Exhibit 4.21
This instrument was prepared by the Indexing instructions set forth on
attorney referenced below in the property description in
consultation with counsel admitted to Exhibit A.
practice in the state in which the
property is located, and when recorded,
counterparts should be returned to:
Xxx Xxxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-3897
(000) 000-0000
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DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND
RENTS AND FIXTURE FILING
Dated as of May 21, 1999
by
LSP ENERGY LIMITED PARTNERSHIP
Trustor
to
XXXXX X. X'XXXX
Trustee
for the benefit of
THE BANK OF NEW YORK
as Administrative Agent and Collateral Agent
Beneficiary
SOME OF THE PERSONAL PROPERTY CONSTITUTING A PORTION OF THE
TRUST PROPERTY IS OR IS TO BE AFFIXED TO THE PROPERTIES
DESCRIBED IN EXHIBIT A HERETO
THIS FINANCING STATEMENT IS TO BE FILED FOR RECORD, AMONG OTHER
PLACES, IN THE REAL ESTATE RECORDS
THIS DEED OF TRUST COVERS
AFTER-ACOUIRED PROPERTY
THE FINAL MATURITY DATE FOR THIS
DEED OF TRUST IS JULY 15, 2025
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS...........................................................8
1.1 Definitions..................................................8
1.2 Principles of Construction..................................15
ARTICLE 2
COVENANTS OF TRUSTOR.................................................15
2.1 Covenants...................................................15
ARTICLE 3
ABSOLUTE ASSIGNMENT OF LEASES AND RENTS..............................19
3.1 Absolute Assignment of Leases and Rents.....................19
ARTICLE 4
SECURITY AGREEMENT...................................................21
4.1 Rights to UCC Collateral under the Uniform Commercial
Code........................................................22
4.2 Fixture Filing Financing Statements.........................22
4.3 Trustee or Beneficiary as Senior Secured Party..............23
ARTICLE 5
REPRESENTATIONS OF TRUSTOR...........................................23
5.1 Representations and Warranties..............................23
ARTICLE 6
DEFAULT AND FORECLOSURE..............................................23
6.1 Remedies....................................................23
6.2 Rescission of Notice of Event of Default....................29
6.3 Application of Proceeds.....................................29
6.4 Additional Security.........................................29
6.5 Remedies Cumulative.........................................30
6.6 Attorney-in-Fact............................................30
6.7 Waiver of Notice............................................31
6.8 Payment of Costs and Expenses...............................31
6.9 Trustor's Waivers...........................................31
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Page
ARTICLE 7
MISCELLANEOUS........................................................33
7.1 Performance at Trustor's Expense............................33
7.2 Beneficiary's Right to Perform the Senior Secured
Obligations.................................................33
7.3 Survival of Senior Secured Obligations......................33
7.4 Notices.....................................................34
7.5 Delay not a Waiver..........................................34
7.6 Covenants Running with the Land.............................35
7.7 Further Assurances..........................................35
7.8 Severability................................................36
7.9 Entire Agreement and Modification...........................36
7.10 Applicable Law..............................................36
7.11 Limitation on Beneficiary's Responsibility..................36
7.12 Headings....................................................37
7.13 Xxxxxxxxxxx.................................................37
7.14 Waiver of Jury Trial and Consent to Jurisdiction............37
7.15 Maximum Indebtedness and Future Advances....................38
7.16 Lien Absolute; Multiple Collateral Transaction..............39
7.17 Discharge of Deed...........................................39
7.18 Renewal or Extension of Senior Secured Obligations..........40
7.19 Conflicts...................................................40
7.20 Assumption Not a Novation...................................40
7.21 Substitute Or Successor Trustees............................40
7.22 Limitation of Recourse......................................41
7.23 Counterparts................................................41
Exhibit A
Exhibit B
ii
DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND
RENTS AND FIXTURE FILING
THIS DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND
FIXTURE FILING, dated as of May 21, 1999 (as amended, restated, supplemented or
otherwise modified from time to time, this "Deed of Trust"), by LSP ENERGY
LIMITED PARTNERSHIP, a Delaware limited partnership, the grantor hereunder
(together with its permitted successors and assigns, "Trustor"), to XXXXX X.
X'XXXX ("Trustee"), for the benefit of THE BANK OF NEW YORK, a New York banking
corporation as Administrative Agent and as Collateral Agent under the Common
Agreement referred to below, the beneficiary hereunder (together with its
successors and assigns, "Beneficiary").
W I T N E S S E T H :
WHEREAS, Trustor is the owner of that certain real property
described on Exhibit A annexed hereto and made a part hereof (the "Land").
WHEREAS, Trustor has entered into certain Project Documents
providing for, among other things, the ownership, development, construction,
operation and maintenance of an approximately 837 MW (net) gas-fired combined
cycle electric generating facility to be located on the Land.
WHEREAS, pursuant to the Tranche A Facility Credit Agreement, dated
as of August 28, 1998 (the "Initial Credit Agreement"), among Trustor, the banks
and other financial institutions party thereto (the "Initial Banks") and Credit
Suisse First Boston ("Credit Suisse") as agent for the Initial Banks, the
Initial Banks agreed to provide loans (the "Initial Loans") to Trustor to
finance a portion of the development, construction and start-up of the Project.
WHEREAS, Trustor also entered into the Letter of Credit Agreement
dated as of August 28, 1998 (the "VEPCO L/C Agreement"), as amended by Amendment
No. 1 to Letter of Credit Agreement, dated as of December 15, 1998, and by
Amendment No. 2 to Letter of Credit Agreement, dated as of the date hereof, with
Credit Suisse, in its capacities as VEPCO L/C Agent and VEPCO L/C Issuer, and
the VEPCO L/C Banks listed therein, pursuant to which the VEPCO L/C Issuer
agreed to issue, and has issued, for the account of Trustor, one or more VEPCO
Letters of Credit for use by Trustor as security in connection with the Project.
WHEREAS, in connection with the execution of the Initial Credit
Agreement, the VEPCO L/C Agreement and the related financing documents, and as a
condition precedent to the Initial Banks providing the Initial Loans to Trustor,
Trustor, LSP Batesville Funding Corporation (the "Funding Corporation"), LSP
Batesville Holding, LLC, IBJ Xxxxxxxx Bank & Trust Company in its
capacities as intercreditor agent, administrative agent, collateral agent and
securities intermediary, Credit Suisse as Tranche A Facility Agent and VEPCO L/C
Agent entered into the Common Agreement, dated as of August 28 1998, (the
"Initial Common Agreement").
WHEREAS, pursuant to the Amended and Restated Bank Facility Credit
Agreement, dated as of December 15, 1998 (the "Supplemental Credit Agreement"),
among Trustor, the banks and other financial institutions party thereto (the
"Supplemental Banks") and Credit Suisse as agent for the Supplemental Banks, (a)
Trustor, the Supplemental Banks and Credit Suisse amended and restated the
Initial Credit Agreement in its entirety and (b) the Supplemental Banks agreed
to provide loans (the "Supplemental Loans") to Trustor to finance a portion of
the development, construction and start-up of the Project.
WHEREAS, in connection with the execution of the Supplemental Credit
Agreement and the related financing documents, and as a condition precedent to
the Supplemental Banks providing the Supplemental Loans to Trustor, Trustor and
Credit Suisse as bank facility agent, VEPCO L/C agent, administrative agent,
collateral agent and securities intermediary executed the Amended and Restated
Common Agreement, dated as of the December 15, 1998 (the "Supplemental Common
Agreement"), pursuant to which the Initial Common Agreement was amended and
restated in its entirety;
WHEREAS, Trustor and the Funding Corporation have determined to
issue certain Bonds pursuant to the Trust Indenture, dated as of the date hereof
(the "Indenture"), among Trustor, the Funding Corporation and The Bank of New
York, as trustee, and to sell such bonds to Credit Suisse, as initial purchaser,
pursuant to the Purchase Agreement.
WHEREAS, Trustor and the Funding Corporation will use the proceeds
of the Bonds to (i) repay in full the Indebtedness outstanding under the
Supplemental Credit Agreement and (ii) pay the remaining Project Costs.
WHEREAS, in connection with the issuance and sale of the Bonds and
the execution of the related Financing Documents, Trustor, the Funding
Corporation, the Collateral Agent, the Administrative Agent and the
Intercreditor Agent are entering into the Second Amended and Restated Common
Agreement, dated as of the date hereof (the "Common Agreement"), in order to
amend and restate the Supplemental Common Agreement in its entirety.
WHEREAS, this Deed of Trust is given pursuant to the Common
Agreement, the Indenture and the VEPCO L/C Agreement, and payment, fulfillment,
and performance by Trustor of its obligations thereunder and under the other
Financing Documents to which it is a party are secured hereby, and each and
every term and provision of the Common Agreement, the Indenture, the VEPCO L/C
Agreement and the Financing Documents, including the rights, remedies,
obligations, covenants, conditions, agreements, indemnities, representations and
warranties of the parties therein, are hereby
2
incorporated by reference herein as though set forth in full and shall be
considered a part of this Deed of Trust.
WHEREAS, the Common Agreement, the Indenture and the VEPCO L/C
Agreement contemplate the execution, delivery and implementation of this Deed of
Trust and it is a condition precedent to the transactions contemplated by the
Indenture, the VEPCO L/C Agreement, the Common Agreement and the Financing
Documents that Trustor shall have executed and delivered this Deed of Trust to
Beneficiary on behalf of the Senior Secured Parties.
WHEREAS, except as otherwise expressly provided herein, capitalized
terms used in this Deed of Trust shall have the meanings given thereto in the
Common Agreement or the Indenture, as applicable. Except as otherwise expressly
provided herein, the rules of interpretation set forth in the Indenture shall
apply to this Deed of Trust.
NOW, THEREFORE, with reference to the foregoing Recitals, and for
ten dollars cash in-hand and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged and intending to be legally
bound hereby:
Trustor does hereby irrevocably grant, bargain, sell, convey, confirm,
release, warrant, assign and transfer to Trustee its successors and assigns, IN
TRUST, WITH POWER OF SALE AND RIGHT TO ENTRY AND POSSESSION, pursuant to this
Deed of Trust and applicable law, for the benefit and use of Beneficiary, for
itself and as Administrative Agent and Collateral Agent on behalf of the Senior
Secured Parties, the following property, whether now owned or hereafter acquired
by Trustor (collectively, the "Trust Property") for the purpose of securing the
payment and performance of the Senior Secured Obligations (as hereinafter
defined):
(i) the Land, and any rights, privileges and appurtenances thereunto belonging
or in any way pertaining thereto, all reversions, remainders, dower and
right of dower, curtesy and right of curtesy, and all of Trustor's right,
title and interest in and to all transferable development rights arising
therefrom or transferred thereto, and shares of stock evidencing the same,
and, to the extent assignable, all appurtenances to such property,
including any now or hereafter belonging or in any way appertaining
thereto, and all claims or demands of Trustor, either at law or in equity,
in possession or expectancy, now or hereafter acquired, of, in or to the
same;
(ii) all Trustor's right, title and interest in and to the Improvements on the
Land, including any alterations thereto or replacements thereof, now or
hereafter erected upon the Land;
(iii) all of Trustor's right, title and interest in and to all Fixtures now or
at any time hereafter affixed to, attached to, placed upon or used in any
way in connection with the use, occupancy, enjoyment, development,
operation or ownership of the Land or the Improvements, together with any
and all replacements thereof and additions thereto;
3
(iv) all of Trustor's right, title and interest in and to all Equipment and
Personalty now or at any time hereafter located at the Land or the
Improvements, together with any and all replacements thereof and
additions thereto;
(v) all right, title and interest of Trustor in and to all extensions,
improvements, betterments, renewals, substitutes and replacements of, and
all additions and appurtenances to, the Real Property and the Equipment,
hereafter acquired by or released to Trustor or constructed, assembled or
placed by Trustor on the Real Property, and all conversions of the
security constituted thereby; immediately upon such acquisition, release,
construction, assembling, placement or conversion, as the case may be,
and in each such case, without any further mortgage, conveyance,
assignment or other act by Trustor, any of such extensions, improvements,
betterments, renewals, substitutes and replacements shall become subject
to the Lien of this Deed of Trust as fully and completely, and with the
same effect, as though now owned by Trustor and specifically described
herein;
(vi) all of Trustor's right, title and interest in and to all easements
(including, without limitation, the Easements), rights of way, streets,
roads, alleys, passages, rights of way, air rights, lateral support,
drainage rights, options to purchase, water rights (whether riparian,
appropriative, or otherwise), utility rights, privileges, franchises,
servitudes, tenements, hereditaments, and appurtenances now or hereafter
belonging or appertaining to any of the foregoing or to the Land, all
mineral, mining, gravel, oil, gas, hydrocarbon substances and other
rights to produce or share in the production of anything related to such
property, all drainage, crop, timber, agricultural, and horticultural
rights with respect to such property, and all of Trustor's right, title
and interest in and to any streets, ways, alleys, roadbeds, inclines,
tunnels, culverts, strips or gores of land adjoining or serving the Land
or any part thereof, whether now owned or hereafter acquired by Trustor;
(vii) all of Trustor's right, title and interest in and to all of the real
estate and personal property tax refunds or rebates or charges in lieu of
Taxes now or hereafter assessed or levied against the Real Property or
any other part of the Trust Property, including interest thereon, and the
right to receive the same, whether such refunds or rebates relate to
fiscal periods before or during the term of this Deed of Trust, payable
to Trustor with respect to the Land or the Improvements, and refunds,
credits or reimbursements payable with respect to bonds, escrow accounts
or other sums payable in connection with the use, occupation, enjoyment,
development, operation or ownership of the Land or Improvements;
(viii) all of Trustor's right, title and interest in and to all Leases and
Rents;
(ix) all of Trustor's right, title and interest in and to all insurance
policies and the proceeds thereof, now or hereafter in effect with
respect to the Real Property or the UCC Collateral, including any and all
title and property insurance proceeds, and all unearned premiums and
premium
4
refunds, accrued, accruing or to accrue under such insurance policies,
and all of Trustor's right, title and interest in and to all proceeds,
judgments, claims, compensation, awards or payments made for any taking
of or damage to all or any part of the Real Property or the UCC
Collateral by eminent domain or condemnation, or by any purchase in lieu
thereof, and all awards resulting from a change of grade of streets or
for severance damages, and all other proceeds of the conversion,
voluntary or involuntary, of any of the Trust Property into cash or other
liquidated claims, and all judgments, damages, awards, settlements and
compensation (including interest thereon) heretofore or hereafter made to
the present and all subsequent owners of the Trust Property or any part
thereof for any injury to or decrease in the value thereof for any
reason;
(x) to the extent assignable, all of Trustor's right, title and interest in
and to all abstracts of title, plans, specifications, operating manuals,
computer programs, computer data, maps, surveys, studies, reports,
permits and licenses (including but not limited to the permits and
licenses described on Exhibit B hereto), records, plans, designs,
drawings, surveys, title insurance policies, agreements, contract rights,
approvals, actions, appraisals, architectural, engineering and
construction contracts, books of account, insurance policies and other
documents, of whatever kind or character, relating to the Real Property;
(xi) all of Trustor's right, title and interest in and to all present and
future Leases, Property Agreements, Contracts and all Proceeds and
Receivables, the proceeds from the sale, transfer, disposition,
conveyance or refinancing of all or any portion of the Trust Property and
other benefits paid or payable and to become due or payable to Trustor in
respect of the use, occupancy, license or possession of any portion or
portions of the Trust Property;
(xii) all the right, as and to the extent set forth in the Common Agreement and
the Indenture in the name and on behalf of Trustor, to appear in and
defend any action or proceeding brought with respect to the Trust
Property, and to commence any action or proceeding to protect the
interest of Trustor in the Trust Property;
(xiii) rights, titles, interests, estates or other claims, both in law and in
equity, which Trustor now has or may hereafter acquire in the Real
Property or in and to any greater estate in the Real Property or in and
to any greater estate in the Trust Property;
(xiv) all of Trustor's right, title and interest in and to all property
hereafter acquired or constructed by Trustor located at or used in
connection with the Land of the type described in the foregoing Granting
Clauses which shall forthwith, upon acquisition or construction thereof
by Trustor and without any act or deed by Trustor or Beneficiary, become
subject to the Lien of this Deed of Trust as if such property were now
owned by Trustor and were specifically described in this Deed of Trust
and were specifically conveyed or encumbered hereby;
5
(xv) all of Trustor's right, title and interest in and to accessions,
additions or attachments to, and all receipts, issues, profits, proceeds
and products arising from, any of the foregoing and any and all proceeds
of the conversion, voluntary or involuntary, of any of the foregoing into
cash or liquidated claims;
(xvi) all of Trustor's right, title and interest in and to all Inventory now or
at any time hereafter located at the Land or the Improvements or used in
any way in connection with the use, occupancy, enjoyment, development,
operation or ownership of the Land or the Improvements, together with any
and all replacements thereof and additions thereto, together with all of
Trustor's right, title and interest in and to all Accounts; and
(xvii) Trustor's right, title and interest in and to all pipelines and pipeline
gathering systems used in connection with the Project lying on, in or
across lands or any part thereof located in Panola and Yalobusha
Counties, Mississippi, including but not limited to the lands, easements,
leases and rights of way described on Exhibit A hereto, together with all
equipment, fittings, fixtures, pipe, machinery, pumps, appliances,
valves, meters, tanks and other personal or real property appertaining to
said pipeline gathering systems and all tenements, hereditaments and
appurtenances now owned or hereafter acquired in connection therewith
together with all rights of way, servitudes, easements and permits
(including but not limited to the permits and licenses described on
Exhibit B hereto) for said pipeline gathering systems including, but not
limited to all the rights, titles and interests whether now owned or
hereafter acquired by Trustor in, to and under the instruments described
in attached Exhibit A hereto.
"Trust Property," including each component thereof, shall be expressly
interpreted as meaning all or, where the context permits or requires, any
portion of the above, and all or, where the context permits or requires, any
interest of Trustor therein.
AND without limiting any of the other provisions of this Deed of Trust,
Trustor expressly grants to Beneficiary, as secured party for itself and for the
rateable benefit of the Senior Secured Parties, a security interest in the
portion of the Trust Property which is or may be subject to the provisions of
the Uniform Commercial Code as in effect from time to time in the state in which
the Land is located (as the same may have been or may hereafter be amended, the
"Uniform Commercial Code") which are applicable to secured transactions; it
being understood and agreed that the Improvements and Fixtures are part and
parcel of the Real Property and appropriated to the use thereof and, whether
affixed or annexed to the Real Property or not, shall for the purposes of this
Deed of Trust be deemed conclusively to be real estate and conveyed hereby.
TO HAVE AND TO HOLD as provided herein, the above granted and described
Trust Property to Trustee and its assigns, substitutes and successors hereunder,
in trust, for the security and benefit of Beneficiary and its assigns and
successors forever, for itself and for the rateable benefit of the Senior
Secured Parties and their respective assigns and successors forever, and Trustor
hereby binds
6
itself and its successors and assigns to warrant and forever defend the title to
the Trust Property unto Trustee and its assigns, substitutes and successors
forever against the claim or claims of all parties claiming or to claim the
same, or any part thereof.
AND TO PROTECT THE SECURITY OF THIS DEED OF TRUST, Trustor represents,
warrants, covenants and agrees as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions.
Capitalized terms used herein without definition shall have the respective
meanings ascribed to them in the Common Agreement or the Indenture, as
applicable. As used herein, the following terms shall have the following
meanings:
"Accounts" shall mean all Trustor's accounts whether now existing or
hereafter arising and resulting from the sale or other disposition of
Inventory or from the services performed at the Project or any other
accounts however arising, including but not limited to the "Accounts" as
such term is defined in the Indenture, and all chattel paper, documents
and instruments relating to the Accounts or constituting the proceeds
thereof.
"Administrative Agent" shall have the meaning set forth in the Common
Agreement.
"Applicable Law" shall have the meaning set forth in the Indenture.
"Beneficiary" has the meaning set forth in the introducing paragraph
hereof.
"Bonds" has the meaning set forth in the Indenture.
"Collateral Agency Agreement" shall have the meaning set forth in the
Indenture.
"Collateral Agent" shall have the meaning set forth in the Common
Agreement.
"Common Agreement" has the meaning set forth in the Recitals hereof.
"Consents" shall have the meaning set forth in the Indenture.
"Contracts" means all contracts to which the Trustor now is, or hereafter
will be, bound, or a party, beneficiary or assignee, including, without
limitation, all of the Project Documents,
7
including exhibits thereto, and all other instruments, agreements and
documents executed and delivered with respect to such contracts, all
Consents, and all revenues, 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.
"Credit Suisse" has the meaning set forth in the Recitals hereof.
"Deed of Trust" means this Deed of Trust, Security Agreement, Assignment
of Leases and Rents and Fixture Filing, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
"Easements" shall have the meaning set forth in the Indenture.
"Equipment" means all "equipment," as such term is defined in Article 9 of
the Uniform Commercial Code, now owned or hereafter acquired by Trustor,
which is used at or in connection with the Improvements or the Land or is
located thereon or therein (including all machinery, appliances,
apparatus, fittings, materials, equipment, pipes, pipelines (including
meters, connections, values and associated equipment), tanks, mains,
lines, pumps, cables, lines, wires, conduits, poles and related equipment,
loading and unloading equipment, motors, switchboards, cleaning, fire
prevention, fire extinguishing, cooling and ventilation equipment,
furnishings, and electronic data-processing and other office equipment now
owned or hereafter acquired by Trustor and any and all additions,
substitutions and replacements of any of the foregoing), together with all
attachments, components, parts, equipment and accessories installed
thereon or affixed thereto. Notwithstanding the foregoing, Equipment shall
not include any property belonging to tenants under leases except to the
extent that Trustor shall have any right or interest therein.
"Event of Default" shall have the meaning set forth in the Intercreditor
Agreement.
"Financing Documents" shall have the meaning set forth in the Indenture.
"Fixtures" means all Equipment now owned, or the ownership of which is
hereafter acquired, by Trustor which is so related to the Land and
Improvements forming part of the Trust Property that it is deemed fixtures
or real property under the law of the state in which the Land is located,
including all building or construction materials intended for
construction, reconstruction, alteration or repair of or installation on
the Trust Property, construction equipment, appliances, machinery, plant
equipment, fittings, apparatuses, fixtures and other items now or
hereafter attached to, installed in or used in connection with
(temporarily or permanently) any of the Improvements or the Land,
including engines, devices for the operation of pumps, pipes, plumbing,
cleaning, call and sprinkler systems, fire extinguishing apparatuses and
equipment, heating, ventilating, plumbing, laundry, incinerating,
electrical, air conditioning and air cooling
8
equipment and systems, gas and electric machinery, appurtenances and
equipment, pollution control equipment, security systems, disposals,
cables, wires, pipelines (including meters, connections, valves and other
associated equipment), conduits, mains, lines, ducts, fences, lighting
fixtures, recreational equipment and facilities of all kinds, and water,
gas, electrical, storm and sanitary sewer facilities, utility lines and
electric transmission equipment (whether owned individually or jointly
with others, and, if owned jointly, to the extent of Trustor's interest
therein) and all other utilities whether or not situated in easements, all
water tanks, water supply, water power sites, fuel stations, fuel tanks,
fuel supply, and all other structures, together with all accessions,
appurtenances, additions, replacements, betterments and substitutions for
any of the foregoing and the proceeds thereof.
"Funding Corporation" has the meaning set forth in the Recitals hereof.
"Governmental Approval" shall have the meaning set forth in the Indenture.
"Impositions" All taxes (including, without limitation, all ad valorem,
sales (including those imposed on lease rentals), use, gross receipts,
value added, intangible transaction, privilege or license or similar
taxes; and excluding mortgage recording taxes, transfer taxes, transfer
gains taxes, gift and inheritance taxes, franchise taxes and analogous
taxes on non-corporate entities, and income taxes), assessments
(including, without limitation, all assessments for public improvements or
benefits, whether or not commenced or completed prior to the date hereof
and whether or not commenced or completed within the term of this Deed of
Trust), water, sewer or other rents and charges, excises, levies, fees
(including, without limitation, license, permit, inspection, authorization
and similar fees), and all other governmental charges, in each case
whether general or special, ordinary or extraordinary, or foreseen or
unforeseen, of every character in respect of the Trust Property and/or any
Rents (including all interest and penalties thereon), which at any time
prior to, during or in respect of the term hereof shall be assessed or
imposed on or in respect of or be a Lien upon (a) Trustor that are in the
nature of a real estate tax, whether in addition to, or in lieu of, real
estate taxes, (b) the Trust Property, or any other collateral delivered or
pledged to Beneficiary in connection with the Common Agreement or the
Indenture, or any part thereof, or any Rents therefrom or any estate,
right, title or interest therein, or (c) any occupancy, operation, use or
possession of, or sales from, or activity conducted on, or in connection
with the Trust Property or the leasing or use of all or any part thereof.
"Improvements" means any and all buildings, structures, foundations,
storage and other tanks, utility sheds, workrooms, towers, retention
basins, generating units, pump stations, transformers, retaining walls,
pipes, cables, landscaping, irrigation and drainage pipes and facilities,
open parking areas, and all other structures, improvements and fixtures of
every kind whatsoever, whether above or below the land surface, and
whether permanent or temporary, and any and all additions, alterations,
betterments or appurtenances thereto, and all renewals,
9
substitutions or replacements now or at any time owned, or hereafter
acquired by Trustor and situated, placed or constructed on, over or under
the Land or any part thereof.
"Indenture" has the meaning set forth in the Recitals hereof.
"Initial Banks" has the meaning set forth in the Recitals hereof.
"Initial Common Agreement" has the meaning set forth in the Recitals
hereof.
"Initial Credit Agreement" has the meaning set forth in the Recitals
hereof.
"Initial Loans" has the meaning set forth in the Recitals hereof.
"Inventory" means all of Trustor's inventory of liquid and gaseous hydro
carbons whether now owned or hereafter acquired including without
limitation oil, gas, casinghead gas, ethane, butane, propane and other
natural gas liquids, drip gasoline, natural gasoline and condensate, and
all ethylene, polyethylene, propylene, polypropylene, benzene, stynene,
plastic film and other products refined therefrom and from time to time
located in storage or transportation facilities in or near the Site or in
tank trucks or other facilities owned, operated or used by Trustor in
connection with the Trust Property.
"Land" has the meaning set forth in the Recitals hereof.
"Leases" means, collectively, any lease or ground lease, or, to the extent
of the interest therein of Trustor, any sublease or subsublease, license,
concession or other agreement (whether written or oral and whether now or
hereafter in effect) pursuant to which Trustor holds the interest of
lessor, sublessor, subsublessor or licensor, as the case may be, and
pursuant to which any Person is granted a possessory interest in, or right
to use or occupy all or any portion of the Trust Property, and every
modification, amendment or other agreement relating to such lease, ground
lease, sublease, subsublease, license, concession or other agreement
entered into in connection therewith, and every guarantee of the
performance and observance of the covenants, conditions and agreements to
be performed and observed by the other party or parties thereto.
"Lien" shall have the meaning set forth in the Indenture.
"LOC Loans" shall have the meaning set forth in the VEPCO L/C Agreement.
"Material Adverse Effect" shall have the meaning set forth in the
Indenture.
"Permitted Encumbrances" has the meaning set forth in Section 5.1(a)
hereof.
10
"Permitted Liens" shall have the meaning set forth in the Indenture.
"Person" shall have the meaning set forth in the Indenture.
"Personalty" means all furniture, furnishings, machinery, goods, tools,
supplies, appliances, general intangibles, contract rights, accounts
(including, without limitation, the Accounts), accounts receivable,
franchises, reserve accounts, escrows, documents, instruments, chattel
paper, claims, deposits, licenses, trade names, trademarks, symbols,
service marks, books, records, business names, company names, trade
secrets, certificates and permits, and all other personal property of any
kind or character whatsoever (as defined in and subject to the provisions
of the Uniform Commercial Code), which are now or hereafter owned by
Trustor and which are related to the Real Property, together with all
accessories, replacements and substitutions thereto or therefor and the
proceeds thereof.
"Proceeds" means "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 Trustor from time to time, and claims for insurance,
indemnity, warranty or guaranty effected or held for the benefit of
Trustor, with respect to any of the Senior Collateral, (ii) any and all
payments (in any form whatsoever) made or due and payable to Trustor from
time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Senior
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 Senior
Collateral.
"Project" shall have the meaning set forth in the Indenture.
"Project Costs" shall have the meaning set forth in the Indenture.
"Project Documents" shall have the meaning set forth in the Indenture.
"Property Agreements" means all material option agreements, purchase and
sale agreements, construction contracts, architect contracts, engineering
contracts, service contracts, utility contracts, equipment leases,
equipment maintenance contracts and equipment warranties, purchase
contracts, purchase orders and similar agreements and all amendments
thereto now or hereafter relating to any portion of the Trust Property and
entered into or assumed by or on behalf of Trustor.
"Real Property" means, collectively, the Land, the Improvements and the
Fixtures.
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"Receivables" means 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 Trustor's rights to
payment for goods (including, without limitation, electricity) sold or
leased, or services performed, by the Trustor, whether now in existence or
arising from time to time hereafter, including, without limitation, rights
evidenced by an account, note, contract, contract rights (including any
and all rights to liquidated damage payments), security agreement, chattel
paper, or other evidence of indebtedness or security, together with (i)
all security pledged, assigned, hypothecated or granted to the Trustor to
secure the foregoing, (ii) all of each of the Trustor's right, title and
interest in and to any goods (including, without limitation, electricity),
the sale of which gave rise thereto, (iii) all guarantees, warranties,
endorsements, indemnifications or collateral 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 Trustor or any computer bureau from time to time acting for
the Trustor, (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.
"Rents" means all rents, issues, revenues, income, proceeds, profits,
royalties, security (including all oil and gas or other hydrocarbon
substances, earnings, receipts, revenues, accounts, accounts receivable,
security deposits and other deposits (subject to the prior right of the
tenants making such deposits)) and income, including fixed, additional and
percentage rents, operating expense reimbursements, reimbursements for
increases in Taxes, sums paid by tenants to Trustor to reimburse Trustor
for amounts originally paid or to be paid by Trustor or Trustor's agents
or affiliates for which such tenants were liable, as, for example, tenant
improvements costs in excess of any work letter, lease takeover costs,
moving expenses and tax and operating expense pass-throughs for which a
tenant is solely liable, parking, maintenance, common area, tax,
insurance, utility and service charges and contributions, deficiency rents
and liquidated damages, and other benefits now or hereafter derived from
any portion of the Real Property or the use, enjoyment, development,
operation, ownership or occupancy thereof and all cash or security
deposits, advance rentals, and all deposits or payments of a similar
nature relating thereto, now or hereafter, including during any period of
redemption, derived from the Real Property or any other portion of the
Trust Property and all proceeds from the cancellation, surrender, sale or
other disposition of the Leases and other benefits paid or payable and to
become due or payable to Trustor in respect of the use, occupation,
enjoyment, development, operation or ownership of any portion or portions
of the Trust Property pursuant to the Leases.
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"Senior Collateral" shall have the meaning set forth in the Indenture.
"Senior Secured Obligations" means, collectively, (a) the obligations and
liabilities of Trustor in respect of (i) all Indebtedness, financial
liabilities and obligations of Trustor, of whatsoever nature and howsoever
evidenced (including, but not limited to, principal, interest, fees,
reimbursement obligations, penalties, indemnities and legal and other
expenses, whether due after acceleration or otherwise) to the
Administrative Agent, the Collateral Agent or any other Senior Secured
Party under or pursuant to the Indenture, the Bonds, the VEPCO L/C
Agreement, any Working Capital Agreement, any Reserve L/C Agreement, any
Additional Indebtedness Agreement, the Security Documents, the Equity
Documents, any other Financing Document or any other agreement, document
or instrument evidencing, securing or relating to such indebtedness,
financial liabilities or obligations, in each case, direct or indirect,
primary or secondary, fixed or contingent, now or hereafter arising out of
or relating to any such agreements; (ii) any and all sums advanced by the
Collateral Agent or any other Senior Secured Party in accordance with the
provisions of the Financing Documents in order to preserve the Senior
Collateral or preserve the Senior Secured Parties' security interest in
the Senior Collateral; and (iii) in the event of any proceeding for the
collection or enforcement of the sums or obligations described in clauses
(i) and (ii) above, after an Event of Default shall have occurred and be
continuing, the expenses of retaking, holding, preparing for sale or
lease, selling or otherwise disposing of or realizing on the Senior
Collateral, or of any exercise by the Collateral Agent or the Secured
Parties of their rights under the Financing Documents, together with
reasonable attorneys' fees and court costs relating thereto. The maximum
principal amount described in clause (i) above shall not at any time
exceed Four Hundred Million and 00/100 Dollars ($400,000,000), together
with interest thereon, and shall become due and payable no later than July
15, 2025.
"Senior Secured Parties" (each a "Senior Secured Party") shall have the
meaning set forth in the Indenture.
"Site" shall have the meaning set forth in the Indenture.
"Supplemental Banks" has the meaning set forth in the Recitals hereof.
"Supplemental Common Agreement" has the meaning set forth in the Recitals
hereof.
"Supplemental Credit Agreement" has the meaning set forth in the Recitals
hereof.
"Supplemental Loans" has the meaning set forth in the Recitals hereof.
"Taxes" has the meaning set forth in Section 2.1(h) hereof.
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"Transaction Documents" shall have the meaning set forth in the Indenture.
"Transfer" has the meaning set forth in Section 2.1(i) hereof.
"Trustor" has the meaning set forth in the introducing paragraph hereof.
"Trust Property" has the meaning set forth in the Granting Clauses hereof.
"UCC Collateral" has the meaning set forth in Section 4.1 hereof.
"Uniform Commercial Code" has the meaning set forth in the Granting
Clauses hereof.
"VEPCO L/C Agreement" has the meaning set forth in the Recitals hereof.
"VEPCO Letters of Credit" shall have the meaning set forth in the
Indenture.
1.2 Principles of Construction.
All references to sections, schedules and exhibits are to sections,
schedules and exhibits in or to this Deed of Trust unless otherwise
specified. Unless otherwise specified, the words "hereof," "herein" and
"hereunder" and words of similar import when used in this Deed of Trust
shall refer to this Deed of Trust as a whole and not to any particular
provision of this Deed of Trust. The words and phrases "including," "shall
include," "inclusive of" and words and phrases of similar import shall be
deemed to be followed by "without limitation" or "but not limited to."
Unless otherwise specified, all meanings attributed to defined terms
herein shall be equally applicable to both the singular and plural forms
of the terms so defined. All persons stated in the masculine, feminine or
neuter gender shall include other genders as appropriate.
ARTICLE 2
COVENANTS OF TRUSTOR
2.1 Covenants.
Trustor hereby covenants and agrees with Beneficiary that:
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(a) Books of Record and Access.
Trustor shall keep proper books of record and accounts in accordance
with the provisions of Section 4.1(f) of the Indenture.
(b) Impositions and Other Liens.
Trustor shall duly pay and discharge any Impositions prior to the
date the same become delinquent, provided, however, that Trustor may
in good faith, by means of an appropriate proceeding, contest the
validity, applicability or amount of any asserted Imposition in
accordance with the provisions of the Indenture.
(c) Maintenance of Trust Property.
(i) Trustor shall maintain and preserve the Trust Property in good
order, condition and repair and in accordance with the
provisions of Section 4.1(i) of the Indenture.
(ii) Subject to the provisions of Section 6.3 of the Indenture,
Trustor shall promptly restore or cause to be restored in like
manner any portion of the Improvements which may be damaged or
destroyed at the Trust Property from any cause whatsoever, and
pay or cause to be paid when due all claims for labor
performed and materials furnished therefor.
(iv) The Partnership shall comply with all Applicable Laws and
Governmental Approvals, except where non-compliance would not
reasonably be expected to result in a Material Adverse Effect.
(vi) Trustor shall not commit or permit any waste of the Trust
Property.
(d) Insurance.
Trustor shall at all times provide, maintain and keep in force or
cause to be provided, maintained and kept in force, at no expense to
any Senior Secured Party, the policies of insurance required
pursuant to Section 4.1(d) of the Indenture with respect to the
Trust Property.
(e) Casualty and Condemnation.
Trustor shall comply with the provisions of Section 3.10 of the
Common Agreement in respect of any casualty at or condemnation of
all or any portion of the Trust Property.
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(f) Recording Taxes and Fees.
Trustor shall pay, together with interest, fines, and penalties, if
any, any documentary stamp, recording, transfer, mortgage,
intangibles or other Taxes or fees whatsoever due under Applicable
Law in connection with the making, execution, delivery, filing of
record, recordation, release, or discharge of this Deed of Trust.
(g) Governmental Approvals; Applicable Law.
Trustor will obtain on or prior to the time required, and maintain
in full force and effect and comply in all material respects with
the conditions and obligations under, all applicable Governmental
Approvals and Applicable Law, which may from time to time become
necessary in connection with the ownership, operation, maintenance
or use of the Trust Property or the execution, delivery and
performance in accordance with the respective terms of each of the
Transaction Documents to which it is a party, in each case except to
the extent that failure to do so would not be reasonably likely to
have a Material Adverse Effect.
(h) Taxes.
Subject to the provisions of Section 4.1(t) of the Indenture, if, as
a result of any change in Applicable Laws occurring after the date
hereof, any tax, assessment, imposition, interest or penalties
thereon is levied, assessed or charged by the United States or any
political subdivision or taxing authority thereof or therein
(collectively, "Taxes") upon this Deed of Trust, the obligations or
indebtedness secured by this Deed of Trust, the interest of any
Senior Secured Party in and to the Trust Property, or any Senior
Secured Party by reason of or as holder of this Deed of Trust,
Trustor shall pay all such Taxes to, for, or on account of
Beneficiary (or provide funds to Beneficiary for such payment) as
they become due and payable, and shall promptly furnish written
notice of the date and amount of such payment to Beneficiary. In the
event of passage of any law or regulation occurring after the date
hereof permitting, authorizing or requiring such Taxes to be levied,
assessed or charged, which law or regulation in the opinion of
counsel to Beneficiary may prohibit Trustor from paying the Taxes to
or for Beneficiary, Trustor shall enter into such further
instruments as may be permitted by law to obligate Trustor to pay
such Taxes.
(i) Transfers of Trust Property.
(i) Due on Transfer. Trustor acknowledges that a Transfer of the
Trust Property may significantly and materially impair the
security for the payment and performance of the Senior Secured
Obligations and Trustor agrees that, if
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Trustor, without the prior written consent of Beneficiary,
shall cause, permit or suffer a Transfer of the Trust
Property, then Beneficiary shall have the absolute right, at
its option without prior demand or notice (other than as may
be expressly otherwise provided in the Indenture) to declare
all sums secured by this Deed of Trust immediately due and
payable. Beneficiary shall not be required to demonstrate any
actual impairment of the security interest of the Senior
Secured Parties or any increased risk of default hereunder in
order to declare all sums secured by this Deed of Trust
immediately due and payable upon a Transfer in violation of
this Section 2.1(i).
(ii) Definition of Transfer. For the purposes of this Section 2.1,
a "Transfer" of the Trust Property means any transfer, sale,
conveyance, assignment, mortgage, encumbrance, pledge or other
disposition of, or the grant of any easements, leases or other
material rights with respect to, all or any portion of the
Trust Property or any interest therein in any manner
whatsoever, whether voluntarily or involuntarily, but shall
not include any such "Transfer" which may be otherwise
permitted by the terms of the Indenture.
(iii) Consent May Be Conditioned. The consent of Beneficiary
required for a Transfer without the Beneficiary declaring all
sums secured by this Deed of Trust immediately due and payable
may be withheld or conditioned by Beneficiary in its sole
discretion. Trustor agrees that in the event the ownership of
the Trust Property or any part thereof becomes vested in a
person other than Trustor, Beneficiary may, without notice to
Trustor, deal in any way with such successor or successors in
interest with reference to this Deed of Trust and the Senior
Secured Obligations hereby secured without in any way
vitiating or discharging Trustor's liability hereunder or
under the documents and instruments evidencing the
indebtedness secured hereby. No transfer or encumbrance of the
Trust Property or any interest herein and no forbearance or
assumption by any person with respect to this Deed of Trust
and no extension to any person of the time for payment of the
Senior Secured Obligations hereby secured given by Beneficiary
shall operate to release, discharge, modify, change or affect
the liability of Trustor, either in whole or in part, unless
Beneficiary specifically agrees in writing to the contrary.
This provision of this Section 2.1(i) shall apply to each and
every Transfer of the Trust Property or any part thereof
regardless of whether or not Beneficiary has consented to, or
waived under this Deed of Trust with respect to, any previous
Transfer of the Trust Property without the Beneficiary
declaring all sums secured by this Deed of Trust immediately
due and payable.
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(iv) Release of Trust Property. If Trustor is entitled to remove
any part of the Senior Collateral pursuant to and in
accordance with Sections 5.1(g) of the Indenture, after all
conditions to such removal have been satisfied, the
Beneficiary, at the request and expense of Trustor, will
promptly execute and deliver to Trustor the proper instruments
acknowledging the release of such part from the Lien created
by this Deed of Trust. Trustor agrees to execute any
amendments to this Deed of Trust or to execute such other
documents that are necessary in the opinion of Beneficiary to
confirm the first priority Lien of this Deed of Trust on the
remaining Trust Property.
(j) General Rights of Beneficiary and Trustee.
At any time and from time to time, without liability therefor,
without notice and without affecting the liability of any person,
including, without limitation, Trustor, for the payment or
performance of any indebtedness secured by this Deed of Trust, or
the Lien of this Deed of Trust on the Trust Property or any portion
thereof: (i) Beneficiary may release any person liable for the
payment of any Senior Secured Obligations, extend the time or
otherwise alter the terms of payment of any Senior Secured
Obligations and make compositions or other arrangements with any
debtor in relation thereto, alter, substitute, increase or release
any portion of the Trust Property or any other collateral securing
any Senior Secured Obligations, and grant such other indulgences as
Beneficiary may determine in its sole discretion; and (ii) Trustee
may, upon the written consent of Beneficiary, consent to the making
of any map or plot of the Real Property, join in granting any
easements or creating any restrictions on the Real Property and join
in any extension agreement or any agreement subordinating the Lien
or charge of this Deed of Trust.
ARTICLE 3
ABSOLUTE ASSIGNMENT OF LEASES AND RENTS
3.1 Absolute Assignment of Leases and Rents.
Trustor absolutely and unconditionally assigns, transfers and sets over to
Beneficiary all right, title and interest in and to all Rents and all
right, title and interest under or by virtue of any and all Leases and,
with respect to the foregoing:
(a) Beneficiary grants to Trustor a license to collect, subject to the
provisions herein, all Rents as they respectively become due, but
not more than thirty (30) days in advance, and to enforce the
agreements of the Leases, so long as there is no Event of Default;
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(b) This absolute and present assignment shall be fully operative
without any further action on the part of Trustor or Beneficiary
and, specifically, Beneficiary shall be entitled, at its sole
option, to all Rents whether or not Beneficiary takes possession of
the Real Property, including, without limitation, all Rents in
Trustor's possession or control. Upon any Event of Default,
Beneficiary may, in its absolute discretion, at any time and without
notice (either in person, by agent or representative, or by a
receiver appointed by a court) and without regard to the adequacy of
any security for the Senior Secured Obligations secured by this Deed
of Trust: (i) enter upon and take possession of the Real Property or
any part thereof, in its own name or in the name of Trustor
(provided, however, such entering upon and taking possession of the
Real Property shall not be a condition precedent or limitation of
Beneficiary's right to collect the Rents); (ii) sue for or otherwise
collect the Rents (including those past due and unpaid or which are
in Trustor's possession or control at the time of such Event of
Default) and apply such Rents, less costs and expenses of
collection, including, without limitation, attorneys' fees and
expenses, and costs of upkeep, maintenance, repair and operation of
the Real Property, to the payment of the Senior Secured Obligations
in such order and in proportions as Beneficiary in its absolute
discretion may determine; (iii) take all steps which may be
desirable in Beneficiary's judgment to complete any unfinished
construction, and to operate and manage the Real Property; and (iv)
perform such other reasonable acts or repairs or protections as may
be reasonably necessary or proper in Beneficiary's sole judgment to
conserve the value thereof. The entering upon and taking of
possession of the Real Property and/or the collection and
application of the Rents shall not cure or waive any Event of
Default or notice of default hereunder or invalidate any act done
pursuant to such notice;
(c) Notwithstanding the right to collect the Rents, following an Event
of Default, Trustor agrees that Beneficiary, and not Trustor, shall
be and be deemed to be the creditor of each tenant with respect to
assignments for the benefit of creditors and bankruptcy,
arrangement, reorganization, insolvency, dissolution or receivership
proceedings affecting such tenant, but without obligation on the
part of Beneficiary, however, to file or make timely filings of
claims in such proceedings or otherwise to pursue creditor's rights
therein. Beneficiary in its sole and absolute discretion may apply
any money received by Beneficiary as such creditor in reduction of
the Senior Secured Obligations, whether or not same is then due and
payable;
(d) Trustor irrevocably consents that the tenant(s) under the Leases,
upon demand and notice from Beneficiary to such tenant(s) of an
Event of Default, shall pay all Rents under the Leases to
Beneficiary without liability of the tenant(s) for the determination
of the actual existence of any Event of Default claimed by
Beneficiary. Trustor hereby irrevocably authorizes and directs the
tenant(s), upon receipt of any notice of Beneficiary stating that an
Event of Default exists, to pay to Beneficiary the Rents due
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and to become due under the Leases. Trustor agrees that the
tenant(s) shall have the right to rely upon any such notices of
Beneficiary and that tenant(s) shall pay such Rents to Beneficiary,
without any obligation or without any right to inquire whether such
Event of Default actually exists and notwithstanding any claim of or
notice by Trustor to the contrary. Trustor shall have no claim
against tenant(s) for any Rents and Profits paid by such tenant(s)
to Beneficiary;
(e) Beneficiary shall have the right to assign Beneficiary's right,
title and interest in the Leases to any subsequent holder of this
Deed of Trust and to any person acquiring title to any of the Real
Property through foreclosure or otherwise. After Trustor shall have
been barred and foreclosed of all right, title and interest in the
leased premises, no assignee of Trustor's interest in the Leases
shall be liable to account to Trustor for the Rents thereafter
accruing;
(f) Nothing herein contained shall be construed to bind Beneficiary to
the performance of any of the terms or provisions contained in the
Leases, or otherwise to impose any obligation on Beneficiary
whatsoever. Prior to actual entry and taking possession of the Real
Property by Beneficiary, this assignment shall not operate to make
Beneficiary a "mortgagee-in-possession" or to place any
responsibility for the control, care, management, or repair of the
Real Property upon Beneficiary;
(g) Trustor shall duly perform and discharge each covenant, condition
and obligation of the lessor under the Leases, and agrees not to
enter into any Lease, or cancel, terminate, modify or otherwise vary
any provision of any Lease without Beneficiary's prior written
consent, such consent not to be unreasonably withheld or delayed, or
discount any Rents or collect any Rents for any period of more than
one month in advance. Trustor will give prompt written notice to
Beneficiary of any default by any tenant(s) or by the lessor under
the Leases known to Trustor, and shall furnish Beneficiary with
complete copies of all notices in respect thereof given or received
by Trustor. If requested by Beneficiary, Trustor will enforce the
Leases and all remedies available to Trustor thereunder in the event
of default and, in the event of default thereof by Trustor,
Beneficiary may, at its sole option and without obligation so to do,
and without waiving any Event of Default in respect thereof, enforce
the same at Trustor's expense;
(h) The Leases shall remain in full force and effect irrespective of any
merger of the interest of the lessor and any tenant thereunder.
Trustor shall, at the request of Beneficiary, execute such further
assignments to Beneficiary of all Leases and Rents, as Beneficiary
shall require, and provide to Beneficiary true and correct copies of
all Leases and documents and instruments, executed in connection
therewith; and
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(i) It is the expressed intention of Trustor and Beneficiary that this
Section 3.1 establish an absolute transfer and assignment of the
Leases and Rents, and is not intended or given as additional
security for the Senior Secured Obligations. This absolute
assignment is separate from, and senior in priority to, the security
interest granted in this Deed of Trust to Trustee in such leases and
rents.
ARTICLE 4
SECURITY AGREEMENT
4.1 Rights to UCC Collateral under the Uniform Commercial Code.
This Deed of Trust is both a real property deed of trust and a "security
agreement" within the meaning of the Uniform Commercial Code. The Trust
Property includes both real and personal property and all other rights and
interests, whether tangible or intangible in nature, of Trustor in the
Trust Property. Trustor, by executing and delivering this Deed of Trust,
has granted and does hereby grant to Beneficiary as security for the
Senior Secured Obligations, a continuing first priority security interest
in the Trust Property to the full extent that the Trust Property may be
subject to the Uniform Commercial Code (said portion of the Trust Property
so subject to the Uniform Commercial Code, the "UCC Collateral"). If an
Event of Default shall occur and be continuing, Beneficiary, in addition
to any other rights and remedies which it may have, shall have, and may
exercise immediately and without demand, any and all rights and remedies
granted to a secured party under the Uniform Commercial Code, including
the right to take possession of the UCC Collateral or any part thereof,
and to take such other measures as Beneficiary may deem necessary for the
care, protection and preservation of the UCC Collateral. Any sale of UCC
Collateral may be held as part of and in conjunction with a sale of the
Land. Upon request or demand of Beneficiary, Trustor shall, at its
expense, assemble the UCC Collateral and make it available to Beneficiary
at a convenient place acceptable to Beneficiary. Trustor shall pay to
Beneficiary on demand any and all expenses, including legal expenses and
attorneys' fees, incurred or paid by Beneficiary in protecting its
interest in and to the UCC Collateral and in enforcing its rights
hereunder with respect to the UCC Collateral. Any notice of sale,
disposition or other intended action by Beneficiary with respect to the
UCC Collateral sent to Trustor in accordance with the provisions hereof at
least ten (10) Business Days prior to such action, shall, except as
otherwise provided by applicable law, constitute reasonable notice to
Trustor. The proceeds of any disposition of the UCC Collateral, or any
part thereof, may, except as otherwise required by applicable law, be
applied by Beneficiary to the payment of the Senior Secured Obligations in
such priority and proportions set forth in the Collateral Agency
Agreement. Trustor's (Xxxxxx's) address and principal place of business
and the address of Beneficiary (Secured Party) are as set forth in Section
7.4 hereof.
4.2 Fixture Filing Financing Statements.
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Portions of the Trust Property are goods which are or are to become
fixtures, and Trustor expressly covenants and agrees that, to the extent
permitted by Applicable Law, the filing of this Deed of Trust in the real
property records of the county where the Land is located shall operate, at
the time of filing therein, as a financing statement filed as a fixture
filing in accordance with Section 75-9-401(1)(b) of the Uniform Commercial
Code of the state in which the Land is located. The address of Trustor
(the debtor) and the address of Beneficiary (the secured party) are as set
forth in Section 7.4 hereof. Trustor is the record owner of the Land.
4.3 Trustee or Beneficiary as Senior Secured Party.
If and to the extent that Trustee shall act as the secured party for any
security interest created in the Trust Property, Trustor acknowledges and
agrees that Trustee may do so, in trust and for the benefit of Beneficiary
and the other Senior Secured Parties. As such, Trustee may act in its own
name, or in the name of Beneficiary, and shall have all the rights of the
secured party, and shall observe all of the requirements of the secured
party, contained in this Section 4.
ARTICLE 5
REPRESENTATIONS OF TRUSTOR
5.1 Representations and Warranties.
Trustor represents, covenants and warrants that:
(a) subject only to the rights of others provided in the documents and
instruments approved by Beneficiary and described in the Title
Policy insuring the Lien of this Deed of Trust ("Permitted
Encumbrances") and to the Permitted Liens, Trustor is seized of an
indefeasible estate in fee simple in, and has good, valid, and
marketable title to the Land and has good right, full power and
lawful authority to mortgage and pledge the same as provided herein,
and Beneficiary may at all times peaceably and quietly enter upon,
hold, occupy and enjoy the Trust Property in accordance with the
terms hereof;
(b) the Trust Property is free and clear of all Liens, security
interests, charges, encumbrances and encroachments whatsoever except
as permitted under the terms of the Indenture and except Permitted
Encumbrances and Permitted Liens; and
(c) Trustor will maintain and preserve the first priority Lien and
charge of this Deed of Trust until the Senior Secured Obligations
have been fully paid and performed in accordance with the terms of
the Indenture and the other Financing Documents.
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ARTICLE 6
DEFAULT AND FORECLOSURE
6.1 Remedies.
Upon the commencement and during the continuance of an Event of Default,
Beneficiary may, at its election, and through the Trustee or otherwise,
take or cause the Trustee to take such action permitted at law or in
equity, without notice or demand, as it deems advisable to protect and
enforce its rights and the rights of the other Senior Secured Parties
against Trustor and in and to the Trust Property, in accordance with the
requirements of applicable law, including any one or more of the following
actions, each of which may be pursued concurrently or otherwise, at such
time and in such order as Beneficiary may determine in its sole
discretion, without impairing or otherwise affecting the other rights and
remedies of Beneficiary and without impairing any notice of default or
election to cause the Trust Property to be sold or any sale proceeding
predicated thereon:
(a) declare all of the sums secured by this Deed of Trust to be
immediately due and payable;
(b) demand, collect or realize upon all or any part of the Trust
Property and assemble or require Trustor to assemble all or any part
of the Trust Property;
(c) commence, appear in or defend any action or proceeding purporting to
affect all or any part of the Trust Property or the interests,
rights, powers or duties of any Senior Secured Party or Trustee
therein, whether brought by or against Trustor, Trustee or any
Senior Secured Party;
(d) pay, purchase, contest or compromise any claim, debt, Lien, charge
or encumbrance which in the judgment of Beneficiary may adversely
affect the Trust Property or the interest, rights, powers or duties
of any Senior Secured Party or Trustee therein;
(e) in such manner and to such extent as Beneficiary or Trustee may deem
necessary to protect the Trust Property or the interests, rights,
powers or duties of any Senior Secured Party therein, Beneficiary or
Trustee may by itself, its agents or attorneys, enter into and upon
the Trust Property or any part thereof or any other property at
which the Trust Property may be located without being deemed a
mortgagee in possession and take and hold exclusive possession of
all or any part of the Trust Property (which Trustor agrees to
surrender) and exclude Trustor from the Trust Property, and with or
without the appointment of a receiver, whether appointed pursuant to
Section 6.1(l) hereof or otherwise, (i) operate and manage the Trust
23
Property or any part thereof either itself or by other Persons, (ii)
rent and lease the same, (iii) perform such acts of repair or
protection as may be necessary or proper to conserve the value of
the Trust Property, (iv) make such useful additions, alterations,
betterments and improvements to the Trust Property as Beneficiary
may deem advisable, (v) collect any and all income, Rents, issues,
profits and proceeds from the Trust Property, the same being hereby
assigned and transferred to Beneficiary, and (vi) from time to time
apply or accumulate such income, Rents, issues, profits and proceeds
in such order and manner as Beneficiary shall determine, it being
understood that the collection or receipt of income, Rents, issues,
profits or proceeds from the Trust Property after an Event of
Default and election to cause the Trust Property to be sold under
and pursuant to the terms of this Deed of Trust shall not affect or
impair any Event of Default or election to cause the Trust Property
to be sold or any sale proceedings predicated thereon, but such
proceedings may be conducted and sale effected notwithstanding the
collection or receipt of any such income, Rents, issues, profits and
proceeds;
(f) commence an action to foreclose on the Trust Property judicially or,
commence an action to foreclose on the Trust Property pursuant to
the power of sale granted herein. If Trustor shall pay said Senior
Secured Obligations promptly when due and shall perform all
covenants made by Trustor, then this conveyance shall be void and of
no effect. If an Event of Default shall occur, then, in that event,
the entire Senior Secured Obligations, together with all interest
accrued thereon, shall, at the option of Beneficiary be and become
at once due and payable without notice to Trustor, and Trustee
shall, at the request of Beneficiary, sell the Trust Property
conveyed, or a sufficiency thereof, to satisfy the Senior Secured
Obligations at public outcry to the highest bidder for cash. Sale of
the Trust Property shall be advertised for three (3) consecutive
weeks preceding the sale in a newspaper published in the county
where the Trust Property is situated, or if none is so published,
then in some newspaper having a general circulation therein, and by
posting a notice for the same time at the courthouse of the same
county. The notice and advertisement shall disclose the names of the
original Trustor in this Deed of Trust. Trustor waives the
provisions of Section 89-1-55 of the Mississippi Code of 1972, as
amended, if any, as far as this section restricts the right of
Trustee to offer at sale more than 160 acres at a time, and Trustee
may offer the property herein conveyed as a whole, regardless of how
it is described. If the Trust Property is situated in two (2) or
more counties, or in two (2) judicial districts of the same county,
Trustee shall have full power to select in which county, or judicial
district, the sale of the Trust Property is to be made, newspaper
advertisement to be published and notice of sale to be posted, and
Trustee's selection shall be binding upon Trustor and Beneficiary.
Should Beneficiary be a corporation or an unincorporated
association, then any officer thereof may declare an Event of
Default and request Trustee to sell the Trust Property.
24
Beneficiary shall have the same right to purchase the Trust Property
at the foreclosure sale as would a purchaser who is not a party to
this Deed of Trust.
Without limiting the foregoing:
(i) In connection with any sale or sales hereunder, Beneficiary
and Trustee shall be entitled to elect to treat any of the
Trust Property which consists of a right in action or which is
property that can be severed from the Real Property covered
hereby or any Improvements without causing structural damage
thereto as if the same were personal property, and dispose of
the same in accordance with applicable law, separate and apart
from the sale of Real Property. Where the Trust Property
consists of Real Property and Personalty, whether or not such
Personalty is located on or within the Real Property,
Beneficiary and Trustee shall be entitled to elect to exercise
rights and remedies against any or all of the Real Property
and Personalty in such order, at such times and in such manner
as is now or hereafter permitted by applicable law;
(ii) Beneficiary and Trustee shall be entitled to elect to proceed
against any or all of the Trust Property in any manner
permitted under applicable law; and if Beneficiary or Trustee
so elects pursuant to applicable law, the power of sale herein
granted shall be exercisable with respect to all or any of the
Trust Property, as designated by Beneficiary or Trustee, and
Beneficiary and Trustee are each hereby authorized and
empowered to conduct any such sale of any Trust Property in
accordance with the procedures applicable to Real Property;
(iii) If the Trust Property consists of several lots, parcels or
items of property, Trustee shall, subject to applicable law,
(A) designate, in Trustee's discretion or at the direction of
Beneficiary, the order in which such lots, parcels or items
shall be offered for sale or sold, or (B) elect to sell such
lots, parcels or items through a single sale, or through two
or more successive sales, or in any other manner Beneficiary
or Trustee designates. Any person, including Trustor, Trustee
or Beneficiary, may purchase at any sale hereunder. Should
Trustee or Beneficiary desire that more than one sale or other
disposition of the Trust Property be conducted, Trustee shall,
subject to applicable law, cause such sales or dispositions to
be conducted simultaneously, or successively, on the same day,
or at such different days or times and in such order as
Beneficiary may designate, and no such sale shall terminate or
otherwise affect the Lien and security title of this Deed of
Trust on any part of the Trust Property not sold until all the
Senior Secured Obligations have been paid in full. In the
event Beneficiary or Trustee elects to dispose of the Trust
Property through more
25
than one sale, Trustor agrees to pay the costs and expenses of
each such sale and of any judicial proceedings wherein such
sale may be made;
(iv) Beneficiary or Trustee may adjourn from time to time any sale
by it to be made under or by virtue of this Deed of Trust by
announcement at the time and place appointed for such sale or
for such adjourned sale or sales; and, except as otherwise
provided by any applicable provision of law, Beneficiary or
Trustee, without further notice or publication, may make such
sale at the time and place to which the same shall be so
adjourned; or Beneficiary or Trustee may, in its discretion,
give a new notice of sale.
(v) Upon any sale made under or by virtue of this Section 6.1(f)
(whether made under the power of sale herein granted or under
or by virtue of judicial proceedings or of a judgment or
decree of foreclosure and sale), Beneficiary may bid for and
acquire the Trust Property or any part thereof and in lieu of
paying cash therefor may make settlement for the purchase
price by crediting upon the Senior Secured Obligations the net
sales price after deducting therefrom the expenses of the sale
and the costs of the action and any other sums which
Beneficiary is authorized to deduct under this Deed of Trust
or any other Financing Document.
(vi) No recovery of any judgment by Beneficiary and no levy of an
execution under any judgment upon the Trust Property or upon
any other property of Trustor shall affect in any manner or to
any extent, the Lien of this Deed of Trust upon the Trust
Property or any part thereof, or any Liens, titles, rights,
powers or remedies of Beneficiary hereunder or under any other
Financing Document, but such Liens, titles, rights, powers and
remedies of Beneficiary and Trustee shall continue unimpaired
as before.
(vii) Trustor agrees, to the fullest extent permitted by law, that
upon the occurrence of an Event of Default, neither Trustor
nor anyone claiming through or under Trustor shall or will set
up, claim or seek to take advantage of any appraisement,
valuation, stay, extension, homestead, exemption or redemption
laws now or hereafter in force, in order to prevent or hinder
the enforcement or foreclosure of this Deed of Trust, or the
absolute sale of the Trust Property, or the final and absolute
putting into possession thereof, immediately after such sale,
of the purchasers thereat, and Trustor, for itself and all who
may at any time claim through or under it, hereby waives to
the fullest extent that it may lawfully so do, the benefit of
all such laws, and any and all right to have the assets
comprised in the security intended to be created hereby
marshalled upon any foreclosure of the Lien hereof.
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(viii) Beneficiary, at its option, is authorized to foreclose, or to
cause Trustee to foreclose, this Deed of Trust subject to the
rights of any tenants of the Trust Property, and the failure
to make any such tenants parties to any such foreclosure
proceedings and to foreclose such tenants' rights will not
be, nor be asserted to be by Trustor, a defense to any
proceedings instituted by Beneficiary or Trustee to collect
the sums secured hereby.
(g) subject to any applicable provisions of the Indenture, take over and
direct collection of the Rents, the Proceeds and the Receivables
that are included in the Trust Property and the proceeds thereof,
give notice of the Lien of this Deed of Trust upon the Rents, the
Proceeds and the Receivables and the proceeds thereof to any or all
Persons obligated to Trustor thereon, direct such Persons to make
payment of all moneys paid or payable thereon directly to
Beneficiary (and, at the request of Beneficiary, Trustor shall
indicate on all xxxxxxxx that payments thereon are to be made to
Beneficiary) and give any Person so notified and directed the
receipt of Beneficiary for any such payment as full release for the
amount so paid;
(h) subject to any applicable provisions of the Indenture, take control
of any and all of the Rents, Proceeds and Receivables, accounts,
contractual and other rights that are included in the Trust Property
and proceeds arising from any such contractual and other rights, and
enforce collection, either in the name of Beneficiary or in the name
of Trustor, of any or all of the Rents, Proceeds and Receivables,
accounts, contractual and other rights that are included in the
Trust Property and proceeds thereof by suit or otherwise, and
receive, receipt for, surrender, release or exchange all or any part
thereof or compromise, settle, extend or renew (whether or not
longer than the original period) any indebtedness thereunder;
(i) endorse in the name of Trustor any instrument, howsoever received by
Beneficiary, representing Trust Property, or proceeds of any of the
Trust Property;
(j) subject to the provisions of Article 3 hereof, exercise all the
rights and remedies granted to a secured party under Article 9 of
the Uniform Commercial Code in effect in the jurisdiction where the
Trust Property is located and all other rights and remedies given to
Beneficiary by this Deed of Trust or any other Financing Document
otherwise available at law or in equity; and
(k) to the fullest extent permitted by Applicable Law, without further
notice to Trustor and as a matter of right, and without regard to
the then value of the Trust Property or the interest of Trustor in
and to the Trust Property, apply to any court having jurisdiction to
appoint a receiver or receivers of the Trust Property, and Trustor
hereby irrevocably
27
consents to such appointment. Notwithstanding the foregoing, Trustor
hereby waives any right to require appointment of a receiver.
Neither Beneficiary nor Trustee shall be under any obligation to make any
of the payments or do any of the acts referred to in this Section 6.1 and,
except as otherwise required by law, any of the actions referred to in
this Section 6.1 may be taken irrespective of whether any notice of Event
of Default or election to sell has been given hereunder and without regard
to the adequacy of the security for the Senior Secured Obligations. To the
fullest extent permitted by Applicable Law, Trustor hereby expressly
waives any and all rights of redemption from sale under any order or
judgment of foreclosure of the Lien of this Deed of Trust on behalf of
Trustor and each and every person acquiring any interest in or title to
the Trust Property subsequent to the date of this Deed of Trust and on
behalf of any other Persons. The reasonable costs and expenses (including
reasonable attorneys' fees and disbursements) of Beneficiary incurred in
connection with the preservation, collection and enforcement of this Deed
of Trust or of the Lien granted hereby, including any amounts advanced by
Beneficiary to protect or preserve the Trust Property, shall be secured by
this Deed of Trust and Trustor covenants and agrees to pay them to the
order of Beneficiary promptly upon demand.
6.2 Rescission of Notice of Event of Default.
Beneficiary, at any time before the sale, may rescind any notice of Event
of Default and/or of election to cause any portion of the Trust Property
to be sold. The exercise by Beneficiary of such right of rescission shall
not (unless otherwise expressly provided by the terms of such rescission)
constitute a waiver of any Event of Default then existing or subsequently
occurring, shall not impair the right of Beneficiary to cause any portion
of the Trust Property to be sold and shall not otherwise affect any
provision, agreement, covenant or condition of this Deed of Trust, the
Indenture or any other Financing Document or the rights, obligations or
remedies of the parties hereunder or thereunder.
6.3 Application of Proceeds.
(a) All proceeds received from the sale or other disposition of any
portion of the Trust Property pursuant to this Deed of Trust shall
be applied by Beneficiary in accordance with the priority set forth
in Article IV of the Collateral Agency Agreement.
(b) If Beneficiary shall be ordered, in connection with any bankruptcy,
insolvency or reorganization of Trustor, to restore or repay to or
for the account of Trustor or its creditors any amount theretofore
received under this Section 6.3, the amount of such restoration or
repayment shall be deemed to be a Senior Secured Obligations as to
place Beneficiary in the position it would have been in had such
amount never been received by Beneficiary.
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6.4 Additional Security.
Subject to any applicable provisions of the Indenture, if Beneficiary at
any time shall have a security interest securing any Senior Secured
Obligation in addition to the Lien created hereby on the Trust Property,
Beneficiary may enforce the terms of the security documents or otherwise
realize upon the Trust Property, at its option, either before or
concurrently with the exercise of remedies as to such other security or
after a sale is made of such other security, and may apply the proceeds to
the Senior Secured Obligations without affecting the status of or waiving
any right to exhaust all or any other security, including the Trust
Property, and without waiving any breach or Event of Default or any right
or power whether exercised under the Financing Documents, contained in the
Financing Documents or provided for in respect of any such other security.
6.5 Remedies Cumulative.
The rights, powers and remedies of Beneficiary under this Deed of Trust,
or any other security agreement or any other Financing Document shall be
cumulative and not exclusive of any other right, power or remedy which
Beneficiary may have against Trustor pursuant to this Deed of Trust or the
other Financing Documents, or existing at law or in equity or otherwise.
Beneficiary's rights, powers and remedies shall be cumulative and
concurrent and may be pursued independently, singly, successively,
together or otherwise, at such time and in such order as Beneficiary may
determine to the fullest extent permitted by law, without impairing or
otherwise affecting the other rights and remedies of Beneficiary permitted
by law, equity or contract or as set forth herein or in the other
Financing Documents. No delay or omission to exercise any remedy, right or
power accruing upon an Event of Default shall impair any such remedy,
right or power or shall be construed as a waiver thereof, but any such
remedy, right or power may be exercised from time to time and as often as
may be deemed expedient. A waiver of one Default or Event of Default shall
not be construed to be a waiver of any subsequent Default or Event of
Default or to impair any remedy, right or power consequent thereon. The
obtaining of a judgment or decree on any of the Bonds, VEPCO Letters of
Credit or LOC Loans shall not in any manner affect the Lien of this Deed
of Trust upon the Trust Property, and any judgment or decree so obtained
shall be secured hereby to the same extent as the Bonds, VEPCO Letters of
Credit or LOC Loans are now secured. In case Beneficiary shall have
proceeded to enforce any right or remedy under this Deed of Trust by
receiver, entry or otherwise, and such proceeding shall have been
discontinued or abandoned for any reason or shall have been determined
adversely to Beneficiary, then and in every such case, but subject to
Applicable Law, Trustor and Beneficiary shall be restored to their former
positions and rights hereunder, and all rights, powers and remedies of
Beneficiary shall continue as if no such proceeding had been taken. In the
event of any foreclosure sale hereunder, all net proceeds shall be
available for application to the Senior Secured Obligations whether or not
29
such proceeds exceed the value of the Trust Property for recordation, tax,
insurance or other purposes. The only limitation upon the foregoing
agreements as to the exercise of Beneficiary's remedies is that there
shall be but one full and complete satisfaction of the Senior Secured
Obligations.
6.6 Attorney-in-Fact.
Upon the occurrence and during the continuance of an Event of Default,
Trustor hereby appoints Beneficiary attorney-in-fact of Trustor for the
purpose of carrying out the provisions of this Deed of Trust and taking
any action and executing any instrument that Beneficiary may deem
reasonably necessary or advisable to accomplish the purposes hereof, at
Trustor's expense, which appointment is irrevocable and coupled with an
interest.
6.7 Waiver of Notice.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, TRUSTOR HEREBY WAIVES ANY RIGHT
TRUSTOR MAY HAVE UNDER THE CONSTITUTION OR THE LAW OF THE STATE OF IN
WHICH THE LAND IS LOCATED OR THE CONSTITUTION OR THE LAWS OF THE UNITED
STATES OF AMERICA TO NOTICE, OTHER THAN EXPRESSLY PROVIDED FOR IN THIS
DEED OF TRUST, THE INDENTURE OR THE OTHER FINANCING DOCUMENTS, OR TO A
JUDICIAL HEARING PRIOR TO THE EXERCISE OF ANY RIGHT OR REMEDY PROVIDED BY
THIS DEED OF TRUST TO BENEFICIARY, AND TRUSTOR WAIVES TRUSTOR'S RIGHTS, IF
ANY, TO SET ASIDE OR INVALIDATE ANY SALE DULY CONSUMMATED IN ACCORDANCE
WITH THE PROVISIONS OF THIS DEED OF TRUST ON THE GROUND (IF SUCH BE THE
CASE) THAT THE SALE WAS CONSUMMATED WITHOUT A PRIOR JUDICIAL HEARING. ALL
WAIVERS BY TRUSTOR IN THIS PARAGRAPH HAVE BEEN MADE VOLUNTARILY,
INTELLIGENTLY AND KNOWINGLY, AFTER TRUSTOR HAS BY TRUSTOR'S ATTORNEY BEEN
FIRST APPRIZED OF AND COUNSELED WITH RESPECT TO TRUSTOR'S POSSIBLE
ALTERNATIVE RIGHTS.
6.8 Payment of Costs and Expenses.
Trustor shall immediately reimburse Beneficiary, the other Senior Secured
Parties and Trustee for their respective costs and expenses to the extent
set forth in and in accordance with the Indenture and the other Financing
Documents.
6.9 Trustor's Waivers.
30
(a) Trustor has read and hereby approves the Indenture, the Common
Agreement, the Bonds, the VEPCO Letters of Credit, the LOC Loans,
the other Financing Documents and all other agreements and documents
relating thereto. Trustor acknowledges that it has been represented
by counsel of its choice to review this Deed of Trust, the Financing
Documents and all other documents relating thereto and said counsel
has explained and Trustor understands the provisions thereof, or
that Trustor has voluntarily declined to retain such counsel.
(b) Trustor hereby expressly waives diligence, demand, presentment,
protest and notice of every kind and nature whatsoever (unless as
otherwise required under this Deed of Trust) and waives any right to
require Beneficiary or any other Senior Secured Party to enforce any
remedy against any guarantor, endorser or other person whatsoever
prior to the exercise of its rights and remedies hereunder or
otherwise. Trustor waives any right to require Beneficiary or any
other Senior Secured Party to: (i) proceed or exhaust any collateral
security given or held by Beneficiary or any other Senior Secured
Party in connection with the Senior Secured Obligations; (ii) give
notice of the terms, time and place of any public or private sale of
any real or personal property security for the Senior Secured
Obligations or other guaranty of the Senior Secured Obligations; or
(iii) pursue any other remedy in Beneficiary's or any other Senior
Secured Party's power whatsoever.
(c) Until all Senior Secured Obligations shall have been paid in full,
Trustor: (i) shall not have any right of subrogation to any of the
rights of Beneficiary or any other Senior Secured Party against any
guarantor, maker or endorser; (ii) waives any right to enforce any
remedy which Beneficiary or other Senior Secured Party now has or
may hereafter have against any other guarantor, maker or endorser;
and (iii) waives any benefit of, and any other right to participate
in, any collateral security for the Senior Secured Obligations or
any guaranty of the Senior Secured Obligations now or hereafter held
by Beneficiary or any other Senior Secured Party.
(d) Subject to any applicable provisions of the Indenture, Trustor
hereby authorizes and empowers Beneficiary in its sole discretion,
without any notice or demand and without affecting the Lien and
charge of this Deed of Trust, to exercise any right or remedy which
Beneficiary or any other Senior Secured Party may have available to
it, including, but not limited to, judicial foreclosure, exercise of
rights of power of sale without judicial action as to any collateral
security for the Senior Secured Obligations, whether real, personal
or intangible property.
(e) To the full extent permitted by law, Trustor hereby covenants and
agrees that it shall not at any time insist upon or plead, or in any
manner whatsoever claim or take any advantage of, any stay,
exemption or extension law or any so-called "moratorium law"
31
now or at any time hereafter in force, nor claim, take or insist
upon any benefit or advantage of or from any law now or hereafter in
force providing for the valuation or appraisement of the Trust
Property, or any part thereof, prior to any sale or sales thereof to
be made pursuant to any provisions herein contained, or to any
decree, judgment or order of any court of competent jurisdiction; or
after such sale or sales claim or exercise any rights under any
statute now or hereafter in force to redeem the property so sold, or
any part thereof, to the extent such covenant and agreement is
permitted by applicable law, or relating to the marshaling thereof,
upon foreclosure sale or other enforcement hereof. To the full
extent permitted by law, Trustor hereby expressly waives any and all
rights it may have to require that the Trust Property be sold as
separate tracts or units in the event of foreclosure. To the full
extent permitted by law, Trustor hereby expressly waives any and all
rights of redemption after sale under any order or decree of
foreclosure of this Deed of Trust, on its own behalf, on behalf of
all Persons claiming or having an interest (direct or indirect) by,
through or under Trustor and on behalf of each and every Person
acquiring any interest in or title to the Real Property subsequent
to the date hereof, it being the intent hereof that any and all such
rights of redemption of Trustor and of all other Persons, are and
shall be deemed to be hereby waived to the full extent permitted by
applicable law. To the full extent permitted by law, Trustor agrees
that it shall not, by invoking or utilizing any applicable law or
laws or otherwise, hinder, delay or impede the exercise of any
right, power or remedy herein or otherwise granted or delegated to
Beneficiary or any other Senior Secured Party, but shall suffer and
permit the exercise of every such right, power and remedy as though
no such law or laws have been or will have been made or enacted.
ARTICLE 7
MISCELLANEOUS
7.1 Performance at Trustor's Expense.
Except as expressly provided herein or in the other Financing Documents to
the contrary, no portion of the cost and expense of performing or
complying with any of the obligations imposed on Trustor by this Deed of
Trust shall be borne by Beneficiary or any other Senior Secured Party, and
no portion of such cost and expense shall be, in any way or to any extent,
credited against the aggregate amounts payable by Trustor pursuant to the
Indenture or any other Financing Document.
32
7.2 Beneficiary's Right to Perform the Senior Secured Obligations.
If Trustor shall fail, refuse or neglect to make any payment or to perform
any act required of it by this Deed of Trust or any other Financing
Document, then at any time after the occurrence and during the continuance
of any Event of Default or as otherwise expressly permitted by the terms
of the Indenture or any other Financing Document, without waiving or
releasing any other right, remedy or recourse Beneficiary may have because
of same, Beneficiary may (but shall not be obligated to) make such payment
or perform such act for the account of and at the expense of Trustor. All
sums paid by Beneficiary pursuant to this Section 7.2 and all other sums
expended by Beneficiary in respect of which it shall be entitled to
indemnity, together with interest thereon from the date of such payment or
expenditure, shall constitute additions to the Senior Secured Obligations,
and shall be secured by this Deed of Trust, and Trustor covenants and
agrees to pay them to the order of Beneficiary upon demand.
7.3 Survival of Senior Secured Obligations.
Except as may be otherwise provided in the Indenture, all and every
portion of the Senior Secured Obligations shall survive the execution and
delivery of this Deed of Trust and the other Financing Documents, the
foreclosure or other exercise of remedies hereunder and the consummation
of the transactions called for therein and herein until the Senior Secured
Obligations shall be satisfied in full. This Deed of Trust secures, and
until the Senior Secured Obligations shall be paid and satisfied in full,
shall secure the entire amount of the Senior Secured Obligations. The
total amount of the indebtedness secured by this Deed of Trust may
increase or decrease from time to time.
7.4 Notices.
Notices and other communications provided for herein shall be in writing
and shall be delivered by hand or overnight courier service, mailed or
sent by facsimile as follows:
(a) if to Trustor, to it at LSP Energy Limited Partnership, Two Tower
Center, 20th Floor, East Brunswick, New Jersey 08816, Attn: General
Counsel, Fax: (000) 000-0000;
(b) if to Trustee, to Xxxxx X. X'Xxxx at Xxxxxx Xxxxxx, L.L.P., Suite
500, Skytel Centre, 000 X. Xxxxx Xxxxxx, X.X. Box 23066, Jackson,
Mississippi 00000-0000, Fax: (000) 000-0000; and
(c) if to Beneficiary, to it at The Bank of New York, 000 Xxxxxxx
Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx, Attn: Corporate Trust
Trustee Administration, Fax: (000) 000-0000.
33
All notices and other communications given to any party hereto in
accordance with the provisions of this Deed of Trust shall be deemed to
have been given on the date of receipt if delivered by hand or overnight
courier service or sent by facsimile, or on the date five Business Days
after dispatch by certified or registered mail if mailed, in each case
delivered, sent or mailed (properly addressed) to such party as provided
in this Section 7.4 or in accordance with the latest unrevoked direction
from such party given in accordance with this Section 7.4.
7.5 Delay not a Waiver.
Neither any failure nor any delay on the part of Beneficiary in insisting
upon strict performance of any term, condition, covenant or agreement, or
exercising any right, power, remedy or privilege hereunder, or under the
Bonds, the VEPCO Letters of Credit, the LOC Loans or under any other
Financing Document, or any other instrument given as security therefor,
shall operate as or constitute a waiver thereof, nor shall a single or
partial exercise thereof preclude any other future exercise, or the
exercise of any other right, power, remedy or privilege. In particular,
and not by way of limitation, by accepting payment after the due date of
any amount payable under this Deed of Trust, the Bonds, the VEPCO Letters
of Credit, the LOC Loans or any other Financing Document, Beneficiary
shall not be deemed to have waived any right either to require prompt
payment when due of all other amounts due under this Deed of Trust, the
Bonds, the VEPCO Letters of Credit, the LOC Loans or the other Financing
Documents, or to declare a default for failure to effect prompt payment of
any such other amount.
7.6 Covenants Running with the Land.
The Senior Secured Obligations and all obligations hereunder are intended
by the parties to be, and shall be construed as, covenants running with
the Trust Property until such Trust Property has been released from the
Lien of this Deed of Trust.
7.7 Further Assurances.
(a) Notwithstanding anything to the contrary herein, Trustor shall, at
Trustor's sole cost and expense:
(i) execute and deliver to Beneficiary such documents,
instruments, certificates, assignments and other writings, and
do such other acts necessary or desirable, to evidence,
preserve and/or protect the collateral at any time securing or
intended to secure the obligations of Trustor under the
Financing Documents, as Beneficiary may reasonably require;
and
(ii) do and execute all and such further lawful and reasonable
acts, conveyances and assurances for the better and more
effective carrying out of the intents and
34
purposes of this Deed of Trust and the other Financing
Documents, as Beneficiary shall reasonably require from time
to time; provided that Trustor shall not be required to pay
any material out-of-pocket costs or incur any material
obligations not contemplated by this Deed of Trust or the
other Financing Documents in connection with the performance
of its obligations under this Section 7.7(a)(ii).
(b) If at any time Beneficiary determines, based on applicable law, that
all applicable taxes (including mortgage recording taxes or similar
charges, but excluding Permitted Encumbrances) were not paid in
connection with the recordation of this Deed of Trust or the
perfection of the Liens granted pursuant to the Financing Documents,
Trustor shall pay the same upon demand.
(c) In the event that the legal description attached to any Financing
Document is inaccurate or does not fully describe all of the Real
Property in which Trustor has an interest, Trustor hereby agrees to
the amendment of such legal description and the legal description
contained in the corresponding title insurance policy so that such
error is corrected and Trustor shall execute and cause to be
recorded, if applicable, such documentation as may be necessary for
such purpose.
7.8 Severability.
If any provision of this Deed of Trust or the application thereof to any
Person or circumstance shall, for any reason and to any extent, be invalid
or unenforceable, then neither the remainder of this Deed of Trust nor the
application of such provision to other Persons or circumstances nor the
other instruments referred to hereinabove shall be affected thereby, but
rather shall be enforced to the greatest extent permitted by Applicable
Law.
7.9 Entire Agreement and Modification.
This Deed of Trust and the other Financing Documents contain the entire
agreement of the parties hereto and thereto in respect of the transactions
contemplated hereby and thereby, and all prior agreements among or between
such parties, whether oral or written, are superseded by the terms of this
Deed of Trust and the other Financing Documents.
7.10 Applicable Law.
This Deed of Trust was negotiated in the State of New York, and the
proceeds of the Bonds and the VEPCO Letters of Credit delivered pursuant
to the Indenture and the Common Agreement will be disbursed from the State
of New York, which State Trustor and Beneficiary agree has a substantial
relationship to the parties and to the underlying transaction embodied
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hereby, and Trustor and, by its acceptance hereof, Beneficiary hereby
agree, in accordance with ss. 5-1401 of the New York General Obligations
Law, in all respects, including matters of construction, validity and
performance, this Deed of Trust and the Senior Secured Obligations shall
be governed by, and construed in accordance with, the laws of the State of
New York applicable to contracts made and performed in such State and any
applicable law of the United States of America, except that the provisions
for the creation, perfection, priority and enforcement of the Lien created
hereby shall be governed by and construed according to the law of the
state in which the Land is located, it being understood that, to the
fullest extent permitted by the law of the state in which the Land is
located, the law of the State of New York shall govern the validity and
the enforceability of the representations, warranties, covenants and
obligations of Beneficiary under this Deed of Trust and all other
Financing Documents and all of the indebtedness arising hereunder or
thereunder. To the fullest extent permitted by law, Trustor hereby
unconditionally and irrevocably waives any claim to assert that the law of
any other jurisdiction governs this Deed of Trust, except as expressly
otherwise provided above.
7.11 Limitation on Beneficiary's Responsibility.
No provision of this Deed of Trust shall operate to place any obligation
or liability for the control, care, management or repair of the Trust
Property upon Beneficiary or any other Senior Secured Party, nor shall it
operate to make Beneficiary or any other Senior Secured Party responsible
or liable for any waste committed on the Trust Property by the tenants or
any other Person, or for any dangerous or defective condition of the Trust
Property, or for any negligence in the management, upkeep, repair or
control of the Trust Property resulting in loss or injury or death to any
tenant, licensee, employee or stranger. Nothing herein contained shall be
construed as constituting Beneficiary or any other Senior Secured Party
"mortgagee in possession."
7.12 Headings.
The Article and/or Section headings and the Table of Contents herein are
included for convenience of reference only and shall not constitute a part
of this Deed of Trust for any other purpose.
7.13 Marshalling.
Notwithstanding anything herein to the contrary, Trustor will not: (a) at
any time insist upon, or plead, or in any manner whatever claim or take
any benefit or advantage of any stay or extension or moratorium law, any
exemption from execution or sale of the Trust Property or any part
thereof, whenever or wherever enacted, which may affect the covenants and
terms of performance of this Deed of Trust; (b) claim, take or insist upon
any benefit or advantage of any law now or hereafter in force providing
for the valuation or appraisal of the Trust Property, or any part thereof,
prior to any sale or sales thereof which may be made pursuant to any
36
provision herein, or pursuant to the decree, judgment or order of any
court of competent jurisdiction; or (c) after any such sale or sales,
claim or exercise any right under any statute heretofore or hereafter
enacted to redeem the property so sold or any part thereof. Additionally,
Trustor hereby expressly waives all benefit or advantage of any such law
or laws. Trustor, for itself and all who may claim under it, waives, to
the extent that it lawfully may, all right to have the Trust Property
marshaled upon any foreclosure hereof. Beneficiary shall have the right to
determine the order in which any or all portions of the Senior Secured
Obligations are satisfied from the proceeds realized upon the exercise of
the remedies provided herein. Trustor, any party who consents to this Deed
of Trust and any party who now or hereafter acquires a Lien or security
interest in any of the Trust Property and who has actual or constructive
notice hereof hereby waives any and all right to require the marshaling of
assets in connection with the exercise of any of the remedies permitted by
applicable law or provided herein.
7.14 Waiver of Jury Trial and Consent to Jurisdiction.
TRUSTOR AND BENEFICIARY EACH HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS DEED OF TRUST, ANY OTHER FINANCING DOCUMENT, OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS DEED OF TRUST. The
scope of this waiver is intended to encompass any and all disputes that
may be filed in any court and that relate to the subject matter of this
transaction, including contract claims, tort claims, breach of duty
claims, and all other common laws and statutory claims. Trustor and
Beneficiary each acknowledges that this waiver is a material inducement to
enter into this Deed of Trust, and that each will continue to rely on the
waiver in their related future dealing. Trustor warrants and represents
that it has reviewed this waiver with its legal counsel, and that it
knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT
IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS DEED OF TRUST, OR ANY OTHER FINANCING DOCUMENTS. In the event of
litigation, this Deed of Trust may be filed as a written consent to a
trial by the court. Trustor hereby irrevocably submits to the jurisdiction
of any court of competent jurisdiction located in the state in which any
portion of the Trust Property is located in connection with any proceeding
arising out of or relating to this Deed of Trust involving such portion of
the Trust Property.
7.15 Maximum Indebtedness and Future Advances.
37
This Deed of Trust shall secure not only existing Senior Secured
Obligations, but also such future advances, whether such advances are
obligatory or are to be made at the option of Beneficiary or the Senior
Secured Parties or otherwise related to or in connection with the
Indenture or the other Financing Documents, as are made by Beneficiary
and/or the Senior Secured Parties to Trustor to the same extent as if such
future advances were made on the date of the execution of this Deed of
Trust, including (a) any and all additional advances made by Beneficiary
or the Senior Secured Parties to protect or preserve the Trust Property or
the Lien hereof on the Trust Property, or to pay taxes, to pay premiums on
insurance on the Trust Property (whether or not the original Trustor
remains the owner of the Trust Property at the time of such advances and
whether or not the original Beneficiary remains the Administrative Agent
and/or the Collateral Agent); (b) any and all expenses incident to the
collection of the Senior Secured Obligations and the foreclosure hereof by
action in any court or by exercise of the power of sale herein contained;
(c) any and all amounts now owing or which may hereafter be owing by
Trustor to Beneficiary, and/or the Senior Secured Parties pursuant to the
Financing Documents, however and whenever incurred or evidenced, whether
direct or indirect, absolute or contingent, due or to become due, together
with any and all renewal or renewals and extension or extensions of the
Senior Secured Obligations; and (d) the full and prompt payment and
performance of any and all obligations or covenants of Trustor to
Beneficiary and/or the Senior Secured Parties under the terms of any other
agreements, assignments or other instruments now or hereafter evidencing,
securing or otherwise relating to the Senior Secured Obligations,
including the Financing Documents.
7.16 Lien Absolute; Multiple Collateral Transaction.
Trustor acknowledges that this Deed of Trust and a number of other
Financing Documents and those documents required by the Financing
Documents together secure the Senior Secured Obligations. Trustor agrees
that the Lien of this Deed of Trust and all Senior Secured Obligations
shall be absolute and unconditional and shall not in any manner be
affected or impaired by any lack of validity or enforceability of the
Indenture or any other Financing Document, any agreement with respect to
any of the Senior Secured Obligations or any other agreement or instrument
relating to any of the foregoing, and the Lien hereof shall not be
impaired by any acceptance by Beneficiary of any security for or
guarantees of any of the Senior Secured Obligations, or by any failure,
neglect or omission on the part of Beneficiary or Trustee to realize upon
or protect any of the Senior Secured Obligations or any collateral
security therefor, including the Financing Documents, or due to any other
circumstance which might otherwise constitute a defense available to, or a
discharge of, Trustor in respect of the Senior Secured Obligations or this
Deed of Trust (other than the indefeasible payment in full of all the
Senior Secured Obligations). The Lien hereof shall not in any manner be
impaired or affected by any change in the time, manner or place of payment
of, or in any other term of, all or any of the Senior Secured Obligations
or by any release (except as to the property released), sale, pledge,
surrender, compromise, settlement, nonperfection, renewal, extension,
38
indulgence, alteration, exchange, modification or disposition of any of
the Senior Secured Obligations or of any of the collateral security
therefor, or any amendment or waiver of or any consent to any departure
from the Indenture or any other Financing Document or of any guaranty
thereof, if any, and Beneficiary or Trustee may, in Beneficiary's
discretion, foreclose, exercise any power of sale, or exercise any other
remedy available under any or all of the Financing Documents without first
exercising or enforcing any other rights and remedies hereunder. Such
exercise of rights and remedies under any or all of the Financing
Documents shall not in any manner impair the Senior Secured Obligations or
the Lien of this Deed of Trust, and any exercise of any rights or remedies
hereunder shall not impair the Lien of any of the other Financing
Documents or any rights and remedies of any Senior Secured Party
thereunder. Trustor specifically consents and agrees that Beneficiary or
Trustee may exercise any rights and remedies hereunder and under the other
Financing Documents separately or concurrently and in any order that
Beneficiary or Trustee may deem appropriate.
7.17 Discharge of Deed.
Upon written request of Xxxxxxxxxxx stating that all Senior Secured
Obligations have been paid and performed, upon surrender of this Deed of
Trust and the documents evidencing the Senior Secured Obligations to
Trustee for cancellation and retention, and upon payment to Trustee of its
fees, costs and expenses incurred or to be incurred thereby, Trustee shall
reconvey, without warranty, the Trust Property then held hereunder. The
recitals in such reconveyance of any matters or facts shall be conclusive
proof of the truthfulness thereof. The grantee in such reconveyance may be
described as "the person or persons legally entitled thereto."
7.18 Renewal or Extension of Senior Secured Obligations.
This Deed of Trust and all other instruments evidencing or securing the
Senior Secured Obligations shall likewise secure any extension,
modification, renewal, or substitution of the Senior Secured Obligations
and any bond issued in substitution for the Bonds and any letter of credit
which may be executed and delivered in substitution for the VEPCO Letters
of Credit. The Lien of this Deed of Trust shall in no manner be affected
by any such extension, modification, renewal, or substitution.
7.19 Conflicts.
In the event of any conflict or inconsistency between the terms of this
Deed of Trust and those of the Indenture or the Common Agreement, it is
the intention of Trustor and Beneficiary that such documents shall be read
together and construed, to the fullest extent possible, to be in concert
with each other. In the event of a conflict or inconsistency that cannot
be resolved as aforesaid, the terms of the Indenture shall control.
Trustor hereto acknowledges that it was represented by counsel in
connection with the negotiation and drafting of this Deed of Trust and
that this Deed of Trust the other Financing Documents shall not be subject
to the principle of construing their meaning against the party which
drafted the same.
7.20 Assumption Not a Novation.
39
Beneficiary's acceptance of an assumption of the obligations of this Deed
of Trust, the Bonds, the LOC Loans and the VEPCO Letters of Credit, and
the release of Trustor hereof, shall not constitute a novation.
7.21 Substitute Or Successor Trustees.
Beneficiary may remove Trustee at any time or from time to time and select
a successor Trustee. In the event of the death, removal, resignation,
refusal to act, or inability to act of Trustee, or in its sole discretion
for any reason whatsoever Beneficiary may, without notice and without
specifying any reason therefor and without applying to any court, select
and appoint a successor Trustee, by substitution of trustee recorded in
the land records where this Deed of Trust is recorded and all powers,
rights, duties and authority of Trustee shall thereupon become vested in
such successor. Such substitute Trustee shall not be required to give bond
for the faithful performance of the duties of Trustee hereunder unless
required by Beneficiary. The procedure provided for in this paragraph for
substitution of Trustee shall be in addition to and not in exclusion of
any other provisions for substitution, by law or otherwise. Beneficiary
shall not be limited in the number of substitutions of the Trustee.
All moneys received by Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received,
but need not be segregated in any manner from any other moneys (except to
the extent required by applicable law) and Trustee shall be under no
liability for interest on any moneys received by Trustee hereunder.
Any substitute Trustee appointed pursuant to any of the provisions hereof
shall, without any further act, deed, or conveyance, other than recording
evidence of the appointment of such substitute Trustee in the land records
of each county of the state wherein the Land is located, become vested
with all the estates, properties, rights, powers and trusts of its or
his/her predecessor in the rights hereunder with like effect as if
originally named a Trustee herein: but nevertheless, upon the written
request of Beneficiary or of the substitute trustee, upon the trusts
herein expressed, all the estates, properties, rights, powers, and trusts
of the Trustee so ceasing to act, and shall duly assign, transfer and
deliver any of the property and moneys held by such Trustee to the
substitute trustee so appointed in the Trustee's place.
7.22 Limitation of Recourse.
The provisions of Section 14.1 of the Indenture are made a part of this
Deed of Trust to the same extent and with the same force as if fully set
forth herein.
7.23 Counterparts.
This Deed of Trust has simultaneously been executed in a number of
identical counterparts, each of which shall be deemed to be an original
and constitute one and the same Deed of Trust.
40
IN WITNESS WHEREOF, Trustor has caused this Deed of Trust to be signed by
Trustor's duly authorized representative as of the day and year first above
written.
TRUSTOR:
LSP ENERGY LIMITED PARTNERSHIP
By: LSP Energy, Inc., its general partner
By: /s/ Xxxxx Xxxxxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Senior Vice-President
Signature Page to Deed of Trust
41
ACKNOWLEDGEMENT
STATE OF NEW YORK
COUNTY OF NEW YORK
Personally appeared before me, the undersigned authority in and for said
county and state, on this the ___ day of May, 1999, within my jurisdiction, the
within named Xxxxx Xxxxxxxxxxx who acknowledged that he is the Senior Vice
President of LSP Energy, Inc., a Delaware corporation, the general partner of
LSP Energy Limited Partnership, a Delaware limited partnership, as its act and
deed he executed the above and foregoing instrument, after first being duly
authorized by said corporation so to do.
(SEAL)
_________________________________
NOTARY PUBLIC
My commission expires:
_______________________________
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
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EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
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EXHIBIT B
PERMITS AND LICENSES
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