EXHIBIT 10.18
Execution Copy
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxx X. Xxxxxxxx
Legal Assistant
CONSENT AND AGREEMENT
1. (a) Reference is made to that certain Lease and Sublease Agreement
dated as of April 5, 1991 between the City of Syracuse Industrial Development
Agency (the "Issuer"), as issuer and landlord, and Project Orange Associates,
L.P. (the "Guarantor"), as guarantor and tenant, a memorandum of which dated as
of April 5, 1991 was recorded in the Office of the Clerk of Onondaga County, New
York (the "Clerk's Office"), on May 3, 1991 in Book 3693 at Page 149
(collectively as amended and in effect from time to time, the "Master Lease";
together with the Ground Lease, City Easement Agreements, Outside Easement
Agreements and Easement Lease described in the First Mortgage (defined in
paragraph 1(b) below) collectively as in effect from time to time (the "Lease
Documents").
(b) Reference is also made to (i) that certain Indenture dated as of
December 6, 1999 (the "Financing Agreement") between the Guarantor and U.S. Bank
Trust National Association, as trustee for the holders of the Guarantor's __%
Senior Secured Notes due 2007 (the "Trustee"; together with the holders of such
Senior Secured Notes, the "Secured Parties"), (ii) that certain Mortgage and
Assignment of Rents (First Mortgage) dated as of December 6, 1999 from the
Guarantor, as mortgagor, to U.S. Bank Trust National Association, as collateral
agent, as mortgagee (the "First Mortgage"), and the other Collateral Documents
and the other Financing Documents (as such terms are defined in the Financing
Agreement). References herein to the "Agent" shall mean U.S. Bank Trust,
National Association in its capacity as collateral agent under the Collateral
Documents and its successors and assigns in such capacity. References herein to
the Financing Agreement, First Mortgage, other Collateral Documents and other
Financing Documents shall refer to the same as amended and in effect from time
to time. Capitalized terms used herein without definition shall have the
meanings given such terms in the Financing Agreement.
(c) The Lease Documents and First Mortgage relate to certain real property
in Onondaga County, New York described on Exhibit A, attached hereto and
incorporated herein.
Anything in the Lease Documents to the contrary notwithstanding, the
parties agree as follows:
2. The Issuer hereby (i) acknowledges notice and receipt of the Financing
Agreement, First Mortgage and other Collateral Documents (other than the
Consents);
(ii) consents to the First Mortgage and other Collateral Documents (other than
the Consents); (iii) acknowledges that Syracuse University (the "University")
has agreed (pursuant to the Consent and Agreement dated as of the date hereof
among the University, the Collateral Agent and the Guarantor (the "University
Consent")) that the First Mortgage and other Collateral Documents (other than
the Consents) shall be deemed to constitute a "Permitted Mortgage" (as defined
in the Ground Lease) for the purposes of the Ground Lease; and (iv) agrees that
the First Mortgage and other Collateral Documents (other than the Consents)
shall be deemed to constitute a "Permitted Mortgage" for the purposes of the
provisions of the Ground Lease that are incorporated by reference in and
applicable under the Master Lease.
3. In the event the Issuer shall owe any sums to the Guarantor under the
Lease Documents, the Issuer shall pay all such sums directly to the Agent for
deposit in the Project Orange Operating Account, or to such other person or in
such other manner as the Agent may from time to time specify in writing to the
Issuer.
4. Except as otherwise expressly provided herein or in the Lease
Documents should the Agent or the Secured Parties or any designee of the Agent
or the Secured Parties become a party thereto by foreclosure or assignment in
lieu thereof, neither the Agent nor the Secured Parties nor such designee shall
be liable for the performance or observance of any of the obligations or duties
of the Guarantor under the Lease Documents, nor shall any assignment of the
Lease Documents to the Agent, the Secured Parties or such designee give rise to
any duties or obligations whatsoever on the part of the Agent, the Secured
Parties or such designee owing to the Issuer, except that, insofar as the Agent,
the Secured Parties or such designee exercise their rights with respect to the
Lease Documents under the First Mortgage or other Collateral Documents or make
any claims with respect to any payments, deliveries or other obligations under
the Lease Documents, except to the extent provided in this Consent and
Agreement, the terms and conditions of the Lease Documents applicable to such
exercise of rights or such claims shall apply to the Agent, the Secured Parties
or such designee, as they case may be, to the same extent as the Guarantor.
5. The Guarantor and the Issuer shall not amend, surrender, terminate,
waive, supplement or otherwise modify any Lease Document, or consent thereto,
without in each case the prior written consent of the Agent; and any amendment,
surrender, termination, waiver, supplement or other modification of any Lease
Document, or consent thereto, by the Issuer or the Guarantor without in each
case the prior written consent of the Agent shall be void. Whenever any consent
or other action of the Agent or the Secured Parties is required under this
Consent and Agreement, such consent or action shall be given, taken or withheld
only with the consent of the number or percentage of the Secured Parties as may
be required under the terms of the Financing Agreement, Collateral Documents and
other Financing Documents.
6. (a) The Issuer shall furnish to the Agent at its address set forth in
or pursuant to paragraph 17 below, concurrently with the delivery thereof to the
Guarantor, a copy of each notice or demand delivered by the Issuer to the
Guarantor under any Lease Document.
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(b) The Issuer shall accept performance of the Guarantor's obligations
under the Lease Documents by the Agent, the Secured Parties or their
designee(s).
7. (a) The Issuer agrees that, notwithstanding any right it may have
under any Lease Document, it shall not terminate any Lease Document unless it
shall have given the Agent at least 120 days prior written notice of its intent
to terminate such Lease Document and the Agent or the Secured Parties shall not
cure within such time period the condition giving rise to such right of
termination.
(b) If the Agent or the Secured Parties are prohibited by any process or
injunction issued by any court, or by reason of any action by any court having
jurisdiction of any bankruptcy or insolvency proceedings involving Guarantor,
from commencing or prosecuting any cure or foreclosure or other appropriate
proceedings in the nature thereof, the times specified in this paragraph 7 for
commencing or prosecuting such cure or such foreclosure or other proceedings
shall be extended for the period of such prohibition.
(c) If a default under any Lease Document is of such nature that it cannot
practicably be cured without first taking possession of or obtaining entry to
the Facility (as defined in the Financing Agreement), or if such default is of
such a nature that it is not susceptible of being cured by the Agent or the
Secured Parties, then the Issuer shall not be entitled to terminate any Lease
Document by reason of such default if and so long as the Agent or the Secured
Parties (or their agent, assignee or designee) shall proceed diligently to
obtain possession of or entry to the Facility pursuant to the rights of the
Agent and the Secured Parties under the First Mortgage and other Collateral
Documents (including possession or entry by a receiver), and upon obtaining such
possession the Agent and the Secured Parties (or their agent, assignee or
designee) shall proceed diligently to cure such default, if such default is
susceptible of being cured by the Agent and the Secured Parties. In the event
the Agent or the Secured Parties (or their agent, assignee or designee) elect to
perform Guarantor's obligations under any Lease Document or to enter into new
Lease Document as provided in subparagraph 7(f) below, such person shall not
have personal liability to the Issuer for the performance of such obligations
and the sole recourse of the Issuer shall be to the Secured Parties' interests
in the Facility and other Collateral (as defined in the Financing Agreement).
The Agent's and the Secured Parties' determination that a default under any
Lease Document is of such a nature that it cannot practicably be cured without
first taking possession of or obtaining entry to the Facility shall, if
reasonably made in good faith, be binding on the Issuer, the Agent and the
Secured Parties (and their agents, assignees or designees).
(d) Neither the Agent nor the Secured Parties shall be required to
continue to proceed to obtain possession or entry, or to continue in possession
of the Facility, pursuant to the foregoing subparagraph 7(c). If the Agent, any
Secured Party or any nominee, or a purchaser or transferee at or in lieu of a
foreclosure sale, shall acquire title to or possession of the Facility and shall
cure all defaults which are susceptible of being cured by the Agent and the
Secured Parties or by such purchaser, as the case may be, then any default of
the Guarantor which is not susceptible of being cured by the Agent and the
Secured Parties or such purchaser, as the case
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may be, shall no longer be deemed to be a default under the Lease Document in
question; provided, however, that nothing in this subparagraph 7(d) shall be
deemed to be a waiver by the Issuer of any rights or remedies it may have
against the Guarantor for any such defaults which are not susceptible of cure,
subject, however, to the limitations on the exercise of such remedies provided
in this Consent and Agreement.
(e) The Agent and the Secured Parties may assign their rights and
interests hereunder, and (after foreclosure or by assignment in lieu of
foreclosure) the rights and interests of Guarantor under the Lease Documents, to
any purchaser or transferee of the Facility, upon notice to the Issuer, if such
purchaser or transferee is reputable and solvent and will not be rendered
insolvent by such assumption, the proposed use by such purchaser or transferee
shall not cause the Project to fail to qualify as a "Project" under the Act, and
such purchaser or transferee assumes the obligations of Guarantor under the
Lease Documents. The Issuer hereby acknowledges, consents to and shall be bound
by any such assignment and assumption which does not by its terms modify the
provisions of the Lease Documents. Upon such assignment and assumption, the
Agent and the Secured Parties shall be relieved of all obligations arising under
the Lease Documents after such assignment and assumption. If the purchaser or
transferee of Guarantor's interest under the Lease Documents shall execute and
deliver to the Agent or the Secured Parties a mortgage and/or a security
agreement with respect to such purchaser or transferee's interests in the
Facility and the Lease Documents, this Consent and Agreement shall remain in
full force and effect, and such new mortgage and or security agreement (if their
substantive terms are substantially the same as those comprising the First
Mortgage and other Collateral Documents) shall be deemed to be the First
Mortgage and other Collateral Documents hereunder.
(f) In the event that any Lease Document is rejected by a trustee or
debtor-in-possession in any bankruptcy or insolvency proceeding or terminates
prior to the date it would otherwise expire for any reason other than with the
consent of the Agent, and if, within ninety (90) days after the Agent receives
notice of such rejection or termination, the Agent or the Secured Parties or
their designee(s) shall so request, the Issuer shall, upon cure of all defaults
of the Guarantor under the rejected or terminated Lease Document (other than
those no longer deemed to be defaults by virtue of the provisions of
subparagraphs 7(c) and 7(d) above), execute and deliver to the Agent or the
Secured Parties or such designee(s), a new Lease Document, which shall be for
the balance of the remaining term under the original Lease Document before
giving effect to such rejection or termination and shall contain the same
conditions, agreements, terms, provisions and limitations as the original Lease
Document (except for any requirements which have been fulfilled by Guarantor
prior to such rejection or termination or that are not susceptible of being
performed by the Agent or the Secured Parties or such designee(s)). References
in this Consent and Agreement to any "Lease Document" shall be deemed also to
refer to such new Lease Document.
(g) Foreclosure of the First Mortgage or any other Collateral Document, or
any sale thereunder by the Agent or any Secured Party, whether by judicial
proceeding or any power of sale, or any conveyance from the Guarantor in lieu
thereof, shall not require the consent of the
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Issuer or constitute a breach of any Lease Document. Upon receipt of notice of
such foreclosure, sale or conveyance, the Issuer shall recognize the Agent or
the Secured Parties or their designee or their transferee, as the case may be,
as the party to the relevant Lease Document, subject, however, to the assumption
by such party of the obligations of the Guarantor under the Lease Document as
provided in, and to compliance with the provisions of, subparagraph 7(e) above.
(h) Notwithstanding anything to the contrary in Master Lease or the PILOT
Agreement (defined in the Master Lease), in the event the Issuer or the
Guarantor has any right or obligation to convey and assign the Issuer's
interests in the Facility Project pursuant to Section 6.2, Section 6.3 or any
other section of the Master Lease, Section 6.03 or any other section of the
PILOT Agreement or otherwise (each a "Reconveyance Option"), (i) the Issuer and
the Guarantor shall not exercise any Reconveyance Option without the prior
written consent of the Agent, and any attempted exercise without such consent
shall be void; (ii) the Issuer and the Guarantor shall not close on any
Reconveyance Option (except such deemed transfer of title), unless and until the
Guarantor shall have furnished to the Agent, such instruments, documents,
opinions of counsel and endorsements to the Agent's title insurance policy as
the Agent shall request, and in form and substance reasonably satisfactory to
the Agent, granting and/or confirming the liens and security interests of the
First Mortgage and the other Security Documents on the reconveyed interests (or,
in the case of a reconveyance directly to the Agent or its designee(s) pursuant
to clause (v) below, the Agent's or such designee(s) title to the reconveyed
interests); (iii) at the option of the Agent, the Issuer shall grant such liens
and security interests of the First Mortgage and other Security Documents to the
Agent before the reconveyance; provided that the Issuer's obligation to grant
such liens and security interests to the Agent is subject to such approval of
the Issuer's board as may be required at such time, if any (provided that the
Issuer agrees to bring such matter before its board to be considered in good
faith by the board, if such board approval is required); (iv) in the case of a
Reconveyance Option exercisable by the Guarantor, the Agent shall have the right
to require the Guarantor to exercise such Reconveyance Option on behalf of the
Guarantor as provided in Section 2.08 of the First Mortgage, and the Issuer
shall accept such exercise by the Agent and close with the Agent or its
designee(s) pursuant thereto; (v) if an Event of Default or Default under the
Financing Agreement is continuing, or if the Agent has entered into or is
entitled to a new Master Lease pursuant to this Consent and Agreement or a new
Ground Lease pursuant to the University Consent, at the option of the Agent, the
reconveyance of the Issuer's interests in the Project pursuant to any
Reconveyance Option shall be directly to the Agent or its designee(s); (vi) if
the Agent shall request that the Guarantor execute any instrument or document in
connection with the foregoing and provide the same to the Guarantor, the
Guarantor shall promptly execute and deliver the same; (vii) if the Guarantor
shall not promptly execute and deliver the same, the Agent or its designee(s)
shall have the right and power to execute, acknowledge and deliver the same on
behalf of the Guarantor, and the Issuer shall accept the same as executed by the
Agent or its designee(s) on behalf of the Guarantor. Without limiting the
foregoing, in the event that the Guarantor acquires any or all of the Issuer's
interests in the Facility pursuant to Section 6.2, Section 6.3 or any other
section of the Master Lease pursuant to Section 6.03 or any other section of the
PILOT Agreement or otherwise, then (A) immediately upon and simultaneously with
the
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transfer of title or deemed transfer) of the Issuer's interests in the Facility
to the Guarantor, all of the Guarantor's interests so transferred to the
Guarantor shall be deemed to be mortgaged and granted to the Agent as mortgagee
under the First Mortgage to the same extent as if originally set forth therein;
and (B) the Guarantor shall promptly deliver to the Agent the instruments,
documents, opinions and endorsements referred to in clause (ii) above.
(i) The Issuer hereby unconditionally assigns, transfers and sets over to
the Agent any and all of the Issuer's claims and rights (other than the
Unassigned Rights) to the payment of damages arising from any rejection of any
Lease Document by any party (including, without limitation, the Issuer) to any
Lease Document pursuant to the Bankruptcy Code. The Agent shall have the right
to proceed in its own name or, if an Event of Default has occurred and is
continuing, in the name of the Issuer, in respect of any claim, suit, action or
proceeding relating to the rejection of any Lease Document, including, without
limitation, the right to file and prosecute, to the exclusion of the Issuer, any
proofs of claim, complaints, motions, applications, notices and other documents,
in any case in respect of such party under the Bankruptcy Code. This assignment
constitutes a present, irrevocable and unconditional assignment of the foregoing
claims, rights and remedies, but shall continue in effect until the termination
of the First Mortgage and other Collateral Documents. Any amounts received by
the Issuer as damages arising out of the rejection of the Master Lease as
aforesaid (other than with respect to the Unassigned Rights) shall be applied
and paid as set forth in the First Mortgage and other Collateral Documents.
(j) The Issuer shall not, without the Agent's prior consent, elect to
treat any Lease Document as terminated under Section 365(h)(1) of the Bankruptcy
Code. Any such election made without the Agent's prior consent shall be void.
(k) If pursuant to Section 365(h)(1) of the Bankruptcy Code, the Issuer
seeks to offset against the rent or other charges reserved in any Lease Document
the amount of any damages caused by the non-performance by any party (other than
Issuer) to such Lease Document of any of the its obligations under such Lease
Document after the rejection by such party of such Lease Document under the
Bankruptcy Code, the Issuer shall, prior to effecting such offset, notify the
Agent of its intention to do so, setting forth the amounts proposed to be so
offset and the basis therefor. The Agent shall have the right, within 30 days
after receipt of such notice from the Issuer, to reasonably object to all or any
part of such offset, and, in the event of such reasonable objection, the Issuer
shall not effect any offset of the amounts so objected to by the Agent for a
period of 30 days after the Agent has delivered its objection notice to the
Issuer, during which time the Agent shall have the right to bring its objections
to the attention of any court supervising the bankruptcy of such party. If (i)
the Agent has failed to object as aforesaid within the 30 days after notice from
the Agent or (ii) the court fails to render its decision within the above-
mentioned 30-day period, the Issuer may proceed to effect such offset in the
amounts set forth in the Issuer's notice.
(l) If any action, proceeding, motion or notice shall be commenced or
filed in respect of the Mortgaged Property in connection with any case under the
Bankruptcy Code (other than a
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case under the Bankruptcy Code commenced with respect to the Issuer), the Agent
shall have the option, exercisable upon notice to the Issuer, to participate in
any such litigation with counsel of the Agent's choice. If an Event of Default
shall have occurred and be continuing, the Agent shall have the option of
assuming the control of any such litigation and may proceed in its own name or
in the name of the Issuer in connection with any such litigation, and the Issuer
agrees to execute any and all powers, authorizations, consents and other
documents required by the Agent in connection therewith. The Issuer shall not
commence any action, suit, proceeding or case, or file any application or make
any motion, in respect of any Lease Document in any such case under the
Bankruptcy Code (other than a case under the Bankruptcy Code commenced with
respect to the Issuer) without the prior consent of the Agent.
(m) The Issuer shall, promptly after obtaining knowledge thereof, notify
the Agent of any and all filings by or against any party (including the Issuer)
under any Lease Document of a petition under the Bankruptcy Code. The Issuer
shall thereafter forthwith give notice of such filing to the Agent, setting
forth any information available to the Issuer as to the date of such filing, the
court in which such petition was filed, and the relief sought therein. The
Issuer shall, promptly after receipt thereof, deliver to the Agent any and all
notices, summonses, pleadings, applications and other documents received by the
Issuer in connection with any such petition and any proceedings relating
thereto.
(n) If there shall be filed by or against the Issuer a petition under the
Bankruptcy Code, and the Issuer, as a party under any Lease Document, shall
determine to reject any Lease Document pursuant to Section 365(a) of the
Bankruptcy Code, then the Issuer shall give the Agent not less than 30 days'
prior notice of the date on which the Issuer shall apply to the bankruptcy court
for authority to reject such Lease Document. The Agent shall have the right,
but not the obligation, to serve upon the Issuer within such 30-day period a
notice stating that (i) the Agent demands that the Issuer assume and assign such
Lease Document to the Agent pursuant to Section 365 of the Bankruptcy Code and
(ii) the Agent covenants to cure or provide adequate assurance of prompt cure of
all defaults and provide adequate assurance of future performance of the
Issuer's obligations under such Lease Document. If the Agent serves upon the
Issuer the notice described in the preceding sentence, the Issuer shall not seek
to reject such Lease Document and shall seek court approval to comply with the
demand provided for in clause (i) of the preceding sentence within 30 days after
the notice shall have been given, subject to the performance by the Agent of the
covenant provided for in clause (ii) of the preceding sentence.
(o) Effective upon the entry of an order for relief in respect of the
Issuer under the Bankruptcy Code, the Issuer hereby assigns and transfers to the
Agent a non-exclusive right to apply to the bankruptcy court under Section
365(d)(4) of the Bankruptcy Code for an order extending the period during which
any Lease Document may be rejected or assumed.
8. The Issuer shall not assign or transfer (including, without
limitation, by merger, consolidation, sale of assets or otherwise), or mortgage,
pledge, grant a security interest in or otherwise encumber, in each case whether
directly or indirectly, by operation of law or otherwise, its interest in or
under any Lease Agreement, without the prior written consent of the
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Agent, except for (i) a transfer in accordance with subparagraph 7(h) above
pursuant to a Reconveyance Option, or (ii) a merger, consolidation or assignment
of the Issuer pursuant to Section 11.3 of the Master Lease; and any such
assignment or other transfer, and any such mortgage, pledge grant of a security
interest or other encumbrance, made by Issuer without the consent of the Agent
(except as provided in clause (i) or (ii) above) shall be void.
9. The Issuer shall not exercise any remedy under the Lease Documents
against the Guarantor as a secured creditor (whether at equity or law) without
first providing the Agent not less than thirty (30) days prior written notice of
its intent to take such action and the reasons therefore, nor shall the Issuer
take any such action if the Guarantor or the Agent shall provide the Issuer
additional security, reasonably satisfactory to the Issuer, for the Guarantor's
obligations that are so secured.
10. The application of insurance or condemnation proceeds, proceeds from
surety bonds or similar obligations relating to the Facility or from damage
claims arising from any contract relating to the Facility, and decisions to xxx,
compromise, settle or release claims arising from or related to any of the
foregoing (other than any Unassigned Rights) shall be made by the Agent pursuant
to the terms of the Collateral Documents. Notwithstanding the express
provisions of any surety bond, insurance policy or other similar obligation
wherein or whereby the Issuer may be named as a co-obligee or additional
insured, the Issuer shall have no interest or other right in respect of any of
the foregoing matters (other than with respect to any Unassigned Rights) until
the Secured Obligations under the First Mortgage and the other Collateral
Documents shall be paid in full. The Issuer shall execute all such releases,
waivers and other instruments as the Agent may reasonably request to further
evidence or implement the intent or carry out the purposes of this paragraph 9.
11. In the event that any conflict shall exist between the terms of this
Consent and Agreement and the terms of any Lease Document, the terms of this
Consent and Agreement shall govern. Except as herein otherwise expressly
provided, this Consent and Agreement shall not limit or restrict the
availability to or exercise by the Issuer of any of its rights and remedies
under the Lease Documents.
12. The Guarantor represents and warrants that (i) the Facility and
Project have been constructed and completed; (ii) the proposed actions described
in the WHEREAS clauses of the Master Lease have been taken; and (iii) the
"Financing Agreement", "Bonds", "Mortgages", other "Collateral Documents", other
"Financing Documents" and "Secured Obligations" originally described or referred
to in the Master Lease have been fully paid, satisfied, discharged and released.
13. The Issuer and the Guarantor agree that the Master Lease shall be and
hereby is amended as follows: (i) all references therein to the "Financing
Agreement" shall be deemed to refer to the Financing Agreement described in
paragraph 1(b) above; (ii) all references therein to the "Financing Documents"
and "Collateral Documents" shall be deemed to refer to the Financing Documents
and Collateral Documents described in the Financing Agreement
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described in paragraph 1(b) above; (iii) all references therein to the "Agent"
shall be deemed to refer to the Agent described in the Financing Agreement
described in paragraph 1(b) above; (iv) all references therein to the "Banks"
and the "Required Banks" shall be deemed to refer respectively to the Secured
Parties and the Required Secured Parties described in the New Financing
Agreement; (v) all references therein to the "Mortgages", "First Mortgage",
"Second Mortgage" and "Third Mortgage" shall be deemed to refer to the First
Mortgage described in the Financing Agreement described in paragraph 1(b) above;
(vi) all references therein to the "Bonds" shall be deemed to refer to the
Senior Secured Notes described in the Financing Agreement described in paragraph
1(b) above, (vii) all other capitalized terms used in the Master Lease without
definition shall have the meanings given such terms in the Financing Agreement
described in paragraph 1(b) above; (viii) the paragraph on the cover thereof
which begins with the words "The City" and ends with the words "the Agent" is
hereby deleted; (ix) Sections 2.1(e) and (f) thereof are hereby deleted; (x)
Section 2.4(g) thereof is hereby deleted; (xi) Section 4.2 thereof is hereby
deleted; (xii) the reference in Section 5.3 thereof to the Consent and Agreement
dated as of April 5, 1991 shall be deemed to refer to this Consent and
Agreement; (xiii) Section 7.1(a) thereof is hereby amended in its entirety to
read as follows:
"7.1 Rent.
"(a) The rent under this Lease shall equal one dollar per annum
and shall be due in arrears on each December 31";
(xiv) Section 7.2 thereof is hereby deleted; (xv) in line 9 of Section 8.3
thereof, the phrase "Section 5.20 of" is hereby deleted; (xvi) in line 2 of
Section 9.1(b) thereof and line 4 of Section 9.2(b) thereof, the word "may" is
hereby changed to read "shall have the sole right to"; (xvii) in line 3 of
Section 9.1(b) thereof the phrase "Section 5.20 of" is hereby deleted; (xviii)
in line 3 of Section 9.1(b) and line 4 of Section 9.2(b) thereof, the phrase
"and collect the proceeds thereof" is hereby added to the end of the line
(before the period; (xix) in Section 10.1 thereof, the phrase ", subject to the
terms and provisions of the Financing Documents," is hereby deleted; (xx) in
Section 12.2 thereof, clause (i) is hereby deleted; (xxi) Section 13.12 thereof
is hereby deleted; and (xxii) Section 13.11 thereof is hereby amended in its
entirety to read as follows:
"13.11 Subordination To Ground Lease.
"This Lease and all rights of the Guarantor hereunder (except for
the Unassigned Rights) are, and shall be, subject and subordinate to
the Ground Lease, all renewals, modifications, consolidations,
replacements, and extensions thereof."
14. If the Agent shall reasonably require that the Guarantor execute any
instrument or document (including any security agreement , financing statement,
continuation statement, supplemental mortgage, assignment or certificate of
title) that is necessary or advisable so that the Agent and the Secured Parties
may obtain the full benefit of the liens, security interests, rights and powers
intended to be created by the First Mortgage and other Collateral Documents
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with respect to the Issuer's interest in the Ground Lease and other Mortgaged
Property, the Guarantor shall have the right and power to execute, acknowledge,
deliver and file the same pursuant to Section 5.3 of the Master Lease and this
paragraph 14. If the Agent shall provide the Guarantor with any such instrument
or document, the Guarantor shall promptly execute, acknowledge and deliver the
same. If the Guarantor shall not promptly execute and deliver the same, the
Agent shall have the right and power to execute, acknowledge, deliver and file
the same acting on behalf of the Guarantor for the Issuer. The Agent shall have
the right and power to execute, acknowledge and file financing statements and
continuation statements acting on behalf of the Guarantor for the Issuer.
15. The Issuer hereby represents and warrants that (i) it is a public
benefit corporation duly organized, validly existing and in good standing under
the laws of New York; (ii) each of the Lease Documents executed by the Issuer
and this Consent and Agreement is in full force and effect on the date hereof
and constitutes a valid and binding obligation of the Issuer, enforceable in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally and by general principles of equity; (iii) no
consent, license, approval or authorization of, or filing, registration or
declaration with, or exemption by, any governmental body, bureau or agency or
any other person is required in connection with the execution, delivery and
performance by the Issuer of any Lease Documents or this Consent and Agreement
other than those which have been duly obtained and are in full force and effect;
(iv) the representations and warranties of the Issuer contained in the Lease
Documents are true and correct on the date hereof with the same effect as if
made on and as of the date hereof; (v) the Issuer is the owner and holder of the
lessor's interest under the Master Lease, the lessee's interest under the Ground
Lease, the grantee's interest under the City Easements, the lessee's interest
under the Easement Lease, and by virtue of the Easement Lease, the grantee's
interest under the Outside Easements; (vi) to Issuer's knowledge, (A) each Lease
Document is in full force and effect; (B) each Lease Document has not been
amended, supplemented or otherwise modified or assigned, except as described in
paragraph 1(a) above or the First Mortgage; (C) all conditions to the
commencement and continuing effectiveness of each Lease Document have been
satisfied and remain satisfied as of the date hereof; and (D) all payments
required to be made by the Guarantor under the Master Lease as of the date
hereof have been made; (vii) the term of the Master Lease commenced on April 5,
1991 and is scheduled to expire on _______________; (viii) the Issuer has not
entered into any amendment, supplement, or other modification or assignment of
any Lease Document, except as described in paragraph 1(a) above or in the First
Mortgage; (ix) the Issuer has duly complied with all agreements, conditions and
provisions contained in the Lease Documents required to be performed or complied
with by it prior to the date hereof; and (x) to the knowledge of the Issuer, no
default or event of default by the Guarantor or any other party (or event which
with notice or lapse of time or both would become such a default or event of
default) is continuing under any Lease Document.
16. (a) If the Agent, the Secured Parties or their designee(s) succeed to
Guarantor's interests in the Master Lease pursuant to the Collateral Documents
or if the Agent, the Secured
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Parties or their designee(s) shall acquire a new Master Lease pursuant to this
Consent and Agreement the Agent, the Secured Parties and their designee(s) shall
not be required to cure any defaults by Guarantor under the first and last
sentences of Section 23.06 or Section 27.01(f) of the Ground Lease as
incorporated in the Master Lease.
(b) The Issuer and the Guarantor acknowledge and agree and covenant that
notwithstanding the union of the fee simple title and the leasehold estate under
the Ground Lease, or the lessor's/grantor's and lessee's/grantee's under any
other Lease Document, in the Issuer, the Guarantor or any other Person, either
by purchase or otherwise, it is the declared intention of the parties hereto
that the separation of the fee simple estate and the leasehold estate in the
Ground Lease, and the separation of the lessor's/grantor's and
lessee's/grantee's interests under the other Lease Documents shall be maintained
and a merger shall not take place without the prior written consent of the
Agent; provided, however, that nothing in this paragraph shall limit or restrict
in any manner the right of the Issuer to terminate any Lease Document in
accordance with its terms upon a default or event of default thereunder, subject
to the provisions of this Consent and Agreement.
(c) The Issuer and the Guarantor agree that the Subordination Agreement,
dated as of April 5, 1991, by the Issuer and the Guarantor, not recorded in the
Clerk's Office, as modified by that certain First Amendment to Subordination
Agreement dated as of December 24, 1992 by the Issuer and the Guarantor,
recorded in the Clerk's Office on December __, 1992 in Book 6711 at Page 001, is
hereby terminated in its entirety.
17. (a) All notices and other communications hereunder shall be in
writing. Any notice or other communication addressed to the Agent, the Secured
Parties, the SIDA/Issuer, or the Borrower/Guarantor, as the case may be, shall
be delivered personally, or mailed by United States first class mail (registered
or certified, return receipt requested, postage paid by the sender), or sent by
overnight courier guaranteeing next Business Day delivery (courier charge paid
by the sender), or sent by facsimile (answerback confirmation received),
addressed as follows:
(i) if to the Agent or Secured Parties:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Telephone: (212)
Facsimile: (212)
(ii) if to the Issuer:
The City of Syracuse Industrial Development Agency
000 Xxxxxxxxxx Xxxxxx
-00-
Xxxxxxxx, Xxx Xxxx 00000
Attention: Chairman
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iii) if to the Guarantor:
Project Orange Associates, L.P.
c/o G.A.S. Orange Associates, L.L.C.
00 Xxxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attention: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
A duplicate copy of each notice or other communication given hereunder or
under any Lease Document by the Issuer or the Guarantor shall be simultaneously
given to the Agent. Any party may, by notice to the other parties designate
additional or different addresses for subsequent notices or communications. All
notices and communications shall be deemed to have been given when received by
the party to whom it is addressed or, if delivery is refused, when delivery is
refused. If a notice or communication is mailed or sent in the manner provided
above within the time prescribed, it is deemed duly given whether or not the
addressee receives it within such time.
18. Nothing contained herein shall be construed to limit the rights and
benefits in favor of the Issuer under Sections 10.3 and 13.10 of the Master
Lease.
19. The Agent hereby agrees and acknowledges that the PILOT Amounts (as
defined in the PILOT Agreement) payable under the PILOT Agreement (other than
the Subordinated PILOT Obligations, as defined in the PILOT Agreement) shall be
treated as having a Lien on the Project superior in rank to the liens under the
First Mortgage and the other Collateral Documents.
20. This Consent and Agreement shall be binding upon, and shall inure to
the benefit of, the Issuer, the Guarantor, the Agent and the Secured Parties and
their respective successors and assigns. No other party shall derive any rights
by reason of this Consent and Agreement.
21. This Consent and Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
22. This Consent and Agreement may be signed in any number of
counterparts, each of which shall be an original and all of which together shall
constitute but one and the same instrument.
[Signatures on next page.]
[Balance of this page intentionally left blank.]
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This Consent and Agreement is dated as of December 6, 1999.
Issuer
CITY OF SYRACUSE INDUSTRIAL
DEVELOPMENT AGENCY
By: /s/ Xxxx Xxxxxxxxx
_____________________________
Name: Xxxx Xxxxxxxxx
Title: Vice Chairman
Guarantor
PROJECT ORANGE ASSOCIATES, L.P.
By: G.A.S. Orange Associates, LLC
General Partner
By: /s/ Xxxxxxx Xxxxxxx
_____________________________
Name: Xxxxxxx Xxxxxxx
Title:
Agent
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Collateral Agent
By: /s/ Xxxx X. Xxxxxxx
_____________________________
Name: Xxxx X. Xxxxxxx
Title: Vice President
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Acknowledgment for:
Issuer
UNIFORM FORM CERTIFICATE OF ACKNOWLEDGMENT
(Within New York State)
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
On this 2nd day of December, in the year 1999, before me, the
undersigned, personally appeared Xxxx Xxxxxxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
/s/ Xxxx X. Xxxx
_________________________
Notary Public
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Acknowledgment for:
Guarantor
UNIFORM FORM CERTIFICATE OF ACKNOWLEDGMENT
(Within New York State)
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
On this 3rd day of December, in the year 1999, before me, the
undersigned, personally appeared Xxxxxxx Xxxxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
/s/ Xxxxxxxxxx X. Xxxxxxxx
__________________________
Notary Public
[Notary Seal]
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Acknowledgment for:
Agent
UNIFORM FORM CERTIFICATE OF ACKNOWLEDGMENT
(Within New York State)
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
On this 3rd day of December, in the year 1999, before me, the
undersigned, personally appeared Xxxx X. Xxxxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
/s/ Xxxxxxxxxx X. Xxxxxxxx
__________________________
Notary Public
[Notary Seal]
-16-
Exhibit A
---------
Part 1
------
Property Description
--------------------
Leased Site
-----------
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Part 2
------
Property Description
--------------------
City Easement Parcels
---------------------
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Part 3
------
List of City Easement Agreements
--------------------------------
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Part 4
------
Property Description
--------------------
Outside Easement Parcels
------------------------
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Part 5
------
List of Outside Easement Agreements
-----------------------------------
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