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EXHIBIT 10.57
SECOND SUCCESSOR SECURITY DEPOSIT AGENT AGREEMENT
This AGREEMENT (the "Agreement"), dated as of July 31, 1998,
among (a) Camden Xxxxx X.X., a Delaware limited partnership (the "Partnership"
or the "Borrower") of which Cogen Technologies Camden GP Limited Partnership, a
Delaware limited partnership, is the general partner (the "General Partner"),
(b) Commerzbank AG, New York Branch, a New York State licensed branch of a bank
organized under the laws of Germany ("Commerzbank"), as agent, collateral agent
and Tranche A co-agent (in such capacity, the "Agent") under 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, supplemented or otherwise
modified from time to time, hereinafter referred to as the "Credit Agreement"),
among (i) the Partnership, (ii) the Agent, (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
("BOTM"), as Senior Tranche Agent for the Tranche A Lenders (in such capacity,
the "Senior Tranche Agent"), (iv) General Electric Capital Corporation, a New
York corporation ("GE Capital"), as Junior Tranche Agent for the Tranche B
Lenders (in such capacity, the "Junior Tranche Agent"), (v) the lenders from
time to time parties thereto (the "Lenders"), (vi) GE Capital, as issuer of the
Letters of Credit (the "Letter of Credit Issuer"), (c) Toronto Dominion
(Texas), Inc. (formerly known as The Toronto-Dominion Bank Trust Company), a
Delaware corporation ("TD Texas"), as prior security agent for GE Capital in
its prior capacity as Counterparty, Junior Tranche Agent and as Letter of
Credit Issuer, BOTM, and the Lenders under the Security Deposit Agreement (in
such capacity, the "Prior Security Agent"), which are parties to the Second
Amended and Restated Security Deposit Agreement, dated as of December 22, 1993
(the "Security Deposit Agreement"), (d) Commerzbank, as successor to the Prior
Security Agent (in such capacity, the "Security Agent"), (e) the General
Partner, (f) GE Capital as the limited partner of the partnership (the "Limited
Partner"), (g) GE Capital as General Partner Term Lender, (h) BOTM, as Senior
Tranche Agent and (i) the Lenders.
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W I T N E S S E T H :
WHEREAS, pursuant to Section 6.02 of the Security Deposit
Agreement, the Prior Security Agent is hereby resigning and concurrently
herewith being replaced by the Security 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. Defined Terms. Unless otherwise defined herein, terms
defined in the Security Deposit Agreement shall have such defined meanings when
used herein.
2. Assignment and Transfer. (a) The Prior Security Agent
hereby assigns, transfers, grants and conveys to the Security Agent, for the
benefit of the Lenders and all other relevant entities, without recourse,
representation or warranty, and the Security Agent, for the benefit of the
Lenders and all other relevant entities, hereby takes and accepts, all of the
Prior Security Agent's right, title and interest in and to any and all of the
Accounts, all cash, cash equivalents, instruments and other securities on
deposit in such Accounts, chattel paper, documents, general intangibles,
instruments and all of the Prior Security Agent's other rights, interests,
benefits and obligations under the Security Deposit Agreement as of the date of
this Agreement.
(b) The Prior Security Agent shall, concurrently with the
execution of this Agreement, deliver to the Security Agent all Accounts held by
the Prior Security Agent and all proceeds thereof held by the Prior Security
Agent and arrange for the transfer of all such funds into the appropriate
respective Accounts established at the Security Agent. Notwithstanding anything
implied to the contrary in this Agreement, the Security Agent shall not succeed
to nor shall the Prior Security Agent be released from any liabilities arising
as a result of facts existing or acts or omissions by the Prior Security Agent
occurring prior to the effectiveness of this Agreement. Any funds described in
the previous sentence received by the Prior Security Agent after the date
hereof shall be promptly transferred to the Security Agent.
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(c) The Prior Security 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 Security Agent
all property and originals of all books, records and documents in its
possession relating to the Security Deposit Agreement.
3. Resignation and Appointment. Pursuant to subsection 6.02
of the Security Deposit Agreement, TD Texas hereby resigns as Prior Security
Agent and Commerzbank is hereby appointed Security Agent by the parties hereto
and Commerzbank hereby accepts such appointment. The Security Agent hereby
succeeds to and becomes vested with all the rights, powers, privileges and
duties of the Prior Security Agent, and, except for the matters provided for in
the last two sentences of Sections 2(b) and 4 hereof, the Prior Security Agent
is hereby discharged and released from its duties and obligations under the
Security Deposit Agreement as of the date of this Agreement. The provisions of
Section 6 and Section 9.02 of the Security Deposit 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 Prior Security Agent.
4. Further Assurances.
(a) The Prior Security Agent shall, promptly upon the
request of the Security Agent, execute, or cause to be executed, and deliver,
or cause to be delivered, or if Borrower fails to pay the same, at the cost of
the Lenders on a pro rata basis, such other and further instruments of
assignment and/or transfer, and any other instruments or documents, and take
any other actions, as may be reasonably necessary and are consistent with the
Prior Security Agent's duties and obligations as the former agent to transfer
to and properly vest in the Security Agent, for the benefit of the Lenders, and
to perfect all liens, security interests, pledges, assignments and other
hypothecations, and all rights of a secured party, under the Accounts, and to
otherwise effectuate the purposes of this Agreement.
(b) The Prior Security Agent hereby agrees to promptly turn
over all funds, notices, communications and other property or documents
received by it in such capacity after the date hereof to the Security Agent.
(c) Each of the parties to this Agreement agrees that at any
time and from time to time upon the written
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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.
(d) Each of the Prior Security Agent and the Security Agent
agree to make all appropriate adjustments regarding the payment of "Security
Agency Fees" as defined in, and made pursuant to, that certain Letter
Agreement, dated as of February 4, 1992, as amended as of April 1, 1993, and as
further amended as of December 22, 1993, among The Toronto-Dominion Bank Trust
Company, as Agent and Security Agent, the Toronto-Dominion Bank, as Tranche A
Lender, The Bank of Tokyo-Mitsubishi Trust Company (formerly known as The Bank
of Tokyo Trust Company), as Senior Tranche Agent and Tranche A Lender, and
General Electric Capital Corporation, as Letter of Credit Issuer and Tranche B
Lender such that all Security Agency Fees accrued prior to the date hereof
shall be allocated for the account of and be paid to. the Prior Security Agent,
and all Security Agency Fees that shall accrue on and after the date hereof
shall be allocated for and be paid to the account of the Security Agent.
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.
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(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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
COMMERZBANK AG, NEW YORK
BRANCH, as Agent and as Security Agent
By: /s/ XXXXXX XXXXXXXXXXX
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Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: Assistant Treasurer
COMMERZBANK AG, ATLANTA
AGENCY, as a Tranche A
Lender
By: /s/ XXXXXX XXXXXXXXXXX
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Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: Assistant Treasurer
THE BANK OF TOKYO-MITSUBISHI
TRUST COMPANY, as Senior
Tranche Agent and a
Tranche A Lender
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Vice President
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CAMDEN COGEN, L.P.
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
COGEN TECHNOLOGIES CAMDEN GP
LIMITED PARTNERSHIP, as
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
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
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TORONTO DOMINION (TEXAS),
INC., as Prior Security
Agent
By: /s/ XXXX XXXX
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Name: Xxxx Xxxx
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: Mgr. Syndications & Credit
Admin.
GENERAL ELECTRIC CAPITAL
CORPORATION, as Junior
Tranche Agent, General
Partner Term Lender, Letter
of Credit Issuer and Limited
Partner
By: /s/ XXXXXXX X. XXXXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Manager of Operations
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