EXHIBIT 2.B
PURCHASE AND
SALE AGREEMENT
BY AND AMONG
GENERAL ELECTRIC CAPITAL CORPORATION
AS SELLER,
CAMDEN ▇▇▇▇▇ ▇.▇.
AS PURCHASER,
AND
EL PASO CORPORATION
AS INDEMNITOR,
DATED
NOVEMBER 30, 2001
TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINITIONS............................................................................1
Section 1.1 Definitions......................................................................1
Section 1.2 Construction of Certain Terms and Phrases........................................3
ARTICLE 2 CONSENT TO ISSUANCE OF LIMITED PARTNERSHIP INTEREST AND ADMISSION OF NEW LIMITED
PARTNER................................................................................4
Section 2.1 Consent..........................................................................4
Section 2.2 Timing...........................................................................4
Section 2.3 Waiver by Purchaser..............................................................4
ARTICLE 3 SALE AND PURCHASE OF LIMITED PARTNERSHIP INTERESTS.....................................4
Section 3.1 The Sale.........................................................................4
Section 3.2 Purchase Price...................................................................4
Section 3.3 Brokerage Costs..................................................................4
Section 3.4 Waiver of Allocation of Purchase Price...........................................5
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SELLER...............................................5
Section 4.1 Corporate Existence..............................................................5
Section 4.2 Authority........................................................................5
Section 4.3 No Conflicts.....................................................................5
Section 4.4 Governmental Approvals; Filings..................................................6
Section 4.5 Purchased Interests..............................................................6
Section 4.6 Legal Proceedings................................................................6
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF PURCHASER AND INDEMNITOR.............................6
Section 5.1 Existence........................................................................6
Section 5.2 Authority........................................................................7
Section 5.3 No Conflicts.....................................................................7
Section 5.4 Governmental Approvals and Filings...............................................7
Section 5.5 Legal Proceedings................................................................7
ARTICLE 6 TAX MATTERS............................................................................7
Section 6.1 Transfer Taxes...................................................................7
Section 6.2 Purchaser Allocations............................................................8
Section 6.3 Section 751......................................................................8
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PAGE
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ARTICLE 7 ADDITIONAL COVENANTS OF PURCHASER AND INDEMNITOR.......................................8
Section 7.1 Termination of Certain Undertakings of Seller....................................8
Section 7.2 Reimbursement of Seller Costs and Expenses.......................................8
Section 7.3 Guarantee of Purchaser Obligations by Indemnitor.................................9
ARTICLE 8 SURVIVAL...............................................................................9
Section 8.1 Survival of Representations, Warranties, Covenants, and Agreements...............9
ARTICLE 9 INDEMNIFICATION........................................................................9
Section 9.1 Indemnification by Seller........................................................9
Section 9.2 Indemnity and Guaranty by Indemnitor............................................10
Section 9.3 Indemnification Procedures......................................................12
Section 9.4 Reinstatement of Obligations....................................................13
Section 9.5 Waivers by the Indemnifying Party...............................................13
Section 9.6 Full Recourse...................................................................14
Section 9.7 Survival........................................................................14
Section 9.8 No Recourse Against the Indemnified Party.......................................14
Section 9.9 Reservation of Rights...........................................................14
Section 9.10 Rights Cumulative; Payments.....................................................15
Section 9.11 No Limitation on Liability......................................................15
Section 9.12 SPECIFIC NOTICE.................................................................15
ARTICLE 10 REPURCHASE OPTION.....................................................................15
Section 10.1 Repurchase Option...............................................................15
ARTICLE 11 MISCELLANEOUS.........................................................................16
Section 11.1 Notices.........................................................................16
Section 11.2 Entire Agreement................................................................17
Section 11.3 Expenses........................................................................17
Section 11.4 Confidentiality.................................................................18
Section 11.5 Waiver..........................................................................18
Section 11.6 Amendment.......................................................................18
Section 11.7 No Third-Party Beneficiary......................................................18
Section 11.8 No Assignment; Binding Effect...................................................18
Section 11.9 Headings........................................................................18
Section 11.10 Invalid Provisions..............................................................19
Section 11.11 Governing Law...................................................................19
Section 11.12 Counterparts....................................................................19
Section 11.13 Further Assurances..............................................................19
Section 11.14 Submissions to Jurisdiction.....................................................19
Section 11.15 Waiver of Trial by Jury.........................................................20
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Schedule I Seller's Account Information
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This PURCHASE AND SALE AGREEMENT (this "Agreement"), dated November 30,
2001, is made and entered into by and among General Electric Capital
Corporation, a New York corporation ("Seller"), Camden ▇▇▇▇▇ ▇.▇., a Delaware
limited partnership ("Purchaser"), and El Paso Corporation, a Delaware
corporation ("Indemnitor").
WHEREAS, Seller owns a limited partnership interest in Purchaser;
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, all of Seller's limited partnership interests in Purchaser
(the "Purchased Interests") in exchange for the Purchase Price (as defined
below), on the terms and subject to the conditions set forth herein;
WHEREAS, Indemnitor has an indirect equity interest in Purchaser's
general partner and will obtain substantial benefits as a result of the purchase
by Purchaser of the Purchased Interests pursuant to this Agreement; and
WHEREAS, as a condition to Seller's agreement to sell the Purchased
Interests to Purchaser, Seller requires that Indemnitor indemnify Seller against
certain losses, which Indemnitor has agreed to do on the terms and conditions
set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the following terms
have the meanings indicated below. Defined terms used but not otherwise defined
herein shall have the meanings given to them in the Partnership Agreement or the
Construction Loan Agreement (as each is defined below).
"Affiliate" means any Person that directly, or indirectly through one
or more intermediaries, controls or is controlled by or is under common control
with the Person specified. For purposes of this definition, control of a Person
means the power, direct or indirect, to direct or cause the direction of the
management and policies of such Person whether by contract or otherwise, and
ownership of fifty percent (50%) or more of the voting securities of another
Person shall create a rebuttable presumption that such Person controls such
other Person.
"Agreement" means this Purchase and Sale Agreement and any schedules
hereto, as the same shall be amended from time to time.
"Business Day" means a day other than Saturday, Sunday, or any day on
which banks located in the State of New York are authorized or obligated to
close.
"Closing Date" means (a) the date of this Agreement or (b) such other
date as Purchaser and Seller mutually agree upon in writing.
"Code" means the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated thereunder.
"Construction Loan Agreement" means the Amendment and Restatement,
dated as of April 1, 1993, of the Construction and Term Loan Agreement, dated as
of February 4, 1992, as amended by Amendment No. 1, dated as of December 22,
1993, Amendment No. 2, dated as of July 31, 1998, and Amendment No. 3, dated as
of February 4, 1999.
"Contract" means any written agreement, lease, license, option,
guaranty, warranty, evidence of indebtedness, mortgage, indenture, security
agreement, or other written contract, commitment, or undertaking of any kind.
"GAAP" means generally accepted accounting principles in the United
States, consistently applied throughout the specified period.
"Governmental or Regulatory Authority" means any court, tribunal,
arbitrator, authority, agency, commission, official, or other instrumentality of
the United States or any state, county, city, or other political subdivision
thereof.
"Guaranteed Obligations" has the meaning given to it in Section 7.3.
"Indemnified Party" means any Person claiming indemnification under any
provision of Article 9.
"Indemnifying Party" means any Person against whom a claim for
indemnification is being asserted under any provision of Article 9.
"Indemnitor" has the meaning given to it in the preamble to this
Agreement.
"IRS" means the United States Internal Revenue Service.
"Knowledge" or similar phrases in this Agreement means actual knowledge
of the senior officers of a specified Person, after making reasonable
investigation.
"Laws" means all laws, statutes, rules, regulations, ordinances, and
other pronouncements having the effect of law of the United States or any state,
county, city, or other political subdivision or of any Governmental or
Regulatory Authority.
"Liens" means any mortgage, pledge, assessment, security interest,
lease, lien, adverse claim, levy, charge, or other encumbrance of any kind, or
any conditional sale Contract, title retention Contract or other Contract to
give any of the foregoing. Liens shall not include any restrictions on transfer
arising out of any state or federal securities Laws.
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"Losses" has the meaning given to it in Section 9.2.
"Order" means any writ, judgment, decree, injunction, or similar order
of any Governmental or Regulatory Authority (in each such case whether
preliminary or final).
"Partnership Agreement" means the Amended and Restated Agreement of
Limited Partnership of Camden ▇▇▇▇▇ ▇.▇., dated February 9, 1993, between Cogen
Technologies Camden GP Limited Partnership and Seller, as amended by Amendment
No. 1, dated as of April 1, 1993, Amendment No. 2, dated as of December 22,
1993, and that certain Amendment, dated as of February 4, 1999.
"Person" means any natural Person, corporation, general partnership,
limited partnership, limited liability company, proprietorship, other business
organization, trust, union, association, or Governmental or Regulatory
Authority.
"Project" means Purchaser's cogeneration facility in Camden, New
Jersey.
"Purchase Price" has the meaning given to it in Section 3.2.
"Purchased Interests" has the meaning given to it in the recitals to
this Agreement.
"Purchaser" has the meaning given to it in the preamble to this
Agreement.
"Purchaser Material Adverse Effect" means a material adverse effect (a)
on the business, operations, or condition (financial or otherwise) of Purchaser,
(b) on the ability of Purchaser to perform its obligations under this Agreement,
or (c) that is reasonably likely to materially delay or prevent consummation of
the transactions contemplated hereby.
"Seller" has the meaning given to it in the preamble to this Agreement.
"Seller Material Adverse Effect" means a material adverse effect (a) on
the business, operations or condition (financial or otherwise) of Seller, (b) on
the ability of Seller to perform its obligations under this Agreement, or (c)
that is reasonably likely to materially delay or prevent consummation of the
transactions contemplated hereby.
"Transfer Taxes" has the meaning given to it in Section 6.1.
Section 1.2 Construction of Certain Terms and Phrases. Unless the
context of this Agreement otherwise requires, (i) words of any gender include
the other genders, (ii) words using the singular or plural number also include
the plural or singular number, respectively, (iii) the terms "hereof," "herein,"
"hereby," and derivative or similar words refer to this entire Agreement, (iv)
the terms "Article" or "Section" refer to the specified Article or Section of
this Agreement, and (v) "include" or "including" means including without
limiting the generality of any description preceding such term. Whenever this
Agreement refers to a number of days, such number shall refer to calendar days
unless Business Days
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are specified. All accounting terms used herein and not expressly defined herein
shall have the meanings given to them under GAAP.
ARTICLE 2
CONSENT TO ISSUANCE OF LIMITED PARTNERSHIP INTEREST AND ADMISSION
OF NEW LIMITED PARTNER
Section 2.1 Consent. In accordance with Section 10.2 of the Partnership
Agreement, Seller hereby consents (a) to the issuance by Purchaser of a
forty-one and thirty-one one-hundredths percent (41.31%) limited partnership
interest in Purchaser to JEDI Camden LP, L.L.C., a Delaware limited liability
company ("JEDI Camden LP"), in exchange for a cash contribution to the capital
of Purchaser and (b) to the admission of JEDI Camden LP as a limited partner of
Purchaser.
Section 2.2 Timing. Each of Seller and Purchaser hereby acknowledges
and agrees that the issuance of a limited partnership interest in Purchaser to
JEDI Camden LP and the admission of JEDI Camden LP as a limited partner of
Purchaser as described in Section 2.1 shall occur immediately prior to the
purchase and sale of the Purchased Interests as described in Article 3.
Section 2.3 Waiver by Purchaser. Purchaser hereby waives the terms and
provisions of Section 10.5(c) of the Partnership Agreement, which provides that
the Purchase Price to be paid to Seller in the event of a redemption of the
Purchased Interest shall be paid with the proceeds of a loan to be made by
Seller to Purchaser.
ARTICLE 3
SALE AND PURCHASE OF
LIMITED PARTNERSHIP INTERESTS
Section 3.1 The Sale. On the terms and subject to the conditions set
forth in this Agreement, Seller hereby sells, transfers, conveys, assigns, and
delivers to Purchaser, free and clear of all Liens, all of Seller's right,
title, and interest in, to, and under the Purchased Interests, and Purchaser
hereby purchases and assumes all of the rights and obligations of Seller in, to,
and under the Purchased Interests.
Section 3.2 Purchase Price. As consideration for the Purchased
Interests, and subject to the terms and conditions set forth in this Agreement,
Purchaser hereby agrees to pay to Seller an amount equal to $70,247,567.81 (the
"Purchase Price"). Purchaser will pay the Purchase Price to Seller on the
Closing Date by wire transfer of immediately available United States funds to
Seller's account specified on Schedule I hereto.
Section 3.3 Breakage Costs. Purchaser further agrees to pay on the
Closing Date Seller's aggregate costs and expenses in connection with the
termination of any and all (i) interest rate hedging agreements entered into by
Seller or any Affiliate of Seller with
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respect to the Tranche B Term Loans and (ii) equity match swap agreements
entered into in connection with Seller's investment and purchase of the
Purchased Interests, which Seller has informed Purchaser to be $1,403,165.
Section 3.4 Waiver of Allocation of Purchase Price. Purchaser and
Seller hereby waive the requirement contained in Section 10.5(d) of the
Partnership Agreement to allocate a portion of the Purchase Price to goodwill.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser, as of the date of
this Agreement, as follows:
Section 4.1 Corporate Existence. Seller is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
New York. Seller has all requisite organizational power and authority to conduct
its business as it is now being conducted. Seller is duly qualified or licensed
to do business in the State of New York and in each other jurisdiction in which
the ownership of the Purchased Interests makes such qualification or licensing
necessary, except where failure to be so qualified could not reasonably be
expected to have a Seller Material Adverse Effect.
Section 4.2 Authority. Seller has all requisite power and authority to
execute and deliver this Agreement, to perform its obligations hereunder, and to
consummate the transactions contemplated hereby, including without limitation to
sell and transfer the Purchased Interests. The execution and delivery by Seller
of this Agreement, and the performance by Seller of its obligations hereunder,
have been duly and validly authorized by all necessary organizational action on
behalf of Seller. This Agreement has been duly and validly executed and
delivered by Seller and constitutes the legal, valid, and binding obligation of
Seller, enforceable against Seller in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency, reorganization, arrangement,
moratorium, or other similar Laws relating to or affecting the rights of
creditors generally, or by general equitable principles.
Section 4.3 No Conflicts. The execution and delivery by Seller of this
Agreement do not, and the performance by Seller of its obligations under this
Agreement and the consummation of the transactions contemplated hereby will not,
(a) conflict with or result in a violation or breach of any of the terms,
conditions, or provisions of Seller's organizational documents or (b) violate or
result in a default (or give rise to any right of purchase, termination,
cancellation, or acceleration) under any of the terms, conditions, or provisions
of any note, bond, mortgage, indenture, license, agreement, or other Contract to
which Seller is a party or, except for undertakings of Purchaser, with respect
to which Seller gives no representation or warranty, by which Seller or any of
the Purchased Interests may be bound, or result in the creation of a Lien on
such Purchased Interests, except for such defaults (or rights of purchase,
termination, cancellation, or acceleration) and Liens as to which requisite
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waivers or consents have been obtained or that could not, individually or in the
aggregate, reasonably be expected to create a Seller Material Adverse Effect.
Section 4.4 Governmental Approvals; Filings. No consent, approval, or
action of, filing with, or notice to any Governmental or Regulatory Authority on
the part of Seller is required in connection with the execution, delivery, and
performance of this Agreement or the consummation of the transactions
contemplated hereby, except for such consents, approvals, actions or filings
which have either already been obtained or made, or if not obtained or made,
could not reasonably be anticipated to have a Seller Material Adverse Effect.
Section 4.5 Purchased Interests. Seller owns beneficially and of record
and has good and indefeasible title to the Purchased Interests, free and clear
of all Liens. There are no voting agreements with respect to the Purchased
Interests or other Contracts restricting the right of Seller to sell the
Purchased Interests to Purchaser. Other than Purchaser's rights as contemplated
by this Agreement, there are no outstanding subscriptions, options, warrants,
conversion rights, convertible securities, preemptive rights, preferential
rights, rights of first refusal or first offer, or other rights (contractual or
otherwise) or agreements of any kind for the purchase or acquisition from Seller
of any of the Purchased Interests. Upon consummation of the acquisition of the
Purchased Interests as provided for in this Agreement, Purchaser will acquire
good title to such Purchased Interests free and clear of all Liens.
Section 4.6 Legal Proceedings. There are no actions or proceedings
pending or, to the Knowledge of Seller, threatened against Seller that could
reasonably be expected to result in the issuance of an Order, and there are no
Orders outstanding against Seller, restraining, enjoining, or otherwise
prohibiting or making illegal, or awarding damages as a result of, any of the
transactions contemplated by this Agreement.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PURCHASER AND INDEMNITOR
Purchaser and Indemnitor hereby represent and warrant to Seller, as of
the date of this Agreement, as follows:
Section 5.1 Existence. Purchaser is a limited partnership duly
organized, validly existing, and in good standing under the laws of the State of
Delaware and has all requisite power and authority to conduct its business as it
is now being conducted. Indemnitor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite power and authority to conduct its business as it is now being
conducted.
Section 5.2 Authority. Each of Purchaser and Indemnitor has all
requisite power and authority to enter into this Agreement, to perform its
obligations hereunder, and to
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consummate the transactions contemplated hereby to be performed by it. The
execution and delivery by each of Purchaser and Indemnitor of this Agreement and
the performance by each of its obligations hereunder have been duly and validly
authorized by all necessary organizational action on behalf of each of Purchaser
and Indemnitor. This Agreement has been duly and validly executed and delivered
by each of Purchaser and Indemnitor and constitutes the legal, valid, and
binding obligation of each of Indemnitor and Purchaser, enforceable against each
of Indemnitor and Purchaser in accordance with its terms, except as the same may
be limited by bankruptcy, insolvency, reorganization, arrangement, moratorium,
or other similar Laws relating to or affecting the rights of creditors
generally, or by general equitable principles.
Section 5.3 No Conflicts. The execution and delivery by each of
Purchaser and Indemnitor of this Agreement do not, and the performance by each
of its obligations hereunder and the consummation of the transactions
contemplated hereby will not (a) conflict with or result in a violation or
breach of any of the terms, conditions, or provisions of either of Purchaser's
or Indemnitor's organizational documents or (b) violate or result in a default
(or give rise to any right of termination, cancellation, or acceleration) under
any of the terms, conditions, or provisions of any note, bond, mortgage,
indenture, license, agreement, or other Contract to which either Purchaser or
Indemnitor is a party or by which either may be bound, except for such defaults
(or rights of termination, cancellation, or acceleration) as to which requisite
waivers or consents have been obtained or that would not, individually or in the
aggregate, create a Purchaser Material Adverse Effect.
Section 5.4 Governmental Approvals and Filings. No consent, approval,
or action of, filing with, or notice to any Governmental or Regulatory Authority
on the part of Purchaser or Indemnitor is required in connection with the
execution, delivery, and performance of this Agreement or the consummation of
the transactions contemplated hereby.
Section 5.5 Legal Proceedings. There are no actions or proceedings
pending or, to the Knowledge of Purchaser or Indemnitor, threatened against
Purchaser or Indemnitor that reasonably could be expected to result in the
issuance of an Order, and there are no Orders outstanding against Purchaser or
Indemnitor, restraining, enjoining, or otherwise prohibiting or making illegal,
or awarding damages as a result of, any of the transactions contemplated by this
Agreement.
ARTICLE 6
TAX MATTERS
Section 6.1 Transfer Taxes. Purchaser shall be liable for and shall pay
all sales, use, transfer, real property transfer, recording, gains, stock
transfer, and other similar taxes and fees ("Transfer Taxes") if any, arising
out of or in connection with the sale of the Purchased Interests by Seller
pursuant to this Agreement.
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Section 6.2 Purchaser Allocations.
(a) All income, expenses, gains, losses, deductions and credits
realized by Purchaser through the Closing Date, as if Purchaser's books were
closed as of end of the Closing Date, shall be allocated among the partners of
Purchaser in accordance with the Partnership Agreement prior to any amendment
resulting from the purchase of the Purchased Interests pursuant to this
Agreement.
(b) All income, expenses, gains, losses, deductions and credits
realized by Purchaser after the Closing Date, as if Purchaser's books were
closed as of the end of the Closing Date, shall be allocated among the partners
of Purchaser, other than Seller, in accordance with such agreement as they may
determine in their sole discretion.
Section 6.3 Section 751. Purchaser and Seller acknowledge and agree
that Purchaser has no substantially appreciated inventory within the meaning of
Section 751 of the Code. Purchaser will report to Seller the portion of the
Purchase Price attributable to unrealized receivables, if any, of Purchaser
within the meaning of Section 751 of the Code on or before January 31, 2002.
ARTICLE 7
ADDITIONAL COVENANTS OF PURCHASER AND INDEMNITOR
Section 7.1 Termination of Certain Undertakings of Seller. In a manner
reasonably acceptable to Seller, Purchaser shall execute and deliver all
undertakings and take all such further actions as may be necessary or
appropriate to enable Seller (or any Affiliate of Seller), as of no later than
March 31, 2001, to (i) terminate its obligations as Counterparty under the
Interest Rate Hedging Agreement, including without limitation obtaining or
causing others to obtain or grant all necessary waivers, consents and
amendments, including without limitation any and all waivers required by Section
4 of the Intercreditor Agreement and (ii) surrender for cancellation the Senior
Debt Service Reserve Letter of Credit and be otherwise replaced as Debt Service
Letter of Credit Issuer (as defined in the Intercreditor Agreement).
Section 7.2 Reimbursement of Seller Costs and Expenses. Purchaser shall
reimburse to Seller, on demand, all of its reasonable costs and expenses in
connection with (i) the termination of Seller's obligations as Counterparty
under the Interest Rate Hedging Agreement and (ii) the surrender and
cancellation of the Senior Debt Service Reserve Letter of Credit, respectively,
including without limitation all swap breakage and other fees and expenses and
any and all unreimbursed drawings on the Senior Debt Service Reserve Letter of
Credit and all transactions, settlements and other actions contemplated by or
carried out in furtherance of Section 7.1 hereof.
Section 7.3 Guarantee of Purchaser Obligations by Indemnitor.
Indemnitor (for purposes of this Section 7.3, the "Guarantor") hereby
irrevocably, absolutely and
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unconditionally, as primary obligor and not merely as surety, guarantees to
Seller the punctual performance when due of all obligations and covenants of
Purchaser in accordance with Section 7.1 and 7.2 above (the "Guaranteed
Obligations"), and, to the extent Purchaser has not fully complied with the
Guaranteed Obligations in accordance with their terms, Guarantor shall assume
and cause to be performed any and all such Guaranteed Obligations in a timely
manner in accordance with their terms and otherwise in all respects in the same
manner as such Guaranteed Obligations are required to be performed by Purchaser.
Guarantor hereby waives notice of acceptance of this guarantee and notice of any
liability to which it may apply, and waives presentment, demand of payment,
protest, notice of dishonor or nonpayment of any such liability, suit or taking
of other action by Seller against, and any other notice to, any party liable
thereon (including Guarantor). All payments which Guarantor is required to make
under this Section 7.3 shall be without set-off, counterclaim or condition.
Guarantor's obligations under this Section 7.3 shall not be affected or impaired
by any act, omission, circumstance (other than complete performance of the
Guaranteed Obligations), matter or thing which, but for this provision, would
reduce, release or prejudice any of its obligations hereunder or which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, including without limitation and whether or not known to Guarantor or
to Purchaser, any change in the time, manner or place of performance of any or
all of the Guaranteed Obligations or any waiver, forbearance, concession or
amendment of the same, any assertion of, or failure to assert, or delay in
asserting, any right, power or remedy against Purchaser or any other person, or
any other circumstances which might otherwise constitute a defense available to,
or discharge of, Purchaser or Guarantor.
ARTICLE 8
SURVIVAL
Section 8.1 Survival of Representations, Warranties, Covenants, and
Agreements. The representations, warranties, covenants, and agreements of
Seller, Purchaser, and Indemnitor contained in this Agreement (other than the
covenants and agreements contained in Section 11.5 and Articles 6, 7, 8 and 9,
which covenants and agreements shall survive in accordance with their terms)
shall survive for a period of one (1) year after the date of this Agreement;
provided, however, that claims first asserted in writing within the applicable
period (whether or not the amount of any such claim has become ascertainable
within such period) shall not thereafter be time-barred.
ARTICLE 9
INDEMNIFICATION
Section 9.1 Indemnification by Seller. Subject to the other Sections of
this Article 9, Seller shall, to the fullest extent permitted by Law, indemnify
Purchaser in respect of, and hold Purchaser harmless from and against, any and
all Losses suffered, incurred, or sustained by Purchaser or to which Purchaser
becomes subject, resulting from, arising out
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of, or relating to any breach by Seller of any covenant, agreement,
representation, or warranty of Seller contained in this Agreement.
Section 9.2 Indemnity and Guaranty by Indemnitor.
(a) As of and after the date hereof, Indemnitor hereby assumes
liability for, hereby guarantees payment to Seller of, hereby agrees to pay,
protect, defend (at trial and appellate levels) and with attorneys, consultants,
and experts acceptable to Seller, and save Seller harmless from and against, and
hereby indemnifies Seller from and against any and all losses, liens, damages,
liabilities, obligations, charges, deductions, settlement payments, offsets,
penalties, assessments, citations, directives, claims, litigation, demands,
defenses, judgments, suits, proceedings, costs, disbursements, and expenses of
any kind or of any nature whatsoever, as well as reasonable attorneys',
consultants', and experts' fees and disbursements actually incurred in
investigating, defending, settling, or prosecuting any such claim, litigation,
or proceeding (collectively, "Losses") that may, at any time, be imposed upon,
suffered, or incurred by or awarded against Seller arising out of any acts or
omissions of Purchaser. Such indemnification shall include, but not be limited
to, Losses imposed upon, suffered, or incurred by or awarded against Seller
arising directly or indirectly from or out of:
(i) (A) the violation of any local, state, or federal law,
rule, or regulation pertaining to environmental regulation,
contamination, or clean-up (collectively, "Environmental Laws"),
including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42 U.S.C. Section
9601 et seq. and 40 CFR Section 302.1 et seq.), the Resource
Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.),
the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.
and 40 CFR Section 116.1 et seq.), and the Hazardous Materials
Transportation Act (49 U.S.C. Section 1801 et seq.), and the
regulations promulgated pursuant to said laws, all as amended, relating
to or affecting the Project and/or the site occupied by the Project
(the "Site"), whether or not caused by or within the control of
Purchaser; (B) the presence, release, or threat of release of any
hazardous, toxic, or harmful substances, wastes, materials, pollutants,
or contaminants (including, without limitation, asbestos,
polychlorinated biphenyls, petroleum products, flammable explosives,
radioactive materials, infectious substances, or raw materials that
include hazardous constituents) or any other substances or materials
that are included under or regulated by Environmental Laws
(collectively, "Hazardous Substances") on, in, under, or affecting all
or any portion of the Project and/or the Site or any surrounding areas,
regardless of whether or not caused by or within the control of
Purchaser; or (C) the enforcement of the indemnity provided in this
Section 9.2(a), including, without limitation, the cost of assessment,
containment, and/or removal of any and all Hazardous Substances from
all or any portion of the Project and/or the Site or any surrounding
areas, the cost of any actions taken in response to the presence,
release, or threat of release of any Hazardous Substances on, in,
under, or affecting any portion of the Project and/or the Site or any
surrounding areas to prevent or minimize such release or threat of
release
10
so that it does not migrate or otherwise cause or threaten danger to
present or future public health, safety, welfare, or the environment,
and costs incurred to comply with Environmental Laws in connection with
all or any portion of the Project and/or the Site or any surrounding
areas;
(ii) the failure by Purchaser or Indemnitor to comply fully
with any of the terms and conditions of this Agreement;
(iii) the breach by Purchaser or Indemnitor of any
representation or warranty contained in this Agreement;
(iv) failure to pay any valid taxes, assessments, mechanic's
liens, materialmen's liens, or other claims in connection with or
related to the Project or the Site;
(v) fraud, material misrepresentation, or failure to disclose
a material fact by Purchaser or Indemnitor, any of its officers or
general partners, or any agent, employee, or other Person authorized or
apparently authorized to make statements, representations, or
disclosures on behalf of Purchaser or its officers or general partners,
to the full extent of any Losses of the Seller on account thereof;
(vi) failure or inability to consummate the transactions
contemplated by this Agreement (due to any acts or omissions of
Purchaser or Indemnitor); and
(vii) the occurrence of any Tax Indemnity Event, in which case
Indemnitor shall pay to Seller in accordance with this Article 9 the
Tax Indemnity Amount; provided, however, that the indemnity obligations
of Indemnitor pursuant to this paragraph (vii) shall remain in effect
only so long as Seller's tax returns through fiscal year 2001 remain
subject to audit.
(b) The liability of Indemnitor under the indemnity provided in Section
9.2(a) shall be direct and immediate and not conditional or contingent upon the
pursuit of any remedies against any other Person. Indemnitor waives any right to
require that an action be brought against any other Person or to require that
resort be made to any balance of any deposit account or credit on the books of
Indemnitor in favor of any other Person. In the event, on account of the
Bankruptcy Reform Act of 1978, as amended, or any other debtor relief law
(whether statutory, common law, case law, or otherwise) of any jurisdiction
whatsoever, now or hereafter in effect, that may be or become applicable,
Purchaser shall be relieved of any debt, obligation, or liability as provided in
this Agreement, Indemnitor shall nevertheless be fully liable therefor. In the
event of a default under this Agreement that is not cured within the applicable
grace or cure period, if any, Seller shall have the right to enforce its rights,
powers, and remedies hereunder, in any order, and all rights, powers, and
remedies available to Seller in such event shall be non-exclusive and cumulative
of all other rights, powers, and remedies provided hereunder or by law or in
equity.
11
Section 9.3 Indemnification Procedures.
(a) All Losses shall be immediately reimbursable to the Indemnified
Party when and as imposed upon, incurred, or suffered by or awarded against the
Indemnified Party and, in the event of any litigation, claim, or other
proceeding, without any requirement of waiting for the ultimate outcome of such
litigation, claim, or other proceeding, and the Indemnifying Party shall pay to
the Indemnified Party any and all actual Losses within ten (10) days after
written notice from the Indemnified Party itemizing the amounts thereof incurred
to the date of such notice. In addition to any other remedy available for the
failure of the Indemnifying Party to periodically pay such Losses, such Losses,
if not paid within said ten (10) day period, shall bear interest at a rate equal
to the Implicit Rate plus two percent (2%), calculated for the period from and
including the date that is ten (10) days after the delivery of the notice of
such Losses to and excluding the date such Losses (including interest thereon
and interest on any unpaid interest) are paid in full.
(b) If any action shall be brought against an Indemnified Party based
upon any of the matters for which such party is indemnified hereunder, such
Indemnified Party shall notify the Indemnifying Party in writing thereof and the
Indemnifying Party shall promptly assume the defense thereof, including, without
limitation, the employment of counsel acceptable to the Indemnified Party and
the negotiation of any settlement; provided, however, that any failure of the
Indemnified Party to notify the Indemnifying Party of such matter shall not
impair or reduce the obligations of the Indemnifying Party hereunder. The
Indemnified Party shall have the right, at the expense of the Indemnifying Party
(which expense shall be included in Losses), to employ separate counsel in any
such action and to participate in the defense thereof. In the event the
Indemnifying Party shall fail to discharge or undertake to defend the
Indemnified Party against any claim, loss, or liability for which the
Indemnified Party is indemnified hereunder, the Indemnified Party may, at its
sole option and election, defend or settle such claim, loss, or liability. The
liability of the Indemnifying Party to the Indemnified Party hereunder shall be
conclusively established by such settlement, provided such settlement is made in
good faith, and the amount of such liability shall include both the settlement
consideration and the costs and expenses, including, without limitation,
attorneys' fees and disbursements, incurred by the Indemnified Party in
effecting such settlement. In such event, such settlement consideration, costs,
and expenses shall be included in Losses and the Indemnifying Party shall pay
the same as herein provided. The Indemnified Party's good faith in any such
settlement shall be conclusively established if the settlement is made on the
advice of independent legal counsel for the Indemnified Party.
(c) The Indemnifying Party shall not, without the prior written consent
of the Indemnified Party (i) settle or compromise any action, suit, proceeding,
or claim or consent to the entry of any judgment that does not include as an
unconditional term thereof the delivery by the claimant or plaintiff to the
Indemnified Party of a full and complete written release of the Indemnified
Party (in form, scope, and substance satisfactory to the Indemnified Party in
its sole discretion) from all liability in respect of such action, suit,
proceeding, or claim and a dismissal with prejudice of such action, suit,
proceeding, or
12
claim, or (ii) settle or compromise any action, suit, proceeding, or claim in
any manner that may adversely affect the Indemnified Party or obligate the
Indemnified Party to pay any sum or perform any obligation as determined by the
Indemnified Party in its sole discretion, it being understood that under no
circumstances shall the Indemnified Party be required or requested to
acknowledge or accept any culpability whatsoever in connection with any such
settlement or compromise.
Section 9.4 Reinstatement of Obligations. If at any time, all or any
part of any payment made by the Indemnifying Party or received by the
Indemnified Party from the Indemnifying Party under or with respect to the
indemnities provided in this Article 9 is or must be rescinded or returned for
any reason whatsoever (including, but not limited to, the insolvency,
bankruptcy, or reorganization of the Indemnifying Party), then the obligations
of the Indemnifying Party hereunder shall, to the extent of the payment
rescinded or returned, be deemed to have continued in existence, notwithstanding
such previous payment made by the Indemnifying Party, or receipt of payment by
the Indemnified Party, and the obligations of the Indemnifying Party hereunder
shall continue to be effective or be reinstated, as the case may be, as to such
payment, all as though such previous payment by the Indemnifying Party had never
been made.
Section 9.5 Waivers by the Indemnifying Party. To the extent permitted
by law, the Indemnifying Party hereby waives and agrees not to assert or take
advantage of:
(a) any right to require the Indemnified Party to proceed against any
other Person or to proceed against or exhaust any security held by the
Indemnified Party at any time or to pursue any other remedy in the Indemnified
Party's power or under any other agreement before proceeding against the
Indemnifying Party hereunder; provided, however, that the Indemnified Party may
in its sole discretion elect to proceed against such security, if any, without
limiting in any manner (other than by payment of all Losses in full) its rights
and remedies hereunder;
(b) any defense that may arise by reason of the incapacity, lack of
authority, death, or disability of any other Person or Persons or the failure of
the Indemnified Party to file or enforce a claim against the estate (in
administration, bankruptcy, or any other proceeding) of any other Person or
Persons;
(c) any defense based upon an election of remedies by the Indemnified
Party;
(d) any right or claim or right to cause a marshaling of the assets of
the Purchaser;
(e) any principle or provision of law, statutory or otherwise, that is
or might be in conflict with the terms and provisions of the indemnities
provided in this Article 9;
(f) any duty on the part of Seller to disclose to Indemnitor any facts
Seller may now or hereafter know about the Project or the Site, regardless of
whether Seller has reason
13
to believe that any such facts materially increase the risk beyond that which
Indemnitor intends to assume or has reason to believe that such facts are
unknown to Indemnitor or has a reasonable opportunity to communicate such facts
to Indemnitor, it being understood and agreed that Indemnitor is fully
responsible for being and keeping informed of the condition of the Project
and/or the Site and of any and all circumstances bearing on the risk that
liability may be incurred by Indemnitor hereunder;
(g) any invalidity, irregularity, or unenforceability, in whole or in
part, of this Agreement;
(h) an assertion or claim that the automatic stay provided by 11 U.S.C.
Section 362 (arising upon the voluntary or involuntary bankruptcy proceeding of
the Indemnifying Party) or any other stay provided under any other debtor relief
law (whether statutory, common law, case law, or otherwise) of any jurisdiction
whatsoever, now or hereafter in effect, that may be or become applicable, shall
operate or be interpreted to stay, interdict, condition, reduce, or inhibit the
ability of the Indemnified Party to enforce any of its rights, whether now or
hereafter required, that the Indemnified Party may have against the Indemnifying
Party; and
(i) any modification of this Agreement by operation of law or by action
of any court, whether pursuant to the Bankruptcy Reform Act of 1978, as amended,
or any other debtor relief law (whether statutory, common law, case law, or
otherwise) of any jurisdiction whatsoever, now or hereafter in effect, or
otherwise.
Section 9.6 Full Recourse. All of the terms and provisions of this
Article 9 are full obligations of the Indemnifying Party and not restricted by
any limitation on personal liability.
Section 9.7 Survival. The indemnities provided in this Article 9 shall
be deemed to be continuing in nature and shall remain in full force and effect
and shall survive the exercise of any remedy by the Indemnified Party under this
Agreement.
Section 9.8 No Recourse Against the Indemnified Party. The Indemnifying
Party shall not have any right of recourse against the Indemnified Party by
reason of any action the Indemnified Party may take or omit to take under the
provisions of this Agreement.
Section 9.9 Reservation of Rights. Nothing contained in this Agreement
shall prevent or in any way diminish or interfere with any rights or remedies,
including, without limitation, the right to contribution, that the Indemnified
Party may have against the Indemnifying Party or Purchaser under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
(codified at Title 42 U.S.C. Section 9601 et seq.), as it may be amended from
time to time, or any other applicable federal, state, or local laws, all such
rights being hereby expressly reserved.
14
Section 9.10 Rights Cumulative; Payments. The Indemnified Party's
rights under this Article 9 shall be in addition to all other rights of the
Indemnified Party under this Agreement.
Section 9.11 No Limitation on Liability. The Indemnifying Party hereby
consents and agrees that the Indemnified Party may at any time and from time to
time without further consent from the Indemnifying Party do any of the following
events, and the liability of the Indemnifying Party under this Article 9 shall
be unconditional and absolute and shall in no way be impaired or limited by any
of the following events, whether occurring with or without notice to the
Indemnifying Party or with or without consideration: (a) any extensions of time
for performance required by this Agreement; (b) any sale or transfer of any
asset, or any portion of any asset, of Purchaser; (c) any change in the
composition of Purchaser, including, without limitation, the withdrawal or
removal of Indemnitor from any current or future position of ownership,
management, or control of Purchaser; (d) the accuracy or inaccuracy of the
representations and warranties made by the Indemnifying Party herein; (e) the
release of the Indemnifying Party or of any other Person or entity from
performance or observance of any of the agreements, covenants, terms, or
conditions contained in this Agreement by operation of law, the Indemnified
Party's voluntary act, or otherwise; (f) the modification of the terms of this
Agreement; or (g) the taking or failure to take any action of any type
whatsoever. No such action that the Indemnified Party shall take or fail to take
in connection with this Agreement, nor any course of dealing with the
Indemnifying Party or any other Person, shall limit, impair, or release the
Indemnifying Party's obligations hereunder, affect the provisions of this
Article 9 in any way, or afford the Indemnifying Party any recourse against the
Indemnified Party. Nothing contained in this Section 9.11 shall be construed to
require the Indemnified Party to take or refrain from taking any action referred
to herein.
Section 9.12 SPECIFIC NOTICE. IT IS EXPRESSLY AGREED AND UNDERSTOOD
THAT THIS ARTICLE 9 INCLUDES INDEMNIFICATION PROVISIONS THAT, IN CERTAIN
CIRCUMSTANCES, COULD INCLUDE AN INDEMNIFICATION BY THE INDEMNIFYING PARTY OF THE
INDEMNIFIED PARTY FROM CLAIMS OR LOSSES ARISING AS A RESULT OF THE INDEMNIFIED
PARTY'S OWN NEGLIGENCE, BUT NOT THE INDEMNIFIED PARTY'S WILLFUL MISCONDUCT. NO
PARTY TO THIS AGREEMENT SHALL BE LIABLE TO ANY OTHER PARTY FOR ANY PUNITIVE
DAMAGES.
ARTICLE 10
REPURCHASE OPTION
Section 10.1 Repurchase Option.
(a) Purchaser hereby grants to Seller the option (the "Repurchase
Option") to repurchase the Purchased Interests from Purchaser at any time from
the date hereof to and including January 5, 2002 (the "Repurchase Option Term").
The purchase price payable by Seller to Purchaser upon exercise of the
Repurchase Option (the "Repurchase Price") shall
15
be the sum of (i) the Purchase Price, (ii) all amounts paid by Purchaser
pursuant to Sections 3.3, 6.1, 7.2 and 11.3 of this Agreement, (iii) all amounts
paid by Indemnitor pursuant to Section 7.3 and Article 9 of this Agreement, and
(iv) all costs and expenses (including reasonable attorneys' fees) of Purchaser
incurred in connection with the initial purchase of the Purchased Interests by
the Purchaser and the subsequent repurchase of the Purchased Interests by
Seller, plus interest on such amounts from the date of this Agreement until the
date paid, at a rate equal to the Prime Rate as in effect from time to time plus
two percent (2%).
(b) Seller may exercise the Repurchase Option by written notice of its
election to do so delivered to Purchaser at least three (3) days prior to the
designated date of purchase (the "Repurchase Date"). Such written notice shall
state (i) the Repurchase Price and (ii) the Repurchase Date. The closing of the
exercise of the Repurchase Option shall occur on the Repurchase Date. At such
closing, Seller shall pay to Purchaser the Repurchase Price by wire transfer of
funds satisfactory to Purchaser and Purchaser shall sell, transfer, assign and
convey to Seller or its designee all of Purchaser's right, title and interest in
and to the Purchased Interests, free and clear of all Liens.
(c) Unless Seller has elected to exercise the Repurchase Option and the
closing of the exercise of the Repurchase Option has occurred during the
Repurchase Option Term in accordance with Sections 10.1(a) and 10.1(b) above,
the Repurchase Option and the Seller's right to repurchase the Purchased
Interests shall expire and be of no further force and effect on January 5, 2002.
(d) During the Repurchase Option Term, Purchaser shall not transfer,
assign, sell or otherwise convey or encumber the Purchased Interests to any
Person other than Seller or its designee; provided, however, that this Section
10.1(d) shall not restrict or prohibit Purchaser in any way from conducting its
normal course of business following the initial purchase of the Purchased
Interests, which Seller expressly acknowledges may include without limitation
the amendment or modification of Purchaser's formative and operating documents,
the refinancing or repayment of any of Purchaser's Obligations, the addition or
removal of partners in Purchaser, the assignment, modification or amendment of
any Project Contract or any other action or failure to act of Purchaser;
provided, further, that Seller expressly acknowledges and agrees that, following
any repurchase of the Purchased Interests, it will not have any right or ability
to unwind or reverse any action taken by Purchaser during the Repurchase Option
Term other than in accordance with Purchaser's then-effective formative and
operating documents.
ARTICLE 11
MISCELLANEOUS
Section 11.1 Notices. Unless this Agreement specifically requires
otherwise, any notice, demand, or request provided for in this Agreement, or
served, given, or made in connection with it, shall be in writing and shall be
deemed properly served, given or made if delivered in Person or sent by fax or
sent by registered or certified mail, postage prepaid, or
16
by a nationally recognized overnight courier service that provides a receipt of
delivery, in each case, to the parties at the addresses specified below:
If to Seller, to:
General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Manager Portfolio Operations
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser, to:
Camden ▇▇▇▇▇ ▇.▇.
c/o Cogen Technologies Camden GP Limited Partnership
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Executive Vice President and Chief Financial Officer
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
If to Indemnitor, to:
El Paso Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Notice given by personal delivery, mail, or overnight courier pursuant to this
Section 11.1 shall be effective upon physical receipt thereof. Notice given by
fax pursuant to this Section 11.1 shall be effective as of (a) the date of
confirmed delivery if delivered before 5:00 p.m. (New York City time) on any
Business Day or (b) the next succeeding Business Day if confirmed delivery is
after 5:00 p.m. (New York City time) on any Business Day or during any
non-Business Day.
Section 11.2 Entire Agreement. This Agreement supersedes all prior
discussions and agreements among the parties hereto with respect to the subject
matter hereof and contains the sole and entire agreement among the parties
hereto with respect to the subject matter hereof.
Section 11.3 Expenses. Except as otherwise expressly provided in this
Agreement, on the Closing Date, Purchaser hereby agrees to pay its own costs and
expenses and Seller's reasonable costs and expenses (including without
limitation reasonable legal expenses of outside legal counsel not exceeding
$75,000) incurred in connection with the negotiation, execution, and closing of
this Agreement and the transactions contemplated hereby.
17
Section 11.4 Confidentiality. Each party hereto will hold, and will
cause its Affiliates, and their respective representatives to hold, in strict
confidence from any Person (other than any such Affiliate or representative),
unless (a) compelled to disclose by judicial or administrative process or by
other requirements of Law or (b) disclosed in an action or proceeding brought by
a party hereto in pursuit of its rights or in the exercise of its remedies
hereunder, all documents and information concerning the other parties hereto or
any of their Affiliates furnished to it by the other parties hereto or such
other parties' representatives in connection with the Partnership Agreement,
this Agreement, or the transactions contemplated hereby, except to the extent
that such documents or information can be shown to have been (x) previously
known by the party receiving such documents or information, (y) in the public
domain (either prior to or after the furnishing of such documents or information
hereunder) through no fault of such receiving party, or (z) later acquired by
the receiving party from another source if the receiving party is not aware that
such source is under an obligation to another party hereto to keep such
documents and information confidential.
Section 11.5 Waiver. Any term or condition of this Agreement may be
waived at any time by the party that is entitled to the benefit thereof, but no
such waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the party waiving such term or condition. No waiver
by any party of any term or condition of this Agreement, in any one or more
instances, shall be deemed to be or construed as a waiver of the same or any
other term or condition of this Agreement on any future occasion. All remedies,
either under this Agreement or by Law or otherwise afforded, will be cumulative
and not alternative.
Section 11.6 Amendment. This Agreement may be amended, supplemented, or
modified only by a written instrument duly executed by or on behalf of each
party hereto.
Section 11.7 No Third-Party Beneficiary. The terms and provisions of
this Agreement are intended solely for the benefit of each party hereto and
their respective successors or permitted assigns, and it is not the intention of
the parties hereto to confer third-party beneficiary rights upon any other
Person except for such shareholders, officers, directors, employees, and
Affiliates referenced in Article 9.
Section 11.8 No Assignment; Binding Effect. Neither this Agreement nor
any right, interest, or obligation hereunder may be assigned by any party hereto
without the prior written consent of the other party hereto and any attempt to
do so will be void, except for assignments and transfers by operation of Law.
Subject to the preceding sentence, this Agreement is binding upon, inures to the
benefit of, and is enforceable by the parties hereto and their respective
successors and assigns.
Section 11.9 Headings. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
18
Section 11.10 Invalid Provisions. If any provision of this Agreement is
held to be illegal, invalid, or unenforceable under any present or future Law,
and if the rights or obligations of any party hereto under this Agreement will
not be materially and adversely affected thereby, (a) such provision will be
fully severable, (b) this Agreement will be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised a part hereof,
(c) the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid, or unenforceable
provision or by its severance herefrom, and (d) in lieu of such illegal,
invalid, or unenforceable provision, there will be added automatically as a part
of this Agreement a legal, valid, and enforceable provision as similar in terms
to such illegal, invalid, or unenforceable provision as may be possible.
Section 11.11 Governing Law. This Agreement shall be governed by and
construed in accordance with the Laws of the State of New York, including
Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New
York.
Section 11.12 Counterparts. This Agreement may be executed in any
number of counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
Section 11.13 Further Assurances. Each of Seller, Purchaser, and
Indemnitor agrees, upon the request of any other party hereto from time to time,
to do, execute, acknowledge, and deliver such other acts, consents, instruments,
documents, and other assurances as may be reasonably necessary to carry out and
perform the transactions contemplated by this Agreement.
Section 11.14 Submissions to Jurisdiction. Purchaser, Indemnitor and
Seller hereby irrevocably and unconditionally (to the maximum extent not
prohibited by law):
(a) submit themselves and their property in any legal action or
proceeding relating to this Agreement, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction of the
State of New York located in New York County, the Courts of the United States of
America for the Southern District of New York, and appellate courts from any
thereof;
(b) consent that any such action or proceeding may be brought in such
courts and waive any objection that any of them may now or hereafter have to the
venue of any such action or proceeding in any such court that such action or
proceeding was brought in any inconvenient court and agree not to plead or claim
the same;
(c) agree that service of process in such action or proceeding may be
effected by delivery of a copy thereof in accordance with Section 11.1; and
(d) agree that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to ▇▇▇
in any other jurisdiction.
19
Section 11.15 Waiver of Trial by Jury. To the maximum extent permitted
by law, each of Purchaser, Indemnitor and Seller hereby irrevocably and
unconditionally waives trial by jury in any legal action or proceeding relating
to this Agreement and for any counterclaim therein.
[The remainder of this page was left blank intentionally.]
20
IN WITNESS WHEREOF, this Purchase and Sale Agreement has been duly
executed and delivered by the duly authorized officer of each party on the date
first above written.
GENERAL ELECTRIC CAPITAL CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Manager Operations
CAMDEN ▇▇▇▇▇ ▇.▇.
By COGEN TECHNOLOGIES CAMDEN GP LIMITED
PARTNERSHIP, its General Partner
By JEDI CAMDEN GP, L.L.C.,
its General Partner
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President and
Chief Financial Officer
EL PASO CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Schedule I
Seller's Account Information
Bankers Trust Company
New York, New York
ABA Number ▇▇▇-▇▇▇-▇▇▇
GECC/T&I Depository Account
Account Number ▇▇-▇▇▇-▇▇▇
Re: Camden Cogeneration
Attn: ▇.▇. ▇▇▇▇▇▇▇▇