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EXHIBIT 10.58
SECOND SUCCESSOR AGENCY AGREEMENT
This AGREEMENT (the "Agreement"), dated as of July 31, 1998, among
COMMERZBANK AG, NEW YORK BRANCH, a New York State licensed branch of a bank
organized under the laws of Germany ("Commerzbank"), as the Agent, Collateral
Agent and Tranche A Co-Agent (as each such term is defined below), TORONTO
DOMINION (TEXAS), INC. (formerly known as The Toronto-Dominion Bank Trust
Company), a Delaware corporation ("TD Texas"), as Prior Agent, Prior Collateral
Agent and Prior Tranche A Co-Agent (as each such term is defined below), 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 ("BOTM"), as Senior Tranche Agent (as such term is defined
below) and GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation ("GE
CAPITAL"), as Tranche B Lender (as defined in the Credit Agreement referred to
below) and as GP Term Lender (as defined in the Credit Agreement referred to
below), CAMDEN XXXXX X.X., a Delaware limited partnership (the "Borrower") of
which Cogen Technologies Camden GP Limited Partnership, a Delaware limited
partnership, is the sole general partner, and the Lenders (as defined below).
W I T N E S S E T H:
WHEREAS, the Borrower is a party 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 (as may be further amended, modified and otherwise supplemented, the
"Credit Agreement") (unless otherwise defined herein, terms defined in the
Credit Agreement shall have such defined meanings when used herein), with the
lenders from time to time parties thereto (the "Lenders"), TD Texas, as agent
for the Lenders (in such capacity, the "Prior Agent"), BOTM, as senior tranche
agent (in such capacity, "Senior Tranche Agent") for the Tranche A Lenders
thereunder, and GE Capital, as junior tranche agent for the Tranche B Lenders
thereunder and as issuer of the Letters of Credit referred to therein;
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WHEREAS, pursuant to Section 10.7 of the Credit Agreement, the Prior
Agent is hereby resigning and concurrently herewith being replaced by
Commerzbank, as agent (in such capacity, the "Agent") for the Lenders under the
Credit Agreement;
WHEREAS, TD TEXAS, as Prior Collateral Agent (as herein defined) is
hereby transferring to Collateral Agent (as herein defined) all of its right,
title and interest in and to any and all Collateral, and all of the Prior
Collateral Agent's interests, rights, benefits and obligations under the
Collateral Security Documents;
WHEREAS, pursuant to Section 10.7 of the Credit Agreement, TD Texas, as
tranche a co-agent ("Prior Tranche A Co-Agent") is hereby resigning and
concurrently herewith being replaced by Commerzbank, as tranche a co-agent (in
such capacity, the "Tranche A Co-Agent"); and
WHEREAS, pursuant to the terms hereof, (i) the Agent shall succeed to
and become vested with all of the rights, powers, privileges and duties of the
Prior Agent, (ii) the Collateral Agent shall succeed to and become vested with
all the rights, powers, privileges and duties of the Prior Collateral Agent, and
(iii) the Tranche A Co-Agent shall succeed to and become vested with all the
rights, powers, privileges and duties of the Prior Tranche A Co-Agent;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Assignment and Transfer. (a) As of the date of this Agreement, the
Prior Agent hereby assigns, transfers, grants and conveys to the Agent, for the
benefit of the Lenders, without recourse, representation or warranty, and the
Agent, for the benefit of the Lenders, hereby takes and accepts, all of the
Prior Agent's right, title and interest in and to any and all of the Collateral,
and all of the Prior Agent's rights, benefits and obligations under the Credit
Agreement and the Collateral Security Documents as of the date of this
Agreement.
(b) The Prior Agent shall, concurrently with the execution of this
Agreement, deliver to the Agent all Collateral held by Prior Agent and all
proceeds thereof held
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by Prior Agent. Notwithstanding anything implied to the contrary in this
Agreement, the Agent shall not succeed to, nor shall the Prior Agent be released
from, any liabilities arising as a result of facts existing or acts or omissions
of the Prior Agent occurring prior to the effectiveness of this Agreement.
(c) The Prior Agent represents, warrants and covenants that it has
transferred and delivered, or, concurrently with the execution of this
Agreement, will transfer and deliver, to the Agent all relevant property and
originals of all relevant books, records and documents relating to the Credit
Agreement and all Collateral Security Documents.
(d) The Prior Tranche A Co-Agent hereby assigns, transfers, grants and
conveys to the Tranche A Co-Agent, for the benefit of the Lenders, without
recourse, representation or warranty, and the Tranche A Co-Agent, for the
benefit of the Lenders, hereby takes and accepts, all of the Prior Tranche A
Co-Agent's right, title and interest in and to any and all of the Collateral,
and all of the Prior Tranche A Co-Agent's rights, benefits and obligations under
the Credit Agreement and the Collateral Security Documents as of the date of
this Agreement.
(e) The Prior Tranche A Co-Agent shall, concurrently with the execution
of this Agreement, deliver to the Tranche A Co-Agent all Collateral held by the
Prior Tranche A Co-Agent and all proceeds thereof held by the Prior Tranche A
Co-Agent. Notwithstanding anything implied to the contrary in this Agreement,
the Tranche A Co-Agent shall not succeed to, nor shall the Prior Tranche A
Co-Agent be released from, any liabilities arising as a result of facts existing
or acts or omissions of the Prior Tranche A Co-Agent occurring prior to the
effectiveness of this Agreement.
(f) The Prior Tranche A Co-Agent represents, warrants and covenants
that it has transferred and delivered, or, concurrently with the execution of
this Agreement, will transfer and deliver, to the Tranche A Co-Agent all
relevant property and originals of all relevant books, records and documents
relating to the Credit Agreement and all Collateral Security Documents.
2. Assignment of Collateral Agency under Security Documents. (a) TD
Texas, as Collateral Agent (as defined
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in each of the Assignment and Security Agreement and Cogen Pledge Agreements)
and, as Agent (as defined in the Security Agreement) (in such capacity, the
"Prior Collateral Agent") hereby assigns, transfers, grants and conveys to
Commerzbank (the "Collateral Agent"), for the benefit of the Secured Parties (as
defined in each of the Assignment and Security Agreement and the Cogen Pledge
Agreement), and, with respect to the Security Agreement, the parties in favor of
which such assignments are made, (the Assignment and Security Agreement, the
Cogen Pledge Agreement and the Security Agreement are collectively, referred to
herein as the "Security Documents"), without recourse, representation or
warranty, and the Collateral Agent, for the benefit of the Secured Parties, and,
with respect to the Security Agreement, the parties in favor of which such
assignments are made, hereby takes and accepts, all of the Prior Collateral
Agent's right, title and interest in and to any and all Collateral, and all of
the Prior Collateral Agent's interests, rights, benefits and obligations under
the Security Documents as of the date of this Agreement. The Collateral Agent
hereby succeeds to and becomes vested with all the rights, powers, privileges
and duties of the Prior Collateral Agent, and except as provided in Section 2(b)
hereof, the Prior Collateral Agent is hereby discharged and released from its
duties and obligations under the Security Documents as of the date of this
Agreement.
(b) The Prior Collateral Agent shall, concurrently with the execution
of this Agreement, deliver to the Collateral Agent all Collateral held by the
Prior Collateral Agent and all proceeds thereof held by the Prior Collateral
Agent. Notwithstanding anything implied to the contrary in this Agreement, the
Collateral Agent shall not succeed to, nor shall the Prior Collateral Agent be
released from, any liabilities arising as a result of facts existing or acts or
omissions of the Prior Collateral Agent occurring prior to the effectiveness of
this Agreement.
(c) The Prior Collateral Agent represents, warrants and covenants that
it has transferred and delivered, or, concurrently with the execution of this
Agreement, will transfer and deliver, to the Collateral Agent all property and
originals of all books, records and documents relating to the Security
Documents.
3. Resignation and Appointment. (a) Pursuant to subsection 10.7 of the
Credit Agreement, TD Texas hereby resigns as Prior Agent and Commerzbank is
hereby appointed
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Agent by the Required Lenders and Commerzbank hereby accepts such appointment.
The Agent hereby succeeds to and becomes vested with all the rights, powers,
privileges and duties of the Prior Agent (including, without limitation, in the
Prior Agent's capacity as Mortgagee, as defined in the Mortgage), and, except
for the matters provided for in the last sentence of subsections 1(b) and
Section 4 hereof, the Prior Agent is hereby discharged and released from its
duties and obligations under the Credit Agreement and the Collateral Security
Documents as of the date of this Agreement. The provisions of Section 10 of the
Credit Agreement shall continue in effect for the benefit of TD Texas in respect
of any actions taken or omitted to be taken by it while it was acting as Agent.
(b) Pursuant to subsection 10.7 of the Credit Agreement, TD Texas
hereby resigns as Prior Tranche A Co-Agent and Commerzbank is hereby appointed
Tranche A Co-Agent by the Required Lenders and Commerzbank hereby accepts such
appointment. The Tranche A Co-Agent hereby succeeds to and becomes vested with
all the rights, powers, privileges and duties of the Prior Tranche A Co-Agent,
and, except for the matters provided for in the last sentence of subsection 1(e)
and Section 4 hereof, the Prior Tranche A Co-Agent is hereby discharged and
released from its duties and obligations under the Credit Agreement and the
Collateral Security Documents as of the date of this Agreement. The provisions
of Section 10 of the Credit Agreement shall continue in effect for the benefit
of TD Texas in respect of any actions taken or omitted to be taken by it while
it was acting as Tranche A Co-Agent.
4. Further Assurances. (a) The Prior Agent, Prior Collateral Agent and
Prior Tranche A Co-Agent shall, promptly upon the request of the Agent,
Collateral Agent and Tranche A Co-Agent, as the case may be, execute, or cause
to be executed, and deliver, or cause to be delivered, at the cost of the
Lenders on a pro rata basis, such other and further instruments of assignment
and/or transfer, financing statements and amendments or assignments of financing
statements, and any other instruments or documents, and take any other actions,
as may be reasonably necessary, and are consistent with the Prior Agent's, Prior
Collateral Agent's and Prior Tranche A Co-Agent's duties and obligations as the
Prior Agent, Prior Collateral Agent or Prior Tranche A Co-Agent, as the case may
be, to transfer to, and properly vest in the Agent, the Collateral Agent or the
Tranche A Co-Agent, as the case may be, for the benefit of the Lenders,
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and to perfect all liens, security interests, pledges, assignments and other
hypothecations, and all rights of any mortgagee or secured party, under the
Collateral Security Documents, and to otherwise effectuate the purposes of this
Agreement.
(b) The Prior Agent, Prior Collateral Agent and Prior Tranche A
Co-Agent hereby agree to promptly turn over all funds, notices, communications
and other documents received in such capacities after the date hereof to the
Agent, Collateral Agent and Prior Tranche A Co-Agent, as the case may be.
(c) Each of the parties to this Agreement agrees that at any time and
from time to time upon the written request of any other party it will execute
and deliver such further documents and do such further acts and things as such
other party may reasonably request in order to effect the purposes of this
Agreement.
5. Miscellaneous. (a) All notices and other communications provided for
herein shall be delivered in the manner set forth in Section 11.2 of the Credit
Agreement and to the addresses of the parties hereto set forth on the signature
pages hereto (until notice of a change thereof is delivered as provided in
Section 11.2 of the Credit Agreement).
(b) This Agreement may be modified or waived only by an instrument or
instruments in writing signed by each party hereto.
(c) This Agreement shall be binding upon and inure to the benefit of
each of the parties hereto and their respective successors and assigns.
(d) This Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one and the same instrument, and any of
the parties hereto may execute this Agreement by signing any such counterpart.
(e) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN AND
INTERPRETED IN ACCORDANCE WITH, LAWS OF THE STATE OF NEW YORK.
(f) The Borrower hereby consents to the foregoing terms and conditions
of this Agreement and authorizes the
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Agent, the Collateral Agent and the Tranche A Co-Agent to notify the parties to
the Project Contracts of the replacement of the Prior Agent, Prior Collateral
Agent and Prior Tranche A Co-Agent with the Agent, Collateral Agent and Tranche
A Co-Agent and to direct the parties to the Project Contracts to make all
payments to the Security Agent under the Security Deposit Agreement and give all
notices to the Collateral Agent.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
COMMERZBANK AG, NEW YORK
BRANCH, as Agent,
Collateral Agent and
Tranche A Co-Agent
By: /s/ XXXXXX XXXXXXXXXXX /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxxxxxx Xxxxxx Xxxxxxx
Title: Vice President Assistant Treasurer
COMMERZBANK AG, ATLANTA
AGENCY, as a Tranche A
Lender
By: /s/ XXXXXX XXXXXXXXXXX /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxxxxxx Xxxxxx Xxxxxxx
Title: Vice President Assistant Treasurer
THE BANK OF TOKYO-MITSUBISHI
TRUST COMPANY, as Senior
Tranche Agent and as a
Tranche A Lender
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Vice President
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GENERAL ELECTRIC CAPITAL
CORPORATION, as Tranche B
Lender and GP Term Lender
By: /s/ XXXXXXX X. XXXXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Manager of Operations
TORONTO DOMINION (TEXAS),
INC., as Prior Agent,
Prior Collateral Agent and
Prior Tranche A Co-Agent
By: /s/ XXXX XXXX
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Name: Xxxx Xxxx
Title: Vice President
THE FUJI BANK LIMITED, as a
Tranche A Lender
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
CREDIT LYONNAIS,
NEW YORK BRANCH,
as a Tranche A Lender
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
THE TORONTO-DOMINION BANK, as
a prior Tranche A Lender
By: /s/ XXXX XXXX
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Name: Xxxx Xxxx
Title: Vice President
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CONSENTED TO:
CAMDEN XXXXX X.X.,
as Borrower
By: Cogen Technologies Camden
GP Limited Partnership, a
Delaware limited
partnership, its general
partner
By: Cogen Technologies
Camden, Inc., a Texas
corporation, its
general partner
By: /s/ XXXXXXX X. XXXXXXXX, XX.
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Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Senior Vice President & Chief
Financial Officer
