EXHIBIT 10.49
COGEN PLEDGE AND SECURITY AGREEMENT
PLEDGE and SECURITY AGREEMENT, dated as of the Conformed Agreement
Date, made by COGEN TECHNOLOGIES CAMDEN, INC., a Texas corporation (the
"Pledgor" or "Cogen), the sole general partner of Cogen Technologies Camden GP
Limited Partnership (the "General Partner"), a Delaware limited partnership and
the sole general partner of Camden Cogen L.P. (the "Limited Partnership"), a
Delaware limited partnership, in favor of General Electric Capital Corporation
("GE Capital"), 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 and Term Loan Agreement, dated
as of the Conformed Agreement Date, among the Limited Partnership, the Lenders
from time to time party thereto (the "LP Lenders") and GE Capital, 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 GE Capital 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 the
Conformed Agreement Date, between the General Partner and General Electric
Capital 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 GE Capital to issue Letters of Credit for
the account of, the Limited Partnership under the Limited Partnership Loan
Agreement
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and (ii) the obligation of the GP Lender to make the GP Loans to the General
Partner under the General Partner Loan Agreement that the Pledgor shall have
executed and delivered this Pledge and Security Agreement; and
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 Pledgor hereby agrees with the Collateral Agent as follows:
1. Defined Terms. (a) All capitalized terms used herein which are
defined in the Limited Partnership Loan Agreement 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 Pledge and Security Agreement, as the same
may from time to time be amended, supplemented or otherwise modified.
"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.
"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, the Letters of Credit, this Agreement or the other
Collateral Security Documents, 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 General Partner to
the GP Lender, whether direct or indirect, absolute or
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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.
"Partnership Agreement": shall mean the collective reference to (a) the
certificate of limited Partnership of the General Partner, dated July 26, 1991,
filed by Cogen with the Secretary of State of Delaware on August 12, 1991, and
(b) the Agreement of Limited Partnership of the General Partner, dated as of
July 26, 1991 between Cogen, as general partner, and the Limited Partner (as
defined in the General Partner Loan Agreement), as limited partner (as amended
by the Amendment thereto dated as of December 1, 1991), in each case as amended,
supplemented or otherwise modified from time to time.
"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.
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, coveys 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"):
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(i) all right, title and Interest of the Pledgor in the General Partner;
(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 General Partner;
(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 General Partner;
(iv) any other property of the General Partner to which the Pledgor now or
in the future may be entitled in its capacity as a partner of the General
Partner 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 General Partner against the General Partner
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 General Partner, and shall cause the General Partner to, and the
General Partner shall, deliver to the Collateral Agent the Initial Transaction
Statement in the form of Exhibit B hereto confirming that the General Partner
has registered the pledge effected by this Agreement on its books.
4. Limitations on Distributions. Except as provided in subsection 7.3
of the General Partner Loan Agreement, 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 and be continuing, any distributions of cash or
other property payable in respect of the Collateral shall be paid to the
Pledgor. 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 Pledgor (i) is a corporation duly organized, validly existing and
in good standing under the laws of the State of Texas, (ii) has all the full
power and authority and the legal right to own its properties, to conduct its
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business as now conducted and as proposed to be conducted by it, to execute,
deliver and perform this Agreement 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 Jersey and Texas, the only jurisdictions in which the conduct of
its business or the ownership or lease of its assets require such qualification.
The Pledgor is the sole general partner of the General Partner, and its
Partnership Interest in the General Partner is 81.945%. Complete and correct
copies of the Partnership Agreement and of all contracts and agreements between
the Pledgor and the General Partner 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 General Partner nor the Pledgor 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
Pledgor, and this Agreement constitutes a legal, valid and binding obligation of
the Pledgor, enforceable against the Pledgor 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 conflict with or constitute a default under
any term of the Certificate of Incorporation or the By-Laws of the Pledgor, or
the Partnership Agreement, or of any other Requirement of Law or Contractual
obligation applicable to the Pledgor 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 (as defined in the General Partner Loan
Agreement) 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.
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(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 General Partner, except
such as constitute Permitted Liens or may have been or will be filed or
registered (i) 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 or (ii) by the Pledgor in favor of GE Power
Funding pursuant to the Term Loan Agreement, dated as of February 15, 1990,
between Cogen Technologies Linden, Ltd. and GE Power Funding.
(g) This Agreement constitutes a valid and continuing first lien (other
than as to the Permitted Liens) on and perfected security interest in the
Pledgor's 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
General Partner in accordance with the provisions of the Uniform Commercial Code
in effect in the jurisdiction in which the General Partner is organized in each
item of the Collateral (other than those items of Collateral which, individually
or in the aggregate, are not material) has been duly taken.
(h) The Pledgor'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 Pledgor 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:
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(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 mark 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 Pledgor 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 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.
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(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 General
Partner to issue any other Partnership interests in the General Partner or grant
any right to purchase or otherwise acquire any existing or other partnership
interests in the General Partner, (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, 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 Pledgor 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 the
Secured Parties at least 30 days' prior written notice thereof.
(g) Compliance with Laws. etc. The Pledgor 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 General Partner 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 General Partner. The Pledgor shall have the right,
however, to contest in good faith the validity or amount of any such
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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: (a) the Pledgor diligently
prosecutes such contest, (b) during the period of such contest the enforcement
of any contested item is effectively stayed; provided, however, that this
clause (b) 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 (c) 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:
(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
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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
any time and from time to time, to execute, in connection with the sale provided
for in Section 9 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 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
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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 them 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 under 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 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 General Partner as fully and
completely as though the Collateral Agent were the absolute owner of the
Pledgor's partnership interest in the General Partner, (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
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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.
(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 Partnership Agreement which purports to limit the
transferability of partnership interests without the consent of any partners.
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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 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 General Partner 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.
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
14
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.
(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.
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
acquiesced 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.
15
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 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
General Partner 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 General Partner.
20. 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
16
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
misrepresentation made by such Person herein or in any certificate or document
delivered pursuant hereto.
21. Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
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 CAMDEN, INC.
[Signature appears here]
BY: _____________________________
Title: Vice President
1600 Smith Street
Suite 5000
Houston, Texas 77002
Attention: Robert C. McNair
SCHEDULE I
FINANCING STATEMENT FILINGS
---------------------------
Jurisdiction Document
Debtor Where Filed Filed
- ------ ------------ --------
General Partner Secretary of State UCC-1 Financing
of Delaware Statement
General Partner Secretary of State UCC-1 Financing
of New Jersey Statement
General Partner County Clerk, UCC-1 Financing
Camden County, Statement
New Jersey
General Partner Secretary of State UCC-1 Financing
of New York Statement
General Partner City Registrar, New UCC-1 Financing
York County Statement
General Partner County Clerk, UCC-1 Financing
Schenectady County, Statement
New York
General Partner Secretary of State UCC-1 Financing
of South Carolina Statement
General Partner County Clerk, UCC-1 Financing
Greenville County, Statement
South Carolina
General Partner Secretary of State UCC-1 Financing
of Texas Statement
EXHIBIT A
[Form of Instruction to Register Pledge]
________ __, 19 ___
TO: Cogen Technologies Camden GP Limited Partnership
You are hereby instructed to register the pledge of the following
uncertificated security as follows:
The entire partnership interest of the undersigned in Cogen
Technologies Camden GP Limited Partnership (the "General Partner"), including
without limitation 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:
(i) all right, title and interest of the Pledgor in the General
Partner;
(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 General Partner;
(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 General
Partner;
(iv) any other property of the General Partner to which the Pledgor
now or in the future may be entitled in its capacity as a partner of the
General Partner by way of distribution, return of capital or otherwise;
2
(v) any other claim which the Pledgor now has or may in the future
acquire in its capacity as a partner of the General Partner against the General
Partner and its property; and
(vi) to the extent not otherwise included, all Proceeds of any or all of
the foregoing.
Pledgor Pledgee
------- -------
Cogen Technologies General Electric Capital
Camden, Inc. Corporation, as Collateral
1600 Smith Street Agent
Suite 5000 1600 Summer Street
Houston, Texas 77002 Sixth Floor
Stamford, CT 06927
Very truly yours,
Cogen Technologies Camden, Inc.
By: _________________________________
Title:
EXHIBIT B
[Form of Initial Transaction Statement]
__________ ___, 199_
To: General Electric Capital
Corporation, as Collateral Agent
1600 Summer Street
Sixth Floor
Stamford, CT 06927
Attn: Project Financing Investments-
Transportation and Industrial
Financing Division
This statement is to advise you that a pledge of the following
uncertificated security has been registered in the name of General Electric
Capital Corporation, as Collateral Agent, as follows:
1. Uncertificated Security:
The entire partnership interest of Cogen Technologies Camden, Inc. in
the undersigned partnership (the "General Partner"), including without
limitation 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:
(i) all right, title and interest of the Pledgor in the General
Partner;
(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 General Partner;
(iii) any and all moneys due or to become due to the Pledgor now or
in the future by virtue of the
2
Pledgor's interest as a partner in the General Partner;
(iv) any other property of the General Partner to which the Pledgor now
or in the future may be entitled in its capacity as a partner of the General
Partner 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 General Partner against the General
Partner and its property; and
(vi) to the extent not otherwise included, all Proceeds of any or all of
the foregoing.
2. Registered Owner:
Cogen Technologies Camden, Inc.
1600 Smith Street
Suite 5000
Houston, Texas 77002
Taxpayer Identification Number: 76-0322566
3. Registered Pledgee:
General Electric Capital Corporation, as Collateral Agent
Taxpayer Identification Number: 13-1500700
4. There are no liens (except for Permitted Liens) or restrictions of
the undersigned partnership and no adverse claims to which such uncertificated
security is or may be subject known to the undersigned partnership.
5. The pledge was registered on __________________ ____, 1992
3
THIS STATEMENT IS MERELY A RECORD OF THE RIGHTS OF THE ADDRESSEE AS OF
THE TIME OF ITS ISSUANCE. DELIVERY OF THIS STATEMENT, OF ITSELF, CONFERS NO
RIGHTS ON THE RECIPIENT. THIS STATEMENT IS NEITHER A NEGOTIABLE INSTRUMENT NOR A
SECURITY.
Very truly yours,
Cogen Technologies Camden GP Limited
Partnership
By: Cogen Technologies Camden, Inc.
its general partner
BY:
-------------------------------
Title:
AMENDMENT NO. 1
TO COGEN PLEDGE AND SECURITY AGREEMENT
AMENDMENT NO. 1 TO COGEN PLEDGE AND SECURITY AGREEMENT, dated as of
April 1, 1993 (this "Amendment") between COGEN TECHNOLOGIES CAMDEN, INC. (the
"Pledgor"), the sole general partner of Cogen Technologies Camden GP Limited
Partnership, the sole general partner of Camden Cogen L.P., and GENERAL ELECTRIC
CAPITAL CORPORATION ("GE Capital"), a New York corporation, as agent for the LP
Agent and the LP Lenders under the Limited Partnership Loan Agreement and for
the GP Lender under the General Partner Loan Agreement.
W I T N E S S E T H :
WHEREAS, the Pledgor and GE Capital are parties to that certain Cogen
Pledge and Security Agreement, dated as of February 4, 1992 (as amended,
modified or supplemented from time to time, the "Cogen Pledge and Security
Agreement");
WHEREAS, the Pledgor and the Agent wish to amend certain provisions of
the Cogen Pledge and Security Agreement;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Definitions. Unless otherwise defined herein, all terms used
herein which are defined in the Cogen Pledge and Security Agreement shall have
their respective meanings as therein defined.
2. Global Amendment to Cogen Pledge and Security Agreement. The Cogen
Pledge and Security Agreement is hereby amended by deleting the reference to
"Collateral Agency Agreement" in each place it appears and inserting, in lieu
thereof, the following term: "Intercreditor Agreement".
3. Amendment to Section 1 (Defined Terms). Section 1 of the Cogen
Pledge and Security Agreement is hereby amended by inserting in the definition
of "Obligations" after the words "Notes, the Letters of Credit", the words "the
Interest Hedging Agreement,".
4. Amendment to Section 5 (Representations and Warranties). Paragraph
(f) of Section 5 of the Cogen Pledge and Security Agreement is hereby amended by
(i) deleting the "(i)" therefrom, (ii) deleting the "or" at the end of clause
(i) thereof, (iii) deleting clause (ii) thereof in its entirety and (iv)
inserting a period at the end of clause (i).
2
5. Amendment to Section 13 (Release of Lien in Favor of the LP Agent
and the LP Lenders. Section 13 of the Assignment and Security Agreement is
hereby amended by (i) deleting, from Paragraph (a) thereof, the phrase "and the
Commitments under the Limited Partnership Loan Agreement have been terminated"
and (ii) deleting, from Paragraph (b) thereof, the phrase "and the Commitments
thereunder have been terminated"
6. Ratification and Confirmation; Governing Law; Counterparts. Except
as or to the extent expressly amended or waived hereby, the Cogen Pledge and
Security Agreement is hereby in all respects ratified and confirmed and remains
in full force and effect. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, and may be
executed in any number of counterparts, all of which counterparts, taken
together, shall constitute one and the same instrument.
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered as of the date first above written.
COGEN TECHNOLOGIES CAMDEN, INC.
By: /s/ LARRY THOMAS
----------------------------------------------
Name: Larry Thomas
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION, as Collateral Agent
By: /s/ M. J. TZOUGRAKIS
----------------------------------------------
Name: M. J. Tzougrakis
Title: Manager - Operations
AMENDMENT NO. 2
TO COGEN PLEDGE AND SECURITY AGREEMENT
AMENDMENT NO. 2 TO COGEN PLEDGE AND SECURITY AGREEMENT, dated as of
December 22, 1993 (this "Amendment") between COGEN TECHNOLOGIES CAMDEN, INC.
(the "Pledgor), the sole general partner of Cogen Technologies Camden GP Limited
Partnership, the sole general partner of Camden Cogen L.P., and THE TORONTO -
DOMINION BANK TRUST COMPANY ("TD"), a New York trust company, as agent for the
LP Agent and the LP Lenders under the Limited Partnership Loan Agreement and for
the GP Lender under the General Partner Loan Agreement.
W I T N E S S E T H:
WHEREAS, the Pledgor and General Electric Capital Corporation ("GE
Capital") are parties to that certain Cogen Pledge and Security Agreement, dated
as of February 4, 1992 and as amended by Amendment No. 1 to Cogen Pledge and
Security Agreement dated as of April 1, 1993 (as further amended, modified or
supplemented from time to time, the "Cogen Pledge and Security Agreement");
WHEREAS, pursuant to that certain Successor Agency Agreement, dated as
of the date hereof, among TD, GE Capital, The Bank of Tokyo Trust Company and
the Borrower, GE Capital transferred, granted and conveyed to TD all of its
right, title and interest in and to any and all of the Collateral (as defined in
the Limited Partnership Loan Agreement referred to below) and all of its other
rights, benefits and obligations under the Collateral Security Documents (as
defined in the Limited Partnership Loan Agreement referred to below);
WHEREAS, TD has become the Collateral Agent under the Cogen Pledge
and Security Agreement;
WHEREAS, the Pledgor and the Collateral Agent wish to amend certain
provisions of the Cogen Pledge and Security Agreement;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Definitions. Unless otherwise defined herein, all terms used
herein which are defined in the Cogen Pledge and Security Agreement shall have
their respective meanings as therein defined.
2
2. Amendment to Definition of "Secured Parties". The definition of
"Secured Parties" is hereby amended to be the LP Lenders, the Agents and the GP
Lender.
3. Amendment to Section 1 (Defined Terms). Section 1 of the Cogen
Pledge and Security Agreement is hereby amended by inserting in the definition
of "Obligations", (i) in lieu of the phrase "and all other obligations and
liabilities of the Limited Partnership to the LP Agent", the phrase "and all
other obligations and liabilities of the Limited Partnership to the Agents" and
(ii) in lieu of the words "LP Agent", the word "Agents".
4. Amendment to Section 13 (Release of Lien in Favor of the LP Agent
and the LP Lenders). Section 13 of the Cogen Pledge and Security Agreement is
hereby amended by (i) deleting, from the title thereto the phrase "LP Agent" and
inserting, in lieu thereof, the word "Agents", (ii) deleting the parenthetical
contained therein and (iii) deleting the phrase "L.P. Agent" and inserting, in
lieu thereof, the word "Agents".
5. Amendment to Section 9 (Remedies, Rights Upon the Occurrence of a
Default or an Event of Default). Section 9 of the Assignment and Security
Agreement is hereby amended by adding the following new paragraph (e) to the end
thereof:
"(e) As used in this Section 9, the term "Collateral Agent" shall mean
the Collateral Agent or its designees."
6. Ratification and Confirmation; Governing Law; Counterparts. Except
as or to the extent expressly amended or waived hereby, the Cogen Pledge and
Security Agreement is hereby in all respects ratified and confirmed and remains
in full force and effect. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, and may be executed in any
number of counterparts, all of which counterparts, taken together, shall
constitute one and the same instrument.
7. Agreement of The Toronto-Dominion Bank Trust Company. TD will not
amend the Cogen Pledge and Security Agreement without the consent of GE Capital
if such amendment would have a material adverse effect on the rights of the GP
Lender under the Cogen Pledge and Security Agreement.
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered as of the date first above written.
COGEN TECHNOLOGIES CAMDEN, INC.
By: [Signature appears here]
-------------------------------------------
Name:
Title:
THE TORONTO-DOMINION BANK TRUST COMPANY,
as Collateral Agent
By: [Signature appears here]
-------------------------------------------
Name
Title:
ACKNOWLEDGED:
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ MICHAEL J. TZOUGRAKIS
------------------------------
Name:
Title: