1
EXHIBIT 10.52
EXHIBIT A
AMENDMENT OF THE
AGREEMENT OF LIMITED PARTNERSHIP
OF
CAMDEN ▇▇▇▇▇ ▇.▇.
THIS AMENDMENT OF THE AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF CAMDEN ▇▇▇▇▇ ▇.▇. (this "Amendment Agreement") is made and
entered into as of the 4th day of February, 1999 by and between Cogen
Technologies Camden GP Limited Partnership, a Delaware limited partnership (the
"General Partner") and General Electric Capital Corporation, a New York
corporation (the "Limited Partner"). Unless otherwise noted, all defined terms
used herein shall have the same meaning given to such terms in the Agreement of
Limited Partnership of Camden ▇▇▇▇▇ ▇.▇., dated as of February 9, 1993 (as
heretofore amended, the "Agreement").
W I T N E S S E T H:
WHEREAS, the General Partner and the Limited Partner are parties to
the Agreement;
WHEREAS, pursuant to the Agreement, the limited partnership known as
Camden ▇▇▇▇▇ ▇.▇. (the "Partnership") was formed pursuant to the Partnership
Act; and
WHEREAS, the General Partner and the Limited Partner desire to amend
the Agreement in order to reflect the termination of the Partnership's
obligation to pay certain management fees and to reflect certain other
agreements between and among the Partners.
NOW, THEREFORE, in consideration of the premises and the mutual
undertakings contained herein, the parties hereto hereby agree as follows:
1. ARTICLE I of the Agreement shall be amended as follows:
(a) The definition of "Management Fee" shall be
deleted.
(b) The following new defined terms shall be added:
"Amendment" shall mean the Amendment of the
Agreement of Limited Partnership of Camden ▇▇▇▇▇
▇.▇. dated as of February 4, 1999.
2
"Buy-Out Agreements" shall mean that certain
Termination Agreement dated as of the date of this
Amendment, executed by and between the Partnership
and the General Partner and that certain Termination
Agreement dated as of the date of this Amendment,
executed by and between Cogen Technologies Capital
Company, L.P. and H. ▇▇▇▇ ▇▇▇▇▇▇, copies of which
are attached to the Amendment as Exhibits A and B,
respectively.
(c) The definition of "Capital Account" shall be
amended to insert "5.9," after the word "subsections" in the
12th line of clause (ii).
(d) The definition of "Distributable Cash" shall be
amended to (i) delete ", and the Management Fee" from the
23rd line of the definition and (ii) add "but excluding costs
incurred pursuant to the Buy-Out Agreements" in the 26th line
of the definition after the word "Facility" and before the
close of the parenthesis.
2. The following Section 3.4 shall be added to ARTICLE III of the
Agreement:
3.4 Contribution to Fund Buy-Out Agreements. The General
Partner shall make Capital Contributions in an amount equal
to all funds required to be paid by the Partnership pursuant
to the Buy-Out Agreements at or before the time that such
funds become due and payable.
3. Section 5.9 of the Agreement shall be amended as follows:
(a) The title of said section shall be expanded by
adding the words "and Deductions Attributable to Buy-Out" to
the end of such title.
(b) The existing text of Section 5.9 shall become
subparagraph (a) of Section 5.9 and the following provision
shall be added as subparagraph (b) of Section 5.9:
(b) All deductions attributable to the payments made
under the Buy-Out Agreements shall be allocated to
the General Partner.
-2-
3
4. Section 6.4 of the Agreement shall be amended by inserting the
words "other than the General Partner's Capital Contributions under Section
3.4" after the word "Partnership" and before the word "shall" in the second
line of such section.
5. Section 7.4 of the Agreement shall be deleted in its entirety.
6. The first sentence of Section 10.1(a) of the Agreement shall be
amended to delete clause (i) beginning on line 15 in its entirety, to delete
subclause (x) of clause (ii), and to delete the word "thereafter" at the end
thereof.
7. Section 14.1(i) of the Agreement shall be restated in its entirety
as follows:
(i) An entity with a net worth of at least
$100,000,000 shall fail to own and control, directly
or indirectly, a beneficial interest of at least
8.2% in the General Partner; or
8. Section 7.2(c) of the Agreement shall be amended by deleting "1600"
in the second line and inserting it with "1400" in replacement therefor.
9. All references to "Cogen Camden" in the Agreement shall be deemed
to be references to the General Partner.
10. The proviso in the first sentence of Section 7.10 of the Agreement
shall be restated in its entirety as follows:
; provided, that each Partner shall conduct its business in a
manner so that the Limited Partner may avoid Public Utility
Status as described in subsection 10.5 hereof.
11. Section 12.2 of the Agreement shall be amended to change the
street address of the General Partner or the Partnership to:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Compliance Department
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
12. The General Partner is hereby authorized to execute and deliver
the Buy-Out Agreements on behalf of the Partnership and to make all payments
contemplated thereunder in accordance with the terms thereof. The Partners
agree that the Capital Contributions referred to in Section 3.4 of the
Agreement shall be made outside of any security deposit arrangements that
-3-
4
otherwise would apply pursuant to the Agreement or any other agreement to which
the Partnership is a party.
13. This Amendment Agreement shall be binding upon, and shall enure to
the benefit of, the parties hereto and their respective successors and assigns.
14. This Amendment Agreement may be signed 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.
15. Except as specifically hereby amended, the Agreement shall remain
in full force and effect.
16. THIS AMENDMENT AGREEMENT SHALL BE GOVERNED BY, AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE.
IN WITNESS WHEREOF, this Amendment Agreement has been executed as of
the date and year first above written.
COGEN TECHNOLOGIES CAMDEN GP
LIMITED PARTNERSHIP
By: Cogen Technologies Camden, Inc.,
Its: General Partner
By:
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President and
Chief Financial Officer
GENERAL ELECTRIC CAPITAL
CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
-4-
5
EXHIBIT B
MANAGEMENT FEE TERMINATION AGREEMENT
(CAMDEN COGEN)
This Management Fee Termination Agreement dated as of February 4, 1999
(the "Agreement"), by and CAMDEN COGEN, L.P., a Delaware limited partnership
(the "Partnership") and COGEN TECHNOLOGIES CAMDEN GP LIMITED PARTNERSHIP, a
Delaware limited partnership ("CT Camden").
W I T N E S S E T H:
WHEREAS, CT Camden, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and General Electric Capital
Corporation ("GECC") entered into that certain Amended and Restated Agreement
of Limited Partnership of Camden Cogen, L.P. dated as of February 9, 1993 (as
amended, the "Partnership Agreement");
WHEREAS, pursuant to the Partnership Agreement, the Partnership, which
was created under an earlier agreement, was continued as a Delaware limited
partnership, with CT Camden as the general partner thereof and GECC as the
limited partner thereof;
WHEREAS, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ has withdrawn as a limited partner of the
Partnership;
WHEREAS, pursuant to the Partnership Agreement, the Partnership agreed
to pay to CT Camden a Management Fee (as defined in the Partnership Agreement);
and
WHEREAS, the Partnership and CT Camden desire to terminate CT Camden's
right to be paid, and the Partnership's obligation to pay, the Management Fee
upon the payment by the Partnership to CT Camden of the sum provided for
herein.
NOW THEREFORE, the parties hereto agree as follows:
1. Payment Amount/Consideration. For and in consideration of the
mutual agreements as herein set forth, the Partnership agrees to pay to CT
Camden, and CT Camden agrees to accept from the Partnership, the sum of
$12,760,000 (the "Payment Amount"). CT Camden acknowledges and agrees that the
Payment Amount will be reported by it as ordinary income for United States
federal tax purposes. The Payment Amount will be paid to CT Camden effectively
immediately prior to the consummation of the transactions contemplated by the
Transaction Agreement dated as of October 25, 1998, as amended by Amendment No.
1 dated as of November 6, 1998, Amendment No. 2 dated as of November 13, 1998
and Amendment No. 3 dated as of February 1, 1999, by and among Enron Corp., an
Oregon corporation; Enron Capital & Trade Resources Corp., a Delaware
corporation; East Coast Power L.L.C., a Delaware limited liability company;
JEDI Camden GP, L.L.C., a Delaware limited liability company; JEDI Camden LP,
L.L.C., a Delaware limited liability company; JEDI Linden GP, L.L.C., a
Delaware limited liability company; JEDI Linden LP, L.L.C., a Delaware limited
liability company; RCM Holdings, Inc. (formerly Cogen Technologies, Inc.), a
Texas corporation; Cogen Technologies Camden, Inc., a Texas corporation; Cogen
Technologies Capital Company, L.P., a Delaware limited partnership; Cogen
Technologies Limited Partners Joint Venture, a Texas general partnership
("CTLPJV"); the partners of CTLPJV; and the shareholders of ▇▇▇▇▇▇ Energy
Services Corporation, a Texas corporation.
6
2. Release and Relinquishment. Effective as of the Effective Date (as
defined herein), CT Camden does hereby (i) release and relinquish any and all
claims it or any person or entity claiming by, through or under it may have
against the Partnership relating to the Management Fee and (ii) agrees to
indemnify and hold harmless the Partnership for all claims, costs and expenses
relating to this Agreement and the termination of the Management Fee.
3. Effective Date. The "Effective Date" is the date upon which CT
Camden shall have received the Payment Amount; provided, however, if CT Camden
shall not have received the Payment Amount by 5:00 p.m. Central Time on April
15, 1999, this Agreement shall be null and void and of no further force and
effect.
4. Non-Admission of Liability. The execution of this Agreement and the
payment of the Payment Amount shall not be construed as an admission of
wrongdoing or liability on the part of any party hereto in any respect.
5. Nonassignment. CT Camden represents that it is the only person or
entity entitled to receive the Management Fee and that it has not assigned,
pledged, sold transferred or otherwise conveyed any right, claim or interest
that CT Camden may have in or to the Management Fee (in any other matters
released in this Agreement).
6. GOVERNING LAW. THE VALIDITY, CONSTRUCTION, INTERPRETATION AND
ENFORCEMENT OF THIS AGREEMENT SHALL BE CONTROLLED AND GOVERNED BY THE
SUBSTANTIVE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO ITS CHOICE OF LAW
PRINCIPLES.
7. Integration. This Agreement contains the complete agreement between
the Partnership and CT Camden with respect to the matters contained herein and
supersedes all prior commitments, agreements and understandings, whether
written or oral, with respect to the matters contained herein.
-2-
7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first written above.
CAMDEN COGEN, L.P.
By: Cogen Technologies Camden GP Limited Partnership, its
General Partner
By: Cogen Technologies Camden, Inc., its General
Partner
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Address for Correspondence:
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
COGEN TECHNOLOGIES CAMDEN GP LIMITED
PARTNERSHIP
By: Cogen Technologies Camden, Inc., its General Partner
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Address for Correspondence:
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-3-
8
EXHIBIT C
MANAGEMENT FEE TERMINATION AGREEMENT
(CT CAMDEN)
This Management Fee Termination Agreement dated as of February 4, 1999
(the "Agreement"), by and between COGEN TECHNOLOGIES CAMDEN GP LIMITED
PARTNERSHIP, a Delaware limited partnership ("CT Camden") and RCM MANAGEMENT
SERVICES, L.P., a Delaware limited partnership.
W I T N E S S E T H:
WHEREAS, CT Camden and Cogen Technologies Management Company, a Texas
corporation ("CTMC") entered into that certain Management Agreement dated as of
July 7, 1992 (the "Management Agreement");
WHEREAS, pursuant to an Assignment and Assumption Agreement dated as
of January 1, 1994, CTMC assigned all of its rights and interests in the
Management Agreement to Cogen Technologies Management Services, L.P., a
Delaware limited partnership ("CTMS");
WHEREAS, pursuant to a Certificate of Amendment to the Certificate of
Limited Partnership of Cogen Technologies Management Services, L.P. filed with
the Secretary of State of the State of Texas, the name of CTMS was changed to
RCM Management Services, L.P. ("RMS"); and
WHEREAS, CT Camden and RMS desire to terminate the Management
Agreement upon the payment by CT Camden to RMS of the sum provided for herein.
NOW THEREFORE, the parties hereto agree as follows:
1. Mutual Termination/Consideration. Effective as of the Effective
Date (as defined herein), the parties hereto mutually agree to terminate the
Management Agreement. For and in consideration of the mutual agreements as
herein set forth, CT Camden agrees to pay to RMS, and RMS agrees to accept from
CT Camden, the sum of $12,760,000 (the "Payment Amount"). RMS acknowledges and
agrees that the Payment Amount will be reported by it as ordinary income for
United States federal tax purposes. The Payment Amount will be paid to RMS
effective immediately prior to the consummation of the transactions
contemplated by the Transaction Agreement dated as of October 25, 1998, as
amended by Amendment No. 1 dated as of November 6, 1998, Amendment No. 2 dated
as of November 13, 1998 and Amendment No. 3 dated as of February 1, 1999, by
and among Enron Corp., an Oregon corporation; Enron Capital & Trade Resources
Corp., a Delaware corporation; East Coast Power L.L.C., a Delaware limited
liability company; JEDI Camden GP, L.L.C., a Delaware limited liability
company; JEDI Camden LP, L.L.C., a Delaware limited liability company; JEDI
Linden GP, L.L.C., a Delaware limited liability company; JEDI Linden LP,
L.L.C., a Delaware limited liability company; RCM Holdings, Inc. (formerly
Cogen Technologies, Inc.), a Texas corporation; Cogen Technologies Camden,
Inc., a Texas corporation; Cogen Technologies Capital Company, L.P., a Delaware
limited partnership; Cogen Technologies Limited Partners Joint Venture, a Texas
general partnership ("CTLPJV"); the partners of CTLPJV; and the shareholders of
▇▇▇▇▇▇ Energy Services Corporation, a Texas corporation.
9
2. Release and Relinquishment. Effective as of the Effective Date, RMS
does hereby release and relinquish any and all claims it or any person or
entity claiming by, through or under it may have against CT Camden or any other
person or entity (including, without limitation, the Partnership) relating to
the Management Agreement or any sums payable thereunder.
3. Effective Date. The "Effective Date" is the date upon which RMS
shall have received the Payment Amount; provided, however, if RMS shall not
have received the Payment Amount by 5:00 p.m. Central Time on April 15, 1995,
this Agreement shall be null and void and of no further force and effect.
4. Non-Admission of Liability. The execution of this Agreement and the
payment of the Payment Amount shall not be construed as an admission of
wrongdoing or liability on the part of any party hereto in any respect.
5. Nonassignment. RMS represents that it is the only person or entity
holding the interests of partnership manager under the Management Agreement and
that it has not assigned, pledged, sold, transferred or otherwise conveyed any
right, claim or interest that RMS may have in or to the Management Agreement
(or any other matters released in this Agreement).
6. GOVERNING LAW. THE VALIDITY, CONSTRUCTION, INTERPRETATION AND
ENFORCEMENT OF THIS AGREEMENT SHALL BE CONTROLLED AND GOVERNED BY THE
SUBSTANTIVE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO ITS CHOICE OF LAW
PRINCIPLES.
7. Integration. This Agreement contains the complete agreement between
CT Camden and RMS with respect to the matters contained herein and supersedes
all prior commitments, agreements and understandings, whether written or oral,
with respect to the matters contained herein.
-2-
10
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed as of the date first written above.
COGEN TECHNOLOGIES CAMDEN GP LIMITED
PARTNERSHIP
By: Cogen Technologies Camden, Inc.,
its General Partner
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Address for Correspondence:
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
RCM MANAGEMENT SERVICES, L.P.
By: Palmetto Management Company,
its General Partner
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Address for Correspondence:
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-3-
11
EXHIBIT D
AMENDMENT ▇▇. ▇
▇▇▇▇▇▇▇▇▇ ▇▇. ▇, dated as of February 4, 1999 (the "Amendment"), to
the Amendment and Restatement, dated as of April 1, 1993, of the Construction
and Term Loan Agreement, dated as of February 4, 1992, as amended by Amendment
No. 1, dated as of December 22, 1993, and Amendment No. 2, dated as of July 31,
1998 (as may be further amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among (i) Camden ▇▇▇▇▇ ▇.▇., a Delaware
limited partnership (the "Borrower"), of which Cogen Technologies Camden GP
Limited Partnership, a Delaware limited partnership, is the sole general
partner, (ii) the Tranche A Lenders and Tranche B Lenders from time to time
parties thereto (collectively, the "Lenders"), (iii) The Bank of
Tokyo-Mitsubishi Trust Company (formerly known as The Bank of Tokyo Trust
Company), a banking corporation organized and existing under the laws of the
State of New York, as Senior Tranche Agent, (iv) Commerzbank AG, New York
Branch, a New York State licensed branch of a bank organized under the laws of
Germany, as Agent and (v) General Electric Capital Corporation, a New York
corporation ("GE Capital"), as Junior Tranche Agent and as issuer of the
Letters of Credit.
W I T N E S S E T H:
WHEREAS, the parties hereto desire to amend certain provisions of the
Credit Agreement as provided herein;
NOW, THEREFORE, in consideration of the premises contained herein and
for other good and valuable consideration receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Credit Agreement shall have such defined meanings when used herein.
2. Amendments to the Credit Agreement.
(i) Section 9(k) of the Credit Agreement is hereby restated
in its entirety to read as follows:
"(k) An entity with a net worth of at least
$100,000,000 shall fail to own and control, directly
or indirectly, a beneficial interest of at least
8.2% in the Borrower."
(ii) Section 11.2 of the Credit Agreement shall be amended to
restate the address of the Borrower as follows:
-1-
12
"Camden ▇▇▇▇▇ ▇.▇.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Compliance Department
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇"
3. Limited Effect. Except as expressly amended hereby, all of the
provisions of the Credit Agreement shall continue to be, and shall remain, in
full force and effect in accordance with their terms.
4. Counterparts. This Amendment may be executed in any number of
counterparts, all of which shall constitute one and the same instrument.
5. Governing Law. This Amendment shall be governed by, and be
construed and interpreted in accordance with, the laws of the State of New
York.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered by their proper and duly authorized officers as of the
date first above written.
CAMDEN COGEN, L.P.
By: Cogen Technologies Camden GP Limited
Partnership, a Delaware Limited Partnership,
its General Partner
By: Jedi Camden GP, L.L.C., a Delaware
Limited Liability Company, its
General Partner
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
-2-
13
COMMERZBANK AG, NEW YORK BRANCH,
as Agent
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇ AGENCY,
as a Tranche A Lender
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
THE BANK OF TOKYO-MITSUBISHI
TRUST COMPANY, as Senior Tranche Agent
and a Tranche A Lender
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
THE FUJI BANK LIMITED, as a
Tranche A Lender
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
-3-
14
CREDIT LYONNAIS,
NEW YORK BRANCH,
as a Tranche A Lender
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
GENERAL ELECTRIC CAPITAL
CORPORATION, as Junior
Tranche Agent, Tranche B
Lender and issuer of the
Letters of Credit
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
-4-
15
EXHIBIT E
REAFFIRMATION AGREEMENT
THIS REAFFIRMATION OF THE COGEN PLEDGE AGREEMENT, (this
"Reaffirmation Agreement") is made and entered into as of the 4th day of
February, 1999 by JEDI Camden GP, L.L.C., ("JEDI Camden") as the general
partner of Cogen Technologies Camden GP Limited Partnership ("Camden GPLP").
Unless otherwise defined, all defined terms shall have the same meaning given
to such terms in the Cogen Pledge and Security Agreement, dated as of February
4, 1992, (as amended and assigned, the "Pledge Agreement") by Cogen
Technologies Camden, Inc. in favor of General Electric Capital Corporation
("GECC").
1. The undersigned hereby agrees to be bound by all of the terms
and conditions of the Pledge Agreement as such terms and
conditions apply to Camden GPLP.
2. The undersigned hereby affirms that it assumes all of the
rights, duties and obligations of Camden GPLP under the
Pledge Agreement.
3. The undersigned hereby affirms that the Pledge Agreement is
valid, binding and enforceable in accordance with its terms
and in full force and effect, and has not been amended,
modified or supplemented other than as set forth in the
Amendment No. 1 dated as of April 1, 1993 and Amendment No.2
dated as of December 22, 1993.
JEDI Camden GP, L.L.C., as general partner
of Cogen Technologies Camden GP Limited
Partnership
By:
----------------------------------
Title:
-------------------------------
Date:
--------------------------------
16
EXHIBIT H
LIMITED WAIVER AGREEMENT
THIS LIMITED WAIVER AGREEMENT, dated as of February 4, 1999, (this
"Limited Waiver Agreement") by and among CAMDEN COGEN, L.P., a Delaware limited
partnership, as Borrower, of which Cogen Technologies Camden GP Limited
Partnership, a Delaware limited partnership, is the sole general partner, COGEN
TECHNOLOGIES CAMDEN GP LIMITED PARTNERSHIP, a Delaware limited partnership, as
General Partner, of which Cogen Technologies Camden, Inc., a Texas corporation,
is the sole general partner, COMMERZBANK, AG, NEW YORK BRANCH, as Tranche A
Co-Agent, Agent and Security Agent, COMMERZBANK AG, ATLANTA AGENCY, as a
Tranche A Lender, THE BANK OF TOKYO-MITSUBISHI TRUST COMPANY, as Senior Tranche
Agent and a Tranche A Lender, THE FUJI BANK LIMITED, as a Tranche A Lender,
CREDIT LYONNAIS, NEW YORK BRANCH, as a Tranche A Lender, and GENERAL ELECTRIC
CAPITAL CORPORATION, as Junior Tranche Agent, Letter of Credit Issuer, Senior
Debt Service Reserve Letter of Credit Issuer, Senior Debt Service Letter of
Credit Issuer, Junior Debt Service Letter of Credit Issuer, Counterparty,
Limited Partner, and Tranche B Lender.
Reference is made to (i) the Amendment and Restatement, dated as of
April 1, 1993, of the Construction and Term Loan Agreement, dated as of
February 4, 1992, as amended by Amendment No. 1, dated as of December 22, 1993,
and Amendment No. 2, dated as of July 31, 1998 among the Borrower, the Tranche
A Lenders, the Tranche B Lenders, the Senior Tranche Agent, the Junior Tranche
Agent, the Agent and the issuer of the Letters of Credit (as such may be
amended, modified or supplemented from time to time, the "Loan Agreement"), and
(ii) the Second Amended and Restated Security Deposit Agreement, dated as of
December 22, 1993, among the Borrower, the General Partner, the Tranche A
Co-Agent, the Agent, the Security Agent, the Junior Tranche Agent, the Letter
of Credit Issuer, the Senior Debt Service Reserve Letter of Credit Issuer, the
Senior Debt Service Letter of Credit Issuer, the Junior Debt Service Letter of
Credit Issuer, the Counterparty, the Limited Partner and the Senior Tranche
Agent Credit (as such may be amended, modified or supplemented from time to
time, the "Security Deposit Agreement"). All capitalized terms used herein and
not otherwise defined herein shall have the respective meanings as defined in
the Security Deposit Agreement.
W I T N E S S E T H :
WHEREAS, the Borrower has requested that the Lenders execute the
Camden Lender Consent dated as of even date herewith (together with all
exhibits thereto, the "Camden Lender Consent"), among the Senior Tranche Agent,
the Agent, the Junior Tranche Agent, the Tranche A Lenders and the Tranche B
Lender;
-1-
17
WHEREAS, in connection with the Camden Lender Consent, the Borrower
has requested the consent of the Lenders to the Amendment of the Amended and
Restated Agreement of Limited Partnership of Camden ▇▇▇▇▇ ▇.▇. dated as of even
date herewith (the "Amendment to the Partnership Agreement"), between the
General Partner and General Electric Capital Corporation, which, among other
things, (a) obligates the General Partner to make certain Capital Contributions
(as defined in the Partnership Agreement) to the Borrower (the "Contributions")
and (b) authorizes the General Partner to cause the Borrower to use the
proceeds of the Contributions to make (i) certain payments directly to the
General Partner (the "Management Fee Buy-Out Payment") as set forth in the
Termination Agreement dated as of even date herewith (the "Management Fee Buy-
Out Agreement"), by and between the Borrower and the General Partner, and (ii)
certain payments directly to H. ▇▇▇▇ ▇▇▇▇▇▇ (the "Fuel Management Fee Buy-Out
Payment") as set forth in the Termination Agreement dated as of even date
herewith (the "Fuel Management Fee Buy-Out Agreement"), by and between Cogen
Technologies Capital Company, L.P., a Delaware limited partnership and H. ▇▇▇▇
▇▇▇▇▇▇;
WHEREAS, the Borrower has requested that the Agents and the Required
Lenders permit the Borrower to use the Contributions to make the Management Fee
Buy-Out Payment and the Fuel Management Fee Buy-Out Payment and not to require
the Contributions to first be deposited in the Accounts;
NOW, THEREFORE, in consideration of the premises and the mutual
undertakings contained herein, the parties hereto, acting pursuant to Section
11.1 of the Loan Agreement, hereby agree as follows:
Section 1. Subject to the provisions of Section 2 below, the Agents
and the Required Lenders (a) agree that (i) the Borrower may use the proceeds
of the Contributions to make the Management Fee Buy-Out Payment and the Fuel
Management Fee Buy-Out Payment, and (ii) the Contributions will not be required
to first be deposited in the Accounts (as such term is defined in the Security
Deposit Agreement), and (b) hereby waive the provisions of Sections 7.4, 8.3
and 9(c) of the Loan Agreement and Section 3.02 of the Security Deposit
Agreement solely and only to the extent necessary for the purposes set forth in
clauses (a)(i) and (ii) above.
Section 2.
(a) The waiver contained in Section 1 hereof is given in consideration
of, and its effectiveness is expressly conditioned upon satisfaction of, the
following conditions: (i) the transactions proposed in the Camden Lender
Consent shall have taken place in accordance with the terms thereof, including
but not limited to the delivery of duly executed copies of all exhibits
thereto; (ii) the Contributions shall be in an amount equal to fourteen million
four hundred twelve thousand eight hundred forty eight dollars ($14,412,848)
(which amount equals the sum of the amounts set forth in clauses (iii) and (iv)
below); (iii) the Management Fee Buy-Out Payment shall be in an amount equal to
twelve million seven hundred and sixty thousand dollars ($12,760,000) and shall
be paid in accordance with the terms of the Management Fee Buy-Out Agreement;
and (iv) the Fuel Management Fee Buy-Out Payment shall be in an amount equal to
one million six hundred fifty two thousand eight hundred forty eight dollars
($1,652,848) and shall be paid pursuant to the terms of the Fuel Management Fee
Buy-Out Agreement.
-2-
18
(b) Nothing herein shall be construed as a waiver of any provision of
the Loan Agreement, the Security Deposit Agreement or any other Basic Document
by any of the parties thereto, other than such as is expressly waived
hereunder. Notwithstanding anything contained herein, the waiver contained in
Section 1 hereof (i) is a limited one, (ii) is effective only with respect to
the transactions described in this Limited Waiver Agreement for the specific
instance and the specific purpose for which it is given, (iii) shall not be
effective for any other purpose or transaction, and (iv) does not constitute an
amendment, or basis for a subsequent waiver, of any of the provisions of the
Basic Documents.
Section 3. The parties hereto confirm that the Basic Documents are
valid, binding and in full force and effect, that no provision of the Basic
Documents is waived except as to the extent and for the limited purpose set
forth in this Limited Waiver Agreement, and that no provision of the Basic
Documents is amended in any way.
Section 4. This Limited Waiver Agreement shall for all purposes be
considered a Basic Document.
Section 5. This Limited Waiver Agreement may be signed in any number
of counterparts, each of which shall be original, with the same effect as if
the signatures hereto and thereto were upon the same instrument.
Section 6. This Limited Waiver Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New
York.
[THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK.]
-3-
19
IN WITNESS WHEREOF, the parties hereto have executed this Limited
Waiver Agreement through their duly authorized representatives as of the date
first written above.
CAMDEN COGEN, L.P., as Borrower
By: Cogen Technologies Camden GP
Limited Partnership
Its: General Partner
By: Cogen Technologies Camden, Inc.
Its: General Partner
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
COGEN TECHNOLOGIES CAMDEN GP
LIMITED PARTNERSHIP,
as General Partner
By: Cogen Technologies Camden, Inc.
Its: General Partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
THE BANK OF TOKYO-MITSUBISHI
TRUST COMPANY, as Senior Tranche
Agent and a Tranche A Lender
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
-4-
▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇
BRANCH, as Tranche A Co-Agent, Agent
and Security Agent
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇
AGENCY, as a Tranche A Lender
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
CREDIT LYONNAIS, NEW YORK
BRANCH, as a Tranche A Lender
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
THE FUJI BANK LIMITED, as a Tranche A
Lender
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
-5-
21
GENERAL ELECTRIC CAPITAL CORPORATION,
as Junior Tranche Agent, Letter of Credit
Issuer, Senior Debt Service Reserve Letter of
Credit Issuer, Senior Debt Service Letter of
Credit Issuer, Junior Debt Service Letter of
Credit Issuer, Counterparty, Limited Partner,
and Tranche B Lender
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
-6-
