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EXHIBIT 10.22
SECOND AMENDMENT OF THE
AGREEMENT OF LIMITED PARTNERSHIP
OF
COGEN TECHNOLOGIES LINDEN VENTURE, L.P.
THIS SECOND AMENDMENT OF THE AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF COGEN TECHNOLOGIES LINDEN VENTURE, L.P. (this "Amendment
Agreement") is made and entered into as of the 4th day of February, 1999 by and
between Cogen Technologies Linden, Ltd., a Texas limited partnership (the
"General Partner"), and State Street Bank and Trust Company of Connecticut,
National Association, not in its individual capacity but as trustee (in such
capacity, the "Owner Trustee") under a Trust Agreement dated as of December 28,
1990 between the Owner Trustee and Linden Owner Partnership, a Delaware
partnership. Unless otherwise noted, all defined terms used herein shall have
the same meaning given to such terms in the Agreement of Limited Partnership of
Cogen Technologies Linden Venture, L.P. dated September 15, 1992 (as heretofore
amended, the "Agreement").
WITNESSETH:
WHEREAS, the General Partner and the Owner Trustee are parties to the
Agreement;
WHEREAS, pursuant to the Agreement, the limited partnership known as
Cogen Technologies Linden Venture, L.P. (the "Partnership") was formed pursuant
to the Partnership Act; and
WHEREAS, the General Partner and the Owner Trustee 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 definitions of "Management Fee," "Cost Portion" and
"Profit Portion" shall be deleted, and all references to such terms
shall be deleted or, where the context requires, such terms shall each
be redefined to mean "zero dollars."
(b) The following new defined terms shall be added:
"Second Amendment" shall mean the Second Amendment of the
Agreement of Limited Partnership of Cogen Technologies Linden
Venture, L.P., dated as of February 4, 1999.
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"Buy-Out Agreements" shall mean that certain
Termination Agreement dated as of the date of the
Second Amendment, executed by the Partnership and the
General Partner and that certain Termination
Agreement dated as of the October 25, 1998, executed
by H. Xxxx Xxxxxx and Xxxxx Technologies Capital
Company, L.P., copies of which are attached to the
Amendment as Exhibits A and B, respectively.
"Final Determination" (i) the execution of a final
and binding settlement agreement by the Partnership
and the taxing authority, (ii) the entering of a
final unappealable decision by any court of competent
jurisdiction.
"Tax Indemnity Distribution Date" shall mean (i) with
respect to any Tax Indemnity Event arising out of the
transactions contemplated by means the Transaction
Agreement among Enron Corp., Enron Capital & Trade
Resources Corp., East Coast Power L.L.C., JEDI Camden
GP, L.L.C., JEDI Camden LP, L.L.C., JEDI Linden GP,
L.L.C., JEDI Linden GP, L.L.C. and RCM Holdings,
Inc., Cogen Technologies Camden, Inc., Camden Cogen
Technologies Capital Company, L.P., Cogen
Technologies Limited Partners Joint Venture, the
Partners of Cogen Technologies Limited Partners Joint
Venture and the shareholders of XxXxxx Energy
Services Corporation, dated October 25, 1998, as
amended by Amendment No. 1 dated as of November 6,
1998, as amended by Amendment No. 2 dated as of
November 13, 1998 and Amendment No. 3 dated as of
February 4, 1999 (the "1999 Transactions"), the
earlier of the end of the month during which (a)
either the Common Limited Partner or the Preferred
Limited Partner is required to pay additional federal
income tax as a result of a Final Determination
relating to a Tax Indemnity Event, or (b) the
following have all occurred (1) the Partnership
receives a revenue agent's report or Final
Partnership Administrative Adjustments that proposes
adjustments that would result in a Tax Indemnity
Event, (2) the Partnership exhausts its
administrative remedies with the Appeals Division of
the Internal Revenue Service with respect to such
adjustments, and (3) the Limited Partner receives an
opinion of counsel that a Tax Indemnity Event has
occurred and additional federal income tax will be
owed by such Partner and (ii) with respect to any
other Tax Indemnity Event, the earlier of (a) the end
of the month during which either the Common Limited
Partner or the
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Preferred Limited Partner is required to pay
additional federal income taxes as a result of a Tax
Indemnity Event or (b) the date that the Limited
Partner reasonably determines (based on the advice of
tax counsel) that a Tax Indemnity Event has occurred
and additional federal income taxes will be owed by
either the Common Limited Partner or the Preferred
Limited Partner.
"Linden GP LLC" shall mean JEDI Linden GP, L.L.C., a
Delaware limited liability company.
"Linden GP, Inc." shall mean JEDI Linden, Inc., a
Delaware corporation.
(c) The definition of "Capital Account" shall be
amended to insert "5.9," after the word "subsections" in the
10th line of clause (ii).
(d) The definition of "Distributable Cash" shall be
amended to (i) delete ", and the Cost Portion of the
Management Fee" from the 17th line of the definition and (ii)
delete the second sentence in its entirety.
(e) The definition of "Tax Indemnity Event" shall be
amended to insert (i) "or its partners" in the second line
after the words "General Partner" and before the word "not"
and (ii) "(excluding Section 10.1(a) hereof)" in the third
line after the word "Agreement" and before the word "that."
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 equal to all funds
required to be paid by the Partnership pursuant to the Buy-Out
Agreements.
3. Section 4.3(b) of the Agreement shall be amended to delete that
portion of the section beginning after the words "Schedules 5 of 7 hereto" on
the sixth line of Section 4.3(b).
4. Section 4.5 of the Agreement shall be amended to delete "or amounts
that would otherwise have been paid to the General Partner as the Management
Fee," from the sixth and seventh lines of Section 4.5.
5. Section 4.6 of the Agreement shall be amended to replace the
existing provision with the following:
Tax Indemnity. (a) Notwithstanding anything else
contained herein other than the following sentence,
if a Tax Indemnity
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Event occurs, then on and after the Tax Indemnity
Distribution Date, an amount of Distributable Cash
that would otherwise have been distributed to the
General Partner under this Article IV for any month
shall instead be distributed to the Preferred Limited
Partner or the Common Limited Partner, as the case
may be, until the balance of the Tax Indemnity Amount
equals zero. Notwithstanding the preceding sentence,
if the Tax Indemnity Amount is in excess of
$5,000,000 and relates solely to the 1999
Transactions, the General Partner may elect the
following alternative distribution mechanism. On and
after the Tax Indemnity Distribution Date an amount
of Distributable Cash that would have otherwise been
distributed to the General Partner under this Article
IV shall instead be distributed to the Preferred
Limited Partner or the Common Limited Partner, as the
case may be, until such Limited Partner has received
an amount of Distributable Cash pursuant to this
subsection 4.6 equal to the amount of net additional
taxes (including penalties and interest thereon)
payable with respect to such period and all prior
periods (such amount compounded at the Implicit Rate
from the Tax Indemnity Distribution Date until the
date of final distribution) plus the amount of all
income taxes payable by such Limited Partner as a
result of the allocation of income to such Limited
Partner in connection with such distributions (which
allocation will take into account all of the elements
of the Tax Indemnity Amount, including the
calculation of the income taxes payable) and
thereafter Schedules 5 and 7 to this Agreement shall
be revised to increase the aggregate amounts to be
distributed pursuant to subsection 4.3(a) to pay the
remaining Tax Indemnity Amount (as adjusted to
reflect installment distributions compounded at the
Implicit Rate) in monthly installments during the
period following the month during which the revisions
are calculated and ending on the Flip Date. Such
calculation shall take into account the Tax
Assumption set forth on Schedule 2 as adjusted to
reflect any revisions thereto resulting from the Tax
Indemnity Event and all of the elements of the Tax
Indemnity Amount, including the calculation of income
taxes payable.
(b) If a distribution is made to a Limited Partner
pursuant to Section 4.6(a) based upon clause (ii) of
the definition of "Tax Indemnity Distribution Date"
and it is later determined that the Tax Indemnity
Event on which the payment was based did
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not occur, such Limited Partner shall pay to the
General Partner within 30 days of such determination
an amount of cash equal to such distribution, plus
any interest actually received from the Internal
Revenue Service with respect to taxes relating to
such Tax Indemnity Event; provided, however, that
such payment obligation shall be subject to the terms
of the subordination provisions attached hereto as
Annex A.
6. Section 5.2(d) of the Agreement shall be amended to delete that
portion of the section beginning after the word "hereof" on the sixth line of
Section 5.2(d).
7. 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.
8. Section 6.4 of the Agreement shall be amended by inserting the words
"and the General Partner's Capital Contributions under Section 3.4" after the
word "Proceeds" at the end of the parenthetical phrase in the second line of
such section.
9. Section 7.2(c) of the Agreement shall be amended by deleting "1600"
in the second line thereof and inserting "1400" in replacement therefor.
10. Section 7.4 of the Agreement shall be deleted in its entirety.
11. 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.
12. The first sentence of Section 10.1(a) of the Agreement shall be
amended to delete clause (i) in its entirety, to delete sub-clause (x) of clause
(ii) and to delete the word "thereafter" at the end thereof.
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13. Section 12.2 of the Agreement shall be amended (a) to change the
street address of General Electric Capital Corporation - TIFC from "1600 Summer
Street" to "120 Long Ridge Road," and (b) to restate the address of Xxxxx Xxxxxx
or the Partnership as follows:
0000 Xxxxx Xxxxxx, XX 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxx, Compliance Department
Telecopy: (000) 000-0000
14. Section 14.1(t) of the Agreement shall be amended to insert the
words "or its successors or assigns" after the word "Exxon" and before the word
"shall" on the first line of Section 14.1(t).
15. 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
16. Section 14.1 of the Agreement shall be amended to add the following
new Section 14.1(w):
(w)(1) Linden GP LLC shall fail to perform or observe
Section 1.04, 2.01, 2.06, 4.01, 5.03 or 5.04 of its limited
liability company agreement; (2) Linden GP Inc. shall fail to
perform or observe Article III, IX.2, IX.3 or XII.1 of its
Certificate of Incorporation; or (3)(A) Linden GP LLC shall
fail to perform or observe any provisions of its limited
liability company agreement (other than provisions enumerated
in clause (1) above of this paragraph (w)), or (B) Linden GP,
Inc. shall fail to perform or observe any provision of its
Certificate of Incorporation (other than provisions enumerated
in clause (2) above of this paragraph (w)), and in each case
in this clause (3) such failure shall continue unremedied for
a period of 30 days after written notice thereof by any
Limited Partner to Linden GP LLC (in the case of clause (A)
above) or Linden GP, Inc. (in the case of clause (B) above)
and the General Partner; provided, however, that such 30 day
period shall be extended for such period of time (not to
exceed 60 days) during which Linden GP LLC or Linden GP, Inc.
or the General Partner on behalf of Linden GP LLC or Linden
GP, Inc. shall be diligently using its best efforts to cure
such default.
17. 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 Owner Trustee
hereby consents under Section 7.3(a) of the
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Agreement to the management fee termination and the fuel fee termination
pursuant to the Buy-Out Agreements.
18. This Amendment Agreement shall be binding upon, and shall enure to
the benefit of, the parties hereto and their respective successors and assigns.
19. 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.
20. Except as hereby amended, the Agreement shall remain in full force
and effect.
21. This Amendment Agreement shall be governed by, and interpreted in
accordance with, the laws of the State of Delaware, without regard to principles
of conflict of laws.
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IN WITNESS WHEREOF, this Amendment Agreement has been executed as of
the date and year first above written.
COGEN TECHNOLOGIES LINDEN, LTD.
By: RCM Holdings, Inc.
(formerly Cogen Technologies, 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
and Chief Financial Officer
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, not in its
individual capacity but as Owner Trustee
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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