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EXHIBIT 10.27
REDEMPTION AND CONVERSION OF PARTNERSHIP INTERESTS
AND FOURTH AMENDMENT TO
AGREEMENT OF LIMITED PARTNERSHIP
OF
COGEN TECHNOLOGIES LINDEN, LTD.
This Redemption and conversion of Partnership Interests and Fourth
Amendment to the Agreement of Limited Partnership of Cogen Technologies Linden,
Ltd., dated as of February 4, 1999 (this "Redemption and Amendment Agreement"),
is entered into by and among JEDI Linden GP, L.L.C., a Delaware limited
liability company ("Linden GP"), JEDI Linden LP, L.L.C., a Delaware limited
liability company ("Linden LP"), RCM Holdings, Inc. (formerly Cogen
Technologies, Inc.), a Texas corporation ("CTI"), Cogen Technologies Limited
Partners Joint Venture, a Texas general partnership ("CTLPJV"), and Cogen
Technologies Linden, Ltd., a Texas limited partnership (the "Partnership").
WITNESSETH:
WHEREAS, the Partnership was formed as a limited partnership under the
Texas Revised Limited Partnership Act (the "Act") upon the filing of a
Certificate of Limited Partnership in the office of the Secretary of State of
the State of Texas on July 7, 1989, and is governed by an Agreement of Limited
Partnership dated as of June 28, 1989, as amended as of the 14th day of
February, 1990, the 31st day of July, 1990 and the 4th day of February, 1999
(the "Partnership Agreement");
WHEREAS, CTI and CTLPJV desire to withdraw as partners of the
Partnership and relinquish any and all remaining rights that they hold in and to
the Partnership, its properties and revenues (collectively, the "Retained
Interests") in exchange for the distribution to CTI and CTLPJV by the
Partnership of their respective share of the cash and other assets described on
Exhibit A hereto (the "Redemption Consideration"); and
WHEREAS, Linden GP and Linden LP desire to (i) consent to the
Partnership's redemption of the Retained Interests of CTI and CTLPJV in the
Partnership, (ii) convert the general partner interest held by Linden LP into a
limited partner interest, and (iii) to continue the business of the Partnership
pursuant to the Partnership Agreement as amended hereby.
NOW, THEREFORE, the undersigned, in consideration of the premises,
covenants and agreements contained herein, do hereby agree as follows:
1. Redemption. In consideration for the distribution by the Partnership
of its respective share of the Redemption Consideration and the covenants and
agreements herein contained, each of CTI and CTLPJV does hereby relinquish and
assign, transfer and convey to the Partnership all of its right, title and
interest in and to its Retained Interest in the Partnership and all rights and
obligations it may have as a Partner under the Partnership Agreement.
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2. Conversion of Interest. The Partnership Interest of Linden LP as a
general partner is hereby converted to a Partnership Interest as a limited
partner, and Linden LP shall no longer be a general partner of the Partnership.
3. Revaluation of Capital Accounts. The Capital Accounts of the
Partners shall be revalued pursuant to Section 8.4 of the Partnership Agreement
immediately prior to the distribution of the Redemption Consideration to CTI and
CTLPJV to cause (i) the Capital Accounts of CTI and CTLPJV (as adjusted to
reflect all other allocations and distributions prior to such effective date) to
reflect a credit balance equal to the amount of their respective shares of the
Redemption Consideration, (ii) the Capital Account of Linden GP to reflect a
credit balance equal to 1.1% (.58 / 52.5) of the credit balance in the Capital
Account of CTI and (iii) the Capital Account of Linden LP to reflect a credit
balance equal to 90.5% of the credit balance in the Capital Account of CTLPJV
and a credit balance equal to 80.4% (46.92/52.5) of the credit balance in the
Capital Account of CTI.
4. Withdrawal. Immediately following the admission of Linden GP and
Linden LP as partners of the Partnership and the distribution of the Redemption
Consideration to CTI and CTLPJV, each of CTI and CTLPJV (i) shall and does
hereby withdraw as a Partner of the Partnership and (ii) shall thereupon cease
to be a Partner of the Partnership.
5. Continuation of the Partnership. The parties hereto agree that
notwithstanding any provision of the Partnership Agreement to the contrary, the
withdrawal of CTI and CTLPJV as partners of the Partnership shall not dissolve
the Partnership, and the business of the Partnership shall be continued by
Linden GP and Linden LP.
6. Amendments. The Partnership Agreement is amended as follows:
(a) The definition of "General Partner" shall be revised to read as
follows:
"General Partner" means JEDI Linden GP, L.L.C., a Delaware
corporation, or its successor or assign.
(b) The definition of "Limited Partner" shall be revised to read as
follows:
"Limited Partner" means JEDI Linden LP, L.L.C., a Delaware
corporation, or its successor or assign.
(c) The second sentence of Article IV is deleted in its entirety and
replaced with the following:
The location of the principal office of the Partnership
where the books and records of the Partnership shall be kept
shall be ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
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(d) The first sentence of Article V is deleted in its entirety and
replaced with the following:
The General Partner shall serve as the Registered Agent of
the Partnership as required under the Partnership Act, and
the location of the Registered Office of the Partnership
shall be ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
(e) Section 8.1 shall be revised to reflect a Sharing Ratio for the
General Partner equal to 1% and a Sharing Ratio for the Limited
Partner equal to 99%.
7. Pledge. Linden GP, in its capacity as General Partner consents
hereby to the pledge by the Limited Partner of its interest in the Partnership
in favor of NationsBank, N.A., as Agent for the Lenders, in connection with the
acquisition bridge and term financing and in favor of a trustee in connection
with any capital markets take-out of the acquisition bridge or term financing
and confirms, acknowledges and agrees that such acquisition bridge financing, is
in connection with a bona fide financing under Section 16.5 of the Partnership
Agreement.
8. Books and Records. The General Partner shall take all actions
necessary under the Act and the Partnership Agreement as the General Partner
shall deem necessary or desirable, to evidence the withdrawal of CTI and CTLPJV
from the Partnership and the admission of Linden GP and Linden LP to the
Partnership as the General Partner and Limited Partner, respectively.
9. Future Cooperation. Each of the parties hereto agrees to cooperate
at all times from and after the date hereof with respect to all of the matters
described herein, and to execute such further assignments, assumptions,
amendments of the Partnership Agreement, notifications and other documents as
may be reasonably requested for the purpose of giving effect to, or evidencing
or giving notice of, the transactions contemplated by this Redemption and
Amendment Agreement.
10. Binding Effect. This Redemption and Amendment Agreement shall be
binding upon, and shall enure to the benefit of, the parties hereto and their
respective successors and assigns.
11. Execution in Counterparts. This Redemption and Amendment Agreement
may be in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures were upon the same instrument.
12. Agreement in Effect. Except as hereby amended, the Agreement shall
remain in full force and effect.
13. Governing Law. This Redemption and Amendment Agreement shall be
governed by, and interpreted in accordance with, the laws of the State of Texas,
without regard to principles of conflict of laws.
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IN WITNESS WHEREOF, the parties hereto have caused this Redemption and
Amendment Agreement to be duly executed and delivered as of the day and year
first above written.
JEDI LINDEN GP L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Attorney in Fact
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JEDI LINDEN LP, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Attorney in Fact
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RCM HOLDINGS, INC.,
a Texas corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
and Chief Financial Officer
COGEN TECHNOLOGIES LIMITED
PARTNERS JOINT VENTURE
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇, as Trustee of the
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Family Trust-A and
the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Family Trust-B
under the Will of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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By: Evergreen Partnership Energy, Ltd.
By: /s/ H. ▇▇▇▇ ▇▇▇▇▇▇
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Its: G.P.
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By: The 1989 Energy Trust
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇., Co-trustee
(and not in his individual capacity)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Co-trustee
(and not in his individual capacity)
By: /s/ ▇. ▇▇▇▇▇▇ VAN WART
------------------------------------
▇. ▇▇▇▇▇▇ Van Wart
By: Hansfam Three, a Trust
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, Co-trustee
(and not in his individual capacity)
By: /s/ ▇. ▇▇▇▇▇▇ VAN WART
------------------------------------
▇. ▇▇▇▇▇▇ Van Wart, Co-trustee
(and not in his individual capacity)
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COGEN TECHNOLOGIES LINDEN, LTD.
By: JEDI Linden GP, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Title: Attorney in Fact
-------------------------------------
By: JEDI Linden LP, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Title: Attorney in Fact
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By: RCM Holdings, Inc.,
a Texas corporation
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
and Chief Financial Officer
By: Cogen Technologies Limited Partners
Joint Venture
Its: Limited Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇, as Trustee of the
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Family Trust-A and
the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Family Trust-B
under the Will of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: Evergreen Partnership Energy, Ltd.
By: /s/ H. ▇▇▇▇ ▇▇▇▇▇▇
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Its: G.P.
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By: The 1989 Energy Trust
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇., Co-trustee
(and not in his individual capacity)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Co-trustee
(and not in his individual capacity)
By: /s/ ▇. ▇▇▇▇▇▇ VAN WART
------------------------------------
▇. ▇▇▇▇▇▇ Van Wart
By: Hansfam Three, a Trust
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, Co-trustee
(and not in his individual capacity)
By: /s/ ▇. ▇▇▇▇▇▇ VAN WART
------------------------------------
▇. ▇▇▇▇▇▇ Van Wart, Co-trustee
(and not in his individual capacity)
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