EXHIBIT 10.79
ASSIGNMENT AND SECURITY AGREEMENT
ASSIGNMENT and SECURITY AGREEMENT, dated as of February 4, 1992, made
by COGEN TECHNOLOGIES CAMDEN GP LIMITED PARTNERSHIP, a Delaware limited
partnership (the "Pledgor" or the "Camden General Partner"), the sole general
partner of Camden Cogen L.P. (the "Camden Limited Partnership"), a Delaware
limited partnership, in favor of General Electric Capital Corporation ("GE
Capital"), as collateral agent for the GP Lender (as defined below) under the
Linden GP 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 February 4, 1992, among Camden Limited Partnership, the lenders from time to
time party thereto (the "Camden Lenders") and GE Capital, as agent for the
Camden Lenders (in such capacity, the "Camden Agent") (as the same may be
amended, supplemented or otherwise modified from time to time, the "Camden
Limited Partnership Loan Agreement"), the Camden Lenders have agreed to make
loans to, and GE Capital has agreed to issue letters of credit for the account
of, the Camden Limited Partnership in connection with the development and
construction of a cogeneration facility in Camden, New Jersey (the "Camden
Project"); and
WHEREAS, pursuant to the Term Loan Agreement, dated as of February 15,
1990, between Cogen Technologies Linden, Ltd., a Texas limited partnership (the
"Borrower"), and General Electric Power Funding Corporation, a Delaware
corporation (the "GP Lender") (as the same may be amended, supplemented or
otherwise modified from time to time, the "Linden GP Loan Agreement"), the GP
Lender has made, and has agreed to make, certain loans (the "GP Loans") for the
account of the Borrower; and
WHEREAS, the Borrower has requested the GP Lender to make a GP Loan (the
"Requested GP Loan") pursuant to the Linden GP Loan Agreement, the proceeds of
which will be loaned (the "Affiliate Loan") by the Borrower to an affiliate of
the Pledgor; and
WHEREAS, the Pledgor and the Camden Limited Partnership will derive
substantial benefit from the making of the Affiliate Loan; and
WHEREAS, it is a condition precedent to the obligation of the GP Lender
to make the Requested GP Loan to the Borrower
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under the Linden GP Loan Agreement that the Pledgor shall have executed and
delivered this Pledge and Security Agreement;
NOW, THEREFORE, in consideration of the premises and to induce the GP
Lender to make the Requested GP Loan, the Pledgor hereby agrees with the
Collateral Agent as follows:
1. Defined Terms. (a) All capitalized terms used herein which are
defined in the Linden GP Loan Agreement shall have their respective meanings as
therein defined, unless such terms are defined herein. All terms defined herein
or in the Linden GP Loan Agreement in the singular shall have the same meanings
when used in the plural and vice versa.
(b) The following terms defined in Article 9 of the Uniform Commercial
Code as in effect in the State of New York are used herein as so defined:
Chattel Paper and Instrument; and the following terms shall have the following
meanings:
"Agreement" shall mean this Assignment and Security Agreement, as the
same may from time to time be amended, supplemented or otherwise modified.
"Amended and Restated Partnership Agreement" shall have the meaning set
forth in the Camden Capital Contribution Agreement.
"Camden Capital Contribution Agreement" shall mean the Capital
Contribution Agreement, dated as of February 4, 1992, among the Camden Limited
Partnership, the Camden General Partner and GE Capital, as amended, supplemented
or otherwise modified from time to time.
"Camden Collateral Security Documents" shall have the meaning assigned
to the term "Collateral Security Documents" in the Camden Limited Partnership
Loan Agreement.
"Camden General Partner Loan Agreement" shall mean the Term Loan
Agreement, dated as of February 4, 1992, between GE Capital and the Camden
General Partner, as amended, supplemented or otherwise modified from time to
time.
"Camden General Partner Partnership Agreement": the collective reference
to (a) the certificate of limited partnership of the Camden General Partner,
dated July 26, 1991, filed with the Secretary of State of the State of Delaware
on August 12, 1991, and (b) the Agreement of Limited Partnership of the Camden
General Partner, dated as of July 26, 1991 between the General Partner (as
defined in the Camden General Partner Loan Agreement), as general partner, and
the Limited Partner (as defined in the Camden General Partner Loan Agreement),
as limited partner (as amended by the Amendment thereto dated December 1, 1991),
in
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each case as amended, supplemented or otherwise modified from time to time.
"Camden Limited Partnership Partnership Agreement" shall mean the
collective reference to (a) the Amended and Restated Certificate of Limited
Partnership of the Camden Limited Partnership, dated July 26, 1991, filed by
the Camden General Partner with the Secretary of State of the State of Delaware
on July 21, 1991, and (b) the Agreement of Limited Partnership of the Camden
Limited Partnership, dated on or as of March 25, 1988, between PFC Camden One,
Inc., as general partner and PFC Camden Two, Inc. as limited partner (as amended
by amendments dated on or as of December 28, 1990, December 31, 1990, July 26,
1991 and December 1, 1991), in each case as amended, supplemented or otherwise
modified from time to time.
"Camden Secured Parties" shall mean the Camden Agent, the Camden Lenders
and GE Capital.
"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 all the unpaid principal amount of, and accrued
interest on, the Notes and all other obligations and liabilities of the Borrower
to the GP Lender, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out of
or in connection with the Linden GP Loan Agreement, the Notes, this Agreement or
the other Transaction Documents, 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.
"Permitted Liens" shall have the meaning set forth in the Camden General
Partner Loan Agreement, provided that (i) all references to the "Lender"
thereunder shall be deemed to be references to the "Lender" thereunder and to
the "GP Lender" hereunder and (ii) all references to the "Collateral" thereunder
shall be deemed to be references to the "Collateral" as defined in the Camden
General Partner Loan Agreement and the "Collateral" as defined herein.
"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,
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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.
"Security Deposit Agreement" shall have the meaning set forth in the
Camden Limited Partnership Loan Agreement.
2. Assignment and Grant of Security Interest. As collateral security for
the prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Loans and all other Obligations,
the Pledgor hereby sells, assigns, conveys, mortgages, pledges, hypothecates and
transfers to the Collateral Agent for the benefit of the GP Lender, and hereby
grants to the Collateral Agent for the benefit of the GP Lender a continuing
first (other than as to Permitted Liens) priority security interest in, to and
under all of the following property now owned or at any time hereafter acquired
by the Pledgor or in which the Pledgor now has or at any time in the future may
acquire any rights, title or interest (all of which being hereinafter
collectively called the "Collateral"):
(i) all right, title and interest of the Pledgor in the Camden
Limited Partnership;
(ii) any and all moneys due and to become due to the Pledgor now or
in the future by way of a distribution made to the Pledgor in its capacity as a
partner of the Camden Limited Partnership;
(iii) any and all moneys due or to become due to the Pledgor now or
in the future by virtue of the Pledgor's interest as a partner in the Camden
Limited Partnership;
(iv) any other property of the Camden Limited Partnership to which
the Pledgor now or in the future may be entitled in its capacity as a partner of
the Camden Limited Partnership by way of distribution, return of capital or
otherwise;
(v) any other claim which the Pledgor now has or may in the future
acquire in its capacity as a partner of the Camden Limited Partnership against
the Camden Limited Partnership and its property; and
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(vi) to the extent not otherwise included, all Proceeds of any or all of
the foregoing.
3. Notification of Pledge. Pursuant to Section 8-313(1)(h)(iv) of the
Uniform Commercial Code as in effect in the State of Delaware (the
"Notification Section"), this Agreement shall constitute written notification by
the Pledgor to GE Capital, the registered pledgee of the Collateral under
Section 8-313(1)(b) of the Uniform Commercial Code as in effect in the State of
Delaware (the "Registered Pledgee"), of the security interest granted hereby to
the Collateral Agent, for the benefit of the GP Lender. The signature of the
Registered Pledgee on the signature page hereof shall constitute
acknowledgement, pursuant to the Notification Section, by the Registered Pledgee
of the transfer, to the Pledgee, of the security interest purported to be
effected by this Agreement.
4. Limitations on Distributions. So long as this Agreement shall remain
in full force and effect and no Default or Event of Default under the Linden GP
Loan Agreement 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 in accordance with the Amended and Restated Partnership Agreement and
the Security Deposit Agreement. After the occurrence of a Default or Event of
Default (as defined in the Linden GP Loan Agreement) 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,
as provided in the Camden Collateral Agency Agreement.
5. Representations and Warranties. The Pledgor hereby represents and
warrants that:
(a) The Pledgor (i) is a limited partnership validly existing under
the laws of the State of Delaware, (ii) has all the requisite partnership power
and authority to own and operate its properties, to carry on its business as now
conducted and to pledge its interest in the Collateral pursuant to this
Agreement and (iii) is duly qualified to do business in the States of New 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 Camden Limited Partnership, and its partnership
interest is 66.667%. Complete and correct copies of the Camden Limited
Partnership Agreement and the Camden General Partner Partnership Agreement and
of all contracts and agreements between the Pledgor and the Camden Limited
Partnership have been delivered to the GP Lender.
(b) Except for those filings and registrations required to perfect
the Liens created by this Agreement,
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neither the Camden Limited Partnership 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 Camden Limited Partnership Agreement or the Camden General
Partner Partnership Agreement, or of any 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 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.
(e) Except for the security interest granted to the Collateral Agent
pursuant to this Agreement and the security interests granted to the Collateral
Agent pursuant to the Camden Collateral Security Documents, 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.
(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 Camden
Limited Partnership, except such as constitute Permitted Liens or as 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 Camden Secured
Parties created pursuant to the Camden Collateral Security Documents
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or (ii) by the General Partner (as defined in the Camden General Partner Loan
Agreement) in favor of the lender party to the Camden General Partner Loan
Agreement pursuant to the Collateral Security Documents (as defined in the
Camden General Partner Loan Agreement).
(g) This Agreement constitutes a valid and continuing first lien
(subject 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
Camden Limited Partnership in accordance with the provisions of the Uniform
Commercial Code in effect in the jurisdiction in which the Camden Limited
Partnership 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 GP Lender that from and after the date of this Agreement and until the
Obligations are fully satisfied:
(a) Further Documentation; Pledge of Instruments. At any time and
from time to time, upon the written request of the Collateral Agent and at the
sole expense of the Pledgor, the Pledgor will promptly and duly execute and
deliver any and all such further instruments and documents and take such further
action as the Collateral Agent may reasonably request for the purpose of
obtaining or preserving the full benefits of this Agreement and of the rights
and powers herein granted, including, without limitation, the filing of any
financing or continuation statements under the Uniform Commercial Code in effect
in any jurisdiction with respect to the Lien granted hereby. The Pledgor also
hereby authorizes the Collateral Agent to file any such financing or
continuation statement without the signature of the Pledgor to the extent
permitted by applicable law. The
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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 endorsed 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 GP Lender, the
Pledgor agrees that the Collateral Agent, for the benefit of the GP Lender,
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 the Linden GP Loan Agreement or the
Collateral Security Documents, deliver and turn over any books and records to
the Collateral Agent or to its representatives at any time on demand of the
Collateral Agent. The Collateral Agent in turn agrees to provide the Pledgor
with reasonable access to such records during normal business hours and also
with such copies of such records (made at the Pledgor's expense) as the Pledgor
may reasonably request, such access and such copies to be available subject to
the Collateral Agent's prior right to use such records to enforce its rights in
or to realize upon the Collateral.
(c) Limitation on Rights and Liens with Respect to Collateral. The
Pledgor will not (i) vote to enable, or take any other action to permit, the
Camden Limited Partnership to issue any other partnership interests in the
Camden Limited Partnership (other than the interest of the Limited Partner (as
defined in the Camden Limited Partnership Loan Agreement)) or grant any right to
purchase or otherwise acquire any existing or other partnership interests in the
Camden Limited Partnership, except as contemplated by the Camden Capital
Contribution Agreement and the Amended and Restated Partnership Agreement, (ii)
sell, assign, transfer or exchange, or otherwise dispose of, or grant any option
with respect to, or mortgage, pledge or hypothecate its interest in, the
Collateral, or attempt, offer or contract to do so, except as provided herein
and as contemplated by the Camden Capital Contribution Agreement
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and the Amended and Restated partnership Agreement, or (iii) create, incur,
permit or suffer to exist, and will defend the Collateral against and will take
such other action as is necessary to remove, any Lien or claim on or to the
Collateral, other than Permitted Liens, and will defend the right, title and
interest of the Collateral Agent in and to any of the Pledgor's rights to the
Collateral and in and to the Proceeds thereof against the claims and demands of
all Persons whomsoever.
(d) Regulatory Filings. If and to the extent required, the Pledgor will
file this Agreement, and any other agreements or instruments which are required
to be filed with any regulatory body in accordance with the rules and
regulations of such regulatory body.
(e) Notices. The Pledgor will advise the Collateral Agent and the GP
Lender 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 GP
Lender 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 Camden Limited
Partnership or on its income or profits or on any of its property prior to the
date on which penalties attach thereto, and all lawful claims which, if unpaid,
might become a Lien upon the property of the Camden Limited Partnership. The
Pledgor shall have the right, however, to contest in good faith the validity or
amount of any such tax, assessment, charge, levy or claim by proper proceedings
timely instituted, and may permit the taxes, assessments, charges, levies or
claims so contested to remain unpaid during the period of such contest if: (i)
the Pledgor diligently prosecutes such contest, (ii) during the period of such
contest the enforcement of any contested item is effectively stayed; provided,
however, that this clause (ii) shall apply to contested income taxes of a
Partner (as defined in the Camden Limited Partnership
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Loan Agreement) only if the failure to pay such tax may then become a Lien on
the Collateral and (iii) in the reasonable opinion of the Collateral Agent, such
contest does not involve any substantial danger of the sale, forfeiture or loss
of any part of the Collateral, title thereto or any interest therein. The
Pledgor will promptly pay or cause to be paid any valid, final judgment
enforcing any such tax, assessment, charge, levy or claim and cause the same to
be satisfied of record.
7. Collateral Agent's Appointment as Attorney-in-Fact. (a) Powers. The
Pledgor hereby irrevocably constitutes and appoints the Collateral Agent and any
officer or agent thereof, with full power of substitution, as its true and
lawful attorney-in-fact with full irrevocable power and authority in the place
and stead of the Pledgor and in the name of the Pledgor or in its own name, from
time to time in the Collateral Agent's discretion, for the purpose of carrying
out the terms of this Agreement, to take any and all appropriate action and to
execute any and all documents and instruments which may be necessary or
desirable to accomplish the purposes of this Agreement, and, without limiting
the generality of the foregoing, the Pledgor hereby gives the Collateral Agent
the power and right, on behalf of the Pledgor, without notice to or assent by
the Pledgor to do the following:
(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,
andy and all moneys, claims and other amounts due or to become due at any time
in respect of or arising out of any Collateral; (C) in the name of the Pledgor
or its own name or otherwise, to take possession of and endorse and collect any
checks, drafts, notes, acceptances or other instruments for the payment of
moneys due with respect to the Collateral; (D) to file any claim or to commence
and prosecute any suits, actions or proceedings in any court of law or equity or
otherwise as deemed appropriate by the Collateral Agent to collect the
Collateral or any part thereof and to enforce any other right in respect of any
Collateral; (E) to defend any suit, action or proceeding brought against the
Pledgor with respect to any Collateral; (F) to settle, compromise or adjust any
suit, action or proceeding described in clause (D) or (E) above and, in
connection therewith, to give such discharges or releases as the Collateral
Agent may deem appropriate; and (G) generally, to sell, transfer, pledge and
make any agreement with respect to or otherwise deal
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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 GP Lender 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 8 hereof, any endorsements, assignments or other
instruments of conveyance or transfer with respect to the Collateral.
(c) No Duty on Part of the Collateral Agent and the GP Lender. The
powers conferred on the Collateral Agent and the GP Lender hereunder are solely
to protect the interests of the Collateral Agent and the GP Lender in the
Collateral and shall not impose any duty upon any of them to exercise any such
powers. The Collateral Agent and the GP Lender 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
interest rate then applicable to the Loans plus 2% 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
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Agreement, the Linden GP Loan Agreement, the Camden Limited Partnership Loan
Agreement or the Camden General Partner Loan Agreement, or (ii) give rise to any
defense, counterclaim or offset in favor of the Pledgor against the Collateral
Agent or the GP Lender 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 GP Lender 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 GP Lender, 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 Camden Limited Partnership as fully
and completely as though the Collateral Agent were the absolute owner of the
Pledgor's partnership interest in the Camden Limited Partnership, (ii) transfer
all or any part of the Collateral into the Collateral Agent's name or the name
of its nominee or nominees, (iii) forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
lease, assign, give option or options to purchase, or otherwise dispose of and
deliver said Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of the Collateral Agent or the GP Lender 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 the GP Lender shall have
the right upon any such public sale or sales, and, to the extent permitted by
law, upon any such private sale or sales, to purchase the whole or any part of
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
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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 GP Lender hereunder, including reasonable attorneys' fees and
legal expenses, to the payment in whole or in part of the Obligations in
accordance with the Camden 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(1)(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
the GP Lender 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
the GP Lender 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 Camden Limited Partnership Agreement which purports to limit
the transferability of partnership interests without the consent of any
partners.
10. Limitation on Duties in Respect of Collateral; Limitations on
Collateral Agent's Obligations. (a) Beyond the use of reasonable care in the
custody thereof, the Collateral Agent shall not have any duty as to any
Collateral in its possession or control or in the possession or control of any
agent or nominee of it or any income thereon or as to the preservation of rights
against prior parties or any other rights pertaining thereto.
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(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 Camden Limited
Partnership Agreement and the Camden General Partner Partnership Agreement, to
observe and perform all the conditions and obligations to be observed and
performed by it thereunder, all in accordance with and pursuant to the terms of
the provisions thereof. The Collateral Agent and the GP Lender shall not have
any obligation or liability by reason of or arising out of this Agreement, nor
shall the Collateral Agent or the GP Lender be required or obligated in any
manner to perform or fulfill any of the obligations of the Camden Limited
Partnership or the Pledgor, or to make any payment, or to make any inquiry as to
the nature or the sufficiency of any payment received by it or the sufficiency
of any performance by the Pledgor, or to present or file any claim, or to take
any action to collect or enforce any performance or the payment of any amounts
which may have been assigned to it or to which it may be entitled at any time
or times.
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, at
such Person's address or transmission number set forth in the Camden Limited
Partnership Loan Agreement and in the case of the GP Lender, as set forth in the
Linden GP Loan Agreement, and shall be effective as provided for in the Linden
GP Loan Agreement. The Pledgor, the Collateral Agent and the GP Lender
each may change its address and transmission number by written notice to the
other two parties.
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 GP
Lender to the full extent permitted by law so that this Agreement shall be
deemed a valid and binding agreement, and the security interest created hereby
shall constitute a continuing first lien (other than as to the Permitted Liens)
on and first (other than as to the Permitted Liens) perfected security interest
in the Collateral, in each case enforceable in accordance with its terms.
13. Release of Lien. Upon receipt by the Collateral Agent from the GP
Lender of a written notice stating that the provisions of Section 9.3 of the
Linden GP Loan Agreement with
15
respect to the release of Collateral have been fulfilled, (i) the security
interest in favor of the GP Lender created pursuant to Section 2 shall forthwith
terminate and (ii) 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 the GP
Lender 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 of the GP Lender, 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 the
GP Lender of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Collateral Agent or the GP
Lender would otherwise have on any future occasion. The rights and remedies
herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any rights or remedies provided by law.
16. Waivers and Amendments; Successors and Assigns; Governing Law. None
of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Pledgor and the Collateral Agent. This Agreement shall be binding upon the
successors and assigns of the Pledgor and shall inure to the benefit of the
Collateral Agent and the GP Lender 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 and 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, the GP Lender and their respective affiliates, directors
and/or officers harmless from and against any and all liabilities, obligations,
losses,
16
damages, penalties, actions, judgements, 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
the GP Lender any of the rights and obligations of a partner of the Camden
Limited Partnership other than the rights of collateral security in and to the
Collateral described herein or (b) to constitute the Collateral Agent or the GP
Lender a partner of the Camden Limited Partnership.
20. Limitation of Liability. The Collateral Agent and the GP Lender
agree that the liability of the Pledgor under this Agreement and the Obligations
shall be limited to the Collateral (as defined herein and in the Linden GP Loan
Agreement) and the rights and remedies of the Collateral Agent and the GP Lender
against the Collateral (as defined herein and in the Linden GP Loan Agreement)
pursuant to this Agreement and the other Transaction Documents, and in no event
shall the Pledgor or any Partner (as defined in the Camden Limited Partnership
Loan Agreement) or any officer, director, partner or Affiliate thereof be
personally liable or obligated for any such obligations (except in the case of
the Borrower, to the extent set forth in Section 3.11 of the Linden GP Loan
Agreement). Nothing herein shall limit the full recourse of the Collateral Agent
and the GP Lender, to the Collateral (as defined herein and in the Linden GP
Loan Agreement) pursuant to this Agreement or the other Transaction 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.
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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 GP
LIMITED PARTNERSHIP
By: Cogen Technologies
Camden, Inc.
By: /s/???????????????
-------------------------
Title: Vice President
1600 Smith Street
Suite 5000
Houston, Texas 77002
Attention: Robert C. McNair
Acknowledgement of Written
Notification by Registered
Pledgee:
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ John A. ????????????
----------------------------------
Title: Senior Vice President and Manager of
Energy Project Financing
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, New Jersey Statement
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, Schenectady UCC-1 Financing
County, New York Statement
General Partner Secretary of State UCC-1 Financing
of South Carolina Statement
General Partner County Clerk, Greenville UCC-1 Financing
County, South Carolina Statement
General Partner Secretary of State UCC-1 Financing
of Texas Statement