EXHIBIT 10.19
ASSIGNMENT AND SECURITY AGREEMENT
ASSIGNMENT and SECURITY AGREEMENT, dated as of February 15, 1990, made
by COGEN TECHNOLOGIES LINDEN, LTD. (d/b/a COGEN TECHNOLOGIES LINDEN, LIMITED
PARTNERSHIP in the State of New Jersey), a Texas limited partnership (the
"Pledgor" or the "General Partner,"), the sole general partner of Cogen
Technologies Linden Venture, L.P. (the "Limited Partnership") , a Delaware
limited partnership, in favor of General Electric Power Funding Corporation
("GEPFC"), as collateral agent for the LP Agent (as defined below) and the LP
Lenders (as defined below) under the Limited Partnership Loan Agreement (as
defined below) and for the GP Lender (as defined below) under the General
Partner Loan Agreement (as defined below) (in such capacity, the "Collateral
Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Construction Loan Agreement, dated as of
February 15, 1990, among the Limited Partnership, the Lenders from time to time
party thereto (the "LP Lenders") and GEPFC, as agent for the LP Lenders (in such
capacity, the LP Agent") (as the same may be amended, supplemented or
otherwise modified from time to time, the "Limited Partnership Loan Agreement"),
the LP Lenders have agreed to make loans (the "LP Loans") to, and GEPFC has
agreed to issue letters of credit (the "Letters of Credit") for the account of,
the Limited Partnership; and
WHEREAS, pursuant to the Term Loan Agreement, dated as of February 15,
1990, between the Pledgor and General Electric Power Funding Corporation (in
such capacity, the "GP Lender") (as the same may be amended supplemented or
otherwise modified from time to time, the "General Partner Loan Agreement",
together with the Limited Partnership Loan Agreement, the "Loan Agreements"),
the GP Lender has agreed to make certain loans (the "GP Loans", together with
the LP Loans, the "Loans") for the account of the General Partner; and
WHEREAS, it is a condition precedent to (i) the obligation of the LP
Lenders to make LP Loans to, and of GEPFC to issue Letters of Credit for the
account of, the Limited Partnership under the Limited Partnership Loan Agreement
and (ii) the obligation of the GP Lender to make the GP Loans to the
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General Partner under the General Partner Loan Agreement that the Pledge shall
have executed and delivered this Pledge and Security Agreement; and
WHEREAS, pursuant to the Collateral Agency Agreement (as defined
below), the LP Agent and the GP Lender have appointed GEPFC to act as Collateral
Agent hereunder;
NOW, THEREFORE, in consideration of the premises and to induce the LP
Lenders, the LP Agent and the GP Lender (collectively, the "Secured Parties") to
enter into the Loan Agreements and to make Loans and to issue Letters of Credit
thereunder, the Pledge hereby agrees with the Collateral Agent as follows:
1. Defined Terms. (a) All capitalized terms used herein which are
defined in the Loan Agreements shall have their respective meanings as therein
defined, unless such terms are defined herein. All terms defined herein or in
the Loan Agreements in the singular shall have the same meanings when used in
the plural and vice versa.
(b) The following terms defined in Article 9 of the Uniform Commercial
Code as in effect in the State of New York are used herein as so defined:
Chattel Paper and Instrument; and the following terms shall have the following
meanings:
"Agreement" shall mean this Assignment and Security Agreement, as the
same may from time to time be amended, supplemented or otherwise modified.
"Amended and Restated Partnership Agreement" shall have the meaning
set forth in the Capital Contribution Agreement.
"Code" shall mean the Uniform Commercial Code as the same may from
time to time be in effect in the State of New York.
"Collateral" shall have the meaning assigned to it in Section 2 of
this Agreement.
"Collateral Agency Agreement" shall mean the Collateral Agency
Agreement, dated as of February 15, 1990, among the Collateral Agent, the
Pledge, the LP Agent and the GP Lender.
"General Partner Partnership Agreement" shall mean the certificate of
limited partnership of the Pledgor, dated as of June 28, 1989 between Cogen
Technologies, Inc., as general partner, and Cogen Technologies Limited Partners
Joint Venture, a Texas partnership, as limited partner.
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"Limited Partnership Agreement" shall mean the collective reference to (a)
the certificate of limited partnership of the Limited Partnership, dated
December 4, 1989, filed by the General Partner with the Secretary of State of
the State of Delaware on December 6, 1989, and (b) the Agreement of Limited
Partnership of the Limited Partnership, dated as of December 4, 1989, between
the General Partner, as general partner, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as limited
partner.
"Obligations" shall mean (i) all the unpaid principal amount of, and
accrued interest on, the Notes (as defined in the Limited Partnership Loan
Agreement) and all other obligations and liabilities of the Limited Partnership
to the LP Agent and the LP Lenders, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of or in connection with the Limited Partnership Loan
Agreement, the Notes (as defined in the Limited Partnership Loan Agreement), the
Letters of Credit, this Agreement, the other Collateral Security Documents or
the Borrower Indemnity Agreement, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses (including,
without limitation, all fees and disbursements of counsel to the LP Agent and
the LP Lenders) or otherwise and (ii) all the unpaid principal amount of, and
accrued interest on, the Notes (as defined in the General Partner Loan
Agreement) and all other obligations and liabilities of the Pledgor to the GP
Lender, whether direct or indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred, which may arise under, out of or in
connection with the General Partner Loan Agreement, the Notes (as defined in the
General Partner Loan Agreement), this Agreement, or the other Collateral
Security Documents (as defined in the General Partner Loan Agreement), whether
on account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all fees and disbursements of
counsel to the GP Lender) or otherwise.
"Proceeds" shall have the meaning assigned to it under the Code and, in any
event, shall include, but not be limited to, (i) any and all proceeds of any
insurance, indemnity, warranty or guaranty payable to the Pledgor from time to
time with respect to any of the Collateral, (ii) any and all payments (in any
form whatsoever) made or due and payable to the Pledgor from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any Governmental Authority
(or any person acting under color of governmental authority) and (iii) any and
all other amounts from time to time paid or payable under or in connection
with any of the Collateral.
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2. Assignment and Grant of Security Interest. As collateral security
for the prompt and complete payment and performance when due (whether at the
stated maturity, by acceleration or otherwise) of the Loans and all other
Obligations, the Pledgor hereby sells, assigns, conveys, mortgages, pledges,
hypothecates and transfers to the Collateral Agent for the ratable benefit of
the Secured Parties, and hereby grants to the Collateral Agent for the ratable
benefit of the Secured Parties a continuing first (other than as to Permitted
Liens) priority security interest in, to and under all of the following property
now owned or at any time hereafter acquired by the Pledgor or in which the
Pledgor now has or at any time in the future may acquire any rights, title or
interest (all of which being hereinafter collectively called the "Collateral"):
(i) all right, title and interest of the Pledgor in the Limited
Partnership;
(ii) any and all moneys due and to become due to the Pledgor now or in
the future by way of a distribution made to the Pledgor in its capacity as a
partner of the Limited Partnership;
(iii) any and all moneys due or to become due to the Pledgor now or in
the future by virtue of the Pledgor's interest as a partner in the Limited
Partnership;
(iv) any other property of the Limited Partnership to which the
Pledgor now or in the future may be entitled in its capacity as a partner of the
Limited Partnership by way of distribution, return of capital or otherwise;
(v) any other claim which the Pledgor now has or may in the future
acquire in its capacity as a partner of the Limited Partnership against the
Limited Partnership and its property; and
(vi) to the extent not otherwise included, all Proceeds of any or all
of the foregoing.
3. Registration of Pledge. Concurrently with the execution of this
Agreement, the Pledgor shall send written instructions in the form of Exhibit A
hereto to the Limited Partnership, and shall cause the Limited Partnership to,
and the Limited Partnership shall, deliver to the Collateral Agent the Initial
Transaction Statement in the form of Exhibit B hereto confirming that such
Partnership has registered the pledge effected by this Agreement on its books.
4. Limitations on Distributions. So long as this Agreement shall
remain in full force and effect and no Default or Event of Default under the
Loan Agreements shall have occurred
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and be continuing, any distributions of cash or other property payable in
respect of the Collateral shall be paid to the ▇▇▇▇▇▇▇ in accordance with the
Amended and Restated Partnership Agreement and the Security Deposit Agreement.
After the occurrence of a Default or Event of Default and for so long as such
Default or Event of Default is continuing, such distributions shall be applied
by the collateral Agent to the payment in whole or in part of the obligations,
in accordance with the Collateral Agency Agreement.
5. Representations and Warranties. The Pledgor hereby represents and
warrants that:
(a) The ▇▇▇▇▇▇▇ (i) is a limited partnership validly existing under
the laws of the State of Texas, (ii) has all the requisite partnership power and
authority to own and operate its properties, to carry on its business as now
conducted and to pledge its interest in the Collateral pursuant to this
Agreement and (iii) is duly qualified to do business in the States of New York
and New Jersey, the only jurisdictions in which the conduct of its business or
the ownership or lease of its assets require such qualification. The ▇▇▇▇▇▇▇ is
the sole general partner of the Limited Partnership, and its partnership
interest is as specified in the Limited Partnership Agreement. Complete and
correct copies of the Limited Partnership Agreement and the General Partner
Partnership Agreement and of all contracts and agreements between the ▇▇▇▇▇▇▇
and the Limited Partnership have been delivered to the Secured Parties.
(b) Except for those filings and registrations required to perfect the
Liens created by this Agreement, neither the Limited Partnership nor the ▇▇▇▇▇▇▇
is required to obtain any order, consent, approval or authorization of, or
required to make any declaration or filing with, any Governmental Authority or
any other Person in connection with the execution and delivery of this Agreement
and the granting and perfection of the security interests pursuant to this
Agreement.
(c) This Agreement has been duly executed and delivered on behalf of
the ▇▇▇▇▇▇▇, and this Agreement constitutes a legal, valid and binding
obligation of the ▇▇▇▇▇▇▇, enforceable against the ▇▇▇▇▇▇▇ in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and except as enforceability may be subject to
general principles of equity, whether such principles are applied in a court of
equity or at law.
(d) The execution, delivery and performance of this Agreement will not
result in any violation of or be in
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conflict with or constitute a default under any term of the Limited Partnership
Agreement or the General Partner Partnership Agreement, or of any Requirement of
Law or Contractual Obligation applicable to the Pledge except to the extent that
the failure to comply therewith could not reasonably be expected to (i) have a
material adverse effect on the Collateral or (ii) materially adversely affect
the ability of the Pledgor to perform its obligations under this Agreement or
the other Basic Documents or Transaction Documents to which it is a party, or
result in the creation of any Lien upon any of the properties or revenues of the
Pledgor pursuant to any such Requirement of Law or Contractual obligation other
than the Liens in favor of the Collateral Agent created pursuant to this
Agreement and in favor of the Secured Parties created pursuant to the other
Collateral Security Documents.
(e) Except for the security interest granted to the Collateral Agent
pursuant to this Agreement, the Pledgor is the sole owner of the Collateral,
having good title thereto, free and clear of any and all Liens other than
Permitted Liens and the Liens in favor of the Collateral Agent created pursuant
to this Agreement and in favor of the Secured Parties created pursuant to the
other Collateral Security Documents.
(f) No security agreement, financing statement, 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 or with the Limited Partnership,
except such as may have been or will be filed or registered by the Pledgor in
favor of the Collateral Agent pursuant to this Agreement and in favor of the
Secured Parties created pursuant to the other Collateral Security Documents.
(g) This Agreement constitutes a valid and continuing first lien (other
than as to the Permitted Liens) on and perfected security interest in the
▇▇▇▇▇▇▇'▇ right, title and interest in and to the Collateral (other than those
items of Collateral which, individually or in the aggregate, are not material)
in favor of the Collateral Agent, prior (other than as to the Permitted Liens)
to all other Liens, and is enforceable as such against creditors of and
purchasers from the Pledgor. All action necessary or desirable to protect and
perfect such security interest, including, but not limited to, the filing of
financing statements in the jurisdictions referred to on Schedule I to this
Agreement and the registration of the pledge effected hereby on the books of the
Limited Partnership in accordance with the provisions of the Uniform Commercial
Code in effect in the jurisdiction in which the Limited Partnership is
organized, in each item of the collateral (other than those
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Items of Collateral which, individually or in the aggregate, are not material)
has been duly taken.
(h) The Pledge's principal place of business and chief executive office and
the place where its records concerning the Collateral are kept is located at the
address, set forth with its signature below and the Pledge will not change such
address or remove such records without 30 days' prior written notice to the
Collateral Agent.
6. Covenants. The Pledgor covenants and agrees with the Collateral
Agent and the Secured Parties that from and after the date of this 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 Collateral Agent and at the sole
expense of the Pledgor, the Pledgor will promptly and duly execute and deliver
any and all such further instruments and documents and take such further action
as the Collateral Agent may reasonably request for the purpose of obtaining or
preserving the full benefits of this 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 Lien granted hereby. The Pledgor also hereby
authorizes the Collateral Agent to file any such financing or continuation
statement without the signature of the Pledgor to the extent permitted by
applicable law. The Pledgor and the Collateral Agent agree that a carbon,
photographic or other reproduction of this Agreement or a financing statement is
sufficient as a financing statement. 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 or Chattel Paper, such note, Instrument or
Chattel Paper shall be immediately delivered to the Collateral Agent, duly
indorsed in a manner satisfactory to the Collateral Agent, to be held as
Collateral pursuant to this Agreement.
(b) Maintenance of Records. The Pledgor will keep and maintain at its own
cost and expense satisfactory and complete records of the Collateral including,
without limitation, a record of all payments received and all credits granted
with respect to the Collateral and all other dealings with the Collateral. The
Pledgor will ▇▇▇▇ its books and records pertaining to the Collateral to evidence
this Agreement and the security interests granted hereby. For the further
security of the Collateral Agent and the Secured Parties, the Pledge agrees that
the Collateral Agent, for the ratable benefit of the Secured Parties, shall have
a special property interest in all of the Pledgor's
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books and records pertaining to the Collateral and the Pledgor shall, upon the
acceleration of the Loans and any other amounts due under any Loan Agreement or
the Collateral Security Documents, deliver and turn over any books and records
to the Collateral Agent or to its representatives at any time on demand of the
Collateral Agent. The Collateral Agent in turn agrees to provide the Pledgor
with reasonable access to such records during normal business hours and also
with such copies of such records (made at the Pledgor's expense) as the Pledgor
may reasonably request, such access and such copies to be available subject to
the Collateral Agent's prior right to use such records to enforce its rights in
or to realize upon the Collateral.
(c) Limitation on Rights and Liens with Respect to Collateral. The Pledgor
will not (i) vote to enable, or take any other action to permit, the Limited
Partnership to issue any other partnership interests in the Limited Partnership
(other than the interest of the Limited Partner) or grant any right to purchase
or otherwise acquire any existing or other partnership interests in the Limited
Partnership, except as contemplated by the Capital Contribution Agreement and
the Amended and Restated Partnership Agreement, (ii) sell, assign, transfer or
exchange, or otherwise dispose of, or grant any option with respect to, or
mortgage, pledge or hypothecate its interest in, the Collateral, or attempt,
offer or contract to do so, except as provided herein and as contemplated by the
Capital Contribution Agreement and the Amended and Restated Partnership
Agreement, or (iii) create, incur, permit or suffer to exist, and will defend
the Collateral against and will take such other action as is necessary to
remove, any Lien or claim on or to the Collateral, other than Permitted Liens,
and will defend the right, title and interest of the Collateral Agent in and to
any of the Pledgor's rights to the Collateral and in and to the Proceeds thereof
against the claims and demands of all Persons whomsoever.
(d) Regulatory Filings. If and to the extent required, the Pledgor will
file this Agreement, and any other agreements or instruments which are required
to be filed with any regulatory body in accordance with the rules and
regulations of such regulatory body.
(e) Notices. The Pledge will advise the Collateral Agent and the Secured
Parties promptly, in reasonable detail, of any Lien or claim made or asserted
against any of the Collateral.
(f) Change of Name. The Pledgor will not change its name or identity in any
manner which might make any financing statement filed hereunder seriously
misleading unless the Pledgor shall have given the Collateral Agent and
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the Secured Parties at least 30 days' prior written notice thereof.
(g) Compliance with Laws, etc, The Pledge will comply in all material
respects with all acts, rules, regulations, orders, decrees and directions of
any Governmental Authority applicable to the Collateral or any part thereof,
except any thereof the non-compliance with which could not reasonably be
expected to have a material adverse effect on the Collateral or any part
thereof.
(h) Taxes and Claims. The Pledgor shall pay and discharge all taxes,
assessments and governmental charges or levies imposed on the Limited
Partnership or on its income or profits or on any of its property prior to the
date on which penalties attach thereto, and all lawful claims which, if unpaid,
might become a Lien upon the property of the Limited Partnership. The Pledgor
shall have the right, however, to contest in good faith the validity or amount
of any such tax, assessment, charge, levy or claim by proper proceedings timely
instituted, and may permit the taxes, assessments, charges, levies or claims so
contested to remain unpaid during the period of such contest if: (i) the Pledgor
diligently prosecutes such contest, (ii) during the period of such contest the
enforcement of any contested item is effectively stayed; provided, however, that
this clause (ii) shall apply to contested income taxes of a Partner only if the
failure to pay such tax may then become a Lien on the Collateral and (iii) in
the reasonable opinion of the Collateral Agent, such contest does not involve
any substantial danger of the sale, forfeiture or loss of any part of the
Collateral, title thereto or any interest therein. The Pledgor will promptly pay
or cause to be paid any valid, final judgment enforcing any such tax,
assessment, charge, levy or claim and cause the same to be satisfied of record.
7. Collateral Agent's appointment as Attorney-in-Fact. (a) Powers.
The Pledgor hereby irrevocably constitutes and appoints the Collateral Agent 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 Pledgor and in the name of the Pledgor or in its own name, from
time to time in the Collateral Agent's discretion, for the purpose of carrying
out the terms of this 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 Agreement, and, without limiting
the generality of the foregoing, the Pledgor hereby gives the Collateral Agent
the power and right, on behalf of the Pledgor, without notice to or assent by
the Pledgor to do the following:
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(i) to pay or discharge taxes and Liens levied or placed on or threatened
against the Collateral; and
(ii) upon the occurrence and during the continuance of any Default or
Event of Default, (A) to direct any party liable for any payment under any of
the Collateral to make payment of any and all moneys due or to become due
thereunder directly to the Collateral Agent or as the Collateral Agent shall
direct; (B) to ask or demand for, collect, receive payment of and receipt for,
any and all moneys, claims and other amounts due or to become due at any time in
respect of or arising out of any Collateral; (C) in the name of the Pledgor 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 with respect to the Collateral; (D) to file any claim or to commence
and prosecute any suits, actions or proceedings in any court of law or equity or
otherwise as deemed appropriate by the Collateral Agent to collect the
Collateral or any part thereof and to enforce any other right in respect of any
Collateral; (E) to defend any suit, action or proceeding brought against the
Pledgor with respect to any Collateral; (F) to settle, compromise or adjust any
suit, action or proceeding described in clause (D) or (E) above and, in
connection therewith, to give such discharges or releases as the Collateral
Agent may deem appropriate; and (G) generally, to sell, transfer, pledge and
make any agreement with respect to or otherwise deal with any of the Collateral
as fully and completely as though the Collateral Agent were the absolute owner
thereof for all purposes, and to do, at the Collateral Agent's option and the
Pledgor's expense, at any time, or from time to time, all acts and things which
the Collateral Agent reasonably deems necessary to protect, preserve or realize
upon the Collateral and the Liens of the Collateral Agent and the Secured
Parties thereon and to effect the intent of this Agreement, all as fully and
effectively as the Pledgor might do.
The Pledgor 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) Other Powers. The Pledgor also authorizes the Collateral Agent, at
anytime and from time to time, to execute, in connection with the sale provided
for in Section 8 hereof, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral.
(c) No Duty on Part of the Collateral Agent, and the Secured Parties.
The powers conferred on the Collateral Agent and the Secured Parties hereunder
are solely to protect the
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interests of the Collateral Agent and the secured Parties in the Collateral and
shall not impose any duty upon any of them to exercise any such powers. The
Collateral Agent and the Secured Parties shall be accountable only for amounts
that they actually receive as a result of the exercise of such powers, and
neither they nor any of their officers, directors, employees or agents shall be
responsible to the Pledgor for any act or failure to act hereunder, except for
their own gross negligence or willful misconduct.
8. Performance by Collateral agent of Pledgor's Obligations; Rights
of Pledgor Prior to Default or Event of Default. (a) If the Pledgor fails to
perform or comply with any of its agreements contained herein and the Collateral
Agent, as provided for by the terms of this Agreement, shall itself perform or
comply, or otherwise cause performance or compliance, with such agreement, the
expenses of the collateral Agent incurred in connection with such performance or
compliance, together with interest thereon at a rate per annum equal to the
Default Rate shall be payable by the Pledgor to the Collateral Agent on demand
and shall constitute Obligations secured hereby.
(b) Unless and until a Default or Event of Default shall have occurred
and be continuing, the Pledgor shall be entitled to take any action, or omit to
take any action, as the Pledgor may deem necessary or advisable or convenient
with respect to the Collateral; provided that no action shall be taken, or
omitted to be taken, by the Pledgor which would (i) violate or be inconsistent
with any of the terms of this Agreement or the Loan Agreements, or (ii) give
rise to any defense, counterclaim or offset in favor of the Pledgor against the
Collateral Agent or the Secured Parties or to any claim or action against the
Pledgor or (iii) have the effect of materially impairing the position or
interests of the Collateral Agent or the Secured Parties or of the value of the
Collateral. All such rights of the Pledgor to take or omit to take any action
shall cease upon the occurrence of a Default or an Event of Default and the
continuance thereof.
9. Remedies, Rights Upon the Occurrence of a Default or an Event of
Default. (a) If any Default or Event of Default shall occur and be continuing,
the Collateral Agent, on behalf of the Secured Parties, may exercise, in
addition to all other rights and remedies granted to then in this Agreement and
in any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party un Per the Code, with
the express obligation of the Pledgor to cooperate with the Collateral Agent in
all respects as are necessary to perfect such rights and remedies. Without
limiting the generality of the foregoing, the Collateral Agent, without demand
of performance or other demand, presentment, protest, advertisement or notice of
any kind (except the notice specified below of time and place of public or
private sale) to or upon the
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Pledgor or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances (i)
exercise all voting, partnership and other rights of the Pledgor in its capacity
as a partner in the Limited Partnership as fully and completely as though the
Collateral Agent were the absolute owner of the Pledgor's partnership interest
in the Limited Partnership, (ii) transfer all or any part of the Collateral into
the Collateral Agent's name or the name of its nominee or Nominees, (iii)
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 otherwise dispose of and deliver said Collateral or any part
thereof (or contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, at any exchange, broker's board or office of
the Collateral Agent or any Secured Party or elsewhere upon such terms and
conditions as it may deem advisable and at such prices as it may deem best, for
cash or on credit or for future delivery without assumption of any credit risk.
The collateral Agent or any Secured Party 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 said Collateral so sold,
free of any right or equity of redemption in the Pledgor, which right or equity
is hereby waived or released. The Pledgor further agrees, at the Collateral
Agent's request, to assemble the Collateral and make it available to the
collateral Agent at places which the Collateral Agent shall reasonably select,
whether at the Pledgor's premises or elsewhere. The Collateral Agent shall apply
the net proceeds of any collection, recovery, receipt, appropriation,
realization or sale of or with respect to the Collateral, after deducting all
reasonable costs and expenses of every kind incurred therein or incidental to
the care, safe keeping or otherwise of any or all of the Collateral or in any
way relating to the rights of the Collateral Agent and the Secured Parties
hereunder, including reasonable attorneys' fees and legal expenses, to the
payment in whole or in part of the obligations, in accordance with the
Collateral Agency Agreement, the Pledgor remaining liable for any deficiency
remaining unpaid after such application, and only after so applying such net
proceeds and after the payment by the Collateral Agent of any other amount
required by any provision of law, including Section 9-504(l)(c) of the Code,
need the Collateral Agent account for the surplus, if any, to the Pledgor to the
extent permitted by applicable law, the Pledgor waives all claims, damages, and
demands against the Collateral Agent or any Secured Party arising out of the
repossession, retention or sale of the Collateral. The Pledgor agrees that the
Collateral Agent need not give more than 10 days' notice (which notification
shall be deemed given when mailed, postage prepaid, addressed to the Pledgor at
its address referred to in paragraph 11 hereof) 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.
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(b) The Pledgor also agrees to pay all costs of the Collateral Agent,
including attorneys, fees, incurred with respect to the collection of any of the
Obligations and the enforcement of any of the rights of the Collateral Agent or
any Secured Party hereunder.
(c) The Pledgor hereby waives presentment, demand, protest or any
notice (to the extent permitted by applicable law) of any kind in connection
with this Agreement or any Collateral and expressly waives and agrees not to
assert any rights or privileges it may acquire under Section 9-112 of the Code.
(d) The Pledgor consents and agrees that the Collateral Agent may
exercise any or all of its rights and remedies hereunder notwithstanding any
provision in the Limited Partnership Agreement which purports to limit the
transferability of partnership interests without the consent of any partners.
10. Limitation on Duties in Respect of Collateral; Limitations on
Collateral Agent's Obligations. (a) Beyond the use of reasonable care in the
custody thereof, the Collateral Agent shall not have any duty as to any
Collateral in its possession or control or in the possession or control of any
agent or nominee of it or any income thereon or as to the preservation of rights
against prior parties or any other rights pertaining thereto.
(b) It is expressly agreed by the Pledgor that, anything herein to the
contrary notwithstanding, the Pledgor shall remain liable under each of its
contracts or other agreements, including, without limitation, the Limited
Partnership Agreement and the General Partner Partnership 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 of the
provisions thereof. The Collateral Agent and the Secured Parties shall not have
any obligation or liability by reason of or arising out of this Agreement, nor
shall the Collateral Agent or any Secured Party be required or obligated in any
manner to perform or fulfill any of the obligations of the Limited Partnership
or the Pledgor, 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 the Pledgor, 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.
14
11. Notices. Notices hereunder may be given by mail, by telex or by
facsimile transmission, addressed or transmitted to, in the case of the Pledgor,
as set forth with its signature hereto, in the case of the Collateral Agent and
the LP Lenders, at such Person's address or transmission number set forth in the
Limited Partnership Loan Agreement and in the case of the GP Lender, as set
forth in the General Partner Loan Agreement, and shall be effective as provided
for in the Loan Agreements. The Pledgor may change its address and transmission
number by written notice to the Collateral Agent and the Secured Parties, and
the Collateral Agent or any Secured Party may change its address and
transmission number by written notice to the Pledgor and, in the case of a
Secured Party, to the Collateral Agent.
12. Severability. Any provision of this 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 without affecting the validity
or enforceability of any provision in any other jurisdiction. Where provisions
of any law or regulation resulting in such prohibition or unenforceability may
be waived they are hereby waived by the Pledgor and the Collateral Agent and the
Secured Parties to the full extent permitted by law so that this Agreement shall
be deemed a valid and binding agreement, and the security interest created
hereby shall constitute a continuing first lien (other than as to the Permitted
Liens) on and first (other than as to the Permitted Liens) perfected security
interest in the Collateral, in each case enforceable in accordance with its
terms.
13. Release of Lien in Favor of the LP Agent and the LP Lenders. (a)
Upon receipt by the Collateral Agent from the LP Agent of a written notice
stating that all of the Obligations (as defined in the Limited Partnership Loan
Agreement) have been paid in full and the Commitments under the Limited
Partnership Loan Agreement have been terminated, the security interests in favor
of the LP Agent and the LP Lenders created pursuant to Section 2 shall forthwith
terminate and the security interests created pursuant to Section 2 shall
continue in favor of the Collateral Agent and the GP Lender, exclusively.
(b) Upon receipt by the Collateral Agent from the GP Lender of a
written notice stating that all of the obligations (as defined in the General
Partner Loan Agreement) have been paid in full and the Commitments thereunder
have been terminated, the security interests in favor of the GP Lender created
pursuant to Section 2 shall forthwith terminate.
(c) The Collateral Agent, upon request by the Pledgor shall execute
and deliver, at the Pledgor's expense, all such documentation reasonably
necessary to release the lien in its favor in and to this Agreement.
15
14. Section Headings. The section headings used in this Agreement are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
15. No Waiver; Cumulative Remedies. The Collateral Agent and Secured
Parties shall not by any act (except pursuant to the execution of a written
instrument pursuant to Section 16 hereof), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquired in any Default or Event of Default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Collateral Agent or any Secured Party, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, remedy, power or privilege hereunder
shall preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. A waiver by the Collateral Agent or any
Secured Party of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Collateral Agent or any
Secured Party would otherwise have on any future occasion. The rights and
remedies herein provided are cumulative, may be exercised singly or concurrently
and are not exclusive of any rights or remedies provided by law.
16. Waivers and Amendments; Successors and Assigns; Governing Law.
None of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Pledgor and the Collateral Agent. This Agreement shall be binding upon the
successors and assigns of the Pledgor and shall inure to the benefit of the
Collateral Agent and the Secured Parties and their respective successors and
assigns. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
17. Powers Coupled with an Interest. All authorizations and agencies
herein contained with respect to the collateral are irrevocable and powers
coupled with an interest.
18. Indemnification. The Pledgor agrees to pay, indemnify and hold
the Collateral Agent, each Secured Party and their respective affiliates,
directors and/or officers harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the
Obligations) be imposed on, incurred by or asserted against any such Person in
any way relating to or arising out of this Agreement or the Collateral, or any
documents contemplated by or referred to herein or the transactions contemplated
hereby
16
or thereby (all of the foregoing, collectively, the "indemnified liabilities"),
provided, that the Pledgor shall have no obligation hereunder to any such Person
with respect to indemnified liabilities arising from (i) the gross negligence or
willful misconduct of any such Person, (ii) legal proceedings commenced against
any such Person by any security holder or creditor of any such Person arising
out of and based upon rights afforded any such security holder or creditor
solely in its capacity as such, or (iii) legal proceedings commenced against any
such Person by any Permitted Assignee or Transferee. The agreements in this
subsection shall survive repayment of the obligations and all other amounts
payable hereunder.
19. Collateral Agent Not a Partner. Nothing contained in this
Agreement shall be construed or interpreted (a) to transfer to the Collateral
Agent or any Secured Party any of the rights and obligations of a partner of the
Limited Partnership other than the rights of collateral security in and to the
Collateral described herein or (b) to constitute the Collateral Agent or any
Secured Party a partner of the Limited Partnership.
20. Authority of Collateral Agent. The Pledgor acknowledges that the
rights and responsibilities of the Collateral Agent under this Agreement with
respect to any action taken by the Collateral Agent or the exercise or non-
exercise by the Collateral Agent of any option, right, request, judgment or
other right or remedy provided for herein or resulting or arising out of this
Agreement shall, as between the Collateral Agent and the Secured Parties, be
governed by the Collateral Agency Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Collateral Agent and the Pledgor, the Collateral Agent shall be conclusively
presumed to be acting an agent for the Secured Parties with full and valid
authority so to act or refrain from acting, and the Pledgor shall not be under
any obligation, or entitlement, to make any inquiry respecting such authority.
21. Limitation of Liability. The Collateral Agent and the Secured
Parties agree that the liability of the Pledgor under this Agreement and the
obligations shall be limited to the Collateral (as defined in the Loan
Agreements) and the rights and remedies of the Collateral Agent and the Secured
Parties against the Collateral (as defined in the Loan Agreements) pursuant to
this Agreement and the other Collateral Security Documents, and in no event
shall the Pledgor or any Partner or any officer, director, partner or Affiliate
thereof be personally liable or obligated for any such obligations. Nothing
herein shall limit the full recourse of the Collateral Agent and the Secured
Parties, to the Collateral (as defined in the Loan Agreements) pursuant to this
Agreement or the other Collateral Security Documents or be deemed to constitute
a waiver of liability, if any, of any Person for damages for fraud or for any
knowing
17
misrepresentation made by such Person herein or in any certificate or document
delivered pursuant hereto.
IN WITNESS WHEREOF, the Pledgor has caused this Agreement to be duly
executed and delivered as of the date first set forth above.
COGEN TECHNOLOGIES LINDEN, LTD.
(d/b/a COGEN TECHNOLOGIES
LINDEN, LIMITED PARTNERSHIP
in the State of New Jersey)
By: Cogen Technologies, Inc.,
its general partner
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: ____________________________
Title: PRESIDENT
ASSIGNMENT
----------
AGREEMENT, dated as of September 15, 1992, (this "Agreement") among
GENERAL ELECTRIC POWER FUNDING CORPORATION, a Delaware corporation ("GEPFC"),
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a
national banking association (the "Bank"), as trustee (in such capacity, the
"Owner Trustee") under a Trust Agreement, dated as of December 28, 1990,
between Linden Owner Partnership, a Delaware general partnership (the "Owner
Partnership"), and the Bank (in such capacity, the "Owner Trustee"), and COGEN
TECHNOLOGIES LINDEN, LTD., a Texas limited partnership (the "Borrower").
W I T N E S S E T H:
-------------------
WHEREAS, this Agreement is being executed and delivered in accordance
with (i) subsections 9.3 and 9.8 of the Term Loan Agreement, dated as of
February 15, 1990, between the Borrower and GEPFC (as amended, supplemented or
otherwise modified from time to time, the "Loan Agreement"; terms defined
therein being used herein as therein defined), (ii) Section 16 of the Borrower
Pledge Agreement and (iii) Section 2 of the Assignment Agreement, dated as of
September 15, 1992 (as amended, supplemented or otherwise modified from time to
time, the "Assignment Agreement"), between GEPFC and the Owner Trustee; and
WHEREAS, the Owner Trustee wishes to become the Lender party to the
Loan Agreement and the secured party under the Collateral Security Documents;
and
WHEREAS, GEPFC is selling and assigning to the Owner Trustee all of
its rights, obligations and commitments under the Loan Agreement, the Notes and
the Collateral Security Documents; and
WHEREAS, in connection with the assignment to the Owner Trustee of
GEPFC's rights and obligations under the Borrower Pledge Agreement, the
Borrower, GEPFC and the Owner Trustee desire to enter into certain amendments to
the Borrower Pledge Agreement; and
WHEREAS, the parties to the Collateral Agency Agreement desire to
terminate such Agreement; and
WHEREAS, concurrently herewith, GEPFC is assigning to the Owner
Trustee its obligations under the Capital Contribution Agreement (as defined in
the Assignment Agreement) to become limited partner of the Project Partnership
(as defined in the Assignment Agreement); and
2
WHEREAS, GEPFC is a party to the Recognition Agreements (as defined in
the Assignment Agreement) which provide certain rights to the limited partner of
the Project Partnership, and desires to assign to the Owner Trustee its rights
and obligations thereunder; and
WHEREAS, the Owner Trustee wishes to assume GEPFC's rights and
obligations under the Recognition Agreements;
NOW, THEREFORE, in consideration of the premises herein and other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1. Upon receipt by GEPFC of a counterpart of this Agreement executed
by GEPFC, the Owner Trustee and the Borrower, the Owner Trustee shall become the
Lender party to the Loan Agreement, the secured party under the Collateral
Security Documents and the limited partner party to the Recognition Agreements
for all purposes thereof.
2. GEPFC hereby irrevocably sells, assigns and transfers to the Owner
Trustee, without recourse, representation or warranty (except to the extent set
forth in Section 5 of the Assignment Agreement) and the Owner Trustee hereby
irrevocably purchases, takes and assumes from GEPFC, all of GEPFC's interests,
rights and obligations (except to the extent set forth in Section 3(d) hereof)
under the Recognition Agreements, the Loan Agreement and the Collateral Security
Documents (including GEPFC's right, interest and obligations as Collateral Agent
and as a secured party under the Borrower Pledge Agreement and any UCC-1
financing statements relating thereto), including, without limitation, all of
its Commitments, Loans owing to it as of the date hereof and other amounts owing
to GEPFC under the Loan Agreement and the Notes, together with all instruments,
documents and collateral security pertaining thereto.
3. (a) In consideration for the sale and assignment by GEPFC pursuant
to Section 2 hereof, on the Second Capital Contribution Date, the Owner Trustee
shall pay to GEPFC an amount equal to the outstanding principal amount of the
loans under the Loan Agreement, together with all accrued and unpaid interest
thereon plus any other accrued and any unpaid fees owing to GEPFC under the Loan
Agreement and the Collateral Security Documents.
(b) On and as of the Second Capital Contribution Date, all principal
payments that would otherwise be payable to or for the account of GEPFC
pursuant to the Loan Agreement and the Notes shall, instead, be payable to or
for the account of the Owner Trustee.
(c) On and as of the Second Capital Contribution Date, all interest,
fees and other amounts that would otherwise accrue for the account of GEPFC
pursuant to the Loan Agreement and the
3
Notes shall, instead, accrue for the account of, and be payable to, the Owner
Trustee.
(d) On and as of the date hereof, GEPFC shall cease to be a party to
the Loan Agreement and the Collateral Security Documents in all respects, except
to the extent set forth in paragraphs (a), (b) and (c) above and to the extent
the Owner Trustee fails to make any loans required to be made by it under the
Loan Agreement, in which case GEPFC shall remain liable for making, and retain
all rights in respect of, such required loans. In the event of any such failure,
the parties hereto agree to enter into such amendments to the Loan Agreement,
the Collateral Security Documents and any other documents as shall be necessary
to ensure that GEPFC retains its rights in respect of such required loans. The
amendment and restatement of the Loan Agreement on the date hereof shall not
affect GEPFC's liability hereunder.
4. On the Second Capital Contribution Date, GEPFC shall request the
Borrower to execute and deliver to GEPFC in exchange for GEPFC's surrendered
Notes new Notes to the order of the Owner Trustee. Such new Notes shall be: (i)
in the case of the Post-Completion Note, in an aggregate principal amount equal
to the Post-Completion Commitment and in the case of the Working Capital Note,
in an aggregate principal amount equal to $10,000,000; (ii) dated the date of
such surrendered Notes; and (iii) otherwise in substantially the form of
Exhibits A-2 or A-3 to the Loan Agreement, as the case may be.
5. By executing and delivering this Agreement, GEPFC and the Owner
Trustee confirm to and agree with each other as follows: (i) other than the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned hereby free and clear of any adverse claim, the
representations and warranties set forth in Sections 5 and 6(b)(iv) of the
Assignment Agreement, GEPFC makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Recognition Agreements, the Loan Agreement,
the Notes, the Collateral Security Documents or any other instrument or document
furnished pursuant thereto; (ii) GEPFC makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under the Loan Agreement, the Notes, the Collateral Security
Documents or any other instrument or document furnished pursuant thereto or by
the Project Partnership or any other party of its obligations under the
Recognition Agreements or any instrument or document relating thereto; and (iii)
the Owner Trustee agrees that it will perform in accordance with their terms all
of the obligations which by the terms of the Loan Agreement are required to be
performed by it as the Lender.
4
6. The Borrower, GEPFC and the Owner Trustee hereby agree that, from
and after the date hereof, all references in the Borrower Pledge Agreement to
the "Collateral Agent", the "GP Lender", and the "Secured Parties" shall be
deemed to be references to the owner Trustee in its capacity as lender to the
Borrower under the Loan Agreement.
7. The parties to the Collateral Agency Agreement hereby agree that
such Agreement shall be terminated (except for the provisions thereof which
expressly state that they shall survive termination thereof) on the Second
Capital Contribution Date.
8. The Borrower hereby agrees that, except as hereinafter set forth,
any claim or liability under the Recognition Agreements, the Loan Agreement, the
Notes or the Collateral Security Documents asserted against the Owner Trustee by
it shall be limited to satisfaction out of, and enforcement against, the Trust
Estate. Notwithstanding anything to the contrary contained herein or in any
other document, certificate or instrument executed by the Owner Trustee pursuant
hereto or thereto, the Borrower hereby acknowledges and agrees that neither the
Owner Trustee, the Owner Partnership nor any officer, employee, partner,
servant, controlling Person, manager, agent, authorized representative or
Affiliate of the Owner Trustee or the Owner Partnership (collectively, the "Non-
Recourse Persons") shall have any liability to the Project Partnership, the
Borrower or the General Partner (such liability, including such as may arise by
operation of law, being hereby expressly waived) for the performance of any of
the obligations of the Owner Trustee contained herein or therein or shall
otherwise be liable or responsible with respect thereto, except as hereinafter
set forth. If any claim of the Borrower against the Owner Trustee or alleged
liability to the Borrower of the owner Trustee shall be asserted under the Loan
Agreement or the Collateral Security Document, or if any claim of the Borrower
or the Project Partnership against the Owner Trustee or alleged liability to the
Borrower or the Project Partnership of the Owner Trustee shall be asserted under
the Recognition Agreements, the Borrower agrees that, except as hereinafter set
forth, it shall not have the right to proceed directly or indirectly against the
Non-Recourse Persons or against their respective properties and assets (other
than, the Trust Estate) for the satisfaction of any such claim or liability
(except-to the extent enforceable out of the Trust Estate) in respect of any
such claim or liability. Notwithstanding any of the foregoing, it is expressly
understood and agreed, however, that nothing contained in this Section 8 shall
in any manner or any way (a) affect or diminish any obligation, covenant or
agreement of any Non-Recourse Person made expressly in its individual capacity
under any certificate executed by such Non-Recourse Person on its own behalf or
any right or benefit of any party hereto under any such certificate or (b)
affect or diminish any rights of any Person against any other Person arising
from misappropriation or misapplication of
5
any funds or for such other Person's fraud, gross negligence or willful
misconduct. The foregoing acknowledgements, agreements and waivers shall survive
the termination of the Loan Agreement and the Recognition Agreements and shall
be enforceable by any Non-Recourse Person.
9. This Agreement may be executed by one or more of the parties
hereto on any number of separate counterparts and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
10. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be executed as of the day and year first above written.
GENERAL ELECTRIC POWER FUNDING
CORPORATION, as Collateral Agent,
as Lender and as Agent
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: ______________________________
Title: ATTORNEY-IN-FACT
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, not in its
individual capacity, but solely
as Owner Trustee
/s/
By: _______________________________
Title: Assistant Vice President
COGEN TECHNOLOGIES LINDEN, LTD.
By: Cogent Technologies Inc.,
its managing general partner
/s/
By: _______________________________
Title: Vice President
Agreed to and accepted as
of the date first above written
with respect to Section 7:
GENERAL ELECTRIC CAPITAL CORPORATION
By: _____________________________
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be executed as of the day and year first above written.
GENERAL ELECTRIC POWER FUNDING
CORPORATION, as Collateral Agent,
as Lender and as Agent
By: ________________________________
Title:
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, not in its
individual capacity, but solely
as Owner Trustee
By: _________________________________
Title:
COGEN TECHNOLOGIES LINDEN, LTD.
By: Cogen Technologies, Inc.,
its managing general partner
By: _________________________________
Title:
Agreed to and accepted as
of the date first above written
with respect to Section 7:
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/
________________________________
Title:
