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EXHIBIT 10.26
EXHIBIT A
to
ATTACHMENT 1
THIRD AMENDMENT OF THE
AGREEMENT OF LIMITED PARTNERSHIP
OF
COGEN TECHNOLOGIES LINDEN, LTD.
THIS THIRD AMENDMENT OF THE AGREEMENT OF LIMITED PARTNERSHIP OF COGEN
TECHNOLOGIES LINDEN, LTD. (this "Amendment Agreement") is made as of the _______
day of February, 1999, by and between RCM Holdings, Inc. (formerly Cogen
Technologies, Inc.), a Texas corporation ("General Partner") and Cogen
Technologies Limited Partners Joint Venture, a Texas general partnership
("Limited Partner"). Unless otherwise noted, all defined terms used herein shall
have the same meaning given such terms in the Agreement of Limited Partnership
of Cogen Technologies Linden, Ltd. dated as of June 30, 1989 (as heretofore
amended, the "Agreement").
WHEREAS, the parties hereto are parties to the Agreement;
WHEREAS, pursuant to the Agreement, the limited partnership known as
Cogen Technologies Linden, Ltd. (the "Partnership") was formed pursuant to the
Partnership Act; and
WHEREAS, the parties hereto desire to amend the Agreement to reflect
the termination of the Management Agreement dated as of July 7, 1989 by and
between the Partnership and Cogen Technologies Management Company (predecessor
to RCM Management Services, L.P.) and to reflect certain other agreements
between and among the Partners.
NOW, THEREFORE, in consideration of the premises and the mutual
undertakings contained herein, the parties hereto hereby agree as follows:
1. The DEFINITIONS of the Agreement shall be amended as follows:
(a) The definition of "Management Agreement" shall be deleted.
(b) The definition of "Partnership Manager" shall be revised
to read as follows:
"Partnership Manager" means the General Partner.
(c) The following new defined terms shall be added:
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"Third Amendment" shall mean the Third Amendment of
the Agreement of Limited Partnership of Cogen
Technologies Linden, Ltd. dated as of February__,
1999.
"Buy-Out Agreement" shall mean the Termination
Agreement dated as of the date of the Third Amendment
by and between the Partnership and RCM Management
Services, L.P., a copy of which is attached to the
Third Amendment as Exhibit A.
2. The existing text of Section 8.2 of the Agreement shall become
subparagraph (a) of Section 8.2 and the following provision shall be added as
subparagraph (b) of Section 8.2:
(b) The Partners shall make Capital Contributions,
pro rata in their respective Sharing Ratios, equal to all
funds required to be paid by the Partnership pursuant to the
Buy-Out Agreement and to be paid by Cogen Technologies Linden
Venture, L.P. pursuant to the Termination Agreement dated as
of October 25, 1998 by and between Cogen Technologies Capital
Company L.P. and H. ▇▇▇▇ ▇▇▇▇▇▇, a copy of which is attached
to the Third Amendment as Exhibit B.
3. Section 15.1 of the Agreement shall be amended in its entirety to
read as follows:
Section 15.1. The overall management and control of
the business and affairs of the Partnership shall be vested in
the General Partner, except that the authority to determine
the following matters may not be carried out by the General
Partner without the concurrence of the Limited Partner:
(a) alteration of the purpose of the
Partnership set forth in Article III hereof; and
(b) any sale, assignment, license or
transfer, of all or substantially all of the assets
of the Partnership.
4. Section 15.2 of the Agreement shall be amended by deleting "Except
for the fees payable to the Partnership Manager pursuant to the Management
Agreement as the same may be amended from time to time" from the first sentence
of Section 15.2.
5. Section 15.4 of the Agreement shall be deleted in its entirety.
6. All references to the Partnership Manager in Sections 15.5 and 15.6
of the Agreement shall be deleted.
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7. The General Partner is hereby authorized to execute and deliver the
Buy-Out Agreement on behalf of the Partnership, to make a capital contribution
to Cogen Technologies Linden Venture L.P. on behalf of the Partnership in an
amount equal to the Capital Contributions made pursuant to Section 8.2(b) of the
Agreement, and to make all payments contemplated under the Buy-Out Agreement in
accordance with the terms thereof.
8. This Amendment Agreement shall be binding upon, and shall enure to
the benefit of, the parties hereto and their respective successors and assigns.
9. This Amendment Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures were upon the same instrument.
10. Except as hereby amended, the Agreement shall remain in full force
and effect.
11. This Amendment Agreement shall be governed by, and interpreted in
accordance with, the laws of the State of Texas, without regard to principles of
conflict of laws.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
Agreement as of the day and in the year first above written.
RCM HOLDINGS, INC.
(formerly Cogen Technologies, Inc.), a Texas
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
and Chief Financial Officer
COGEN TECHNOLOGIES LIMITED
PARTNERS JOINT VENTURE
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇, as Trustee of the
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Family Trust-A and the
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Family Trust-B under
the Will of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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By: Evergreen Partnership Energy, Ltd.
By: /s/ H. ▇▇▇▇ ▇▇▇▇▇▇
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Name: H. ▇▇▇▇ ▇▇▇▇▇▇
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Title: General Partner
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By: The 1989 Energy Trust
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇., Co-trustee
(and not in his individual capacity)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Co-trustee (and
not in his individual capacity)
By: /s/ ▇. ▇▇▇▇▇▇ VAN WART
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▇. ▇▇▇▇▇▇ Van Wart
By: Hansfam Three, a Trust
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇, Co-trustee (and not
in his individual capacity)
By: /s/ ▇. ▇▇▇▇▇▇ VAN WART
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▇. ▇▇▇▇▇▇ Van Wart, Co-trustee (and
not in his individual capacity)
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