EXHIBIT 10.76
SECURITIES AGREEMENT AND ASSIGNMENT
SECURITY AGREEMENT AND ASSIGNMENT, dated as of December 15, 1988, made
between COGEN TECHNOLOGIES NJ VENTURE, a general partnership organized under
the laws of the State of New Jersey (the "Borrower"), and THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA (the "Lender") pursuant to the Term Loan Agreement
dated as of November 1, 1987 (the "Loan Agreement") between the Borrower and the
Lender.
W I T N E S S E T H:
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WHEREAS, pursuant to the Loan Agreement the Lender has agreed, upon
the terms and subject to the conditions set forth therein, to make a loan to
finance the Project (as hereinafter defined); and
WHEREAS, the execution and delivery by the Borrower of this Security
Agreement is a condition to the Lender making its loan under the Loan Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the Borrower hereby agrees as follows:
1. Defined Terms. As used in this Security Agreement, terms defined in
Annex A to the Loan Agreement shall have their defined meanings when used
herein, terms defined in the foregoing paragraphs of this Security Agreement
shall have the meanings therein assigned, and the following terms shall have the
following meanings, unless the context otherwise requires:
"Accounts" shall mean any now existing and future: (a) accounts
receivable and any and all instruments, documents, contract rights,
chattel paper and general intangibles with respect to such accounts
receivable and including, without limitation, all accounts receivable
created by or arising from any sale of electric or steam power or
rendition of services by the Borrower to its customers or arising from any
sale or rendition of services by the Borrower made under any trade name or
style; (b) guarantees or collateral for any of the foregoing; (c)
insurance policies or rights relating to
any of the foregoing; and (d) cash and non-cash proceeds of any of the
foregoing.
"Agreement" shall mean this Security Agreement.
"Assigned Agreements" shall have the meaning set forth in Section 3
hereof.
"Basic Contracts" shall mean all Assigned Contracts, including,
without limitation, all schedules, annexes, exhibits and similar documents
which are part of any such instrument and all documents incorporated by
reference therein or delivered pursuant thereto.
"Code" shall mean the Uniform Commercial Code as the same may from
time to time be in effect in the State of New York or any other applicable
jurisdiction.
"Collateral" shall have the meaning assigned to it in Section 2
hereof.
"Condemnation Proceeds" shall mean all compensation, awards, damages,
rights of action and proceeds arising from any taking by any lawful power
or authority by exercise of the right of condemnation or eminent domain
with respect to any of the Collateral, the Facility or the Site.
"Equipment" shall mean any "equipment" or "fixtures", as such terms
are defined in the Code, now or hereafter owned by the Borrower and, in
any event, shall mean and include, but shall not be limited to, all
machinery, equipment, furnishings, fixtures, vehicles, tools, supplies,
and other equipment of any kind and nature, wherever situated, whether now
or hereafter owned by the Borrower, and any and all additions,
substitutions and replacements of any of the foregoing, wherever located,
together with all attachments, components, parts, equipment and
accessories, improvements, upgrades, and accessories installed thereon or
affixed thereto.
"General Intangibles" shall mean any "general intangibles", as such
term is defined in Section 9-106 of the Code, now or hereafter owned by
the Borrower, and, in any event, shall mean and include, but not be
limited to, all contract rights, tax refunds, Insurance Proceeds, patent
rights, trademarks, copyrights, trade names, goodwill, registrations,
license rights, rights
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in intellectual property, licenses, permits, corporate and other business
records, rights to refunds or indemnification and all other intangible
personal property of the Borrower of every kind and nature, but, excluding
operating accounts of Borrower other than those operating accounts subject
to the Disbursement Agreement.
"Insurance Proceeds" shall mean all of the Borrower's interest under
any policy of insurance affecting the Collateral or the Project,
including, without limitation, unearned premiums thereon.
"Obligations" shall mean all indebtedness, liabilities and obligations
of the Borrower to the Lender arising under or in connection with the Loan
Agreement, the Term Notes, this Security Agreement or any other Project
Document, whether now existing or hereafter incurred, direct or indirect,
absolute or contingent, matured or unmatured, joint or several and whether
for principal, interest, premium, fees, expenses or otherwise.
"Security Agreement if shall mean this Security Agreement and
Assignment, as the same may from time to time be amended, supplemented or
otherwise modified.
2. Grant of Security Interest. As collateral security for the prompt
and complete payment and performance when due of all the Obligations, and in
order to induce the Lender to make the Term Loan, the Borrower hereby assigns,
conveys, mortgages, pledges, hypothecates and transfers to the Lender, and
hereby grants to the Lender a continuing security interest in, all the
Borrower's right, title and interest in, to and under the following (all of such
right, title and interest being hereinafter collectively called the
"Collateral"):
(i) each of the Basic Contracts;
(ii) all Accounts of the Borrower, whether now or hereafter existing;
(iii) all Equipment, now or hereafter owned by the Borrower;
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(iv) all rights and claims of the Borrower, now or hereafter existing,
under any indemnity, warranty or guaranty provided for or arising out of
or in connection with Equipment;
(v) all Permits, whether now or hereafter existing;
(vi) all General Intangibles, whether now or hereafter existing;
(vii) all Condemnation Proceeds;
(viii) all Insurance Proceeds;
(ix) all funds from time to time held in the Debt Service Reserve
Account; and
(x) to the extent not otherwise included, all proceeds and products
(including, without limitation, electric or steam power generated by
operation of the Facility) of any or all of the foregoing.
3. Limitations on Lender's Obligations. It is expressly agreed by the
Borrower that, anything herein to the contrary notwithstanding, the Borrower
shall remain liable under each Basic Contract and each other contract, agreement
or instrument, if any, included in the Collateral (each of which is herein
referred to as an "Assigned Agreement") to observe and perform all the
conditions and obligations to be observed and performed by it thereunder, all in
accordance with and pursuant to the terms and provisions of each such Assigned
Agreement. The Lender shall have no obligation or liability under any Assigned
Agreement by reason of or arising out of this Security Agreement or assignment
to the Lender of any payment relating to any Assigned Agreement, nor shall the
Lender be required or obligated in any manner to perform or fulfill any of the
obligations of the Borrower under or pursuant to any Assigned Agreement, or to
make any payment, or to make any inquiry as to the nature or the sufficiency of
any payment received by it or the sufficiency of any performance by any party
under any Assigned Agreement, or to present or file any claim, or to take any
action to collect or enforce any performance or the payment of any amounts which
may have been assigned to it or to which it may be entitled at any time or
times.
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4. Representations and Warranties. The Borrower hereby represents,
warrants and agrees that:
(a) The Borrower is the sole owner of each item of Collateral in
existence on the date hereof and will be the sole owner of such item of
Collateral hereafter acquired, having good and valid title thereto, free
and clear of any and all mortgages, liens, security interests,
encumbrances, claims or rights of others, except Permitted Liens and
Permitted Exceptions.
(b) No security agreement, financing statement, mortgage, equivalent
security or lien instrument or continuation statement covering all or any
part of the Collateral is on file or of record in any public office,
except such as may have been filed or recorded by the Borrower in favor of
the Lender pursuant to this Security Agreement or the Mortgage (except
with respect to Liens arising under the Security Agreement, dated as of
May 22, 1986, between Bayonne and CTNJI, relating to the property
purchased by CTNJI under the Purchase and Sale Agreement).
(c) Appropriate financing statements or other appropriate instruments
having been filed in the public offices listed on Schedule 5 to the Loan
Agreement, this Security Agreement constitutes a valid and (assuming
appropriate UCC continuation statements are timely filed) continuing lien
on and perfected security interest in the Collateral (to the extent
perfected by the filing of financing statements) in favor of the Lender,
prior to the rights of all other Persons (except with respect to Liens
arising under the Security Agreement, dated as of May 22, 1986, between
Bayonne and CTNJI, relating to the property purchased by CTNJI under the
Purchase and Sale Agreement) and subject to no Liens, except Permitted
Liens, and is enforceable as such against creditors of and purchasers from
the Borrower and against any owner or mortgagee of the real property where
any of the equipment is located and against any purchaser of such real
property and any present or future creditor obtaining a lien on such real
property. All action currently necessary to protect and perfect such lien
on and security interest in each item of the Collateral has been duly
taken.
(d) The Borrower's chief executive office and principal place of
business and the place where its records concerning the Collateral are
kept is at ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and the Borrower will not
change such chief executive office and principal place of business or
remove such records without prior written notice to the Lender.
(e) The Assigned Agreements are in full force and effect and there is
no breach or default thereunder, and they have not been transferred or
assigned in whole or in part, save for the assignment herein contained and
no Lien arising by, through, or under the Borrower exists with respect to
any of them or any obligation payable or performable thereunder, except
Permitted Liens and Permitted Exceptions and except for a prior assignment
(which has been terminated and which Lien with respect thereto has been
lifted) under a Mortgage and Security Agreement, dated as of October 20,
1986, from the Borrower to General Electric Power Funding Corporation.
5. Covenants. The Borrower covenants and agrees with the Lender that
from and after the date of this Security Agreement and until the Obligations are
fully satisfied:
(a) Further Documentation; Pledge of Instruments. At any time and from
time to time, upon the written request of the Lender, and at the sole
expense of the Borrower, the Borrower promptly and duly shall execute and
deliver any and all such further instruments and documents and take such
further action as the Lender reasonably may deem desirable in order to
obtain the full benefits of this Security Agreement and of the rights and
powers herein granted, including, without limitation, the filing of any
financing or continuation statements under the Uniform Commercial Code in
effect in any jurisdiction with respect to the liens and security
interests granted hereby. The Borrower also hereby authorizes the Lender
to file any such financing or continuation statement without the
signature of the Borrower to the extent permitted by applicable law. If
any amount payable under or in connection with any of the Collateral shall
be or become evidenced by any promissory note or other instrument, such
note or instrument shall be immediately pledged to the Lender hereunder,
duly endorsed in a manner satisfactory to the Lender.
(b) Maintenance of Records. The Borrower will keep and maintain at
its own cost and expense satisfactory and complete records of the
Collateral including,
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without limitation, a record of all payments received and all credits
granted with respect to the Collateral and all other dealings with the
Collateral.
(c) Indemnification. In any suit, proceeding or action brought by the
Lender under any Assigned Agreement or for any sum owing thereunder, or to
enforce any provisions of such Assigned Agreement, the Borrower will save,
indemnify and keep the Lender harmless from and against all expense, loss
or damage suffered by reason of any defense, setoff, counterclaim,
recoupment or reduction of liability whatsoever of the other party under
such Assigned Agreement, arising out of a breach by the Borrower of any
obligation thereunder or arising out of any other agreement, indebtedness
or liability at any time owing to or in favor of such other party or its
successors from the Borrower, and all such obligations of the Borrower
shall be and remain enforceable against and only against the Borrower and
shall not be enforceable against the Lender.
(d) Further Identification of Collateral. The Borrower will furnish to
the Lender from time to time statements and schedules further identifying
and describing the Collateral and such other reports in connection with
the Collateral as the Lender reasonably may request, all in reasonable
detail.
(e) Equipment. All Equipment, other than vehicles and other Equipment
that is moved from time to time away from the Site in the ordinary course
of the Borrower's business (collectively, the "Moveable Equipment"), is
kept at the Site and, except for Equipment that is sold or otherwise
disposed of in accordance with the provisions of Section 9.9 of the Loan
Agreement, no Equipment (other than Moveable Equipment) shall be removed
from the Site without the express prior written consent of the Lender
except for off-site repair and maintenance performed in the ordinary
course of business.
(f) Continuous Perfection. The Borrower will not change its name or
identity in any manner unless the Borrower shall have given the Lender at
least 10 days' prior written notice thereof and shall have taken, at the
Borrower's expense, all action necessary or reasonably requested by the
Lender in order to continue the perfection and priority of the liens and
security
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interests in the Collateral intended to be created by this Security
Agreement.
6. Lender's Appointment as Attorney-in-Fact. (a) The Borrower hereby
irrevocably constitutes and appoints the Lender and any officer or agent
thereof, with full power of substitution, as its true and lawful attorney-in-
fact with full irrevocable power and authority in the place and stead of the
Borrower and in the name of the Borrower or in its own name, from time to time
in the Lender's discretion, for the purpose of carrying out the terms of this
Security Agreement, to take any and all appropriate action and to execute any
and all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Security Agreement and, without limiting the
generality of the foregoing, hereby gives the Lender the power and right, on
behalf of the Borrower, without notice to or assent by the Borrower, to do the
following:
(i) upon the occurrence and continuance of an Event of Default, to
ask, demand, collect, receive and give acquittances and receipts for any
and all moneys due and to become due under any Collateral and, in the name
of the Borrower or its own name or otherwise, to take possession of and
endorse and collect any checks, drafts, notes, acceptances or other
instruments for the payment of moneys due under any Collateral and to file
any claim or to take any other action or proceeding in any court of law or
equity or otherwise deemed appropriate by the Lender for the purpose of
collecting any and all such moneys due under any Collateral whenever
payable;
(ii) to pay or discharge taxes, liens, security interests or other
encumbrances levied or placed on or threatened against the Collateral, to
effect any repairs or any insurance called for by the terms of this
Security Agreement or the Loan Agreement and to pay all or any part of the
premiums therefor and the costs thereof;
(iii) upon the occurrence and continuance of an Event of Default, (A)
to direct any party liable for any payment under any Collateral to make
payment of any and all moneys due and to become due thereunder directly to
the Lender or as the Lender shall direct; (B) to receive payment of and
receipt for any and all moneys, claims and other amounts due and to become
due at any time in respect of or arising out of any Collateral;
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(C) to sign and indorse any invoices, freight or express bills, bills
of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications and notices in connection with accounts and
other documents relating to the Collateral; (D) to commence and prosecute
any suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral or any thereof and to
enforce any other right in respect of any Collateral; (E) to defend any
suit, action or proceeding brought against the Borrower with respect to
any Collateral; (F) to settle, compromise or adjust any suit, action or
proceeding described above and, in connection therewith, to give
discharges or releases; and (G) generally to sell, transfer, pledge, make
any agreement with respect to or otherwise deal with any of the Collateral
as fully and completely as though the Lender was the sole absolute owner
thereof for all purposes, and to do, at the Lender's option and the
Borrower's expense, at any time, or from time to time, all acts and things
which the Lender deems necessary to protect, preserve or realize upon the
Collateral and the Lender's security interest therein, in order to effect
the intent of this Security Agreement, all as fully and effectively as the
Borrower might do; and
(iv) upon the occurrence and continuance of an Event of Default, to
the extent permitted by law, to take possession of all or any part of the
Collateral, and to exclude the Borrower and all Persons claiming under the
Borrower wholly or partly therefrom, and thereafter to hold, store, use,
operate, manage and control the same, and upon any such taking of
possession, at the expense of the Borrower, to make all such repairs,
replacements, alterations, additions and improvements to and of the
Collateral as the Lender may deem proper, and to manage and control the
Collateral and to carry on the business of, and to exercise all rights and
powers of, the Borrower in respect thereto as the Lender shall deem best,
including the right to enter into any and all such agreements with respect
to the leasing and/or operation of the Collateral or any part thereof as
the Lender may see fit, and to collect and receive all rents, issues,
profits, fees, revenues and other income of the same and every part
thereof, with such rents, issues, profits, fees, revenues and other income
being applied to pay the expenses of holding and operating the Collateral,
of conducting the business thereof and of all maintenance, repairs,
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replacements, alterations, additions and improvements with respect
thereto, and to make all payments which the Lender may be required or may
elect to make, if any, for taxes, assessments, insurance and other charges
upon the Collateral or any part thereof, and all other payments which the
Lender may be required or authorized to make under any provision of this
Security Agreement (including legal costs and attorney's fees), with the
remainder of such rents, issues, profits, fees, revenues and other income
being available for the payment of the obligations.
The Borrower hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with an
interest and shall be irrevocable.
(b) The powers conferred on the Lender hereunder are solely to protect
its interests in the Collateral and shall not impose any duty upon it to
exercise any such powers. The Lender shall be accountable only for amounts that
it actually receives as a result of the exercise of such powers and neither it
nor any of its officers, directors, employees or agents shall be responsible to
the Borrower for any act or failure to act, except for their own gross
negligence or willful misconduct.
(c) The Borrower also authorizes the Lender (i) to communicate in its
own name with any party to any contract, agreement or instrument included in the
Collateral with regard to the assignment of such contract, agreement or
instrument and other matters relating thereto and (ii) to execute, in connection
with any sale provided for in Section 8(b) of this Security Agreement, any
indorsements, assignments, bills of sale or other instruments of conveyance or
transfer with respect to the Collateral.
7. Performance by Lender of Borrower's Obligations. If the Borrower
fails to perform or comply with any of its agreements contained herein and the
Lender, as provided for by the terms of this Security Agreement, shall
perform or comply, or otherwise cause performance or compliance, with such
agreement, the expenses of the Lender incurred in connection with such
performance or compliance, together with interest thereon at a rate per annum
equal to the Stipulated Interest Rate shall be payable by the Borrower to the
Lender on demand and shall constitute obligations secured hereby.
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8. Remedies, Rights Upon Default. (a) If an Event of Default shall
occur and be continuing:
(i) all payments received by the Borrower under or in connection with
any of the Collateral shall be held by the Borrower in trust for the
Lender, shall be segregated from other funds of the Borrower and shall,
forthwith upon receipt by the Borrower, be turned over to the Lender in
the same form as received by the Borrower (duly indorsed by Borrower to
the Lender, if required); and
(ii) any and all such payments so received by the Lender (whether from
the Borrower or otherwise) may, in the sole discretion of the Lender, be
held by the Lender as collateral security for, and/or then or at any time
thereafter be applied (subject only to the relevant provisions of the Loan
Agreement or of applicable law) in whole or in part by the Lender first to
pay any and all Obligations due and payable other than principal of or
premium, if any, or interest on the Term Notes, and second to pay
principal of and premium, if any, and interest on the Term Notes.
Any balance of such payments held by the Lender and remaining after
payment in full of all the Obligations shall be paid over to the Borrower or to
whomsoever may be lawfully entitled to receive the same.
(b) If any Event of Default shall occur and be continuing, the Lender
may exercise in addition to all other rights and remedies granted to it in this
Security Agreement and in any other Security Document or other instrument or
agreement securing, evidencing or relating to the Obligations, all rights and
remedies of a secured party under the Uniform Commercial Code. Without limiting
the generality of the foregoing, the Borrower expressly agrees that in any such
event the Lender, without demand of performance or other demand, advertisement
or notice of any kind (except the notice specified below of time and place of
public or private sale) to or upon the Borrower or any other person (all and
each of which demands, advertisements and/or notices are hereby expressly
waived), may forthwith collect, receive, appropriate and realize upon the
Collateral or any part thereof, and/or may forthwith sell, lease, assign, give
option or options to purchase, or sell or otherwise dispose of and deliver the
Collateral or any part thereof (or contract to do so), in one or more parcels at
public or private sale or sales, at any exchange, broker's board or at any of
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the Lender's offices or elsewhere at such prices as it may deem best, for cash
or on credit or for future delivery without assumption of any credit risk. The
Lender shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of the Collateral so sold, free of any right or equity of
redemption in the Borrower, which right or equity of redemption is hereby
expressly waived and released. The Borrower further agrees, at the Lender's
request, to assemble the Collateral, make it available to the Lender at places
which the Lender reasonably shall select, whether at the Borrower's premises or
elsewhere. The Lender shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale, after deducting all
reasonable costs and expenses of every kind incurred therein or incidental to
the care, safekeeping or otherwise of any or all of the Collateral or in any way
relating to the rights of the Lender hereunder, including attorneys' fees and
legal expenses, to the payment in whole or in part of the Obligations, in such
order as the Lender may elect, and only after so applying such net proceeds and
after the payment by the Lender of any other amount required by any provision
of law, including Section 9-504 (1) (c) of the Code, shall the Lender be
required to account for the surplus, if any, to the Borrower. To the extent
permitted by applicable law, the Borrower waives all claims, damages and demands
against the Lender arising out of the repossession, retention or sale of the
Collateral. The Borrower agrees that the Lender need not give more than 10 days'
notice (which notification shall be deemed given three Business Days after
mailing when mailed by registered or certified mail, return receipt requested,
postage prepaid, addressed to the Borrower at its address set forth in Section
12.5 of the Loan Agreement) of the time and place of any public sale or of the
time after which a private sale may take place and that such notice is
reasonable notification of such matters.
(c) The Borrower also agrees to pay all reasonable costs of the
Lender, including attorneys' fees, incurred with respect to the collection of
any of the Obligations and the enforcement of any of its respective rights
hereunder.
(d) The Borrower hereby waives presentment, demand, protest or any
notice (to the extent permitted by applicable law) of any kind in connection
with this Security Agreement or any Collateral.
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9. Limitation on Lender's Duty in Respect of Collateral. Beyond the
safe custody thereof, the Lender shall not have any duty as to any Collateral in
its possession or control or in the possession or control of its nominee, or as
to the preservation of rights against prior parties or any other rights
pertaining thereto.
10. Future Advances. Upon request of the Borrower, the Lender may, at
its sole option, from time to time make further advances, in accordance with
Section 12.8 of the Loan Agreement, to the Borrower to finance further
improvements to the Premises (as defined in the Mortgage) , including the
expansion of the Facility to include a fourth turbine to the Facility. If
required by the Lender, the Borrower shall execute and deliver to the Lender,
one or more notes or other agreements evidencing each and every such further
advance which may be made, and such notes or other agreements shall contain such
terms and conditions as the Lender may require. The Borrower shall pay when due
all such further advances with interest and other charges thereon, as
applicable. Said further advances, each note and agreement evidencing the same,
the Loan Agreement and the Term Notes shall all be secured hereby. All
provisions of this Agreement shall apply to each further advance as well as to
all other indebtedness secured hereby, including, without limitation, all
indebtedness under the Loan Agreement and the Term Notes.
11. Notices. Except as otherwise required by the provisions of this
Security Agreement, any notice hereunder shall be given as provided in Section
12.5 of the Loan Agreement.
12. Release of Liens. Upon payment in full of the principal amount of
and interest on the Term Notes and all other obligations the Lender agrees, upon
the written request of the Borrower and at the Borrower's sole expense, to
execute, record and file such instruments and perform such acts as are necessary
to release the Collateral from the lien and security interest of this Security
Agreement or any assignment or other security document entered into pursuant
hereto.
13. Severability. Any provision of this Security Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall
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not invalidate or render unenforceable such provision in any other jurisdiction.
14. No Waiver; Cumulative Remedies. (a) The Lender shall not by any
act, delay, omission or otherwise be deemed to have waived any of its rights or
remedies hereunder and no waiver shall be valid unless in writing, signed by the
Lender, and then only to the extent therein set forth. None of the terms or
provisions of this Security Agreement may be waived, altered, modified or
amended except by an instrument in writing, duly executed by the Lender.
(b) A waiver by the Lender of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the Lender
would otherwise have had on any future occasion. No failure to exercise nor any
delay in exercising on the part of the Lender any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or future
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies hereunder provided are cumulative and may be exercised
singly or concurrently, and are not exclusive of any rights and remedies
provided by law.
15. SUCCESSORS AND ASSIGNS; GOVERNING LAW. THIS SECURITY AGREEMENT
SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE BORROWER, THE LENDER AND
THEIR RESPECTIVE SUCCESSORS AND ASSIGNS. THIS SECURITY AGREEMENT SHALL BE
GOVERNED BY, AND BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
16. Further Indemnification. The Borrower agrees to pay, and to save
the Lender harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all excise, sales or other taxes which may be
payable or determined to be payable with respect to any of the Collateral or in
connection with any of the transactions contemplated by this Security Agreement.
17. Non-Recourse Nature of Liability to Partners. Notwithstanding
anything to the contrary contained in this Security Agreement or in any of the
Project Documents, no recourse under or upon any obligation contained in this
Security Agreement (other than the indemnities contained in Section 16) shall be
had against the Partners or any partner, stockholder, director, officer or
employee thereof, and the Lender expressly waives and releases all right to
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assert liability under this Security Agreement (other than the indemnities
contained in Section 16), any Term Note or any other Project Document against,
or to satisfy any claim arising hereunder or thereunder against, any such Person
out of any assets of any such Person other than the interest of any such Person
in the Collateral; provided, however, that nothing in this Section 17 shall be
deemed to release a Partner from liability for its fraudulent actions or from
any of its obligations or liabilities under any agreement, document, instrument
or certificate executed by such Partner in its individual capacity in connection
with the transactions contemplated by this Security Agreement and the other
Project Documents.
18. Conflicts. To the extent that any provision of this Security
Agreement shall be determined to conflict with any provision of the Loan
Agreement, such provision of the Loan Agreement shall govern.
IN WITNESS WHEREOF, the Borrower and the Lender have caused this
Security Agreement and Assignment to be executed by their duly authorized
officers on the date first set forth above.
COGEN TECHNOLOGIES
NJ VENTURE
By Cogen Technologies NJ, Inc.,
Managing Venturer
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Vice President
-15-
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By PRUCAPITAL MANAGEMENT, INC.,
agent
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Vice President, Corporate
Finance
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
)ss.:
COUNTY OF NEW YORK )
On this 29th day of December, 1988 before me personally came ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he
resides at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; that he is the Vice President of
Cogen Technologies, NJ, Inc. the corporation described in and which executed the
above instrument as a partner of COGEN TECHNOLOGIES NJ VENTURE; and that he
signed his name thereto by order of the Board of Directors of said corporation.
/s/ ▇▇▇▇▇ ▇. Hilivirta
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Notary Public
▇▇▇▇▇ ▇. HILIVIRTA
Notary Public, State of New York
No. ▇▇-▇▇▇▇▇▇▇
Qualified in New York County
Commission Expires Dec. 7, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
)ss.:
COUNTY OF NEW YORK )
On this 29th day of December, 1988 before me personally came ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that
he resides at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇. ▇▇, ▇▇, ▇▇ ▇▇▇▇▇; that he is the Vice
President Corporate Finance of PruCapital Management, Inc., the corporation
described in and which executed the above instrument and that he is the duly
authorized representative of said corporation.
/s/ ▇▇▇▇▇ ▇. Hilivirta
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Notary Public
▇▇▇▇▇ ▇. HILIVIRTA
Notary Public, State of New York
No. ▇▇-▇▇▇▇▇▇▇
Qualified in New York County
Commission Expires Dec. 7, 1989
AMENDMENT TO SECURITY AGREEMENT AND ASSIGNMENT
AMENDMENT TO SECURITY AGREEMENT AND ASSIGNMENT, dated as of April
27, 1995 (this "Amendment"), made between COGEN TECHNOLOGIES NJ VENTURE, a
general partnership organized under the laws of the State of New Jersey (the
"Borrower"), and THE PRUDENTIAL INSURANCE COMPANY OF AMERICA (the "Lender")
pursuant to the Term Loan Agreement dated as of November 1, 1987, as amended
(the "Loan Agreement"), between the Borrower and the Lender.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Loan Agreement, the Lender, upon the terms
and subject to the conditions set forth therein, made a loan to finance the
Project (as hereinafter defined); and
WHEREAS, pursuant to the terms of the Loan Agreement, the Borrower and
the Lender executed that certain Security Agreement and Assignment dated as of
December 15, 1988 (the "Security Agreement"), under the terms of which the
Borrower collaterally assigned, and granted a security interest in, the Basic
Contracts (as hereinafter defined) to the Lender; and
WHEREAS, the Borrower, as "Owner," and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ Operations,
Inc., a Delaware corporation ("S&S"), as "Operator," entered into that certain
Operation and Maintenance Agreement dated effective as of March 28, 1994 (the
"O&M Agreement"), providing for the operation and maintenance of the Project by
S&S; and
WHEREAS, the Borrower, as "▇▇▇▇▇▇," and IMTT-Bayonne, a Delaware
partnership ("IMTT"), as "Bailee," entered into that certain Agreement dated
May 5, 1994 (the "Kerosene Agreement"), providing for the storage, and delivery
to the Borrower, of the Borrower's kerosene by IMTT; and
WHEREAS, Section 8.9(a) of the Loan Agreement provides that upon
execution of Additional Contracts (as hereinafter defined) after the Closing
Date (as hereinafter defined), the Borrower shall collaterally assign such
Additional Contracts to the Lender;
WHEREAS, the Borrower desires to assign the O&M Agreement and the
Kerosene Agreement to the Lender subject to the terms hereof;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the Borrower and the Lender hereby
agree as follows:
1. Defined Terms. As used in this Amendment, terms defined in Annex A
to the Loan Agreement shall have their defined meanings when used herein, terms
defined in the Security Agreement shall have their defined meanings when used
herein, and terms defined in the foregoing paragraphs of this Amendment shall
have the meanings therein assigned, unless the context requires otherwise.
2. Basic Contracts. The Security Agreement is hereby amended by
amending the definition of the Basic Contracts as set forth therein to include,
for all purposes, the O&M Agreement and the Kerosene Agreement
3. Grant of Security Interest. As collateral security for the prompt
and complete payment and performance when due of all the Obligations, the
Borrower hereby assigns, conveys, mortgages, pledges, hypothecates and
transfers to the Lender, and hereby grants to the Lender a continuing security
interest in, all the Borrower's right, title and interest in, to and under the
O&M Agreement and the Kerosene Agreement upon the same terms and conditions as
contained in the Security Agreement All of the warranties, representations,
covenants and agreements of the Borrower contained in the Security Agreement in
favor of the Lender shall extend and apply to the O&M Agreement and the Kerosene
Agreement as fully as though such agreements had been originally included in the
Basic Contracts at the time of execution of the Security Agreement.
4. No Other Amendments. Except as expressly amended hereby, the
Security Agreement remains in full force and effect.
IN WITNESS WHEREOF, the Borrower and the Lender have caused this
Amendment to be executed by their duly authorized officers on the date first set
forth above.
COGEN TECHNOLOGIES NJ VENTURE
By Cogen Technologies NJ, Inc.,
Managing Venturer
By /s/ ▇.▇. ▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------
Vice President & Chief
Financial Officer
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By /s/ ▇▇▇▇▇▇ ▇. Lemanowkz
----------------------------
Name: ▇▇▇▇▇▇ ▇. Lemanowkz
--------------------------
Title: Vice President
------------------------
STATE OF (S)
(S)
COUNTY OF ▇▇▇▇▇▇ (S)
On this 8th day of September 1995, before me personally came ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that
he resides at Houston, Texas; that he is the Vice President of Cogen
Technologies NJ, Inc., the corporation described in and which executed the above
instrument as Managing Venturer of COGEN TECHNOLOGIES NJ VENTURE; and that he
signed his name thereto by order of the Board of Directors of said corporation.
[SEAL]
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Notary Public in and for
State of Texas
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Printed Name of Notary
My Commission Expires: 4/25/96
STATE OF NEW JERSEY (S)
(S)
COUNTY OF ESSEX (S)
On this 22nd day of August, 1995, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he
resides at Oakhurst, New Jersey; that he is the Vice President of THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA; and that he signed his name thereto by order of
the Board of Directors of said corporation.
[SEAL]
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------
Notary Public in and for
▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------
Printed Name of Notary
My Commission Expires: 3/22/2000
The Prudential Insurance Company of America
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
[LOGO of ThePrudential appears here]
July 28, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ Venture
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ 0. ▇▇▇▇▇▇▇
Re: The Term Loan Agreement, dated as of November 1, 1987 (the "TERM LOAN
AGREEMENT"), between Cogen Technologies NJ Venture, a joint venture
organized under the laws of the state of New Jersey, as borrower ( the
"BORROWER") and the Prudential Insurance Company of America, as lender (the
"Lender"). Security Agreement and Assignment dated as of December 15, 1988
as amended by that certain Amendment to Security Agreement and Assignment
dated as of April 27, 1995 (THE "SECURITY AGREEMENT"), between the Borrower
and the Lender. The Kerosene Storage Agreement, dated as of May 17, 1994
(the "KEROSENE AGREEMENT"), between IMTT Bayonne, a Delaware Partnership,
and the Borrower.
Dear Sir or Madam:
Reference is made to the Term Loan Agreement. Section 8.9(a) of the Term Loan
Agreement requires the Borrower with respect to any additional contract executed
after the closing date, to execute and deliver to the Lender an assignment with
respect to such additional contract, AND CAUSE THE OTHER PARTY OR PARTIES TO
SUCH ADDITIONAL CONTRACT TO EXECUTE AND DELIVER TO THE LENDER A CONSENT WITH
RESPECT THERETO IN THE FORM SPECIFIED IN EXHIBIT C THERETO. The borrower has
executed an Assignment in the form of the Security Agreement but has not
obtained such consent. This letter agreement is intended to waive compliance
with the resulting breach of such section.
"With respect to the Kerosene Agreement, the Lender hereby grants the following
waiver:
1. Waiver. Lender hereby waives compliance with Section 8.9(a) of the Term
Loan Agreement, solely with respect to the Kerosene Agreement, arising from
Borrowers failure to obtain a consent to assignment in the form of Exhibit C to
the Term Loan Agreement in connection with the execution and delivery of the
Kerosene Agreement.
2. EFFECT UPON OTHER PROVISIONS OF THE AGREEMENTS. The execution, delivery
and effectiveness of this letter agreement shall not be deemed to, except as
expressly provided herein, (i) operate as a waiver of any right, power or remedy
of the Lender under the Term Loan Agreement, the Security Agreement, the
Kerosene Agreement or any other document, nor constitute a waiver of any
provision thereunder, (ii) prejudice any rights which the Lender now has or may
have in the future under or in connection with the Term Loan Agreement or
Security Agreement, the Kerosene Agreement or any other documents, and all other
terms and conditions of the Term Loan Agreement, the Security Agreement, the
Kerosene Agreement or any other document shall remain unchanged and in full
force and effect.
3. COUNTERPARTS. This Agreement and all acceptances hereof may be executed
by the parties hereto on any number of separate counterparts, and all said
counterparts taken together shall be deemed to constitute one and the same
instrument, notwithstanding that all of the parties have not signed the same
counterpart.
Very truly yours,
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President