the Lender for payment of principal of and interest on the Loans
from the cash available in the Debt Service Account, an amount equal to such
interest and principal then due and payable as specified in writing by the
Lender.
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(c) Upon request of the Lender, if an Event of Default under the
General Partner Credit Agreement shall have occurred and be continuing, the
Security Agent shall promptly withdraw amounts on deposit in the Debt Service
Account and deliver the same to the Lender to be applied by the Lender to the
payment of the Obligations in accordance with the provisions of the General
Partner Credit Agreement and the Transaction Documents.
Section 4.04. Completion Account. On a Transfer Date, the Escrow
Agent shall transfer, from the cash available in the Completion Account, to the
Managing General Partner, an amount, certified in a certificate of a
Responsible Officer of the Managing General Partner (which shall be delivered
to GEPFC and the Owner Trustee together with copies of any invoices or other
evidence of any such amounts so certified) and accompanied by a certificate of
such Responsible Officer to the effect that no Special Event has occurred and
is continuing, as being set forth in the Completion Budget and as being equal
to the excess of (i) the Partnership's estimated amounts payable for the month
commencing with such Transfer Date in respect of expenses set forth in the
Completion Budget, over (ii) the amount of any funds previously transferred to
the Managing General Partner pursuant to this Section 4.04 that remain unspent.
On the date on which the Facility shall have been completed and all expenses
required to be paid by the Managing General Partner or the Partnership and set
forth in the Completion Budget shall have been paid, as certified by a
certificate of a Responsible Officer of the Managing General Partner and
accompanied by a certificate of such Responsible Officer to the effect that no
Special Event shall have occurred and be continuing, the Escrow Agent shall
transfer the balance of the Completion Account to the Revenue Account; provided
however that $1,000,000 or, if less, the balance of the Completion Amount shall
remain in the Completion Account until (x) Exxon and the Partnership shall have
executed and recorded an amendment to the Site Lease Agreement setting forth
the metes and bounds description of the easement between the two parcels of the
Site on which the Project is located and (y) Chicago Title Insurance Company
shall have issued an endorsement to the Partnership's title insurance policy
insuring such easement.
Section 4.05. Insurance and Condemnation Proceeds Account. (a) Each
of the Partnership and the Managing General Partner shall deposit in the
Insurance and Condemnation Proceeds Account (i) all payments received by it
from any insurer pursuant to the insurance maintained by the Partnership under
Section 7.2(f) of the Partnership Agreement and Section 6.5(a) of the General
Partner Credit Agreement and (ii) all awards and proceeds of a Taking with
respect to the Project.
(b) All cash, cash equivalents, instruments, investments and
securities at any time on deposit in the Insurance and Condemnation Proceeds
Account, are herein called the "Insurance and Condemnation Proceeds Deposits".
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(c) The Insurance and Condemnation Proceeds Deposits shall be
accumulated in the Insurance and Condemnation Proceeds Account and held therein
until paid to or upon the order of the Managing General Partner as provided in
paragraph (d) of this Section 4.05, or applied as provided in Sections 4.05(e),
4.08 or 9.02.
(d) Insurance and Condemnation Proceeds Deposits shall be paid over to
or upon the order of the Partnership to reimburse it for, or to pay, the cost of
renewing, repairing, rebuilding or otherwise replacing the damaged or destroyed
or lost property in respect of which such moneys were received, upon the receipt
by the Escrow Agent of a certificate of a Responsible Officer of the Managing
General Partner, (i) describing in reasonable detail the work done and materials
purchased by way of the renewal, repair, rebuilding or other replacement of the
damaged or destroyed or lost property, (ii) stating the specific amount
requested to be paid over to or upon the order of the Partnership, that such
amount is requested to reimburse the Partnership for, or to pay, the cost of
such renewal, repair, rebuilding or other replacement and that such amount,
together with amounts remaining in the Insurance and Condemnation Proceeds
Account for such purpose and other funds of the Partnership available for such
purpose, are sufficient to pay in full the cost of such renewal, repair,
rebuilding or other replacement, and (iii) stating that no Special Event has
occurred and is continuing.
(e) In the event that Insurance and Condemnation Proceeds Deposits
shall remain in the Insurance and Condemnation Proceeds Account after
application thereof in accordance with paragraph (d), the Escrow Agent shall
transfer the same to the Managing General Partner to be applied in accordance
with Section 4.7 of the Partnership Agreement.
Section 4.06. Operation and Maintenance Account. (a) Upon receipt by
the Escrow Agent of a certificate of a Responsible Officer of the Managing
General Partner (i) stating that a major inspection or repair with respect to a
steam turbine, a gas turbine, a heat recovery steam generator, a boiler feed
pump, a step up transformer, switchgear or a catalyst for the Project has
occurred, (ii) describing in reasonable detail the work that was or will be
required to be done or the materials that were or will be required to be
purchased as a result of such major inspection or repair, (iii) stating the
specific amount requested to be paid over to the Partnership and that such
amount is equal to the excess of (x) the cost of such work that was or will be
required to be done or the materials that were or will be required to be
purchased as a result of such major inspection or repair over (y) the cost of
spares taken from inventory maintained by the Partnership pursuant to Section
7.2(k) of the Partnership Agreement to prepare for such inspection or to make
such repair and (iv) stating that no Special Event has occurred and is
continuing, the Escrow Agent shall transfer, from the cash available in the
Operation and Maintenance Account, the amount
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specified in clause (iii) to the Managing General Partner or to such Persons as
may be specified by the Managing General Partner.
(b) Upon receipt by the Escrow Agent of a certificate of a Responsible
Officer of the Managing General Partner (i) stating that a spare part listed on
Schedule 6 to the Partnership Agreement must be purchased for a steam turbine, a
gas turbine, a heat recovery steam generator, a boiler feed pump, a step up
transformer, switchgear or a catalyst for the Project, (ii) specifying the
amount of the purchase price therefor, (iii) stating that such spare part is not
maintained in the inventory for the Project and (iv) stating that no Special
Event has occurred and is continuing, the Escrow Agent shall transfer, from the
cash available in the Operation and Maintenance Account, the amount specified in
clause (ii) to the Managing General Partner or to such Persons as may be
specified by the Managing General Partner.
Section 4.07. Windup Account. (a) Notwithstanding any other provision
of this Agreement, upon receipt of notice from the Limited Partner that the
Partnership shall be dissolved in accordance with the terms of the Partnership
Agreement, the Escrow Agent shall transfer to the Windup Account all amounts in
all the Accounts (other than the Debt Service Account and the Required Payments
Account) and all amounts subsequently received by the Escrow Agent.
(b) On any date specified in a certificate of a Responsible Officer of
the Limited Partner (which date shall not be earlier than five, Business Days
following the date of receipt by the Escrow Agent of the certificate of a
Responsible Officer of the Limited Partner specified in Section 4.07(a) (the
"Windup Date")), the Escrow Agent shall transfer, from and to the extent of cash
available in the Windup Account, to the Limited Partner and the General Partner
such amounts, certified in such certificate, as are required to be distributed
pursuant to Section 14.4(c) of the Partnership Agreement.
Section 4.08. Interest in all Accounts. (a) On each Transfer Date, (i)
immediately prior to the transfers required pursuant to Section 4.01, the Escrow
Agent shall transfer all interest and other income on the funds on deposit in
the Escrow Accounts (other than the Revenue Account) to the Revenue Account and
(ii) immediately after the transfers required pursuant to Section 4.01, the
Security Agent shall transfer all interest and other income on the funds on
deposit in the Debt Service Account to the General Partner, provided, however,
that no such transfer shall be made to the General Partner unless the amount on
deposit in the Debt Service Account at such time is equal to or greater than the
amount then required to be deposited in the Debt Service Account pursuant to
Section 4.02(a).
(b) On any date on which a transfer from the Required Payments
Account is required pursuant to Section 4.11, the
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Security Agent shall transfer all interest and other income on the funds on
deposit in the Required Payments Account in accordance with the provisions of
such Section.
Section 4.09. Delivery of Officer's Certificates; Timing of Payments.
(a) Each of the certificates of a Responsible Officer required to be delivered
hereunder shall be delivered not later than 12:00 P.M., New York City time, on
the day on which the Agent is required to make transfers hereunder. Any
certificate of a Responsible Officer delivered later than the time specified
herein shall nevertheless be considered valid and shall be honored by the Escrow
Agent or the Security Agent, as the case may be, on or as promptly after the
date otherwise specified herein for payment as is practicable, subject to the
availability of cash in the applicable Account.
(b) Subject to (i) the timely receipt of a certificate of a
Responsible Officer as prescribed herein, (ii) the availability of cash in the
applicable Account and (iii) any other circumstances beyond the control of the
Escrow Agent or the Security Agent, as the case may be, the Escrow Agent or the
Security Agent, as the case may be, shall make any payment hereunder required
(except for transfers between Accounts) by means of wire transfer of immediately
available funds, to the address of the payee set forth on Schedule I hereto, to
be received prior to 1:00 p.m., New York City time, on the date specified herein
for such payment, or by such other means of payment, to such other address or at
such late time as shall be specified in the certificate of a Responsible Officer
of such payee.
(c) Each Partner shall deliver to the other Partners, simultaneously
with the delivery thereof to the Escrow Agent, a true copy of any certificate of
a Responsible Officer delivered by such Partner pursuant to this Agreement.
Section 4.10. Shortfalls. If, on the date specified for payments
pursuant to Section 4.07, the amount required to be transferred to the Limited
Partner and the General Partner pursuant to Section 4.07 shall exceed the cash
available in the Windup Account, the Escrow Agent shall notify the Limited
Partner and the General Partner of their respective shortfalls.
Section 4.11. Required Payments Account. (a) Upon request of the
Lender, (i) if, as of the end of any two consecutive calendar quarters, the
Quarterly Required Payments Ratio described in Section 4.02(b) has not been met,
or (ii) if the First Year Required Payments Ratio described in Section 4.02(c)
is not met and if, as of the end of any two consecutive calendar quarters during
the Annual Period commencing with the second anniversary of the Second Capital
Contribution Date, the Quarterly Required Payments Ratio is less than 1.1 to
1.0, or (iii) if the Eighth Year Required Payments Ratio described in Section
4.02(d) is not met and if, as of the end of any two
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consecutive calendar quarters during the Annual Period commencing with the ninth
anniversary of the Second Capital Contribution Date, the Quarterly Required
Payments Ratio is less than 1.2 to 1.0, or (iv) if an Event of Default under the
General Partner Credit Agreement shall have occurred and be continuing, in each
case as certified in writing by the Lender, the Security Agent shall promptly
withdraw amounts on deposit in the Required Payments Account and deliver the
same to the Lender to be applied by the Lender to the payment of the Obligations
in accordance with the provisions of the General Partner Credit Agreement and
the Transaction Documents.
(b) Upon request of the General Partner, (i)(x) if, as of the end of
any two consecutive calendar quarters, the Quarterly Required Payments Ratio
described in Section 4.02(b) has been met, provided that this clause (x) shall
not be applicable during the Annual Period commencing with the first anniversary
of the Second Capital Contribution Date or during the Annual Period commencing
with the eighth anniversary of the Second Capital Contribution Date to the
extent that paragraph (c) or (d) of Section 4.02 is applicable, or (y) if, as of
the end of any two consecutive calendar quarters during the Annual Period
commencing with the second anniversary of the Second Capital Contribution Date,
the Quarterly Required Payments Ratio is greater than 1.1 to 1.0, or (z) if, as
of the end of any two consecutive calendar quarters during the Annual Period
commencing with the ninth anniversary of the Second Capital Contribution Date,
the Quarterly Required Payments Ratio is greater than 1.20 to 1.0 and (ii) no
Default or Event of Default under the General Partner Credit Agreement shall
have occurred and be continuing, all as certified in writing by the General
Partner, the Security Agent shall promptly withdraw amounts on deposit in the
Required Payments Account, including without limitation all interest and other
income from the funds on deposit therein, and deliver the same to the General
Partner.
(c) Upon the written request of the General Partner, the Security
Agent shall transfer to the Lender such amounts from the cash available in the
Required Payments Account as may be requested by the General Partner to be
applied in accordance with Section 3.2(b)(ii) of the General Partner Credit
Agreement.
Section 4.12. Escrow Required Payments Account. (a) If, at any time
after the fifteenth anniversary of the Second Capital Contribution Date, a
Special Event shall have occurred and be continuing, as certified in writing by
the Limited Partner, the Security Agent shall promptly withdraw the amounts on
deposit in the Escrow Required Payments Account, including without limitation
all interest on and other income from the funds on deposit therein, and
distribute such amounts in the manner set forth in Section 14.2(c) of the
Partnership Agreement and as certified in a certificate of a Responsible Officer
of the Limited Partner.
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(b) Upon the written request of the General Partner, if as of the end
of any two consecutive calendar quarters, the coverage ratio in paragraph (e) of
Section 4.02 hereof has been met and no Special Event has occurred and is
continuing, all as certified in writing by the General Partner, the Security
Agent shall promptly withdraw amounts on deposit in the Escrow Required Payments
Account, including without limitation all interest on and other income from the
funds on deposit therein, and deliver the same to the General Partner.
(c) On one but only one Monthly Distribution Date after the fifteenth
anniversary of the Second Capital Contribution Date, the Managing General
Partner may request that amounts on deposit in the Escrow Required Payments
Account, including without limitation all interest on and other income from the
funds on deposit therein, be applied in accordance with Section 4.3(a) of the
Partnership Agreement, upon delivery to the Escrow Agent of a certificate of the
Managing General Partner to such effect, together with a certificate that no
Special Event shall have occurred and be continuing.
(d) If, on any Monthly Distribution Date after the fifteenth
anniversary of the Second Capital Contribution Date, the Arrears Account shall
have a positive balance, as certified in writing by the Preferred Limited
Partner, the Security Agent shall promptly withdraw the amounts on deposit in
the Escrow Required Payments Account, including without limitation all interest
on and other income from the funds on deposit therein, and apply such amounts in
accordance with the provisions of Section 4.5 of the Partnership Agreement. Any
such application, together with such amounts as may be contributed at such time
by the General Partner to the Partnership to eliminate positive balances in the
Arrears Account, shall be deemed to be the exercise by the Managing General
Partner of its right under Section 14.1(q) of the Partnership Agreement to
eliminate positive balances in the Arrears Account.
Section 4.13. Special Events. Notwithstanding anything to the contrary
contained in this Article IV, if a Special Event shall have occurred and be
continuing, as certified in writing by the Preferred Limited Partner, the
transfers from Accounts provided in this Article IV shall be made in accordance
with the instructions of the Preferred Limited Partner or the substitute
Managing General Partner appointed pursuant to Section 14.2 of the Partnership
Agreement.
Section 4.14. Distributions to the Lender or the Limited Partner. Any
amounts to be distributed by the Security Agent to the Lender or by the Escrow
Agent to the Limited Partner hereunder shall be distributed to such account and
such Person as shall be specified in writing by the Lender or the Limited
Partner, as the case may be.
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ARTICLE V
Investment
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(a) Any cash held by the Escrow Agent in any Account (other than the
Debt Service Account and the Required Payments Account) shall be invested by the
Escrow Agent from time to time as directed in writing by the Managing General
Partner (or, if the Escrow Agent shall have been notified by the Limited Partner
that a Special Event has occurred and is continuing, by the substitute Managing
General Partner appointed pursuant to Section 14.2 of the Partnership Agreement)
in Cash Equivalents which mature at least one Business Day prior to the next
following Transfer Date. Any income or gain realized as a result of any such
investment shall be held as part of the applicable Account and reinvested as
provided herein until such income or gain is required to be transferred from
such Account pursuant to Section 4.08.
(b) Any cash held by the Security Agent in the Debt Service Account or
the Required Payments Account shall be invested by the Security Agent from time
to time as directed in writing by the General Partner (or, if the Lender shall
have notified the Security Agent that a Default or Event of Default under the
General Partner Credit Agreement has occurred and is continuing, by the Lender)
in Permitted Investments. Any income or gain realized as a result of any such
investment shall be held as part of the Debt Service Account or the Required
Payments Account and reinvested as provided herein until such income or gain is
required to be transferred from such Account pursuant to Section 4.08.
(c) The Agent shall have no liability for any loss resulting from any
such investment or sale thereof other than by reason of its willful misconduct
or gross negligence. Any such investment may be sold (without regard to maturity
date) by the Agent whenever necessary to make any distribution required by this
Agreement.
ARTICLE VI
Agent
-----
Section 6.01. Rights, Duties. Etc. The acceptance by the Agent of its
duties hereunder is subject to the following terms and conditions which the
parties to this Agreement hereby agree shall govern and control with respect to
its rights, duties, liabilities and immunities:
(a) it shall act hereunder as an agent only and shall not be
responsible or liable in any manner whatever for soliciting any funds or
for the sufficiency, correctness,
25
genuineness or validity of any funds, securities or other amounts deposited
with or held by it;
(b) it shall be protected in acting or refraining from acting upon any
written notice, certificate, instruction, request or other paper or
document, as to the due execution thereof and the validity and
effectiveness of the provisions thereof and as to the truth of any
information therein contained, which the Agent in good faith believes to be
genuine;
(c) it shall not be liable for any error of judgment or for any act
done or step taken or omitted except in the case of its gross negligence,
willful misconduct or bad faith;
(d) it may consult with and obtain advice from counsel of its own
choice in the event of any dispute or question as to the construction of
any provision hereof;
(e) it shall have no duties as Agent except those which are expressly
set forth herein and in any modification or amendment hereof; provided,
however, that no such modification or amendment hereof shall affect its
duties unless it shall have given its prior written consent thereto;
(f) it may execute or perform any duties hereunder either directly or
through agents or attorneys;
(g) it may engage or be interested in any financial or other
transactions with any party hereto and may act on, or as depositary,
trustee or agent for, any committee or body of holders of obligations of
such Persons as freely as if it were not Agent hereunder; and
(h) it shall not be obligated to take any action which in its
reasonable judgment would involve it in expense or liability unless it has
been furnished with reasonable indemnity.
Section 6.02. Resignation or Removal. (a) The Partners, by mutual
agreement at any time may replace the Escrow Agent with another escrow agent.
The Lender at any time may replace the Security Agent with another security
agent. The Agent may at any time resign by giving notice to each other party to
this Agreement, such resignation to be effective upon the appointment of a
successor Agent as hereinafter provided.
(b) In the event of any resignation or removal of the Agent, a
successor Agent (which (i) shall be a bank or trust company organized under the
laws of the United States of America or of the State of New York, the State of
New Jersey or the State of Connecticut, having a capital and surplus of not less
than
26
$100,000,000 and (ii) shall be acceptable to the Partners (in the case of the
Escrow Agent) and the Lender (in the case of the Security Agent)), (x) in the
case of the Escrow Agent, shall be selected by the Managing General Partner and
appointed by the Partners and (y) in the case of the Security Agent, shall be
selected by the General Partner (or, if a Default or Event of Default under the
General Partner Credit Agreement shall have occurred and be continuing, by the
Lender) and appointed by the Lender. If a successor Agent shall not have been
appointed and accepted its appointment as Agent hereunder within 45 days after
such notice of resignation of the Agent or such notice of removal of the Agent,
the Agent or the Partners (in the case of the Escrow Agent) or the Lender (in
the case of the Security Agent) may apply to any court of competent jurisdiction
to appoint a successor Agent to act until such time, if any, as a successor
Agent shall have accepted its appointment as above provided. Any successor Agent
so appointed by such court shall immediately and without further act be
superseded by any successor Agent appointed by the Partners (in the case of the
Escrow Agent) or by the Lender (in the case of the Security Agent). Any such
successor Agent shall deliver to each party to this Agreement a written
instrument accepting such appointment hereunder and thereupon such successor
Agent shall succeed to all the rights and duties of the applicable Agent
hereunder and shall be entitled to receive the applicable Accounts from the
predecessor Agent.
ARTICLE VII
Determinations
--------------
Section 7.01. Value. Cash, Cash Equivalents and Permitted Investments
on deposit from time to time in the Accounts shall be valued by the Agent as
follows:
(a) cash shall be valued at the face amount thereof;
(b) Cash Equivalents and Permitted Investments shall be valued at the
amount which the Agent would have received at such time if the Agent had
liquidated such Cash Equivalents and Permitted Investments (at then
prevailing market prices).
Section 7.02. Other Determinations. The Partnership, the Partners, the
Lender and the Agent may establish procedures not inconsistent with this
Agreement pursuant to which the Agent may conclusively determine, for purposes
of this Agreement, the amounts from time to time to be distributed or paid by
the Agent from cash available in the Accounts. In the event of any dispute as to
whether a Special Event, a Default or an Event of Default has occurred and is
continuing, the Agent is authorized and directed to (a) make the distributions
required by Sections 4.01,
27
4.03, 4.04, 4.05, 4.06 and 4.08, (b) make the distributions provided for in
Section 4.3(a) of the Partnership Agreement and such payments in respect of
interest and principal on the Loans as are required by Section 4.02(a) hereof as
if no Special Event, Default or Event of Default had occurred and was continuing
and (c) transfer all amounts in the Revenue Account after making such
distributions to a segregated escrow account in the name of the Agent. The Agent
shall maintain such amounts in the segregated escrow account until such dispute
shall have been settled by mutual agreement of the Partnership and the Partners
(in the case of a Special Event) and by mutual agreement of the General Partner
and the Lender (in the case of a Default or an Event of Default) or by a final
order, decree or judgment of a Federal or state court of competent jurisdiction
located in the State of Delaware or the State of New York.
Section 7.03. Cash Available. In determining the amount of cash
available in any Account at any time, in addition to any cash then on deposit in
such Account, the Agent shall treat as cash available the amount which the Agent
would have received on such day if the Agent had liquidated all the Cash
Equivalents and Permitted Investments (in each case, at then prevailing market
prices) then on deposit in such Account. The Agent will use its best efforts to
sell Cash Equivalents and Permitted Investments such that actual cash is
available on each date on which a transfer or a distribution is to be made
pursuant to this Agreement.
ARTICLE VIII
Representations and Warranties
------------------------------
Section 8.01. Representations. Each Partner represents and warrants,
for the benefit of each other Partner and the Lender, that each certificate of a
Responsible Officer delivered by such Partner in connection with this Agreement
shall be true and correct in all material respects and that the amounts of money
certified thereby shall be the proper amounts to be set forth in such
certificate of a Responsible Officer.
Section 8.02. Indemnification. Subject to the provisions of Section
7.5 of the Partnership Agreement, the Managing General Partner hereby undertakes
to indemnify and hold harmless each Partner and the Lender from and against any
and all expenses imposed on, incurred by or asserted against such other Partner
in any way relating to or arising out of any inaccuracy in any certificate of a
Responsible Officer delivered by the Managing General Partner.
28
ARTICLE IX
Miscellaneous
-------------
Section 9.01. Fees and Indemnification of Agent. The Partnership
agrees to pay the reasonable fees of the Agent as compensation for its services
under this Agreement. In addition, the Partnership assumes liability for, and
agrees to indemnify, protect, save and keep harmless the Agent and its officers,
employees, successors, assigns, agents and servants from and against, any and
all claims, liabilities, obligations, losses, damages, penalties, costs and
expenses that may be imposed on, incurred by, or asserted against, at any time,
the Agent or its officers and employees and in any way relating to or arising
out of the execution and delivery of this Agreement, the establishment of the
Accounts, the acceptance of deposits, the purchase or sale of Cash Equivalents
or Permitted Investments, the retention of cash, Cash Equivalents and Permitted
Investments or the proceeds thereof and any payment, transfer or other
application of cash, Cash Equivalents or Permitted Investments by the Agent in
accordance with the provisions of this Agreement, or as may arise by reason of
any act, omission or error of the Agent made in good faith in the conduct of its
duties; except that the Partnership shall not be required to indemnify, protect,
save and keep harmless the Agent against its own gross negligence, active or
passive, or willful misconduct. The indemnities contained in this Section 9.01
shall survive the termination of this Agreement.
Section 9.02. Termination. This Agreement (with respect to the Escrow
Accounts) shall terminate upon written notice by the Managing General Partner
and the Limited Partner to the Escrow Agent and to each other Partner that
elects to terminate this Agreement. This Agreement (with respect to the Debt
Service Account and the Required Payments Account) shall terminate upon written
notice by the General Partner and the Lender to the Security Agent. Upon
termination of this Agreement, except following a transfer pursuant to Section
4.07, the Agent shall transfer any remaining amounts, together with any interest
thereon, on deposit in the Accounts to the party or parties specified in such
notice. Any liability or obligation hereunder arising prior to the termination
of this Agreement shall survive such termination.
Section 9.03. Severability. If any one or more of the covenants or
agreements provided in this Agreement on the part of the parties hereto to be
performed should be determined by a court of competent jurisdiction to be
contrary to law, such covenant or agreement shall be deemed and construed to be
severable from the remaining covenants and agreements herein contained and shall
in no way affect the validity of the remaining provisions of this Agreement.
29
Section 9.04. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 9.05. Amendments. This Agreement may not be modified or
amended without the prior written consent of each of the parties hereto.
SECTION 9.06. APPLICABLE LAW. THIS AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
Section 9.07. Notices. Unless otherwise specifically provided herein,
all notices, consents, directions, approvals, instructions, requests and other
communications required or permitted by the terms hereof to be given to any
Person shall be in writing and shall become effective, if mailed, five Business
Days after being deposited in the United States mail, proper postage for first-
class mail affixed thereto or, if delivered by hand or courier service or in the
form of a telex, telecopy or telegram, when received, and shall be directed to
the address, telecopy or telex number of such Person (other than the Lender)
designated pursuant to the Partnership Agreement, or in the case of the Lender,
to the address, telecopy or telex number designated in the General Partner
Credit Agreement, or in the case of the Agent, to Midlantic Bank, ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, or to such other address, telecopy or telex
number as may be specified from time to time by such Person, the Lender or the
Agent.
Section 9.08. Benefit of Agreement. This Agreement shall inure to the
benefit of, and be enforceable by, the parties hereto and their respective
successors and permitted assigns, and no other Person shall be entitled to any
of the benefits of this Agreement.
IN WITNESS WHEREOF, the parties hereto have each caused this Amended
and Restated Security Deposit Agreement and Escrow Agreement to be duly
executed, all as of the day and year first above written.
COGEN TECHNOLOGIES LINDEN VENTURE, L.P., a Delaware
Limited Partnership
By: Cogen Technologies Linden, Ltd.
(d/b/a Cogen Technologies Linden, Limited
Partnership, in the State
of New Jersey), its General Partner
By: Cogen Technologies, Inc.,
its General Partner
/s/ [Illegible Signature]
By _______________________________________
Title: Vice President
COGEN TECHNOLOGIES LINDEN, LTD.
(d/b/a COGEN TECHNOLOGIES LINDEN,
LIMITED PARTNERSHIP, in the State of
New Jersey), a Texas Limited Partnership
By: Cogen Technologies, Inc.,
its General Partner
/s/ [Illegible Signature]
By _______________________________________
Title: Vice President
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, (not in its individual capacity
but solely as Owner Trustee), as Limited Partner
/s/ [Illegible Signature]
By ________________________________________
Title: Assistant Vice President
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
(not in its individual capacity but
solely as owner Trustee), as Lender
/s/ [Illegible Signature]
By __________________________________________
Title: Assistant Vice President
MIDLANTIC NATIONAL BANK, as Agent
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By __________________________________________
Title: Vice President
Consented and Agreed
to as of the date
first above written:
GENERAL ELECTRIC POWER FUNDING
CORPORATION, as Lender Agent
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By ________________________________
Title: Attorney-in-Fact
FIRST AMENDMENT TO
SECURITY DEPOSIT AGREEMENT
--------------------------
FIRST AMENDMENT, dated as of April 30, 1993 (the "Amendment"), to the
Amended and Restated Security Deposit Agreement and Escrow Agreement dated as of
September 17, 1992 (the "Security Deposit Agreement"), among Cogen Technologies
Linden Venture, L.P., a Delaware limited partnership (the "Partnership") of
which Cogen Technologies Linden, Ltd. (d/b/a Cogen Technologies Linden, Limited
Partnership, in the State of New Jersey), a Texas limited partnership, is the
general partner (the "General Partner" or the "Managing General Partner"), the
General Partner, State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity but solely as trustee under the
Trust Agreement (as defined below) (together with its successors and assigns,
the "Owner Trustee"), as the limited partner of the Partnership (in such
capacity, the "Limited Partner"), the Owner Trustee, as lender under the General
Partner Credit Agreement defined below (in such capacity, the "Lender"), and
Midlantic National Bank, as security agent (in such capacity, the "Security
Agent") and as escrow agent hereunder (in such capacity, the "Escrow Agent";
together with the Security Agent, the "Agent").
W I T N E S S E T H :
-------------------
WHEREAS, the Partnership, the General Partner, the Limited Partner,
the Lender, the Security Agent and the Escrow Agent desire to enter into certain
amendments to the Security Deposit Agreement;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Security Deposit Agreement shall have such defined meanings when used
herein.
2. Amendments to Article I of the Security Deposit Agreement
(Definitions). Article I of the Security Deposit Agreement is hereby amended by
inserting the following new definition in alphabetical order:
"'Fuel Expenses': with respect to any calendar month, the sum of (a)
the expenses required to be paid by the
2
Partnership pursuant to Section 8.1 of the Gas Transportation and Swing
Supply Agreement in such month which accrued during the immediately
preceding calendar month and (b) the expenses required to be paid by the
Partnership in such month in connection with the procurement of gas for the
Facility during the immediately preceding calendar month."
3. Amendments to Sections 4.01(a) and (c) of the Security Deposit
Agreement (Revenue Account--Monthly Transfers). Section 4.01(a) of the Security
Deposit Agreement is hereby amended to read in its entirety as follows:
"(a) (i) Except as provided in paragraph (d) below, on each Transfer
Date (as defined in the Partnership Agreement), the Escrow Agent shall
transfer, from the cash available in the Revenue Account, to the Managing
General Partner the amount (certified in a certificate of a Responsible
Officer of the Managing General Partner and accompanied by an accounting of
the cumulative draws hereunder for the current fiscal year and a
certificate of such Responsible Officer to the effect that no Special Event
has occurred and is continuing) set forth in the Operating Budget to be
equal to the excess of (x) the Partnership's estimated amounts payable
pursuant to the Operating Budget for the month in which such Transfer Date
occurs (other than in respect of expenses provided for in Section 4.04) for
operating, maintenance and improvement expenses (excluding, to the extent
of cash available in the Operation and Maintenance Account, any operating,
maintenance and improvement expenses that are required to be paid out of
the Operation and Maintenance Account), taxes (other than income taxes) and
payments in lieu of taxes, insurance premiums, any other similar amount
payable by the Managing General Partner or the Partnership under any
Project Document, payments due under contracts which are permitted under
the terms of the Operative Documents to which the Partnership is a party,
payments required by FERC and any other governmental entity, fees and
expenses of trustees and escrow agents and other reasonable expenses
incurred in connection with the Project, and the Cost Portion of the
Management Fee, over (y) the sum of (A) the Operation and Maintenance
Account Deposit Amount, (B) the Working Capital Fund Deposit Amount, (C)
the amount of any funds previously transferred to the Managing General
Partner pursuant to this Section 4.01 that remain unspent and (D) the
amount of interest and other income on funds previously transferred to the
Managing General Partner pursuant to this Section 4.01; provided that (1)
if the Limited Partner shall have delivered a certificate to the Escrow
Agent stating that a Special Event shall have occurred and be continuing or
that the Arrears Account has a positive balance, the amount set forth in
clause (x) above shall be reduced by the amount set
3
forth in the Operating Budget for such month in respect of the Cost Portion
of the Management Fee and (2) the amount set forth in clause (x) above may
be reduced by such amount as the Managing General Partner reasonably
determines will be withdrawn from the Revenue Account during such month to
pay Fuel Expenses pursuant to the provisions of paragraph (iii) of this
Section 4.01(a); and provided, further, that clause (1) of the foregoing
proviso shall not be applicable if the Preferred Limited Partner shall have
appointed a substitute Managing General Partner pursuant to Section 14.2 of
the Partnership Agreement.
(ii) Notwithstanding the provisions of paragraph (i) of this Section
4.01(a), if, as of any Transfer Date (the "Current Transfer Date"), (x) the
Managing General Partner shall have made a withdrawal from the Revenue
Account pursuant to paragraph (iii) of this Section 4.01(a) to pay Fuel
Expenses and (y) after giving effect to the withdrawals from the Revenue
Account to be made on the Current Transfer Date pursuant to paragraphs
(a)(i), (b) and (c) of this Section 4.01, the aggregate amount of cash
available in the Revenue Account would be less than the amount required to
be distributed to the Limited Partner on the Current Transfer Date pursuant
to Sections 4.3(a) and 4.5 of the Partnership Agreement and Section 4.02(a)
of this Agreement, the amount set forth in clause (i)(x) of this Section
4.01(a) in respect of Fuel Expenses shall be reduced by such amount as will
result in the cash available in the Revenue Account being sufficient to pay
the amounts to be distributed to the Limited Partner on the Current
Transfer Date pursuant to Sections 4.3(a) and 4.5 of the Partnership
Agreement and Section 4.02(a) of this Agreement.
(iii) Except as provided in paragraph (d) below, once a calendar
month, commencing with May, 1993, on the day on which the Partnership is
required to pay Fuel Expenses, upon the request of the Managing General
Partner, the Escrow Agent shall transfer, from the cash available in the
Revenue Account, to the Managing General Partner the amount (certified in a
certificate of a Responsible Officer of the Managing General Partner and
accompanied by a certificate of such Responsible Officer to the effect that
(x) no Special Event has occurred and is continuing and (y) the amounts
requested to be withdrawn from the Revenue Account to pay such Fuel
Expenses have not previously been withdrawn from the Revenue Account by the
Managing General Partner) equal to the excess of (1) the Fuel Expenses set
forth in the Operating Budget which are required to be paid by the
Partnership in such month over (2) the amount previously withdrawn from the
Revenue Account to pay such Fuel Expenses."
4
4. Amendments to Section 4.02(a) of the Security Deposit Agreement
(Revenue Account--Monthly Transfers). Section 4.02(a) of the Security Deposit
Agreement is hereby amended as follows:
(a) by deleting the words "once a month on a Business Day (each a
"Monthly Distribution Date") not later than the fifteenth day of such
calendar month (or if any such day is not a Business Day, on the next
preceding Business Day)," appearing therein and substituting therefor the
following:
"on each Transfer Date (as defined in the Partnership Agreement)
(each a 'Monthly Distribution Date'),";
(b) by inserting the words "on such Monthly Distribution Date, if
such Date is an Interest Payment Date, and otherwise" after the first
parenthetical in clause first thereof;
(c) by deleting the words "commencing with the first month
immediately succeeding the second anniversary of the Second Capital
Contribution Date," from clause second thereof and substituting, in lieu
thereof, the words "commencing with the Monthly Distribution Date occurring
in October, 1994,"; and
(d) by inserting the words "on such Monthly Distribution Date, if
such Date is an Installment Payment Date, and otherwise" after the first
parenthetical in clause second thereof.
5. Amendment to Section 4.04 (Completion Account). Section 4.04 of
the Security Deposit Agreement is hereby amended by deleting clause (i) of the
first sentence thereof in its entirety and substituting, in lieu thereof, the
following new clause (i):
"(i) the Partnership's estimated amounts payable for the month in which
such Transfer Date occurs, in respect of expenses set forth in the
Completion Budget, over"
6. Full Force and Effect. Except as expressly amended and modified by
this Amendment, the Security Deposit Agreement shall continue to be, and shall
remain, in full force and effect in accordance with its terms.
7. No Other Amendments. This Amendment shall be effective solely to
the extent set forth herein, and is not and shall not be construed (i) to be an
amendment of any other term or condition of the Security Deposit Agreement or
(ii) to prejudice any other right or rights which the Limited Partner or
5
the Lender may now have or may have in the future under or in connection with
the Security Deposit Agreement.
8. Counterparts. This Amendment may be executed by the parties hereto
in any number of separate counterparts, all of which counterparts, taken
together, shall be deemed to constitute one and the same instrument.
9. Conditions Precedent. This Amendment shall become effective as of
the date first above written upon (i) receipt by the Limited Partner, the Lender
and the Agent of counterparts of this Amendment duly executed by the Limited
Partnership, the General Partner, the Limited Partner, the Lender, the Security
Agent and the Escrow Agent, and (ii) receipt by the Limited Partner and the
Lender of counterparts of (x) a First Amendment to the Partnership Agreement,
dated as of the date hereof, duly executed by the Limited Partner and the
General Partner and (y) a First Amendment to the General Partner Credit
Agreement, dated as of the date hereof, duly executed by the Lender and the
General Partner.
10. Governing Law. This Amendment and the rights and obligations of
the parties hereunder shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
6
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
COGEN TECHNOLOGIES LINDEN VENTURE, L.P.
By: Cogen Technologies Linden Ltd.,
its general partner
By: Cogen Technologies, Inc.,
its general partner
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By: ____________________________________
Title: VICE PRESIDENT
COGEN TECHNOLOGIES LINDEN, LTD.,
By: Cogen Technologies, Inc.,
it general partner
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By: ______________________________________
Title: VICE PRESIDENT
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION (not
in its individual capacity, but solely
as trustee), as Limited Partner and as
Lender
By: _______________________________________
Title:
MIDLANTIC NATIONAL BANK, as Escrow Agent
and as Security Agent
By: _______________________________________
Title:
6
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
COGEN TECHNOLOGIES LINDEN VENTURE, L.P.
By: Cogen Technologies Linden Ltd., its general
partner
By: Cogen Technologies, Inc., its general partner
By: ___________________________________________
Title:
COGEN TECHNOLOGIES LINDEN, LTD.,
By: Cogen Technologies, Inc., its general partner
By: ____________________________________________
Title:
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION (not in its individual capacity,
but solely as trustee), as Limited Partner and as
Lender
/s/ [Illegible Signature]
By: ______________________________________________
Title: Assistant Vice President
MIDLANTIC NATIONAL BANK, as Escrow Agent and as
Security Agent
By: ______________________________________________
Title:
6
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
COGEN TECHNOLOGIES LINDEN VENTURE, L.P.
By: Cogen Technologies Linden Ltd.,
its general partner
By: Cogen Technologies, Inc.,
its general partner
By: _____________________________________
Title:
COGEN TECHNOLOGIES LINDEN, LTD.,
By: Cogen Technologies, Inc.,
its general partner
By: ______________________________________
Title:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION (not
in its individual capacity, but solely
as trustee), as Limited Partner and as
Lender
By: _______________________________________
Title:
MIDLANTIC NATIONAL BANK, as Escrow
Agent and as Security Agent
/s/ Illegible Signature]
By: ________________________________________
Title: Vice President