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EXHIBIT 4.5
EXECUTION COPY
04/2099
COMMON SECURITY AGREEMENT
Dated as of April 20, 1999
made by
THE PERSONS LISTED ON THE SIGNATURE PAGES HEREOF,
as Grantors,
to
THE BANK OF NEW YORK,
as Trustee,
and
THE BANK OF NEW YORK,
as Account Collateral Securities Intermediary
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TABLE OF CONTENTS
SECTION PAGE
SECTION 1. Certain Defined Terms.........................................................................................2
SECTION 2. Grant of Security.............................................................................................3
SECTION 3. Security for Obligations; Limitation of Liability.............................................................5
SECTION 4. Delivery of Collateral........................................................................................5
SECTION 5. Debt Service Reserve Account..................................................................................6
SECTION 6. Investments of Amounts in Debt Service Reserve Account........................................................8
SECTION 7. Representations and Warranties................................................................................8
SECTION 8. Further Assurances; Place of Perfection......................................................................11
SECTION 9. Covenant to Give Further Security............................................................................12
SECTION 10. The Trustee Appointed Attorney-in-Fact......................................................................12
SECTION 11. The Trustee May Perform.....................................................................................13
SECTION 12. No Assumption of Duties; Reasonable Care....................................................................13
SECTION 13. Voting Rights; Dividends; Etc...............................................................................14
SECTION 14. Transfers and Other Liens; Additional Equity Interests......................................................14
SECTION 15. Security Interest Absolute..................................................................................15
SECTION 16. Remedies....................................................................................................16
SECTION 17. Expenses....................................................................................................17
SECTION 18. Amendments, Waivers and Consents.............................................................................18
SECTION 19. Notices; Etc................................................................................................19
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SECTION 20. Continuing Security Interest................................................................................19
SECTION 21. Waivers and Acknowledgments.................................................................................20
SECTION 22. Subrogation.................................................................................................20
SECTION 23. Release and Termination.....................................................................................21
SECTION 24. Authority of the Trustee....................................................................................21
SECTION 25. Execution in Counterparts...................................................................................21
SECTION 26. Reinstatement...............................................................................................22
SECTION 27. Severability................................................................................................22
SECTION 28. Governing Law; Entire Agreement.............................................................................22
Schedule I - Pledged Interests
Schedule II - Pledged Debt
Schedule III - Partnership Collateral
Schedule IV - Chief Places of Business and Chief Executive Offices
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EXHIBIT 4.5
COMMON SECURITY AGREEMENT
COMMON SECURITY AGREEMENT dated April 20, 1999, made and
entered into by and among (a) EAST COAST POWER L.L.C., a Delaware limited
liability company (the "Company"), (b) JEDI LINDEN LP, L.L.C., JEDI LINDEN NB,
L.L.C., and JEDI CAMDEN LP, L.L.C., each a Delaware limited liability company
(collectively, the "Subsidiary Grantors" and, together with the Company, the
"Grantors"), (c) THE BANK OF NEW YORK, a New York banking corporation, in its
capacity as trustee (together with any successor Trustee under the Indenture,
the "Trustee") for the holders from time to time (the "Holders") of the Notes
(as defined in the Indenture referred to below), issued by the Company under the
Indenture referred to below and (d) The Bank of New York in its capacity as
Account Collateral Securities Intermediary (together with any successor in such
capacity permitted hereunder, the "Account Collateral Securities Intermediary").
PRELIMINARY STATEMENTS.
(1) The Company and the Trustee have entered into an indenture
dated as of April 20, 1999 (as amended, restated, supplemented or otherwise
modified from time to time, the "Indenture"), pursuant to which the Company is
issuing Notes on the date hereof in an aggregate principal amount of
$850,000,000.
(2) The Company has caused the Account Collateral Securities
Intermediary to establish an account (the "Debt Service Reserve Account") at its
offices at 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, XX 00000, Administrative
Account No.103348, in the name of "The Bank of New York, as Trustee for the
benefit of the holders of the Senior Secured Notes of East Coast Power L.L.C.:
Debt Service Reserve Account."
(3) The Holders and the Trustee have appointed the Account
Collateral Securities Intermediary as their Securities Intermediary for purposes
of maintaining the Debt Service Reserve Account and performing certain actions
with respect thereto in accordance with the terms of this Agreement.
(4) Each of the Subsidiary Grantors will derive substantial
direct and indirect benefits from the transactions contemplated by the
Indenture.
(5) It is a condition precedent to the initial purchase of the
Notes by the initial Holders thereof that each of the Grantors shall have
granted the security interest and made the pledge and assignment contemplated by
this Agreement.
NOW, THEREFORE, in consideration of the premises and in order
to induce the initial Holders to purchase the Initial Notes (as defined in the
Indenture), each Grantor hereby
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agrees with the Trustee and the Account Collateral Securities Intermediary, for
the benefit of the Trustee and for the ratable benefit of the Holders of the
Notes, as follows:
SECTION 1. Certain Defined Terms. Unless otherwise defined in
this Section 1, (a) capitalized terms used in this Agreement (including the
schedules and exhibits hereto) have the meanings specified in the Indenture, and
(b) terms used in Article 8 or 9 of the Uniform Commercial Code from time to
time in effect in the State of New York (the "NYUCC") are used herein as therein
defined. As used in this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and the
plural forms of the terms defined):
"Account Collateral" has the meaning specified in Section
2(a).
"Book-Entry Security" means a security maintained in the form
of entries (including, without limitation the Security Entitlements in,
and the financial assets based on, such security) in the commercial
book-entry system of the Federal Reserve System.
"Collateral" has the meaning specified in Section 2.
"Entitlement Holder" means a Person that (i) is an
"entitlement holder" as defined in Section 8-102(a)(7) of the NYUCC
(except in respect of a Book-Entry Security); and (ii) in respect of
any Book-Entry Security, is an "entitlement holder" as defined in 31
C.F.R. Section 357.2 (or, as applicable to such Book-Entry Security,
the corresponding Federal Book-Entry Regulations governing such
Book-Entry Security) which, to the extent required or permitted by the
Federal Book-Entry Regulations, is also an "entitlement holder" as
defined in Section 8-102(a)(7) of the NYUCC.
"Federal Book-Entry Regulations" means (a) the federal
regulations contained in Subpart B ("Treasury/Reserve Automated Debt
Entry System (TRADES)" governing Book-Entry Securities consisting of
U.S. Treasury bonds, notes and bills) and Subpart D ("Additional
Provisions") of 31 C.F.R. Part 357, 31 C.F.R. Sections 357.10 through
Sections 357.14 and Sections 357.41 through Sections 357.44 (including
related defined terms in 31 C.F.R. Sections 357.2); and (b) to the
extent substantially identical to the federal regulations referred to
in clause (a) above (as in effect from time to time), the federal
regulations governing other Book-Entry Securities.
"Partnership Collateral" has the meaning specified in Section
2(c).
"Pledged Debt" has the meaning specified in Section 2(b)(ii).
"Pledged Interests" has the meaning specified in Section
2(b)(i).
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"Secured Obligations" has the meaning specified in Section 3.
"Securities Intermediary" means a Person that (a) is a
"securities intermediary" as defined in Section 8-102(a)(14) of the
NYUCC and (b) in respect of any Book-Entry Security, is also a
"securities intermediary" as defined in 31 C.F.R. Section 357.2 (or, as
applicable to such Book-Entry Security, the corresponding Federal
Book-Entry Regulations governing such Book-Entry Security).
"Security Collateral" has the meaning specified in Section
2(b).
"Security Entitlement" means (a) "security entitlement" as
defined in Section 8-102(a)(17) of the NYUCC (except in respect of a
Book-Entry Security); and (b) in respect of any Book-Entry Security, a
"security entitlement" as defined in 31 C.F.R. Section 357.2 (or, as
applicable to such Book-Entry Security, the corresponding Federal Book-
Entry Regulations governing such Book-Entry Security) which, to the
extent required or permitted by the Federal Book-Entry Regulations, is
also a "security entitlement" as defined in Section 8-102(a)(17) of the
NYUCC.
SECTION 2. Grant of Security. Each Grantor hereby pledges and
assigns to the Trustee, for its benefit and for the ratable benefit of the
Holders of the Notes, and hereby grants to the Trustee, for its benefit and the
ratable benefit of the Holders of the Notes, a continuing security interest in
and to all of such Grantor's right, title and interest in and to the following
(whether consisting of investment securities, Book-Entry Securities or other
securities, Security Entitlements, financial assets or other investment
property, accounts, general intangibles, instruments or documents, chattel
paper, securities accounts, deposit accounts or other bank, trust or cash
collateral accounts, or other property, assets or rights), whether now owned or
hereafter acquired, wherever located and whether now or hereafter existing
(collectively, the "Collateral"):
(a) all of the following (collectively, the "Account
Collateral"):
(i) the Debt Service Reserve Account, all funds held
therein and all certificates and instruments, if any, from
time to time representing or evidencing the Debt Service
Reserve Account, and all Securities Entitlements from time to
time maintained or carried in the Debt Service Reserve Account
and all financial assets held in or credited to the Debt
Service Reserve Account;
(ii) all Dollar Permitted Investments held, carried
in or credited to the Debt Service Reserve Account from time
to time and all certificates and instruments, if any, from
time to time representing or evidencing any such Dollar
Permitted Investments;
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(iii) all notes, certificates of deposit, deposit
accounts, checks and other instruments from time to time
hereafter delivered to or otherwise possessed, maintained or
held by the Trustee or the Account Collateral Securities
Intermediary for or on behalf of such Grantor in respect of
any of the then existing Account Collateral, including,
without limitation, those delivered to or possessed in
substitution for or in addition to any or all of the then
existing Account Collateral; and
(iv) all interest, dividends, cash, instruments and
other property and assets from time to time received,
receivable or otherwise distributed in respect of or in
exchange for any or all of the then existing Account
Collateral;
(b) all of the following (collectively, the "Security
Collateral"):
(i) the shares of capital stock, membership interests
and other Equity Interests set forth opposite such Grantor's
name in Schedule I hereto and issued by the Persons indicated
therein, whether or not evidenced by certificates, and the
certificates, if any, representing such shares or other Equity
Interests, all security therefor and all dividends,
distributions, profits, bonuses, premiums, income, cash,
instruments and other property and assets from time to time
received, receivable or otherwise distributed in respect of or
in exchange for any or all of such shares or other interests
(collectively, the "Pledged Interests"); and
(ii) the indebtedness set forth opposite such
Grantor's name in Schedule II hereto and issued by the Persons
indicated therein, and the instruments, if any, evidencing
such indebtedness, all security therefor and all interest,
cash, instruments and other property and assets from time to
time received, receivable or otherwise distributed in respect
of or in exchange for any or all of such indebtedness
(collectively, the "Pledged Debt");
(c) each partnership interest set forth opposite such
Grantor's name in Schedule III hereto, and all distributions, cash,
instruments and other property from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all of
such Grantor's right, title and interest in and to each such
partnership interest, including, but not limited to (i) the
certificates, if any, representing such partnership interests and (ii)
all instruments representing such additional interests, and all
distributions, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of such interests) (any and all such
right, title and interest, distributions, cash, instruments and other
property of each Grantor being, such Grantor's "Partnership
Collateral"); and
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(d) all proceeds (including cash proceeds) of any and all of
the foregoing Collateral (including, without limitation, proceeds that
constitute property of the types described in clauses (a) - (c) of this
Section 2) and, to the extent not otherwise included, all (i) payments
under insurance (whether or not the Trustee is the loss payee thereof),
or any indemnity, warranty or guaranty, payable by reason of loss or
damage to or otherwise with respect to any of the foregoing Collateral,
and (ii) payments and distributions made with respect to the foregoing.
SECTION 3. Security for Obligations; Limitation of Liability.
(a) This Agreement secures the payment of all obligations of the Grantors, now
or hereafter existing, under the Indenture, the Notes and this Agreement
(including, without limitation, any extensions, modifications, substitutions,
amendments and renewals hereof or thereof), in each case whether direct or
indirect, absolute or contingent, and whether for principal, interest, fees,
indemnification payments, contract causes of action, costs, expenses or
otherwise (all such Obligations being the "Secured Obligations"). Without
limiting the generality of the foregoing, this Agreement secures, as to each
Grantor to the fullest extent permitted by applicable law, the payment of all
amounts that constitute part of the Secured Obligations and would be owed by
such Grantor to the Trustee or any Holders under the Indenture, the Notes or the
Security Documents but for the fact that they are unenforceable or not allowable
due to the existence of a bankruptcy, reorganization or similar proceeding
involving any Grantor.
(b) The liability of each Subsidiary Grantor under this
Agreement shall not exceed the greater of (i) the net benefit realized by such
Subsidiary Grantor from the proceeds of the issuance of the Notes made available
from time to time by the Company to such Subsidiary Grantor or any Subsidiary of
such Subsidiary Grantor and (ii) the greater of (A) 95% of the Adjusted Net
Assets of such Subsidiary Grantor on the date of delivery hereof and (B) 95% of
the Adjusted Net Assets of such Subsidiary Grantor on the date of any payment
hereunder. "Adjusted Net Assets" of any Subsidiary Grantor at any date means the
lesser of (I) the amount by which the fair value of the property of such
Subsidiary Grantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities, but excluding liabilities under this
Agreement, of such Subsidiary Grantor at such date and (II) the amount by which
the present fair salable value of the assets of such Subsidiary Grantor at such
date exceeds the amount that will be required to pay the probable liability of
such Subsidiary Grantor on its debts, excluding debt in respect of this
Agreement, as they become absolute and matured.
SECTION 4. Delivery of Collateral. (a) The Grantors shall
ensure that all certificates or instruments representing or evidencing Security
Collateral, if any, shall be delivered to and be held by or on behalf of the
Trustee, pursuant hereto and shall be in suitable form for transfer by delivery
or shall be accompanied by duly executed instruments of transfer or assignment
in blank, duly notarized, all in form and substance reasonably satisfactory to
the Trustee. The Trustee shall have the right, at any time and without notice to
any Grantor, to
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transfer to or register in the name of the Trustee (or any of its nominees) any
or all of the Security Collateral, respectively, subject only to the revocable
rights specified in Section 13(b). In addition, the Trustee shall have the right
at any time and from time to time to exchange certificates or instruments
representing or evidencing Security Collateral held by it for certificates or
instruments of smaller or larger denominations.
(b) Concurrently with the execution and delivery of this
Agreement, the Grantors will file proper financing statements in all
jurisdictions necessary or prudent to perfect and protect the liens and security
interests created hereunder, covering the Collateral described herein.
SECTION 5. Debt Service Reserve Account. (a) The Account
Collateral Securities Intermediary shall cause the Debt Service Reserve Account
to be, and the Debt Service Reserve Account shall be, separate from all other
accounts held by or under the control and dominion of The Bank of New York, the
Account Collateral Securities Intermediary or the Trustee.
(b) The Account Collateral Securities Intermediary represents,
warrants and agrees as follows:
(i) The Bank of New York acting as Account Collateral
Securities Intermediary (A) is a Securities Intermediary on the date
hereof and (B) so long as this Agreement remains in effect and The Bank
of New York remains the Account Collateral Securities Intermediary,
shall remain a Securities Intermediary, and shall act as such with
respect to the Trustee, the Debt Service Reserve Account and all of the
assets, property and items (including all Security Entitlements
maintained or carried in the Debt Service Reserve Account) from time to
time transferred, credited or deposited to or maintained or carried in
the Debt Service Reserve Account.
(ii) The Debt Service Reserve Account is, and shall remain, a
securities account, with the Trustee as the sole Entitlement Holder of
such account (and all Security Entitlements from time to time
maintained or carried therein) and the sole Person having "control"
(within the meaning of Section 8-106 and Section 9-115(1)(e) of the
NYUCC) over such account and such Security Entitlements.
(iii) In furtherance of clause (ii) above, the Account
Collateral Securities Intermediary has credited and will continue to
credit such assets, property and items to the Debt Service Reserve
Account in accordance with this Agreement; provided that in no
event shall any amounts or Dollar Permitted Investments deposited in or
credited to the Debt Service Reserve Account be registered in the name
of any Grantor, payable to the order of any Grantor or specially
indorsed to any Grantor except to the extent that the
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foregoing have been specially indorsed to the Account Collateral
Securities Intermediary or in blank.
(iv) To the maximum extent permitted by applicable law, all
assets, property and items from time to time carried in the Debt
Service Reserve Account shall constitute financial assets, and the
Account Collateral Securities Intermediary shall treat all such assets,
property and items as financial assets.
(v) The Account Collateral Securities Intermediary (A) shall
comply with any and all entitlement orders received by it from the
Trustee in respect of the Account Collateral or any assets, property or
items from time to time carried in the Debt Service Reserve Account, in
each case without the consent of any Grantor or any other Person, and
(B) shall not comply with the entitlement orders of any other Person.
(vi) The "securities intermediary's jurisdiction" (within the
meaning of Section 8-110(e) of the NYUCC) of the Account Collateral
Securities Intermediary is and will continue to be the State of New
York.
(vii) Except for the rights of the Trustee under paragraph (v)
above, the Account Collateral Securities Intermediary knows of no right
or claim to or interest in the Account Collateral (including any
"adverse claim" within the meaning of Section 8-102(a)(1) of the NYUCC)
by any Person other than the Company; it being understood that the
Account Collateral Securities Intermediary has not conducted an
independent investigation.
(viii) The Account Collateral Securities Intermediary solely
in its individual capacity has not entered into and will not enter into
any agreement with any other Person relating to Debt Service Reserve
Account and/or any financial assets from time to time credited thereto,
or Securities Entitlements carried therein, pursuant to which it has
agreed to comply with entitlement orders of such Person or any other
Person. The Account Collateral Securities Intermediary has not entered
into and will not enter into any other agreement with any of the
Grantors or any other Person purporting to limit or condition the
obligation of the Account Collateral Securities Intermediary to comply
with entitlement orders originated by the Trustee as set forth in
paragraph (v) above.
(ix) The Account Collateral Securities Intermediary hereby
waives and releases any lien, encumbrance, claim, right of set-off or
other right it may have against the Debt Service Reserve Account or any
financial asset carried in the Debt Service Reserve Account or any
credit balance in the Debt Service Reserve Account, or Securities
Entitlements carried therein (except that the Account Collateral
Securities Intermediary may set off the face amount of any checks which
have been credited to the Debt Service Reserve Account but are
subsequently returned unpaid because of uncollected or
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insufficient funds) and agrees that it will not assert any such lien,
encumbrance, claim or right against the Debt Service Reserve Account or
any financial asset carried in the Debt Service Reserve Account or any
credit balance in the Debt Service Reserve Account, or Securities
Entitlements carried therein.
(x) Anything herein to the contrary notwithstanding, the
Account Collateral Securities Intermediary will not be required to
follow any instruction that would violate any applicable law, decree,
regulation or order of any government or governmental body (including
any court or tribunal).
(c) The Debt Service Reserve Account shall be subject to such
applicable laws, and such applicable regulations of the Board of Governors of
the Federal Reserve System and of any other appropriate banking or governmental
authority having jurisdiction over the Debt Service Reserve Account, as may now
or hereafter be in effect.
SECTION 6. Investments of Amounts in Debt Service Reserve
Account. (a) So long as no Event of Default shall have occurred and be
continuing, the Trustee shall direct the Account Collateral Securities
Intermediary to invest and disburse amounts in the Debt Service Reserve Account,
and shall direct the Account Collateral Securities Intermediary to liquidate
Dollar Permitted Investments in accordance with the Indenture; provided that the
Account Collateral Securities Intermediary shall only be obligated to, and shall
be fully protected by, following entitlement orders given by the Trustee. All
securities and financial assets credited to the Debt Service Reserve Account
shall be registered in the name of the Account Collateral Securities
Intermediary, endorsed to the Account Collateral Securities Intermediary or in
blank or credited to another securities account maintained in the name of the
Account Collateral Securities Intermediary and in no case will any financial
asset credited to the Debt Service Reserve Account be registered in the name of
any Grantor, payable to the order of any Grantor or specially endorsed to any
Grantor except to the extent the foregoing have been specially endorsed to the
Account Collateral Securities Intermediary or in blank.
(b) All Dollar Permitted Investments made by the Account
Collateral Securities Intermediary in respect of the Debt Service Reserve
Account, and the net proceeds of the sale, liquidation or payment thereof, all
interest thereon and all other income received or otherwise realized with
respect thereto, shall be held in the Debt Service Reserve Account, as Account
Collateral until distributed pursuant to the Indenture, Sections 16 or 23, or
transferred pursuant to entitlement orders given by the Trustee.
SECTION 7. Representations and Warranties. Each Grantor
represents and warrants as of the date of this Agreement as follows as to itself
and as to the Collateral owned by it:
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(a) Such Grantor is a limited liability company duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization. Such Grantor has all power and
authority and all governmental licenses, authorizations, consents and
approvals required in each case to carry on its business as now
conducted, except to the extent that the failure to have such power,
authority, licenses, authorizations, consents and approvals could not
reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by such Grantor of
this Agreement are within such Grantor's powers, have been duly
authorized by all necessary action of such Grantor, require, in respect
of such Grantor, no action by or in respect of, or filing with, any
governmental body, agency or official, except for the filing of
financing statements in favor of the Trustee on or prior to the date
hereof as may be required for the perfection of the Security Interest
herein granted in the Collateral and do not contravene, or constitute a
default under, any provision of law or regulation (including Regulation
X of the Board of Governors of the Federal Reserve System) applicable
to such Grantor or Regulation U of the Board of Governors of the
Federal Reserve System or the certificate of formation or the limited
liability company agreement of such Grantor or any judgment,
injunction, order, decree or material agreement binding upon such
Grantor or result in or require the creation or imposition of any Lien
on any of the Collateral e.
(c) This Agreement has been duly executed and delivered by
such Grantor. This Agreement is the legal, valid and binding obligation
of such Grantor, enforceable against such Grantor in accordance with
its terms, except as the enforceability thereof may be limited by any
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and by general
principles of equity.
(d) There is no pending, or to such Grantor's knowledge,
threatened action, suit or proceeding against such Grantor before any
court or arbitrator or any governmental body, agency or official in
which there is a reasonable possibility of an adverse decision which
could reasonably be expected to have Material Adverse Effect or which
in any manner draws into question the legality, validity, binding
effect or enforceability of this Agreement.
(e) The chief place of business and chief executive office of
such Grantor are located at the address specified for such Grantor on
Schedule IV to this Agreement. Such Grantor has no trade names.
(f) Such Grantor is the legal and beneficial owner of the
Collateral, which is in existence as of the date hereof, of such
Grantor free and clear of any Lien (other than Liens not prohibited by
the Indenture), except for the security interest created by this
Agreement and the Liens created under the Bridge Loan which will
terminate upon the
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filing of termination financing statements on the Issue Date. No
effective financing statement or other instrument similar in effect
covering all or any part of the Collateral is on file in any recording
office, and such Grantor has not entered into any security control
agreement or other agreement similar in effect, in each case covering
all or any part of the Collateral, except such as may have been filed
in favor of the Trustee relating to this Agreement or the other
Security Documents.
(g) The Pledged Interests pledged by such Grantor (i) have
been duly authorized and validly issued and (ii) constitute the
percentage of the issued and outstanding Equity Interests in the
issuers thereof indicated on Schedule I hereto. There are no existing
options, warrants, calls or commitments of any character whatsoever
relating to any Equity Interests in such Grantor or such issuer except
as set forth in the limited liability company agreement of the issuers.
There are no shareholder agreements, voting trust agreements or other
agreements or understandings to which such Grantor is a party or by
which such Grantor may otherwise be bound that affect the voting or
other rights of a holder of any Equity Interest in the Company or any
of the Pledged Interests (including, without limitation, the ability to
transfer any such Equity Interest), except for this Agreement and the
limited liability company agreements of the issuers of such Pledged
Interests. None of the Pledged Interests pledged by such Grantor is
evidenced by a security certificate, other certificate or instrument
that has not been delivered to the Trustee in its original form.
(h) All of the Pledged Debt pledged by it (i) has been duly
authorized, authenticated or issued and delivered, (ii) is the legal,
valid and binding obligation of the Person that incurred such Debt and
(iii) is evidenced by one or more promissory notes, which notes have
been delivered to the Trustee. No party to any of such Pledged Debt is
in default thereunder.
(i) This Agreement, the pledge of the Collateral pursuant
hereto and the pledge, assignment and delivery to the Trustee of the
certificates representing the Security Collateral pursuant hereto,
together with stock or other transfer powers duly executed in blank,
create a valid and perfected first priority security interest in the
Collateral, securing the payment of the Secured Obligations, and all
filings and other actions necessary to perfect and protect such
security interest have been duly taken.
(j) No consent of any other Person and no authorization,
approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body
or other third party is required either (i) for the grant by such
Grantor of the assignment and security interest granted hereby, for the
pledge by such Grantor of any of the Collateral pursuant hereto or for
the execution, delivery or performance of this Agreement by such
Grantor, (ii) for the perfection or continuation of perfection of the
pledge,
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assignment and security interest created hereby (including the priority
of such pledge, assignment or security interest), except for the filing
of financing and continuation statements under the Uniform Commercial
Code, which financing statements have been duly filed, (iii) for the
exercise by the Trustee of its voting or other rights provided for in
this Agreement or the remedies in respect of the Collateral pursuant to
this Agreement, except as may be required in connection with the
disposition of any portion of the Security Collateral by laws affecting
the offering and sale of securities generally or (iv) consents,
authorizations, approvals or other actions or filings that have been
made or obtained on or prior to the date hereof.
SECTION 8. Further Assurances; Place of Perfection. (a) Each
Grantor agrees that from time to time, at its sole expense, such Grantor will
promptly execute and deliver all further instruments and documents, and take all
further action, that may be necessary or prudent or that the Trustee may
reasonably request, in order to perfect and protect any pledge, assignment or
security interest granted or purported to be granted by it hereunder (including,
without limitation, the priority thereof) or to enable the Trustee to exercise
and enforce its rights and remedies hereunder and under any of the other
Collateral Documents with respect to any of the Collateral. Without limiting the
generality of the foregoing, each Grantor will with respect to all Collateral
owned by it:
(i) if any Collateral shall be evidenced by a certificate,
promissory note or other instrument or by chattel paper, deliver and
pledge to the Trustee hereunder such certificate, note or other
instrument or such chattel paper duly endorsed and accompanied by duly
executed instruments of transfer or assignment, all in form and
substance reasonably satisfactory to the Trustee, and
(ii) execute and file such financing statements, continuation
statements or other similar documents, or amendments thereto, and such
other instruments or notices, as may be necessary or required or as the
Trustee may deem reasonably prudent and may request, in order to
perfect and preserve the pledge, assignment and security interest
granted or purported to be granted under this Agreement.
(b) Each Grantor hereby authorizes the Trustee to cause the
filing of one or more financing statements, continuation statements or other
similar documents, and amendments thereto, relating to all or any part of the
Collateral owned by it without the signature of such Grantor where permitted by
applicable law. A photocopy or other reproduction of this Agreement or any
financing statement or other similar document covering the Collateral owned by
it or any part thereof shall be sufficient as a financing statement or other
similar document where permitted by applicable law.
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(c) Each Grantor shall furnish to the Trustee from time to
time statements and schedules further identifying and describing the Collateral
owned by it and such other reports in connection with such Collateral as the
Trustee may reasonably request, all in reasonable detail.
SECTION 9. Covenant to Give Further Security. Each Grantor
hereby agrees that, if, and at such time as, it acquires title to, or any other
ownership interest in, any additional Equity Interests in any issuer of the
Pledged Interests or Partnership Collateral (excluding any such Equity Interest
issued in exchange or substitution for (i) JEDI Linden GP L.L.C's general
partnership interest in Linden Ltd., (ii) JEDI Camden LP L.L.C's general
partnership interest in Camden GP or (iii) Jedi Linden Inc's one percent
interest in JEDI Linden GP L.L.C.) it will, at its sole expense:
(a) as promptly as practicable and in any event within five
(5) days after such acquisition, notify the Trustee of its acquisition
of title thereto or such other ownership interest therein;
(b) as promptly as practicable and in any event within 30 days
after such acquisition, (i) duly execute and deliver such mortgages,
pledges, assignments and/or other security agreements as are necessary
to create a valid lien thereon and security interest therein in favor
of the Trustee, for its benefit and the benefit of the Holders of the
Notes, in each case in form and substance satisfactory to the Trustee,
and (ii) make all filings and take all other actions that are necessary
or that the Trustee may deem reasonably prudent and may request to
perfect and protect a valid and perfected first priority lien thereon
and security interest therein in favor of the Trustee, for its benefit
and the benefit of the Holders of the Notes.
SECTION 10. The Trustee Appointed Attorney-in-Fact. In
addition to all of the powers granted to the Trustee pursuant to the Indenture,
each Grantor hereby irrevocably appoints the Trustee its attorney-in-fact (which
appointment is coupled with an interest and is irrevocable), with full authority
in the place and stead of such Grantor and in the name of such Grantor or
otherwise and with full power of substitution, from time to time, to take any
action and to execute any instrument to accomplish the purposes of this
Agreement (it being understood that the Trustee will not be required to act
unless otherwise set forth herein or in the Indenture) including, without
limitation:
(a) upon the occurrence and during the continuance of an Event
of Default, to ask for, demand, collect, xxx for, recover, compromise,
receive, and give acquittance and receipts for, moneys due and to
become due under or in respect of any of the Collateral;
(b) to receive, endorse and collect any drafts, instruments or
other documents or any chattel paper in connection with this Agreement
(including, without limitation, all
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instruments representing or evidencing any interest payment or other
distribution in respect of the Security Collateral or Partnership
Collateral or any part thereof) and to give full discharge for the
same;
(c) to withdraw or order the release or transfer of funds from
the Debt Service Reserve Account in accordance with the terms of this
Agreement or the Indenture;
(d) to sell, transfer, assign or otherwise deal with the
Collateral or any part thereof under, and in accordance with, the terms
of the Indenture or Section 16 in the same manner and to the same
extent as if the Trustee was the absolute owner thereof; and
(e) upon the occurrence and during the continuation of any
Event of Default, to file any claims or take any action or institute
any proceedings that may be necessary or that the Trustee may deem
reasonably prudent for the collection of any of the Collateral or
otherwise to enforce the rights of the Trustee with respect to any of
the Collateral.
SECTION 11. The Trustee May Perform. If any Grantor fails to
make any payment required to be made by it, or to perform any other act or
agreement required to be performed by it, in each case under this Agreement, the
Trustee, without waiving or releasing any obligation or default, may (but shall
not be obligated to) make such payment or perform such other act, or cause the
payment or performance thereof, for the account and at the sole expense of such
Grantor. All amounts so paid by the Trustee and all costs and expenses so
incurred shall constitute obligations of such Grantor secured hereunder and
shall be payable under Section 17(b). The Trustee shall not be liable for any
damages resulting from any such payment or performance.
SECTION 12. No Assumption of Duties; Reasonable Care. The
rights and powers conferred on the Trustee hereunder are solely to preserve and
protect the security interest of the Trustee and the Holders of the Notes in and
to the Collateral granted hereby and shall not be interpreted to, and shall not
impose any duties on the Trustee in connection therewith other than those
expressly provided herein or imposed under applicable law. Except as provided by
applicable law or by the Indenture, the Trustee shall be deemed to have
exercised reasonable care in the custody and preservation of the Collateral in
its possession if the Collateral is accorded treatment substantially equal to
that which the Trustee accords similar property held by the Trustee for its own
account, it being understood that the Trustee in its capacity as such shall not
have any responsibility for (a) ascertaining or taking action with respect to
calls, conversions, exchanges, maturities or other matters relative to any
Collateral, whether or not the Trustee has or is deemed to have knowledge of
such matters, (b) taking any necessary steps to preserve rights against any
parties with respect to any Collateral or (c) subject to Section 1304 of the
Indenture, investing or reinvesting any of the Collateral or any loss on any
investment. The Trustee shall be entitled to all the rights, benefits,
privileges and immunities accorded to it under the Indenture.
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SECTION 13. Voting Rights; Dividends; Etc. (a) So long as no
Event of Default shall have occurred and be continuing:
(i) Each Grantor shall be entitled to exercise or refrain from
exercising any and all voting and other consensual rights pertaining to
the Security Collateral or Partnership Collateral pledged and assigned
by it hereunder, or any part thereof, for any purpose not inconsistent
with the terms of this Agreement, the Indenture and the Notes;
(ii) Each Grantor shall be entitled to receive, retain, and
distribute any and all dividends, interest and other distributions paid
or distributed in respect of the Security Collateral of such Grantor if
and to the extent that the payment thereof is not otherwise prohibited
by the terms of the Indenture or the Notes.
(iii) The Trustee shall execute and deliver (or cause to be
executed and delivered) to such Grantor all such proxies and other
instruments as any Grantor may reasonably request for the purpose of
enabling such Grantor to exercise the voting and other rights that it
is entitled to exercise pursuant to paragraph (i) above and to receive
the dividends or interest payments that it is authorized to receive,
retain, and distribute pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of an Event
of Default:
(i) All rights of any Grantor (A) to exercise or refrain from
exercising the voting and other consensual rights that it would
otherwise be entitled to exercise pursuant to Section 13(a)(i) shall,
upon notice to such Grantor by the Trustee, cease and (B) to receive
the dividends, payments and other distributions that it would otherwise
be authorized to receive, retain, and distribute pursuant to Section
13(a)(ii) shall automatically cease, and all such rights shall
thereupon become vested in the Trustee, which shall thereupon have the
sole right to exercise or refrain from exercising such voting and other
consensual rights and to receive and hold as Collateral such dividends,
payments, and other distributions as the Holders of a majority in
interest of outstanding Notes shall direct.
(ii) All dividends, payments, and other distributions that are
received by any Grantor contrary to the provisions of paragraph (i) of
this Section 13(b) shall be received in trust for the benefit of the
Trustee, shall be segregated from other funds of such Grantor and shall
be forthwith paid over to the Trustee as Collateral in the same form as
so received (with any necessary indorsement).
SECTION 14. Transfers and Other Liens; Additional Equity
Interests; Release of Collateral. (a) Each Grantor agrees that it will not (i)
sell, assign or otherwise dispose of, or grant any option with respect to, any
of the Collateral of such Grantor except as permitted under
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the terms of the Indenture, or (ii) create or suffer to exist any Lien on any of
its assets or properties except for Liens created hereunder and Liens not
prohibited under Section 1014 of the Indenture.
(b) Each Grantor agrees that it shall cause each issuer of the
Pledged Interests or Partnership Collateral owned by such Grantor not to issue
any Equity Interests or Pledged Interests, unless immediately upon such
issuance, such Equity Interests or Pledged Interests are pledged to the Trustee
for the benefit of the Holders; provided that any such Equity Interest issued in
exchange or substitution for (i) JEDI Linden GP L.L.C's general partnership
interest in Linden Ltd., (ii) JEDI Camden LP L.L.C's general partnership
interest in Camden GP or (iii) on JEDI Linden Inc's one percent interest in JEDI
Linden GP L.L.C shall not be required to be pledged.
(c) Each Grantor agrees that it shall cause Linden Venture,
Camden Venture, and Bayonne Venture not to issue any Equity Interests other than
those existing on the date of this Agreement, unless such Equity Interests or
Pledged Interests are (i) issued to an issuer of a pledged interest or any
Partnership Collateral hereunder or (ii) the issuer of any Pledged Interest
under any other Security Document.
(d) Any sale, assignment or other disposition of any of the
Collateral shall be subject to the Lien created hereunder in favor of the
Trustee (on its behalf and on behalf of the Holders of the Notes) continuing in
such Collateral; provided that if such Collateral is sold, transferred, assigned
or otherwise disposed of pursuant to Section 1016 of the Indenture, then the
Collateral so sold, transferred, assigned or disposed of shall, at the request
of the Company, be released from the security interest granted herein.
SECTION 15. Security Interest Absolute. The obligations of
each Grantor under this Agreement are independent of the Secured Obligations or
any other obligations of any other Grantor under or in respect of the Indenture,
the Notes or this Agreement, and a separate action or actions may be brought and
prosecuted against each Grantor to enforce this Agreement, irrespective of
whether any action is brought against the Company, such Grantor or any other
Grantor or whether the Company, such Grantor or any other Grantor is joined in
any such action or actions. All rights of the Trustee and the pledge, assignment
and security interest hereunder, and all obligations of each Grantor hereunder,
shall be irrevocable, absolute and unconditional, irrespective of, and such
Grantor hereby irrevocably waives (to the maximum extent permitted by applicable
law) any defenses it may now have or may hereafter acquire in any way relating
to, any or all of the following:
(a) any lack of validity or enforceability of the Indenture,
the Notes, any Security Document or any other agreement or instrument
relating thereto;
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(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Secured Obligations or any
other obligations under the Indenture, the Notes or any Security
Document, or any other amendment or waiver of or any consent to any
departure from the Indenture, the Notes or any Security Document,
including, without limitation, any increase in the Secured Obligations
resulting from the extension of additional credit to the Company, any
of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any
other collateral, or any taking, release or amendment or waiver of or
consent to departure from any guaranty, for all or any of the Secured
Obligations;
(d) any manner of application of Collateral or any other
collateral, or proceeds thereof, to all or any of the Secured
Obligations, or any manner of sale or other disposition of any
Collateral for all or any of the Secured Obligations or any other
obligations of the Company or any of the Grantors under the Indenture,
the Notes or the Security Documents or any other assets of any Company
or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate,
partnership or other structure or existence of the Company or any of
its Subsidiaries; and
(f) any other circumstance (including, without limitation, any
statute of limitations) that might otherwise constitute a defense
available to, or a discharge of, such Grantor or a third party grantor
of a security interest other than payment in full of the Secured
Obligations).
SECTION 16. Remedies. If an Event of Default shall have
occurred and be continuing:
(a) The Trustee or a majority of the Holders of the Notes may,
or in the event of an acceleration under Section 502 of the Indenture
then the Trustee shall, exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or in the
Indenture or otherwise available to it, all the rights and remedies of
a secured party upon default under the NYUCC (whether or not the NYUCC
applies to the affected Collateral) and also may (i) require any
Grantor to, and each Grantor hereby agrees that it will at its expense
and upon request of the Trustee forthwith, assemble all or part of the
Collateral as directed by the Trustee and make it available to the
Trustee at a place to be designated by the Trustee that is reasonably
convenient to both parties and (ii) without notice except as specified
below, sell the Collateral or any part thereof in one or more parcels
at public or private sale, at any of the Trustee's offices or
elsewhere, for cash, on credit or for future delivery, and upon such
other terms as are deemed commercially reasonable. Each Grantor agrees
that, to the extent notice of sale shall be required by law, at least
ten days' notice to such Grantor of the time and place of any public
sale or the time
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after which any private sale is to be made shall constitute reasonable
notification. The Trustee shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. The Trustee
may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was
so adjourned.
(b) All cash proceeds received by the Trustee in respect of
any sale of, collection from, or other realization upon all or any part
of the Collateral shall be held by the Trustee as collateral for,
and/or then or at any time thereafter applied (after payment of any
amounts payable to the Trustee pursuant to Section 17(b)) in whole or
in part by the Trustee for the ratable benefit of the Holders of the
Notes against, all or any part of the Secured Obligations in such order
as the Trustee shall elect. Any surplus of such cash or cash proceeds
held by the Trustee and remaining after payment in full of all the
Secured Obligations shall be paid over to the Grantors or to whomsoever
else may be lawfully entitled to receive such surplus.
(c) Notwithstanding the foregoing, each Grantor and the
Trustee recognize that any disposition of Collateral must be made in
accordance with any applicable federal or state securities laws. Each
Grantor recognizes that the Trustee may deem it impracticable to effect
a public sale of all or any part of the Collateral subject to such
securities laws and that the Trustee may, therefore, determine to make
one or more private sales of any such Collateral to a restricted group
of purchasers who will be obligated to agree, among other things, to
acquire such Collateral for their own account, for investment and not
with a view to the distribution or resale thereof. Each Grantor
acknowledges that any such private sale may be at prices and on terms
less favorable than the prices and other terms which might have been
obtained at a public sale and, notwithstanding the foregoing, agrees
that such private sale shall be deemed to have been made in a
commercially reasonable manner and that the Trustee shall have no
obligation to delay sale of any such securities for the period of time
necessary to permit such Grantor to register such Collateral for public
sale under the Securities Act of 1933, as amended.
SECTION 17. Expenses. (a) Each Grantor will upon demand
jointly and severally pay to the Trustee (i) the amount of any and all
reasonable out-of-pocket costs and expenses of such Trustee, including the
reasonable fees and disbursements of counsel to such Trustee and of any experts
and trustee, that such Trustee may incur in connection with (x) the
administration of this Agreement and the Indenture, (y) the custody,
preservation, use or operation of, or the sale of, collection from or other
realization upon, any of the Collateral or (z) the failure by any Grantor to
perform or observe any of the provisions hereof; and (ii) all costs and expenses
of the Trustee in connection with the exercise of any of their rights hereunder
or the enforcement of this Agreement (including, without limitation, the
reasonable fees and expenses of counsel for each Trustee and each Lender with
respect thereto), whether in any action, suit or litigation, any
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bankruptcy, insolvency or other similar proceeding affecting creditors' rights
generally or in any negotiated settlement or workout, except in the case of
clauses (i) and (ii), any such cost, expense or disbursement as may be
attributable to the Trustee's negligence or willful misconduct.
(b) Without prejudice to the survival of any other agreement
of any Grantor hereunder or under the Indenture, the agreements and obligations
of the Grantors contained in this Section 19 shall survive the payment in full
of the Secured Obligations and the resignation or removal of the Trustee.
SECTION 18. Amendments, Waivers and Consents. (a) Any
amendment or waiver of any provision of this Agreement and any consent to any
departure by any Grantor from any provision of this Agreement shall be effective
only if in writing, signed by the Trustee, the Account Collateral Securities
Intermediary, and the Grantors and made or duly given in compliance with all of
the terms and provisions of the Indenture, and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given. Neither the Trustee nor any Holder of Notes shall be deemed, by any
act, delay, indulgence, omission or otherwise, to have waived any right or
remedy hereunder or to have acquiesced in any Default or Event of Default or in
any breach of any of the terms and conditions hereof. Failure of the Trustee or
any Holder of Notes to exercise, or delay in exercising, any right, power or
privilege hereunder shall not preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. A waiver by the Trustee or
any Holder of Notes of any right or remedy hereunder on any one occasion shall
not be construed as a bar to any right or remedy that the Trustee or such Holder
of Notes would otherwise have on any future occasion. The rights and remedies
herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any rights or remedies provided by law.
(b) Without the consent of any Holders of the Notes, the
Grantors, the Account Collateral Securities Intermediary, and the Trustee may
amend or waive any provision of this Agreement or consent to any departure by
any Grantor from any provision hereof, for any of the following purposes:
(i) to evidence the succession of another Person to the
Company, or any other Grantor, and the assumption by any such successor
of the obligations of the Company or such other Grantor contained
herein;
(ii) to evidence and provide for the appointment of a
successor Trustee or Account Collateral Securities Intermediary
hereunder;
(iii) to cure any ambiguity, to correct or supplement any
provision in this Agreement that may defective or inconsistent with any
other provision of this Agreement or the Indenture, or to make any
other provisions with respect to matters or questions
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arising under this Agreement with shall not be inconsistent with the
provisions of this Agreement or the Indenture; provided that, in each
case, such actions pursuant to this clause shall not materially
adversely affect the interests of the Holders;
(iv) to mortgage, pledge, hypothecate or grant of security
interest in additional collateral in favor of the Trustee for the
benefit of the Holders; or
(v) to evidence and provide for the release of any Collateral
pursuant to Section 14(d).
SECTION 19. Notices; Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic,
telex or cable communication) and, mailed, telecopied, cabled or delivered:
(a) if to any Grantor, to it at its address specified in
Schedule IV hereto;
(b) if to the Trustee, to it at 000 Xxxxxxx Xxxxxx, Xxxxx 21
West, New York, New York 10286, Attention: Corporate Trust Trustee
Administration; and
(c) if to the Account Collateral Securities Intermediary, to
it at 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New York 10286,
Attention: Corporate Trust Trustee Administration;
or, as to any such party, at such other address as shall be designated by such
party in a written notice to each other party complying as to delivery with the
terms of this Section. All such notices and communications shall, when mailed,
telecopied, telegraphed or telexed, be effective when deposited in the mails,
telecopied, or confirmed by telex answerback, respectively, except that notices
and communications to the Trustee shall not be effective until received by the
Trustee. Delivery by telecopier of an executed counterpart of any amendment or
waiver of any provision of this Agreement to be executed and delivered hereunder
shall be effective as delivery of a manually executed counterpart thereof.
SECTION 20. Continuing Security Interest. Subject to any
Collateral released under Section 18, this Agreement shall create a continuing
security interest in and to the Collateral and shall (a) remain in full force
and effect until the payment in full in cash of the Secured Obligations, (b) be
binding upon each Grantor and its successors and assigns and (c) be binding upon
and inure, together with the rights and remedies of the Trustee hereunder, to
the benefit of, and be enforceable by, the Trustee, the Holders of the Notes,
the Account Collateral Securities Intermediary, and their respective successors,
transferees and assigns. Without limiting the generality of the foregoing clause
(c), the Trustee may assign or otherwise transfer all or any portion of its
rights and obligations under the Indenture and the Notes to any other Person,
and
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such other Person shall thereupon become vested with all the benefits in respect
thereof granted to the Trustee herein or otherwise, in each case as and to the
extent provided in Section 610 of the Indenture.
SECTION 21. Waivers and Acknowledgments. (a) Each Grantor
hereby waives promptness, diligence, notice of acceptance and any other notice
with respect to any of the Secured Obligations and this Agreement and any
requirement that the Trustee or any Holder of the Notes protect, secure, perfect
or insure any Lien or any property subject thereto or exhaust any right or take
any action against the Company or any other Person or any Collateral.
(b) Each Grantor hereby waives any right to revoke this
Agreement, and acknowledges that this Agreement is continuing in nature and
applies to all Secured Obligations, whether existing now or in the future.
(c) Each Grantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by the
Indenture, the Notes and the Security Documents and that the waivers set forth
in this Section 21 are knowingly made in contemplation of such benefits.
SECTION 22. Subrogation. None of the Grantors will exercise
any rights that it may now or hereafter acquire against the Company, any of its
Subsidiaries or any other insider grantor that arise from the existence,
payment, performance or enforcement of such Grantor's obligations under this
Agreement, the Indenture or the Notes, including, without limitation, any right
of subrogation, reimbursement, exoneration, contribution or indemnification and
any right to participate in any claim or remedy of any Trustee or any Holders of
the Notes against the Company, any of its Subsidiaries or any other insider
grantor or any Collateral, whether or not such claim, remedy or right arises in
equity or under contract, statute or common law, including, without limitation,
the right to take or receive from the Company, any of its Subsidiaries or any
other insider grantor, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account of such claim,
remedy or right, unless and until all of the Secured Obligations and all other
amounts payable under this Agreement shall have been paid in full in cash
(except that each Grantor may exercise any such claim, right or remedy solely
against, and such Grantor may take and receive any such amount solely from,
amounts permitted to be distributed or paid on account of Subordinated
Indebtedness in accordance with and subject to the restrictions set forth in
Section 1012 of the Indenture). If any amount shall be paid to such Grantor in
violation of the preceding sentence at any time prior to the later of the
payment in full in cash of the Secured Obligations and all other amounts payable
under this Agreement, such amount shall be held in trust for the benefit of the
Trustee and shall forthwith be paid to the Trustee to be credited and applied to
the Secured Obligations and all other amounts payable under this Agreement,
whether matured or unmatured, in accordance with the terms of the Indenture,
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or to be held as Collateral for any Secured Obligations or other amounts payable
under this Agreement thereafter arising.
SECTION 23. Release and Termination. Upon the payment in full
in cash of the Secured Obligations, the pledge, assignment and security interest
granted hereby shall terminate and all rights to the Collateral shall revert to
the Grantors. Upon any such termination, the Trustee will, at the Grantors'
expense, execute and deliver to the Grantors such documents as the Grantors
shall reasonably request to evidence such termination.
SECTION 24. Authority of the Trustee. (a) The Trustee shall
have and be entitled to exercise all powers hereunder that are specifically
granted to the Trustee by the terms hereof, together with such powers as are
reasonably incident thereto. The Trustee may perform any of its duties hereunder
or in connection with the Collateral by or through agents or employees and shall
be entitled to retain counsel and to act in reliance upon the advice of counsel
concerning all such matters. Except as otherwise expressly provided in this
Agreement or the Indenture, neither the Trustee nor any director, officer,
employee, attorney or agent of the Trustee shall be liable to the Grantors for
any action taken or omitted to be taken by the Trustee, in its capacity as
Trustee, hereunder, except for its own negligence or willful misconduct, and the
Trustee shall not be responsible for the validity, effectiveness or sufficiency
hereof or of any document or security furnished pursuant hereto. The Trustee and
its directors, officers, employees, attorneys and agents shall be entitled to
rely on any communication, instrument or document believed by it or them to be
genuine and correct and to have been signed or sent by the proper person or
persons.
(b) Each Grantor acknowledges that the rights and
responsibilities of the Trustee under this Agreement with respect to any action
taken by the Trustee or the exercise or non-exercise by the Trustee of any
option, right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between the Trustee and the
Holders of the Notes, be governed by the Indenture and by such other agreements
with respect thereto as may exist from time to time among them, but, as between
the Trustee and the Grantors, the Trustee shall be conclusively presumed to be
acting as agent for the Holders of the Notes with full and valid authority so to
act or refrain from acting, and such Grantor shall not be obligated or entitled
to make any inquiry respecting such authority.
SECTION 25. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
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SECTION 26. Reinstatement. This Agreement shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
any of the Secured Obligations is rescinded or must otherwise be returned by any
Trustee or any of the Holders of Notes or by any other Person upon the
insolvency, bankruptcy or reorganization of the Company or any other Grantor or
otherwise, all as though such payment had not been made.
SECTION 27. Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 28. Governing Law; Entire Agreement. This Agreement
shall be governed by, and construed in accordance with, the laws of the State of
New York. This Agreement constitutes the entire understanding among the
Grantors, the Trustee and the Holders of the Notes with respect to the subject
matter hereof and supercede any prior agreements, written or oral, with respect
thereto.
SECTION 29. Resignation and Removal of the Account Collateral
Securities Intermediary. The Trustee may remove the Account Collateral
Securities Intermediary upon 30 days' prior written notice to the Grantor and
the Account Collateral Securities Intermediary. The Account Collateral
Securities Intermediary shall have the right to resign upon 30 days' prior
written notice to the Grantors and the Trustee. Upon any such removal or
resignation of the Account Collateral Securities Intermediary to act hereunder,
the Trustee shall appoint a successor Account Collateral Securities Intermediary
which successor shall be a Securities Intermediary having a combined capital and
surplus of at least $50,000,000. Notwithstanding the foregoing, no resignation,
removal or replacement of the Account Collateral Securities Intermediary shall
be effective until a successor Account Collateral Securities Intermediary has
been appointed and has agreed in a manner reasonably satisfactory to the Trustee
to act as Account Collateral Securities Intermediary hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
THE GRANTORS:
EAST COAST POWER L.L.C.
By: /s/ XXXX X. AIN
---------------------------
Name: Xxxx X. Ain
Title: President
JEDI LINDEN LP, L.L.C.
By: JEDI LINDEN NB, L.L.C., its
sole member
By: EAST COAST POWER L.L.C., its
sole member
By: /s/ XXXX X. AIN
---------------------------
Name: Xxxx X. Ain
Title: President
27
JEDI LINDEN NB, L.L.C.
By: EAST COAST POWER L.L.C., its
sole member
By: /s/ XXXX X. AIN
---------------------------
Name: Xxxx X. Ain
Title: President
JEDI CAMDEN LP, L.L.C.
By: EAST COAST POWER L.L.C., its
sole member
By: /s/ XXXX X. AIN
---------------------------
Name: Xxxx X. Ain
Title: President
28
THE TRUSTEE:
THE BANK OF NEW YORK, AS TRUSTEE
By: /s/ XXXX XXXX XXXXXXX
---------------------------
Name: Xxxx Xxxx Xxxxxxx
Title: Assistant
Vice-President
THE ACCOUNT COLLATERAL
SECURITIES INTERMEDIARY:
THE BANK OF NEW YORK, AS ACCOUNT
COLLATERAL SECURITIES
INTERMEDIARY
By: /s/ XXXX XXXX XXXXXXX
-----------------------------
Name: Xxxx Xxxx Xxxxxxx
Title: Assistant
Vice-President
29
SCHEDULE I
PLEDGED INTERESTS
===========================================================================================================================
PERCENTAGE
OF OUTSTANDING
GRANTOR ISSUER TYPE OF INTEREST EQUITY INTERESTS
===========================================================================================================================
East Coast Power L.L.C. JEDI Camden LP, L.L.C. Limited Liability Company 100%
Membership Interest
-------------------------------------------------------------------------------------------
JEDI Camden GP, L.L.C. Limited Liability Company 100%
Membership Interest
-------------------------------------------------------------------------------------------
JEDI Linden NB, L.L.C. Limited Liability Company 100%
Membership Interest
-------------------------------------------------------------------------------------------
JEDI Bayonne GP, L.L.C. Limited Liability Company 100%
Membership Interest
===========================================================================================================================
JEDI Linden NB, L.L.C. JEDI Linden LP, L.L.C. Limited Liability Company 100%
Membership Interest
-------------------------------------------------------------------------------------------
JEDI Linden GP, L.L.C. Limited Liability Company 99%
Membership Interest
-------------------------------------------------------------------------------------------
JEDI Linden, Inc. Capital Stock 100%
===========================================================================================================================
30
SCHEDULE II
PLEDGED DEBT
============================================================================================================================
MAXIMUM
GRANTOR DEBT ISSUER DESCRIPTION PRINCIPAL
ACCOUNT
============================================================================================================================
East Coast Power L.L.C. Cogen Technologies Linden, Ltd. $289,581,328.07 $289,581,328.07
Subordinated Note
============================================================================================================================
31
SCHEDULE III
PARTNERSHIP COLLATERAL
================================================================================
GRANTOR PARTNERSHIP INTEREST
================================================================================
JEDI Linden LP, L.L.C. Cogen Technologies 100% of the limited
Linden, Ltd. partnership interest
--------------------------------------------------------------------------------
JEDI Camden LP, L.L.C. Cogen Technologies 100% of the limited
Camden GP, L.P. partnership interest
================================================================================
32
SCHEDULE IV
ADDRESSES OF CHIEF PLACES OF
BUSINESS AND CHIEF EXECUTIVE OFFICES
====================================================================================================
ADDRESS OF CHIEF PLACE OF ADDRESS OF CHIEF EXECUTIVE
GRANTOR BUSINESS OFFICE
====================================================================================================
East Coast Power L.L.C. 0000 Xxxxx Xxxxxx, 0000 Xxxxx Xxxxxx,
Xxxxxxx, Xxxxx 00000 Xxxxxxx, Xxxxx 00000
----------------------------------------------------------------------------------------------------
JEDI Linden NB, L.L.C. 0000 Xxxxx Xxxxxx, 0000 Xxxxx Xxxxxx,
Xxxxxxx, Xxxxx 00000 Xxxxxxx, Xxxxx 00000
----------------------------------------------------------------------------------------------------
JEDI Linden LP, L.L.C. 0000 Xxxxx Xxxxxx, 0000 Xxxxx Xxxxxx,
Xxxxxxx, Xxxxx 00000 Xxxxxxx, Xxxxx 00000
----------------------------------------------------------------------------------------------------
JEDI Camden LP, L.L.C. 0000 Xxxxx Xxxxxx, 0000 Xxxxx Xxxxxx,
Xxxxxxx, Xxxxx 00000 Xxxxxxx, Xxxxx 00000
====================================================================================================
