EXHIBIT 10.17
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
SUBORDINATION AGREEMENT
SUBORDINATION AGREEMENT ("Agreement") dated as of December 6, 1999 among
SYRACUSE UNIVERSITY, a New York educational corporation having an office at
Xxxxxx Xxxxxx Xxxxxxxx, Xxxxxxxx, Xxx Xxxx 00000-0000 (together with its
successors and assigns, the "University"), U.S. BANK TRUST NATIONAL ASSOCIATION,
a national banking association having an office at 000 Xxxx Xxxxxx, Xxxxx 0000,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust, as Collateral Agent for
the Secured Parties (together with its successors and assigns as such Collateral
Agent, the "Collateral Agent"), and PROJECT ORANGE ASSOCIATES, L.P., a Delaware
limited partnership having an office at c/o NCP Syracuse, Inc., 00 Xxxxxxxxxxxx
Xxxxx, Xxxxxxxx, Xxx Xxxx 00000 (together with its successors and assigns the
"Borrower").
W I T N E S S E T H:
WHEREAS, reference is hereby made to the Mortgage and Security Agreement
(First Mortgage) dated as of the date hereof given by the City of Syracuse
Industrial Development Agency ("SIDA") and the Borrower, as mortgagors, to the
Collateral Agent, as mortgagee (the "Senior Mortgage"), to be recorded in the
Office of the Clerk of Onondaga County, New York (the "Clerk's Office")
contemporaneously with the recording of this Agreement, relating to the Project
known as the Project Orange Associates, L.P. Cogeneration Facility and Pipeline
located on the Leased Site and the Easements described in Exhibits A-1 through
A-5 inclusive attached hereto and incorporated herein;
WHEREAS, reference is also hereby made to the Security Agreement dated as
of the date hereof given by the Borrower, as grantor, to the Collateral Agent,
as secured party, and the Security Agreement dated as of the date hereof given
by SIDA, as grantor, to the Collateral Agent, as secured party, each relating to
the Project (said Security Agreements being collectively the "Senior Security
Agreements"; the Senior Mortgage, the Senior Security Agreements and the
financing statements and the continuation statements relating thereto being
collectively the "Senior Collateral Documents");
WHEREAS, reference is also hereby made to (a) the Mortgage and Security
Agreement dated as of April 5, 1991 recorded in the Clerk's Office on May 3,
1991 in Book 5857 at Page 221, as amended by the First Amendment of Mortgage and
Security Agreement (A) dated as of
December 24, 1992 recorded in the Clerk's Office on January 7, 1993 in Book 6731
at Page 254, given by the Borrower and SIDA, as mortgagor, to the University, as
mortgagee (collectively "University Mortgage A"), and (b) the Mortgage and
Security Agreement dated as of April 5, 1991 recorded in the Clerk's Office on
May 3, 1991 in Book 5857 at Page 249, as amended by the First Amendment of
Mortgage and Security Agreement (B) dated as of December 24, 1992 recorded in
the Clerk's Office on January 7, 1993 in Book 6731 at Page 274, given by the
Borrower and SIDA, as mortgagor, to the University, as mortgagee (collectively
"University Mortgage B"; University Mortgage A and University Mortgage B being
herein collectively the "Subordinate Mortgages"), each relating to the Project
located on the Leased Site and Easements described in Exhibit A-1 through A-5
inclusive attached hereto and incorporated herein;
WHEREAS, reference is also hereby made to the two Security Agreements dated
as of April 5, 1991 given by the Borrower and SIDA, as grantors, to the
University, as secured party, relating to the Project (said Security Agreements
being collectively the "Subordinate Security Agreements"; the Subordinate
Mortgages, the Subordinate Security Agreements and the financing statements and
continuation statements relating thereto being collectively the "Subordinate
Collateral Documents"); and
WHEREAS, the Collateral Agent has requested that the University execute and
deliver this Agreement to acknowledge, to recognize and to confirm the
subordination of the Subordinate Collateral Documents to the Senior Collateral
Documents.
NOW THEREFORE, in consideration of the foregoing, to induce the Collateral
Agent to accept the Senior Collateral Documents, in consideration of the
agreements hereinafter set forth, and intending to be bound hereby, the parties
hereto hereby agree as follows:
1. (a) Capitalized terms used in this Agreement but not otherwise
defined herein shall have the respective meanings ascribed thereto in or by
reference in the Senior Mortgage.
(b) Unless otherwise specified herein, as used in this Agreement, the
terms "University Mortgage A", "University Mortgage B", "Subordinate Mortgages",
"Subordinate Security Agreements" and "Subordinate Collateral Documents" shall
include all supplements, amendments and other modifications now or hereafter in
effect.
(c) In this Agreement, unless otherwise specified, singular words
include the plural and plural words include the singular; words imparting any
gender include the other genders, the word "person" means an individual,
corporation, partnership, association, trust or other entity or organization,
including a government or political subdivision, agency or instrumentality
thereof, the word "successors", when it refers to an individual, includes the
heirs, devisees, legatees, executors, administrators and personal
representatives of such individual; the words "include", "including" and similar
words are deemed to be followed by the words "without limitation"; the words
"hereto", "herein", "hereof", "hereunder" and similar words refer to this
Agreement in its entirety; the words "foreclose", "foreclosure", or similar
words
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shall include transfers in lieu of foreclosure; and references to paragraphs are
to the paragraphs in this Agreement.
2. The University hereby acknowledges, confirms and agrees that:
(a) Each and all of the Subordinate Collateral Documents and the
mortgages, liens and security interests created or arising thereunder are and
shall be deemed to be and remain subject and subordinate in all respects to each
and all of the Senior Collateral Documents and the mortgages, liens and security
interests created or arising thereunder, notwithstanding the times or order of
the granting thereof; and
(b) Notwithstanding the union of the fee simple title and the
leasehold estate created under the Ground Lease or the merger of any other
Syracuse Document (as defined in the Consent and Agreement dated as of the date
hereof among the University, the Collateral Agent and the Borrower (the
"University Consent and Agreement") in the University, the Borrower, the
Collateral Agent, the Secured Parties or any other person or entity, either by
purchase, foreclosure 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 parties' interests in the other
Syracuse Documents shall be maintained and a merger shall not take place without
the prior written consent of the Secured Parties; provided, however, that
nothing in this paragraph shall limit or restrict in any manner the right of the
University to terminate the Ground Lease or the other Syracuse Documents in
accordance with their terms and the terms of the University Consent and
Agreement.
3. The University and the Borrower hereby acknowledge, confirm and agree
that:
(a) All references in the Subordinate Collateral Documents (i) to a
"Consent and Agreement" shall be deemed to refer to the "Consent and Agreement
dated as of the date hereof among the University, the Collateral Agent and the
Borrower and (ii) to the "Power Purchase Contract" shall mean the Power Put
Agreement and the Indexed Swap Agreement.
(b) After the Collateral Agent's request therefor the University and
the Borrower shall, within a reasonable period of time, at the Borrower's
expense, take all such further actions and execute, acknowledge and deliver all
such further instruments and documents as the Collateral Agent shall from time
to time reasonably request to acknowledge, confirm and effectuate the provisions
of, and carry out the intent of, the provisions of this Agreement.
4. The University represents and warrants that it is the owner of its
interests under the Syracuse Documents; it is the owner of the mortgagees' and
secured parties' interests under the Subordinate Collateral Documents; it has
the sole and unencumbered right and power to enter into this Agreement; and this
Agreement has been duly authorized, executed and delivered by it.
5. The Collateral Agent represents and warrants that it is the mortgagee
and secured party under the Senior Collateral Documents; it has the right and
power as Collateral Agent to
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enter in this Agreement; and this Agreement has been duly authorized, executed
and delivered by it as Collateral Agent.
6. The Borrower hereby consents to this Agreement and agrees to be bound
by the provisions hereof. The Borrower hereby represents and warrants that it
has the sole and unencumbered right and power to execute this Agreement for such
purposes; and that this Agreement is duly authorized, executed and delivered by
it.
7. Any notice or other communication given under this Agreement shall be
in writing and shall be delivered personally, or mailed by United States first
class mail (registered or certified, postage paid by the sender), or sent by
overnight courier guaranteeing next business day delivery (courier charge paid
by the sender), addressed to the relevant party at its address set forth above.
Any party may by notice to the other parties designate additional or different
addresses for subsequent notices and communications. A notice or other
communication shall be deemed given when received by the party to whom addressed
or, if delivery is refused, when delivery is refused. If a notice or other
communication is mailed or sent in a manner provided above within the time
prescribed, it shall be deemed duly given, whether or not the addressee receives
it within such time.
8. If any provision of this Agreement shall be held to be unenforceable
against any person or in any circumstance, such unenforceability shall not
affect the enforceability of the other provisions of this Agreement against
other persons or in other circumstances.
9. This Agreement shall not be modified, waived or terminated, except by
an agreement in writing executed by the party against whom enforcement of such
modification, waiver or termination is sought.
10. This Agreement and the provisions hereof shall be deemed to be
covenants running with the land and shall be binding upon the University, the
Collateral Agent and the Borrower and their respective successors and assigns
and shall inure to the benefit of the University and the Collateral Agent and
their respective successors and assigns.
11. This Agreement shall be construed in accordance with and governed by
the laws of the State of New York.
12. This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
[Signatures on next page.]
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
University
SYRACUSE UNIVERSITY,
a New York educational corporation
By: /s/ Xxxxx X. Macoccia
------------------------------
Name: Xxxxx X. Macoccia
Title: Senior Vice President for
Business, Finance and
Administrative Services
Collateral Agent
U.S. BANK TRUST NATIONAL ASSOCIATION,
a national banking association,
as Collateral Agent
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
Borrower
PROJECT ORANGE ASSOCIATES, L.P.
a Delaware limited partnership
By: G.A.S. Orange Associates, LLC
general partner
By: /s/ Xxxxxxx Xxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Acknowledgment for:
University
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 Xxxxx X. 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/ Xxxxxx Xxxxxxxxxxx
-----------------------
Notary Public
Acknowledgment for:
Collateral 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
Acknowledgment for:
Borrower
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
Exhibit A-1
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Property Description
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Leased Site
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Exhibit A-2
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Property Descriptions
---------------------
City Easements
--------------
Exhibit A-3
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List of City Easement Agreements
--------------------------------
Exhibit A-4
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Property Descriptions
---------------------
Outside Easements
-----------------
Exhibit A-5
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List of Outside Easement Agreements
-----------------------------------
