EXHIBIT 10.30
AMENDED AND RESTATED
STEAM LESSEE SECURITY AGREEMENT
AMENDED AND RESTATED STEAM LESSEE SECURITY AGREEMENT,
dated as of December 18, 1996 (this "Security Agreement" or this
"Agreement"), made by BRANDYWINE WATER COMPANY, a Delaware
corporation (together with its successors and assigns, the "Steam
Lessee"), in favor of FLEET NATIONAL BANK (formerly known as
Shawmut Bank Connecticut, National Association), as Security
Agent (the "Security Agent") under the Security Deposit Agreement
(as defined in the Participation Agreement referred to below).
W I T N E S S E T H :
WHEREAS, Panda-Brandywine, L.P. (the "Partnership"),
Panda Brandywine Corporation, a Delaware corporation, and the
sole general partner of the Partnership (the "General Partner")
and General Electric Capital Corporation, a New York corporation
("GE Capital" or the "Owner Participant") entered into the
Construction Loan Agreement and Lease Commitment dated as of
March 30, 1995 (the "Construction Loan Agreement") pursuant to
which GE Capital (i) provided construction financing for the
Project and (ii) issued the Letters of Credit as collateral
security for certain obligations of the Partnership under the
Power Purchase Agreement;
WHEREAS, the Steam Lessee entered into the Steam Lessee
Security Agreement dated as of March 30, 1995 (as amended,
supplemented or otherwise modified prior to the date hereof, the
"Existing Security Agreement"), in favor of the Security Agent,
to secure the payment and performance by the Partnership of all
of its obligations to GE Capital and the Owner Trustee (as
defined below);
WHEREAS, as contemplated by the Construction Loan
Agreement, the Partnership and the Owner Trustee are entering
into the Facility Lease and the other Lease Documents pursuant to
which, among other things, the Owner Trustee will lease the
Facility to the Partnership;
WHEREAS, the Partnership and GE Capital are entering
into the Letter of Credit Reimbursement Agreement to provide for
the continued issuance by GE Capital of the Letters of Credit;
WHEREAS, the Owner Participant has elected to fund the
Facility Lease with non-recourse indebtedness as a leveraged
lease and in connection therewith, the parties hereto have agreed
to amend and restate the Existing Security Agreement subject to
the terms and conditions provided herein;
WHEREAS, the Steam Lessee will have a leasehold
interest in the Distilled Water Facility pursuant to the Steam
Lease, to be entered into on the Lease Closing Date, between the
Partnership and the Steam Lessee;
WHEREAS, in order to set forth the rights and
obligations of the Owner Participant, the Owner Trustee, the
Partnership, the Loan Participants, the Administrative Agent, the
Security Agent and the Indenture Trustee (each as defined below)
in connection with the foregoing transactions and to describe and
provide for the transactions contemplated hereby, (i) the parties
hereto are entering into the Participation Agreement, (ii) the
Owner Trustee and the Indenture Trustee are entering into the
Indenture, (iii) certain of the Lessee Security Documents are
being amended and restated pursuant to the Amended and Restated
Agreements and (iv) the Construction Loan Agreement is being
terminated;
WHEREAS, it is a condition precedent to the performance
of certain obligations on the Lease Closing Date that the Pledgor
shall have executed and delivered this Security Agreement to the
Security Agent, for the benefit of GE Capital and the Owner
Trustee (and by collateral assignment, the Indenture Trustee);
WHEREAS, the Steam Lessee desires to execute this Secu
rity Agreement to satisfy the condition described in the
preceding recital;
WHEREAS, pursuant to the terms of the Security Deposit
Agreement, the Security Agent has agreed to act as security agent
on behalf of GE Capital, the Owner Trustee and the Indenture
Trustee and to hold the Collateral for the benefit of the Owner
Trustee and GE Capital (and, by collateral assignment, the
Indenture Trustee);
NOW, THEREFORE, in consideration of the premises and
other benefits to the Steam Lessee of the foregoing transactions,
the receipt and sufficiency of which are hereby acknowledged, the
Steam Lessee hereby covenants and agrees with the Security Agent,
for the benefit of the Owner Trustee and GE Capital, as follows:
ARTICLE I
DEFINITIONS
Section 1 Definitions. The following terms shall
have the meanings herein specified unless the context otherwise
requires. Such definitions shall be equally applicable to the
singular and plural forms of the terms defined. Capitalized
terms used but not defined herein shall have the meanings
assigned to them in Annex A to the Participation Agreement, dated
as of December 18, 1996 (the "Participation Agreement"), among
the Partnership, the General Partner, GE Capital, the Owner
Participant, Fleet National Bank (formerly known as Shawmut Bank
Connecticut, National Association), a national banking
association, not in its individual capacity but solely as owner
trustee (in such capacity, the "Owner Trustee", including any
successor owner trustee appointed in accordance with the terms of
the Trust Agreement) under the Trust Agreement and as the
Security Agent, First Security Bank, National Association, a
national banking association, not in its individual capacity but
solely as indenture trustee (in such capacity, the "Indenture
Trustee") under the Indenture, Credit Suisse, a bank organized
and existing under the laws of Switzerland, acting by and through
its New York branch ("Credit Suisse"), as administrative agent
(in such capacity, the "Administrative Agent"), and the entities
listed on Schedule I to the Participation Agreement
(individually, the "Loan Participant" and collectively, the "Loan
Participants"). Commercial terms used herein and not otherwise
defined herein or in Annex A to the Participation Agreement shall
have the meaning specified for such terms in the Uniform
Commercial Code as in effect in the State of New York.
"Chattel Paper" shall have the meaning assigned to that
term under the Uniform Commercial Code as in effect in any
relevant jurisdiction.
"Collateral" shall have the meaning specified in
Section 2.1(a).
"Contract Rights" shall have the meaning specified in
Section 6.1(c).
"Contracts" shall mean all contracts to which the Steam
Lessee now is, or hereafter will be, bound, or a party,
beneficiary or assignee (including, without limitation, the Steam
Lease), and all other instruments, agreements and documents
executed and delivered with respect to such contracts, any
guarantees or letters of credit provided to the Steam Lessee to
assure the performance by any party to any contract and all
revenues, damages, rentals, Proceeds and other sums of money due
and to become due from any of the foregoing, as the same may be
modified, supplemented or amended from time to time in accordance
with their terms.
"Document" shall have the meaning assigned that term
under the Uniform Commercial Code as in effect in any relevant
jurisdiction.
"Equipment" shall mean any "equipment", as such term is
defined in the Uniform Commercial Code as in effect in any
relevant jurisdiction, now or hereafter owned or leased by the
Steam Lessee and, in any event, shall include, but shall not be
limited to, all equipment used in connection with the Distilled
Water Facility, all machinery, tools, office equipment,
furniture, furnishings, fixtures, vehicles, motor vehicles, and
any manuals, instructions, blueprints, computer software and
similar items which relate to the above, and any and all
additions, substitutions and replacements of any of the
foregoing, wherever located, together with all improvements
thereon and all attachments, components, parts, equipment and
accessories installed thereon or affixed thereto.
"Expenses" shall have the meaning specified in Section
8.1.
"Facility Lease" shall mean the Facility Lease, dated
as of the date hereof, to be entered into between the Owner
Trustee and the Partnership, as amended, supplemented or
otherwise modified from time to time.
"Fixtures" shall have the meaning assigned that term
under the Uniform Commercial Code as in effect in any relevant
jurisdiction and in any event shall include all goods now or
hereafter attached to, placed on, or incorporated in the
Distilled Water Facility Premises.
"General Intangibles" shall mean "general intangibles"
as such term is defined in the Uniform Commercial Code as in
effect in any relevant jurisdiction, now or hereafter owned by
the Steam Lessee and shall include, but not be limited to, all
trademarks, trademark applications, trademark registrations,
tradenames, fictitious business names, business names, company
names, business identifiers, prints, labels, trade styles and
service marks (whether or not registered), including logos and/or
designs, copyrights, patents, patent applications, goodwill of
the Steam Lessee's business symbolized by any of the foregoing,
trade secrets, license rights, license agreements, permits,
franchises, and any rights to tax refunds to which the Steam
Lessee is now or hereafter may be entitled.
"Indemnitee" shall have the meaning specified in
Section 8.1.
"Instrument" shall have the meaning assigned that term
under the Uniform Commercial Code as in effect in any relevant
jurisdiction.
"Inventory" shall mean all of the inventory of the
Steam Lessee of every type or description, including all inven
tory as such term is defined in the Uniform Commercial Code as in
effect in any relevant jurisdiction, now owned or hereafter
acquired and wherever located, whether raw, in process or
finished, all materials usable in processing the same and all
documents of title covering any inventory, including but not
limited to work in process, materials used or consumed in the
Steam Lessee's business, now owned or hereafter acquired or
manufactured by the Steam Lessee and held for sale in the
ordinary course of its business; all present and future
substitutions therefore, parts and accessories thereof and all
additions thereto; and all proceeds thereof and products of such
inventory in any form whatsoever.
"Inventory Records" shall mean all books, records and
other property and General Intangibles at any time relating to
the Inventory.
"Lessee Obligations" shall mean all the unpaid
principal amount of, and accrued interest on (including, without
limitation, interest accruing after the maturity of the Letter of
Credit Obligations and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Partnership,
whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) the Letter of Credit Obligations,
all Rent and other obligations payable by the Partnership under
the Facility Lease, the Participation Agreement and the
Reimbursement Agreement and all other obligations and liabilities
of the Steam Lessee, the Partnership and the Partners to GE
Capital, the Owner Trustee, the Security Agent, the Indenture
Trustee, the Administrative Agent, the Holders or any other
Indemnitee, whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, the
Facility Lease, the Reimbursement Agreement, this Agreement, the
other Collateral Security Documents or any other Financing
Document and any other document made, delivered or given in
connection therewith or herewith, whether on account of
principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without limitation, fees
and disbursements of counsel) or otherwise.
"Partnership" shall have the meaning specified in the
recitals to this Security Agreement.
"Proceeds" shall mean "proceeds" as such term is
defined in the Uniform Commercial Code as in effect in any
relevant jurisdiction or under other relevant law and, in any
event, shall include, but shall not be limited to, (i) any and
all proceeds of any insurance, indemnity, warranty or guaranty
payable to the Steam Lessee from time to time, and claims for
insurance, indemnity, warranty or guaranty effected or held for
the benefit of the Steam Lessee with respect to any of the
Collateral, (ii) any and all payments (in any form whatsoever)
made or due and payable to the Steam Lessee from time to time in
connection with any requisition, confiscation, condemnation,
seizure or forfeiture of all or any part of the Collateral by any
Governmental Authority (or any person acting under color of
Governmental Authority) and (iii) any and all other amounts from
time to time paid or payable under or in connection with any of
the Collateral.
"Receivables" shall mean any "Account" as such term is
defined in the Uniform Commercial Code as in effect in any
relevant jurisdiction and in any event shall include, but not be
limited to, all of the Steam Lessee's rights to payment for goods
(including, without limitation, steam) sold or leased, or
services performed, by the Steam Lessee, whether now in existence
or arising from time to time hereafter, including, without
limitation, rights evidenced by an account, note, contract,
security agreement, chattel paper, or other evidence of indebted
ness or security, together with (i) all security pledged,
assigned, hypothecated or granted to or held by the Steam Lessee
to secure the foregoing, (ii) all of the Steam Lessee's right,
title and interest in and to any goods (including, without
limitation, steam) the sale of which gave rise thereto, (iii) all
guarantees, endorsements and indemnifications on, or of, any of
the foregoing, (iv) all powers of attorney for the execution of
any evidence of indebtedness or security or other writing in
connection therewith, (v) all books, correspondence, credit
files, records, ledger cards, invoices, and other papers relating
thereto, including without limitation all similar information
stored on a magnetic medium or other similar storage device and
other papers and documents in the possession or under the control
of the Steam Lessee or any computer bureau from time to time
acting for the Steam Lessee, (vi) all evidences of the filing of
financing statements and other statements and the registration of
other instruments in connection therewith and amendments thereto,
notices to other creditors or secured parties, and certificates
from filing or other registration officers, (vii) all credit
information, reports and memoranda relating thereto, and (viii)
all other writings related in any way to the foregoing.
"Security Agreement" shall mean this Steam Lessee
Security Agreement, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its
terms.
ARTICLE II
ASSIGNMENT AND GRANT OF SECURITY INTERESTS
Section 1 Assignment and Grant of Security
Interest. (a) As collateral security for the prompt and
complete payment and performance when due of all of the Lessee
Obligations, the Steam Lessee hereby pledges, hypothecates,
assigns, grants, transfers and delivers to the Security Agent,
for the benefit of GE Capital and the Owner Trustee (and by
collateral assignment, the Indenture Trustee) a continuing security
interest of first priority, in all of the Steam Lessee's
right, title and interest (including any leasehold interest) in,
to and under (i) all Receivables, (ii) all Inventory, (iii) all
Equipment, (iv) all General Intangibles, (v) all Contracts and
all Contract Rights, (vi) all amounts from time to time held in
any checking, savings, deposit or other account of the Steam
Lessee and all investments and securities at any time on deposit
in such accounts and all income or gain earned thereon, (vii) all
Governmental Actions, provided, that any Governmental Action
which by its terms or by operation of law would become void,
voidable, terminable or revocable if mortgaged, pledged or
assigned hereunder or if a security interest therein were granted
hereunder are expressly excepted and excluded from the Lien and
the terms of this Security Agreement to the extent necessary so
as to avoid such voidness, voidability, terminability or
revocability, (viii) all Fixtures, (ix) without limiting the
generality of the foregoing, all other personal property, rights,
interests, goods, Instruments, Chattel Paper, Documents, credits,
claims, demands and assets of the Steam Lessee whether now
existing or hereafter acquired from time to time, and (x) any and
all additions and accessions to any of the foregoing, all
improvements thereto, all substitutions and replacements therefor
and all products and Proceeds thereof (all of the above
collectively, the "Collateral").
(b) The security interest granted to the Security
Agent, for the benefit of GE Capital and the Owner Trustee,
pursuant to this Security Agreement extends to all Collateral of
the kind which is the subject of this Security Agreement which
the Steam Lessee may acquire at any time during the continuation
of this Security Agreement, whether such Collateral is in transit
or in the Steam Lessee's, the Partnership's, the Security
Agent's, the Owner Trustee's, GE Capital's, or any other Person's
constructive, actual or exclusive occupancy or possession.
Section 2 Security Interest Absolute. All rights of
the Security Agent and all security interests hereunder, shall be
absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the
Facility Lease, the Steam Lease, any other Financing Document or
any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of
payment of, or in any other term of, all or any of the Lessee
Obligations, or any other amendment or waiver of or any consent
to any departure from the Facility Lease, or any other Financing
Document;
(c) any exchange, release or non-perfection of
any other collateral, or any release or amendment or waiver of or
consent to departure from any guaranty, for all or any of the
Lessee Obligations; or
(d) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the Steam
Lessee, the Partnership or a third party pledgor.
Section 3 Power of Attorney. (a) The Steam Lessee
hereby constitutes and appoints the Security Agent or any Person
or agent whom the Security Agent may designate, as the Steam
Lessee's attorney-in-fact, at the Steam Lessee's reasonable cost
and expense, to exercise at any time following the occurrence and
during the continuance of a Reimbursement Event of Default or a
Lease Event of Default all or any of the following powers, which,
being coupled with an interest, shall be irrevocable until all of
the Lessee Obligations have been paid in full:
(i) To receive, take, endorse, sign, as
sign and deliver, all in the Security Agent's name
or the Steam Lessee's name, any and all checks,
notes, drafts, and other documents or instruments
relating to the Collateral;
(ii) To receive, open and dispose of all
mail addressed to the Steam Lessee and to notify
postal authorities to change the address for de
livery thereof to such address as the Security
Agent designates;
(iii) To request from account debt
ors of the Steam Lessee in the Steam Lessee's
name, the Security Agent's name, or in the name of
the Security Agent's designee, information concern
ing the Receivables and the amounts owing thereon;
(iv) To transmit to account debtors in
debted on Receivables notice of the Security
Agent's interest therein;
(v) To notify account debtors indebted
on Receivables to make payment directly to the
Security Agent;
(vi) To take or bring, in the Steam
Lessee's name or the Security Agent's name, all
steps, actions, suits or proceedings deemed by the
Security Agent to be necessary or desirable to
enforce or effect collection of the Receivables;
(vii) To prepare, sign and file any
Uniform Commercial Code financing statements in
the name of the Steam Lessee as debtor;
(viii) If the Steam Lessee shall have
failed to do so in a timely manner, to take or
cause to be taken all actions necessary to perform
or comply or cause performance or compliance with
the covenants of the Steam Lessee contained in the
Steam Lease or in the Financing Documents;
(ix) To sign and endorse any invoices,
freight or express bills, bills of lading, storage
or warehouse receipts, drafts against debtors,
assignments, verifications, notices and other
documents in connection with any of the Collateral;
(x) To defend any suit, action or
proceeding brought against the Steam Lessee with
respect to any Collateral;
(xi) To settle, compromise or adjust any
suit, action or proceeding described in the
preceding clause and, in connection therewith, to
give such discharges or releases as the Security
Agent may deem appropriate;
(xii) Generally, to sell or transfer
and make any agreement with respect to or
otherwise deal with any of the Collateral as fully
and completely as though the Security Agent were
the absolute owner thereof for all purposes, and
to do, at the Security Agent's option and the
Steam Lessee's expense, at any time, or from time
to time, all acts and things which the Security
Agent deems necessary to protect, preserve or
realize upon the Collateral and the Liens of the
Security Agent thereon;
(xiii) To execute, in connection with
any foreclosure, any endorsements, assignments or
other instruments of conveyance or transfer with
respect to the Collateral; and
(xiv) To exercise the Steam Lessee's
rights under any Contract in accordance with
Section 6.4.
(b) The Steam Lessee hereby ratifies all that
said attorney shall lawfully do or cause to be done by virtue
hereof. The Steam Lessee hereby acknowledges and agrees that the
Security Agent shall have no fiduciary duties to the Steam Lessee
and the Steam Lessee hereby waives any claims to the rights of a
beneficiary of a fiduciary relationship hereunder.
ARTICLE III
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
The Steam Lessee represents, warrants and covenants,
which representations, warranties and covenants shall survive
execution and delivery of this Security Agreement, as follows:
Section 1 Validity of Lien. This Security Agreement
is effective to create, as security for the Lessee Obligations, a
legal, valid and enforceable Lien on and security interest in all
of the Collateral in favor of the Security Agent, for the benefit
of the Owner Trustee and GE Capital, superior to and prior to the
rights of all third Persons and subject to no other Liens (other
than Permitted Liens).
Section 2 No Liens. (a) The Steam Lessee is, and
as to Collateral acquired by it from time to time after the date
hereof, the Steam Lessee will be, the owner of all Collateral
free from all Liens (other than Permitted Liens) or other right,
title or interest of any Person. The Steam Lessee shall defend
the Collateral against all Liens and demands of all Persons at
any time claiming the same or any interest therein adverse to the
Security Agent, the Owner Trustee, GE Capital or the Indenture
Trustee.
(b) There is no financing statement (or similar
statement or instrument of registration under the law of any
jurisdiction) covering or purporting to cover any interest of any
kind in the Collateral, and the Steam Lessee will not execute or
authorize to be filed in any public office any financing
statement (or similar statement or instrument of registration
under the law of any jurisdiction) or statements relating to the
Collateral, except financing statements filed in favor of the
Security Agent for the benefit of the Owner Trustee (and, by
collateral assignment, the Indenture Trustee) and GE Capital to
secure the Lessee Obligations and (ii) financing statements filed
or to be filed in respect of and covering the security interests
granted hereby to the Security Agent.
Section 3 Chief Executive Office; Name; Records.
The chief executive office of the Steam Lessee is located at 0000
Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000; provided that
certain records concerning the Distilled Water Facility and
certain contracts relating thereto are kept at the Steam Lessee's
office at the Site. The Steam Lessee will not (a) move its chief
executive office (or change the location(s) where records
concerning the Project are kept), or (b) change its name from,
nor carry on business under any name other than "Brandywine Water
Company", unless it has complied with the requirements of the
last sentence of this Section 3.3. The originals of all
documents evidencing all Contracts and Receivables of the Steam
Lessee, and the only original books of accounts and records
concerning the Collateral are, and will continue to be, kept at,
and controlled and directed (including, without limitation, for
general accounting purposes) from, such chief executive office
(or such other office set forth above), or at such new location
for such chief executive office as the Steam Lessee may establish
in accordance with the last sentence of this Section 3.3. The
Steam Lessee shall not establish a new location for its chief
executive office or change its name or the name under which it
presently conducts its business until (i) it has given to the
Security Agent, the Administrative Agent and GE Capital not less
than 30 days prior written notice of its intention so to do,
clearly describing such new location or specifying such new name,
as the case may be, and providing such other information in
connection therewith as the Security Agent, the Administrative
Agent or GE Capital may reasonably request, and (ii) with respect
to such new location or such new name, as the case may be, it
shall have taken all action, reasonably satisfactory to the
Security Agent, the Administrative Agent and GE Capital, to
maintain the security interest of the Security Agent, on behalf
of the Owner Trustee and GE Capital, in the Collateral intended
to be granted hereby at all times fully perfected and in full
force and effect.
Section 4 Financing Statements. The Steam Lessee
agrees that all necessary and appropriate recordings and filings
will be effected by the Security Agent in all necessary and
appropriate public offices (as determined by GE Capital and the
Administrative Agent) so that the Liens created by this Security
Agreement or the Existing Security Agreement will at all times
constitute perfected Liens on and security interests in the
Collateral prior and superior to all other Liens, all in
accordance with the Uniform Commercial Code as enacted in any and
all relevant jurisdictions or any other relevant Law. The Steam
Lessee authorizes the Security Agent to file any such financing
statements in connection with the Liens created by this Security
Agreement or the Existing Security Agreement without the signa
ture of the Steam Lessee.
Section 5 Further Actions. The Steam Lessee will,
at its own expense, make, execute, endorse, acknowledge, file
and/or deliver to the Security Agent from time to time such
lists, descriptions and designations of its Collateral, bills of
lading, documents of title, vouchers, invoices, schedules, powers
of attorney, certificates, reports and other assurances or
instruments and take such further steps relating to the
Collateral and other property or rights covered by the security
interest hereby granted, which are necessary or desirable to
create, perfect, preserve, protect or validate any security
interest granted pursuant to this Security Agreement or to enable
the Security Agent to exercise and enforce its rights under this
Security Agreement with respect to such security interest.
Section 6 Taxes, Claims, etc. So long as this
Security Agreement is in effect, the Steam Lessee shall pay (a)
all taxes, assessments and governmental charges imposed upon it
or upon its property, and (b) all claims (including, without
limitation, claims for labor, materials, supplies or services)
which might, if unpaid, become a Lien upon its property, unless,
in each case, the validity or amount thereof is subject to
Contest.
Section 7 Right of Inspection. The Steam Lessee
shall allow any representative of the Security Agent, the
Administrative Agent or the Owner Participant to visit and
inspect any of the Steam Lessee's properties, including, without
limitation, the Inventory and Equipment, to examine its books of
record and account, including, without limitation, the Inventory
Records, and to make extracts therefrom and to receive true
copies of any papers, documents or instruments relating to the
Collateral, and to discuss its affairs, finances and accounts
with its officers, all at such times and as often as the Security
Agent, the Administrative Agent or the Owner Participant may re
quest.
Section 8 Additional Statements and Schedules. The
Steam Lessee shall execute and deliver to the Security Agent and
the Administrative Agent, from time to time, solely for their
convenience in maintaining a record of the Collateral, such
written statements and schedules as the Security Agent or the
Administrative Agent may reasonably require designating, identi
fying or describing the Collateral.
Section 9 Warehouse Receipts Non-Negotiable. The
Steam Lessee agrees that if any warehouse receipt or receipt in
the nature of a warehouse receipt is issued with respect to any
of its Inventory, such warehouse receipt or receipt in the nature
thereof shall not be drawn in such a manner as to be "negotiable"
(as such term is used in Section 7-104 of the Uniform Commercial
Code as in effect in any relevant jurisdiction or under other
relevant law).
ARTICLE IV
SPECIAL PROVISIONS CONCERNING INVENTORY AND EQUIPMENT
Section 1 Location of Inventory and Equipment. The
Steam Lessee agrees that all Inventory and Equipment now held or
subsequently acquired by it shall be kept at (or shall be in
transport to) the Site, or such new location as the Steam Lessee
may establish in accordance with the last sentence of this
Section 4.1. The Steam Lessee may establish a new location for
Inventory and Equipment only if (i) it shall have given to the
Security Agent, the Administrative Agent and GE Capital 30 days
prior written notice of its intention so to do, clearly de
scribing such new location and providing such other information
in connection therewith as the Security Agent, the Administrative
Agent or GE Capital may reasonably request, and (ii) with respect
to such new location, it shall have taken all action necessary to
maintain the security interest of the Security Agent in the
Collateral intended to be granted hereby at all times fully
perfected and in full force and effect.
Section 2 Inventory Records. The Steam Lessee shall
maintain such current Inventory Records as the Security Agent may
from time to time reasonably request.
ARTICLE V
SPECIAL PROVISIONS CONCERNING RECEIVABLES,
CONTRACTS AND INSTRUMENTS
Section 1 Additional Representations and
Warranties. As of the time when each of its Receivables arises,
the Steam Lessee shall be deemed to have represented and
warranted that such Receivable and all records, papers and
documents relating thereto (if any) are genuine and in all
respects what they purport to be, and that all papers and docu
ments (if any) relating thereto (i) will (subject to dispute,
return, replacement, settlement or compromise) evidence
indebtedness unpaid and owed by such account debtor arising out
of the performance of labor or services or the sale and delivery
of the merchandise listed therein, or both, (ii) will be the only
original writings evidencing and embodying such obligation of the
account debtor named therein (other than copies created for
purposes other than general accounting purposes), (iii) will
(subject to dispute, return, replacement, settlement or
compromise and any limits due to applicable bankruptcy,
insolvency, moratorium or other similar rights affecting
creditors' rights generally and general principles of equity)
evidence true and valid obligations, enforceable in accordance
with their respective terms, not subject to the fulfillment of
any contract or condition whatsoever unless set forth in the
writing and (iv) will be in compliance and will conform with all
applicable requirements of Law.
Section 2 Maintenance of Records; Legending of
Records. The Steam Lessee will keep and maintain at its own cost
and expense satisfactory and complete records of its Receivables,
including, but not limited to, records of all payments received
and all credits granted thereon, and the Steam Lessee will make
the same available to the Security Agent and Administrative Agent
for inspection at the Steam Lessee's chief executive office,
without charge to the Security Agent and Administrative Agent, at
such times as the Security Agent and Administrative Agent may
reasonably request. The Steam Lessee shall, without charge to
the Security Agent and Administrative Agent, deliver all tangible
evidence that the Security Agent and Administrative Agent may
request of its Receivables (including, without limitation, all
documents evidencing the Receivables) and books and records to
the Security Agent or to its representatives (copies of which
evidence and books and records may be retained by the Steam
Lessee) at any time upon the Security Agent's or Administrative
Agent's demand. If a Reimbursement Event of Default or a Lease
Event of Default occurs and continues, and if the Security Agent
so directs, the Steam Lessee shall legend in form and substance
satisfactory to the Security Agent, the Receivables and
Contracts, as well as books, records and documents evidencing or
pertaining to the Receivables with an appropriate reference to
the fact that the Receivables and Contracts have been assigned to
the Security Agent, for the benefit of GE Capital and the Owner
Trustee, and that the Security Agent has a security interest
therein.
Section 3 Modification of Terms; No Payment to the
Steam Lessee. The Steam Lessee shall not rescind or cancel any
indebtedness evidenced by any Receivable or make any adjustment
with respect thereto, or extend or renew the same, or compromise
or settle any dispute, claim, suit or legal proceeding relating
thereto, or sell any Receivable or interest therein, without the
prior written consent of the Security Agent, the Administrative
Agent or GE Capital. The Steam Lessee will duly fulfill all obli
gations on its part to be fulfilled under or in connection with
the Receivables and will do nothing to impair the rights of the
Security Agent in the Receivables.
Section 4 Payments Under Contracts and Receivables.
(a) Notice to Obligors under Contracts and Receivables.
The Steam Lessee agrees and confirms that it will notify
each party to the Contracts and each account debtor or obligor
under the Receivables of the grant of the security interest
therein and assignment thereof to the Security Agent and instruct
each of them that all payments due or to become due and all
amounts payable to the Steam Lessee thereunder shall, until the
Lessee Obligations are paid in full, be made directly to the
Security Agent (which payments shall be credited toward the Steam
Lessee's obligations to make payments to the Partnership pursuant
to the Steam Sales Agreement and the Steam Lease). Unless
notified to the contrary by the Security Agent, and subject to
Section 5.3 of this Security Agreement, the Steam Lessee shall,
at its expense, enforce collection of any amounts payable with
respect to each of the Receivables.
(b) Non-Payment to the Security Agent. In the
event the Steam Lessee shall receive directly from any party to
the Contracts or from any account debtor or other obligor under
any Receivable any payments under the Contracts and the
Receivables otherwise than to the Security Agent, the Steam
Lessee shall receive such payments in a constructive trust for
the benefit of the Security Agent, shall segregate such payments
from other funds of the Steam Lessee, and, shall forthwith trans
mit and deliver such payments to the Security Agent in accordance
with the terms of the Security Deposit Agreement.
Section 5 Direction to Account Borrowers,
Contracting Parties; etc. (a) The Steam Lessee agrees that the
Security Agent may, at its option, directly notify the account
debtors or obligors with respect to any Receivables to make
payments with respect thereto directly to the Security Agent.
(b) The Steam Lessee agrees to be bound by any
collection, compromise, forgiveness, extension or other action
taken by the Security Agent with respect to the Receivables.
Without notice to or assent by the Steam Lessee, the Security
Agent may apply any or all amounts then in, or thereafter
deposited with any financial institution in any checking,
savings, deposit or other account of the Steam Lessee in accor
dance with the provisions of the Security Deposit Agreement. The
reasonable costs and expenses (including reasonable attorneys'
fees) of collection, whether incurred by the Steam Lessee or the
Security Agent, shall be borne by the Steam Lessee.
Section 6 Instruments. At such time that a
Reimbursement Event of Default or a Lease Event of Default shall
have occurred and be continuing, the Steam Lessee promptly shall
deliver all Instruments to the Security Agent, appropriately en
dorsed to the order of the Security Agent as further security
hereunder.
ARTICLE VI
SPECIAL PROVISIONS CONCERNING CONTRACTS
Section 1 Security Interest in Contract Rights. The
Steam Lessee's assignment and grant, pursuant to Section 2.1, to
the Security Agent, for the benefit of GE Capital and the Owner
Trustee, of a security interest in all of its right, title and
interest in and to each and all of the Contracts and the contract
rights thereunder, includes, but is not limited to:
(a) all (i) rights to payment under any Contract
and (ii) payments due and to become due under any
Contract, in each case whether as contractual
obligations, damages or otherwise;
(b) all of its claims, rights, powers, or
privileges and remedies under any Contract; and
(c) all of its rights under any Contract to make
determinations, to exercise any election (including,
but not limited to, election of remedies) or option or
to give or receive any notice, consent, waiver or
approval together with full power and authority with
respect to any Contract to demand, receive, enforce,
collect or provide receipt for any of the foregoing
rights or any property the subject of any of the
Contracts, to enforce or execute any checks, or other
instruments or orders, to file any claims and to take
any action which, in the reasonable opinion of the
Security Agent, may be necessary or advisable in
connection with any of the foregoing (the Contracts,
together with all of the foregoing in this Section 6.1,
the "Contract Rights");
provided, however, that until the occurrence and continuance of a
Reimbursement Event of Default or a Lease Event of Default,
notwithstanding anything else herein to the contrary, the Steam
Lessee may exclusively exercise all of the Steam Lessee's rights,
powers, privileges and remedies under the Contracts.
Section 2 Further Protection. The Steam Lessee
warrants and forever shall defend its title to the Contract
Rights against the claims and demands of any Person and hereby
grants the Security Agent full power and authority, upon the
occurrence or during the continuance of a Reimbursement Event of
Default or a Lease Event of Default to take all actions as the
Security Agent reasonably deems necessary or advisable to
effectuate the provisions set forth in this sentence.
Section 3 Steam Lessee Remains Liable under
Receivables and Contracts. Anything herein to the contrary
notwithstanding (including, without limitation, the grant of any
rights to the Security Agent, the Owner Trustee or GE Capital, or
any assignment of rights to the Indenture Trustee) the Steam
Lessee shall remain liable under each of the Receivables and
Contracts to observe and perform all the conditions and
obligations to be observed and performed by it thereunder, all in
accordance with the terms of any agreement giving rise to each
such Receivable or Contract. None of the Security Agent, the
Owner Trustee, GE Capital, the Indenture Trustee, the
Administrative Agent or the Holders shall have any obligation or
liability under any Receivable (or any agreement giving rise
thereto) or Contract by reason of or arising out of this Security
Agreement or the receipt by the Security Agent, the Owner
Trustee, GE Capital or the Indenture Trustee of any payment relating
to such Receivable or Contract pursuant hereto or pursuant to
the Security Deposit Agreement, nor shall the Security Agent, the
Owner Trustee, GE Capital, the Indenture Trustee, the
Administrative Agent or any Holder be obligated in any manner to
perform any of the obligations of the Steam Lessee under or
pursuant to any Receivable (or any agreement giving rise thereto)
or under or pursuant to any Contract, to make any payment, to
make any inquiry as to the nature or the sufficiency of any payment
received by it or as to the sufficiency of any performance
by any party under any Receivable (or any agreement giving rise
thereto) or under any Contract, to present or file any claim, to
take any action to enforce any performance or to collect the
payment of any amounts which may have been assigned to it or to
which it may be entitled at any time or times.
Section 4 Remedies. Upon the occurrence of any
Reimbursement Event of Default or a Lease Event of Default and
the continuance thereof, the Security Agent shall have the rights
set forth in Article VII hereof, and in addition may (a) enforce
all remedies, rights, powers and privileges of the Steam Lessee
under any or all of the Contracts, (b) sell any or all of the
Contract Rights at public or private sale upon at least 10 days
prior written notice and/or (c) substitute itself or any nominee
or trustee in lieu of the Steam Lessee as party to any of the
Contracts and to notify the obligor of any Contract Right (the
Steam Lessee hereby agreeing to deliver any such notice at the
request of the Security Agent) that all payments and performance
under the relevant Contract shall be made or rendered to the
Security Agent or such other Person as the Security Agent may
designate.
ARTICLE VII
REMEDIES UPON OCCURRENCE OF
REIMBURSEMENT EVENT OF DEFAULT OR
LEASE EVENT OF DEFAULT
Section 1 Remedies; Obtaining the Collateral Upon
Default. Upon the occurrence of any Reimbursement Event of
Default or Lease Event of Default and the continuance thereof,
the Security Agent shall be entitled to exercise all the rights
and remedies of a secured party under the Uniform Commercial Code
as in effect in any relevant jurisdiction to enforce this
Security Agreement and the security interests contained herein,
and, in addition, subject to any mandatory requirements of Law
then in effect, the Security Agent may, in addition to its other
rights and remedies hereunder, including without limitation under
Sections 7.2 and 7.6, and also its (and GE Capital's and the
Owner Trustee's) rights under the other Financing Documents, do
any of the following:
(a) personally, or by trustees or attorneys,
immediately take possession of the Collateral or any part
thereof, from the Steam Lessee or any other Person who then has
possession of any part thereof with or without notice or process
of law, and for that purpose may enter upon the Steam Lessee's or
such other Person's premises where any of the Collateral is
located and remove the same and use in connection with such
removal any and all services, supplies, aids and other facilities
of the Steam Lessee;
(b) instruct the obligor or obligors on any
agreement, instrument or other obligation (including, without
limitation, the Receivables and the Contracts) constituting the
Collateral to make any payment required by the terms of such
instrument or agreement directly to the Security Agent; and
(c) take possession of the Collateral or any part
thereof, by directing the Steam Lessee in writing to turn over
the same to the Security Agent at the Site, in which event the
Steam Lessee shall at its own expense
(i) forthwith turn over the
same to the Security Agent at the Site;
(ii) store and keep any
Collateral so turned over to the Security
Agent at the Site pending further action by
the Security Agent as provided in Section
7.2, and
(iii) while the Collateral
shall be so stored and kept, provide such
guards and maintenance services as shall be
necessary to protect the same and to preserve
and maintain them in good condition.
The Steam Lessee's obligation to turn over the Collateral as set
forth above is of the essence of this Security Agreement and,
accordingly, upon application to a court of equity having
jurisdiction, the Security Agent shall be entitled to obtain a
decree requiring specific performance by the Steam Lessee of said
obligation.
Section 2 Remedies; Disposition of the Collateral.
Any Collateral repossessed by the Security Agent under or pursuant
to Section 7.1 and any other Collateral, whether or not so
repossessed by the Security Agent, may, to the extent permitted
by any contract terms governing such Collateral, be sold, leased
or otherwise disposed of under one or more contracts or as an
entirety, and without the necessity of gathering at the place of
sale the property to be sold, and in general in such manner, at
such time or times, at such place or places and on such terms
(whether cash or credit, and in the case of credit, without
assumption of future credit risk) as the Security Agent may, in
compliance with applicable requirements of Law, determine to be
commercially reasonable. Any of the Collateral may be sold,
leased or otherwise disposed of, in the condition in which the
same existed when taken by the Security Agent or after any
overhaul or repair which the Security Agent shall determine to be
commercially reasonable. Any such disposition shall be made upon
not less than 15 days written notice to the Steam Lessee
specifying the time such disposition is to be made and, if such
disposition shall be a public sale, specifying the place of such
sale. Any such sale may be adjourned by announcement at the time
and place fixed therefor, and such sale may, without further
notice, be made at the time and place to which it was so
adjourned. To the extent permitted by applicable requirements of
Law, the Security Agent (or the Owner Trustee, GE Capital, the
Administrative Agent, the Indenture Trustee or any Holder) may
bid for and become the buyer of the Collateral or any item thereof
offered for sale at a public auction without accountability to
the Steam Lessee (except to the extent of surplus money received
as provided in Section 7.4).
Section 3 Waiver. (a) Except as otherwise
provided in this Security Agreement, THE STEAM LESSEE HEREBY
WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LEGAL REQUIREMENTS,
NOTICE OR JUDICIAL HEARING IN CONNECTION WITH THE SECURITY
AGENT'S TAKING POSSESSION OR THE SECURITY AGENT'S DISPOSITION OF
ANY OF THE COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL
PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT REMEDY OR REMEDIES
AND ANY SUCH RIGHT WHICH THE STEAM LESSEE WOULD OTHERWISE HAVE
UNDER THE CONSTITUTION OR ANY STATUTE OF THE UNITED STATES OR OF
ANY STATE, and the Steam Lessee hereby further waives:
(i) all damages occasioned by such
taking of possession except any damages which are
finally judicially determined to have been the
direct result of the Security Agent's gross
negligence or willful misconduct;
(ii) all other requirements as to
the time, place and terms of sale or other
requirements with respect to the enforcement of
the Security Agent's rights hereunder; and
(iii) all rights of redemption,
appraisement, valuation, stay, extension or
moratorium now or hereafter in force under any
Applicable Law in order to prevent or delay the
enforcement of this Security Agreement or the
absolute sale of the Collateral or any portion
thereof, and the Steam Lessee, for itself and all
who may claim under it, insofar as it or they may
now or hereafter lawfully do so, hereby waives the
benefit of such laws.
(b) Without limiting the generality of the
foregoing, the Steam Lessee hereby: (i) authorizes the Security
Agent, in its sole discretion and without notice to or demand
upon the Steam Lessee and without otherwise affecting the obligations
of the Steam Lessee hereunder from time to time, to take
and hold other collateral granted to it by any other Person (in
addition to the Collateral) for payment of any Lessee
Obligations, or any part thereof, and to exchange, enforce or
release such other collateral or any part thereof, and to accept
and hold any endorsement or guarantee of payment of the Lessee
Obligations or any part thereof, and to release or substitute any
endorser or guarantor or any other person granting security for
or in any way obligated upon any Lessee Obligations, or any part
thereof; and (ii) waives and releases any and all right to
require the Security Agent to collect any of the Lessee
Obligations from any specific item or items of Collateral or from
any other party liable as guarantor or in any other manner in
respect of any of the Lessee Obligations or from any collateral
(other than the Collateral) for any of the Lessee Obligations.
(c) Any sale of, or the grant of options to
purchase, or any other realization upon, any Collateral shall,
provided that it is done in accordance with Applicable Law and
this Security Agreement, operate to divest all right, title,
interest, claim and demand, either at law or in equity, of the
Steam Lessee therein and thereto, and shall be a perpetual bar
both at law and in equity against the Steam Lessee and against
any and all Persons claiming or attempting to claim the
Collateral so sold, optioned or realized upon, or any part
thereof, from, through and under the Steam Lessee
Section 4 Application of Proceeds; Liable for
Deficiency. Except as otherwise specified therein, the proceeds of
any Collateral obtained pursuant to Section 5.4 or 7.1 or
disposed of pursuant to Section 7.2 shall be applied, first, to
the payment of any expenses incurred by the Security Agent in
connection with the administration of this Security Agreement,
the custody, preservation or sale of, collection from or other
realization from, any of the Collateral, the exercise or
enforcement of any of its rights hereunder or the failure by the
Steam Lessee to perform or observe any of the provisions hereof,
including all reasonable attorney's fees and second, to the
payment of the Lessee Obligations in accordance with the terms of
the Security Deposit Agreement. Any surplus remaining after
payment in full of all of the Lessee Obligations shall be paid
over to the Steam Lessee or to whomever may be entitled to
receive such surplus. The Steam Lessee shall be liable for any
deficiency remaining after any application of funds pursuant
hereto.
Section 5 Remedies Cumulative; No Waiver. Each and
every right, power and remedy hereby specifically given to the
Security Agent shall be in addition to every other right, power
and remedy specifically given to the Security Agent (or the Owner
Trustee, the Administrative Agent, GE Capital, the Indenture
Trustee or any Holder) under this Security Agreement and the
other Financing Documents, or now or hereafter existing at law or
in equity, or by statute, and each and every right, power and
remedy whether specifically herein given or otherwise existing
may be exercised from time to time or simultaneously and as often
and in such order as may be deemed expedient by the Security
Agent. All such rights, powers and remedies shall be cumulative,
and the exercise or the partial exercise of one shall not be
deemed a waiver of the right to exercise of any other. No delay
or omission of the Security Agent in the exercise of any of its
rights, remedies, powers and privileges hereunder or partial or
single exercise thereof, and no renewal or extension of any of
the Lessee Obligations, shall impair any such right, remedy,
power or privilege or shall constitute a waiver thereof.
Section 6 Discontinuance of Proceedings. In case
the Security Agent shall have instituted any proceeding to en
force any right, power or remedy under this Security Agreement by
foreclosure, sale, entry or otherwise, and such proceeding shall
have been discontinued or abandoned for any reason or shall have
been determined adversely to the Security Agent, then, in every
such case, the Steam Lessee and the Security Agent shall be
restored to their former positions and rights hereunder with
respect to the Collateral, subject to the security interest
created under this Security Agreement, and all rights, remedies
and powers of the Security Agent shall continue as if no such
proceeding had been instituted.
ARTICLE VIII
INDEMNITY
Section 1 Indemnity. (a) The Steam Lessee agrees
to indemnify, reimburse and hold the Security Agent, GE Capital,
the Indenture Trustee, the Administrative Agent, the Holders and
the Owner Trustee and their respective successors, assigns,
officers, directors, employees, and agents (each individually, an
"Indemnitee," and collectively, "Indemnitees") harmless from any
and all liabilities, obligations, damages, injuries, penalties,
claims, demands, actions, suits, judgments and any and all costs
and expenses (including reasonable attorneys' fees and
disbursements) (such expenses, collectively, the "expenses") of
whatsoever kind and nature imposed on, asserted against or
incurred by any of the Indemnitees in any way relating to or
arising out of (i) this Security Agreement, any other Transaction
Document, or the documents executed in connection herewith and
therewith or connected with the administration of the transactions
contemplated hereby and thereby, or the enforcement of any
of the terms hereof or thereof, or the preservation of any rights
hereunder or thereunder, (ii) the ownership, purchase, delivery,
control, acceptance, lease, financing, possession, operation,
condition, sale, return or other disposition, or use of, the
Collateral (including, without limitation, latent or other
defects, whether or not discoverable, and any claim for patent or
trademark infringement), (iii) the violation of any requirements
of Law of any Governmental Authority applicable to the Steam
Lessee or the Project, (iv) any tort (including, without limitation,
claims arising or imposed under the doctrine of strict
liability, or for or on account of injury to or the death of any
Person (including any Indemnitee), or property damage), or (v)
any contract claim, excluding (x) those finally judicially determined
to have arisen solely from the gross negligence or willful
misconduct of any Indemnitee or (y) unless specifically provided
for elsewhere in this agreement, those arising out of the actions
of any Indemnitee while in possession or control of the Collateral.
(b) Without limiting the application of Section
8.1(a), the Steam Lessee agrees to pay, or reimburse the Security
Agent, the Owner Trustee, the Indenture Trustee, the
Administrative Agent, the Holders and GE Capital for any and all
reasonable fees, costs and expenses of whatever kind or nature
incurred in connection with the preservation, protection or
validation of the Security Agent's Liens on, and security
interest in, the Collateral, including, without limitation, all
fees and taxes in connection with the recording or filing of
instruments and documents in public offices, payment or discharge
of any taxes or Liens upon or in respect of the Collateral,
premiums for insurance with respect to the Collateral and all
other fees, costs and expenses in connection with protecting,
maintaining or preserving the Collateral and the Security Agent's
interest therein, whether through judicial proceedings or
otherwise, or in defending or prosecuting any actions, suits or
proceedings arising out of or relating to the Collateral.
(c) Without limiting the application of Section
8.1(a) or (b), the Steam Lessee agrees to pay, indemnify and hold
each Indemnitee harmless from and against any losses, costs,
damages and expenses which such Indemnitee may suffer, expend or
incur in consequence of or growing out of any failure of the
Steam Lessee to comply with its obligations under this Security
Agreement or any other Transaction Document, or any misrepresentation
by Steam Lessee in this Security Agreement or any other
Transaction Document, or in any statement or writing contemplated
by or made or delivered pursuant to or in connection with this
Security Agreement or any other Transaction Document.
(d) If and to the extent that the obligations of
the Steam Lessee under this Section 8.1 are unenforceable for any
reason, the Steam Lessee hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations
which is permissible under applicable requirements of Law.
Section 2 Lessee Obligations Secured by Collateral.
Any amounts paid by any Indemnitee as to which such Indemnitee
has the right to reimbursement, and any amounts paid by the
Security Agent in preservation of any of its rights or interest
in the Collateral, together with interest on such amounts from
the date paid until reimbursement in full at a rate per annum
equal at all times to the Overdue Rate, shall constitute Lessee
Obligations secured by the Collateral.
ARTICLE IX
MISCELLANEOUS
Section 1 Notices. All notices and other
communications to any party hereunder shall be in writing
(including telecopy or similar teletransmission or writing) and
shall be given to such party at its address or telecopy number
set forth on Annex I hereto or such other address or telecopy
number as such party may hereafter specify by written notice to
the other party. Each such notice or other communication shall
be effective (i) if given by telecopy, when such telecopy is
transmitted by confirmed telecopier to the telecopy number
specified in this Section, (ii) if given by mail, 5 days after
such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iii) if given by any
other means (including, without limitation, by air courier), when
delivered at the address specified in this Section.
Section 2 Amendment. None of the terms and
conditions of this Security Agreement may be amended, changed,
waived, modified or varied in any manner whatsoever except in
accordance with the provisions of subsection 13.1 of the
Participation Agreement and with the prior written consent of
each of the parties hereto and, unless the Indenture shall have
been discharged, the Indenture Trustee.
Section 3 Successors and Assigns. This Agreement
shall be binding upon the Steam Lessee and its successors and
assigns and shall inure to the benefit of the Security Agent, GE
Capital, the Owner Trustee and their respective successors and
assigns (including the Indenture Trustee); provided, however,
that the Steam Lessee may not assign or transfer its rights or
obligations under this Security Agreement without the prior
written consent of the Owner Trustee and, so long as the Lien of
the Indenture shall not have been discharged, the Indenture
Trustee.
Section 4 Survival. (a) All agreements,
statements, representations and warranties made by the Steam
Lessee herein or in any certificate or other instrument delivered
by the Steam Lessee or on its behalf under this Security
Agreement shall be considered to have been relied upon by the
Security Agent and shall survive the execution and delivery of
this Security Agreement and the other Transaction Documents
regardless of any investigation made by the Security Agent, or on
its behalf, until the Lessee Obligations shall have been paid in
full.
(b) The indemnity obligations of the Steam Lessee
contained in Article VIII shall continue in full force and effect
notwithstanding the full payment of the Lessee Obligations and
notwithstanding the discharge thereof.
Section 5 Headings Descriptive. The headings of the
several sections of this Security Agreement are inserted for
convenience only and shall not in any way affect the meaning or
construction of any provision of this Security Agreement.
Section 6 Severability. Any provision of this
Security Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
Section 7 Steam Lessee's Duties. Anything contained
herein to the contrary notwithstanding, the Steam Lessee shall
remain liable to perform all of its obligations under or with
respect to the Collateral, and neither shall the Security Agent
have any obligations or liabilities under or with respect to any
Collateral by reason of or arising out of this Security
Agreement, nor shall the Security Agent be required or obligated
in any manner to perform or fulfill any of the obligations of the
Steam Lessee under or with respect to any Collateral.
Section 8 Termination; Release. When all Lessee
Obligations have been indefeasibly paid in full (as determined by
the Owner Participant and the Indenture Trustee), this Security
Agreement shall terminate (except as provided in Section 9.4),
and the Security Agent, at the request and expense of the Steam
Lessee, will promptly execute and deliver to the Steam Lessee the
proper instruments (including Uniform Commercial Code termination
statements on form UCC-3) acknowledging the termination of this
Security Agreement, and will duly assign, transfer and deliver to
the Steam Lessee (without recourse and without any representation
or warranty of any kind) such of the Collateral as may be in the
possession of the Security Agent and has not theretofore been
sold or otherwise applied or released pursuant to this Security
Agreement.
Section 9 Reinstatement. This Security Agreement
shall continue to be effective or be reinstated, as the case may
be, if at any time any amount received by the Security Agent, the
Owner Trustee, GE Capital, the Administrative Agent or any Holder
in respect of the Lessee Obligations is rescinded or must
otherwise be restored or returned by the Security Agent, the
Owner Trustee, the Indenture Trustee, GE Capital, the Indenture
Trustee, the Administrative Agent or any Holder upon the
insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Steam Lessee or upon the appointment of any
intervenor or conservator of, or trustee or similar official for,
the Steam Lessee or any substantial part of its assets, or upon
the entry of an order by a bankruptcy court avoiding payment of
such amount, or otherwise, all as though such payments had not
been made.
Section 10 Counterparts. This Security Agreement may
be executed in any number of counterparts, each of which, when so
executed and delivered, shall be an original, but all of which
together shall constitute one and the same instrument.
Section 11 GOVERNING LAW; SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL.
(a) THIS SECURITY AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK, EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND
EXCEPT TO THE EXTENT THE VALIDITY OR PERFECTION OF THE SECURITY
INTERESTS HEREUNDER, OR REMEDIES HEREUNDER, ARE GOVERNED BY THE
LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
TO THIS SECURITY AGREEMENT AND ANY ACTION FOR ENFORCEMENT OF ANY
JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT IN THE COURTS OF THE
STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK AND, BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, THE STEAM LESSEE HEREBY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-
EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND APPELLATE
COURTS FROM ANY THEREOF. THE STEAM LESSEE IRREVOCABLY CONSENTS
TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS
IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF
BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE STEAM
LESSEE AT ITS ADDRESS REFERRED TO IN SECTION 9.1. THE STEAM
LESSEE HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID
ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT BROUGHT IN THE COURTS REFERRED TO ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN
ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED IN ANY OTHER JURISDICTION.
(c) EACH OF THE STEAM LESSEE AND THE SECURITY
AGENT HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY MATTER ARISING HEREUNDER.
Section 12 Assignment to Indenture Trustee. In order
to secure the indebtedness evidenced by the Loan Certificates and
certain other obligations as provided in the Indenture, the
Indenture provides, among other things, for the assignment by the
Owner Trustee to the Indenture Trustee of all of its right, title
and interest in, to and under this Agreement, to the extent set
forth in the Indenture, and for the creation of a Lien on and
security interest in the Lessor's Estate in favor of the
Indenture Trustee, and in furtherance thereof, the Partnership
and the Owner Trustee have entered into the Security Deposit
Agreement with the Security Agent. The Steam Lessee hereby
acknowledges and consents to such assignment and such security
interest and hereby acknowledges that to the extent set forth in
the Indenture, the Indenture Trustee shall have the right in its
own name (in certain cases together with the Owner Trustee and in
other cases to the exclusion of the Owner Trustee, all as set
forth in Section 3.10 of the Indenture) to direct the Security
Agent to take or refrain from taking action under this Agreement,
including the right (i) of the Security Agent to exercise any
election or option, and to make any decision or determination,
and to give any notice, consent, waiver or approval under this
Agreement or in respect thereof, (ii) to exercise any and all of
the rights, powers and remedies of the Security Agent hereunder
and (iii) to receive all moneys payable to the Security Agent
under this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their duly authorized
officers as of the date first above written.
BRANDYWINE WATER COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
FLEET NATIONAL BANK, as Security Agent
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
