EXHIBIT 10.33
EXECUTION COPY
SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of March 30, 1995 ("this Security
Agreement"), made by PANDA-BRANDYWINE, L.P., a Delaware limited
partnership (together with its successors and assigns, the
"Partnership"), in favor of SHAWMUT BANK CONNECTICUT, NATIONAL
ASSOCIATION, as Security Agent under the Security Deposit
Agreement referred to below (the "Security Agent").
W I T N E S S E T H:
WHEREAS, the Partnership, Panda Brandywine Corporation and
General Electric Capital Corporation ("GE Capital") have entered
into the Construction Loan Agreement and Lease Commitment, dated
as of the date hereof (as modified, amended or supplemented from
time to time, the "Loan Agreement"; capitalized terms used herein
and not otherwise defined herein shall have the respective
meanings set forth in the Loan Agreement), pursuant to which GE
Capital has agreed to (i) provide construction financing for the
Project, (ii) issue Letters of Credit as collateral security for
certain obligations of the Partnership under the Power Purchase
Agreement, (iii) (acting through the Owner Trustee) lease the
Site from the Partnership and sublease the Site back to the
Partnership, (iv) upon completion of the Project, (acting through
the Owner Trustee) purchase the Facility from the Partnership and
lease the Facility back to the Partnership, and (v) upon
completion of the Project, make Equity Loans to the Partnership
or the Partners, and (b) GE Capital is willing to provide such
financing, issue the Letters of Credit, (acting through the Owner
Trustee) lease and sublease the Site and purchase and lease the
Facility subject to and upon the terms and conditions set forth
in the Loan Agreement;
WHEREAS, it is a condition precedent to the obligations of GE
Capital under the Loan Agreement that the Partnership enter into
this Security Agreement as hereinafter set forth; and
WHEREAS, the Partnership desires to execute this Security
Agreement to satisfy the condition described in the preceding
recital;
WHEREAS, pursuant to the terms of the Security Deposit Agreement,
dated as of the date hereof, among the Security Agent, the
Partnership, the Owner Trustee and GE Capital, the Security Agent
has agreed to act as security agent on behalf of GE Capital and
the Owner Trustee and to hold the Collateral for the benefit of
GE Capital and the Owner Trustee;
NOW, THEREFORE, in consideration of the premises and other
benefits to the Partnership, the receipt and sufficiency of which
are hereby acknowledged, the Partnership hereby covenants and
agrees with the Security Agent, for the benefit of GE Capital and
the Owner Trustee, as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. The following terms shall have the
meanings herein specified unless the context otherwise requires.
Such definitions shall be equally applicable to the singular and
plural forms of the terms defined. Capitalized terms used but
not defined herein shall have the meanings assigned to them in
Appendix A to the Loan Agreement. Commercial terms used herein
and not otherwise defined herein or in Appendix A to the Loan
Agreement shall have the meaning specified for such terms in the
Uniform Commercial Code as in effect in the State of New York.
"Chattel Paper" shall have the meaning assigned to that term
under the Uniform Commercial Code as in effect in any relevant
jurisdiction.
"Collateral" shall have the meaning specified in Section 2.1(a).
"Contract Rights" shall have the meaning specified in Section
6.1(c).
"Contracts" shall mean all contracts to which the Partnership now
is, or hereafter will be, bound, or a party, beneficiary or
assignee, including, without limitation, all of the Project
Documents and the contracts and agreements set forth on Exhibit A
hereto and made a part hereof, all exhibits thereto and all other
instruments, agreements and documents executed and delivered with
respect to such contracts, any guarantees or letters of credit
provided to the Partnership to assure the performance by any
party to any contract and all revenues, damages, rentals,
Proceeds and other sums of money due and to become due from any
of the foregoing, as the same may be modified, supplemented or
amended from time to time in accordance with their terms.
"Document" shall have the meaning assigned that term under the
Uniform Commercial Code as in effect in any relevant
jurisdiction.
"Equipment" shall mean any equipment, as such term is defined in
the Uniform Commercial Code as in effect in any relevant
jurisdiction, now or hereafter owned or leased by the Partnership
and, in any event, shall include, but shall not be limited to,
all equipment used in connection with the Project, all machinery,
tools, office equipment, furniture, furnishings, fixtures,
vehicles, motor vehicles, and any manuals, instructions,
blueprints, computer software and similar items which relate to
the above, and any and all additions, substitutions and
replacements of any of the foregoing, wherever located, together
with all improvements thereon and all attachments, components,
parts, equipment and accessories installed thereon or affixed
thereto, but excluding property owned by the Power Purchaser
located on the Site.
"Expenses" shall have the meaning specified in Section 8.1.
"Facility Lease" shall mean the Facility Lease to be entered into
between the Owner Trustee and the Partnership, substantially in
the form of Exhibit L to the Loan Agreement, as amended,
supplemented or otherwise modified from time to time.
"Fixtures" shall have the meaning assigned that term under the
Uniform Commercial Code as in effect in any relevant jurisdiction
and in any event shall include all goods now or hereafter
attached to, placed on, or incorporated in the Site, but
excluding property owned by the Power Purchaser located on the
Site.
"GE Capital" shall have the meaning specified in the preamble to
this Security Agreement.
"General Intangibles" shall mean general intangibles as such term
is defined in the Uniform Commercial Code as in effect in any
relevant jurisdiction, now or hereafter owned by the Partnership
and shall include, but not be limited to, all trademarks,
trademark applications, trademark registrations, tradenames,
fictitious business names, business names, company names,
business identifiers, prints, labels, trade styles and service
marks (whether or not registered), including logos and/or
designs, copyrights, patents, patent applications, goodwill of
the Partnership's business symbolized by any of the foregoing,
trade secrets, license rights, license agreements, permits,
franchises, and any rights to tax refunds to which the
Partnership is now or hereafter may be entitled.
"Governmental Actions" shall mean all permits, authorizations,
registrations, consents, approvals, waivers, exceptions,
variances, claims, orders, judgments and decrees, licenses,
exemptions, publications (to the extent legally binding upon the
Partnership, any other Participant or the Project), filings
(other than filings of a purely ministerial nature), notices to
and declarations of or with any Governmental Authority and shall
include, without limitation, all siting, environmental,
construction and operating permits and licenses that are required
for the construction, use and operation of the Project and all
governmental actions set forth on Exhibit B hereto.
"Indemnitee" shall have the meaning specified in Section 8.1.
"Instrument" shall have the meaning assigned that term under the
Uniform Commercial Code as in effect in any relevant
jurisdiction.
"Inventory" shall mean all of the inventory of the Partnership of
every type or description, including all inventory as such term
is defined in the Uniform Commercial Code as in effect in any
relevant jurisdiction, now owned or hereafter acquired and
wherever located, whether raw, in process or finished, all
materials usable in processing the same and all documents of
title covering any inventory, including but not limited to work
in process, materials used or consumed in the Partnership's
business, now owned or hereafter acquired or manufactured by the
Partnership and held for sale in the ordinary course of its
business; all present and future substitutions therefore, parts
and accessories thereof and all additions thereto; and all
proceeds thereof and products of such inventory in any form
whatsoever.
"Inventory Records" shall mean all books, records and other
property and General Intangibles at any time relating to the
Inventory.
"Loan Agreement" shall have the meaning specified in the Recitals
to this Security Agreement.
"Obligations" shall mean all the unpaid principal amount of, and
accrued interest on, (including, without limitation, interest
accruing after the maturity of the Loans and interest accruing
after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like
proceeding, relating to the Partnership, whether or not a claim
for post-filing or post-petition interest is allowed in such
proceeding) the Notes, the Letter of Credit Obligations, all Rent
and other obligations payable by the Partnership under the
Facility Lease and all other obligations and liabilities of the
Partnership and the Partners to GE Capital (including, without
limitation, pursuant to subsection 5.2 of the Loan Agreement, but
excluding any Partner Equity Loans), the Owner Trustee and the
Security Agent, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with,
the Loan Agreement, the Notes, the Facility Lease, this
Agreement, the other Collateral Security Documents or any other
Transaction Document and any other document made, delivered or
given in connection therewith or herewith, whether on account of
principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without limitation, all
fees and disbursements of counsel to GE Capital) or otherwise.
"Owner Trustee" shall mean Shawmut Bank Connecticut National
Association, in its capacity as trustee under the Trust
Agreement, and any successor trustee appointed in accordance with
the terms thereof.
"Partnership" shall have the meaning specified in the preamble to
this Security Agreement.
"Proceeds" shall mean proceeds as such term is defined in the
Uniform Commercial Code as in effect in any relevant jurisdiction
or under other relevant law and, in any event, shall include, but
shall not be limited to, (i) any and all proceeds of any
insurance, indemnity, warranty or guaranty payable to the
Partnership from time to time, and claims for insurance,
indemnity, warranty or guaranty effected or held for the benefit
of the Partnership with respect to any of the Collateral, (ii)
any and all payments (in any form whatsoever) made or due and
payable to the Partnership from time to time in connection with
any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any
Governmental Authority (or any person acting under color of
Governmental Authority) and (iii) any and all other amounts from
time to time paid or payable under or in connection with any of
the Collateral.
"Receivables" shall mean any Account as such term is defined in
the Uniform Commercial Code as in effect in any relevant
jurisdiction and in any event shall include, but not be limited
to, all of the Partnerships rights to payment for goods
(including, without limitation, steam and electricity) sold or
leased, or services performed, by the Partnership, whether now in
existence or arising from time to time hereafter, including,
without limitation, rights evidenced by an account, note,
contract, security agreement, chattel paper, or other evidence of
indebtedness or security, together with (i) all security pledged,
assigned, hypothecated or granted to or held by the Partnership
to secure the foregoing, (ii) all of the Partnerships right,
title and interest in and to any goods (including, without
limitation, steam and electricity prior to the sale thereof to
the Steam Host or the Power Purchaser, as the case may be), the
sale of which gave rise thereto, (iii) all guarantees,
endorsements and indemnifications on, or of, any of the
foregoing, (iv) all powers of attorney for the execution of any
evidence of indebtedness or security or other writing in
connection therewith, (v) all books, correspondence, credit
files, records, ledger cards, invoices, and other papers relating
thereto, including without limitation all similar information
stored on a magnetic medium or other similar storage device and
other papers and documents in the possession or under the control
of the Partnership or any computer bureau from time to time
acting for the Partnership, (vi) all evidences of the filing of
financing statements and other statements and the registration of
other instruments in connection therewith and amendments thereto,
notices to other creditors or secured parties, and certificates
from filing or other registration officers, (vii) all credit
information, reports and memoranda relating thereto, and (viii)
all other writings related in any way to the foregoing.
"Security Agent" shall mean Shawmut Bank Connecticut, National
Association, in its capacity as security agent under the Security
Deposit Agreement, and any successor security agent appointed in
accordance with the terms thereof.
"Security Agreement" shall mean this Security Agreement, as the
same may be amended, supplemented or otherwise modified from time
to time in accordance with its terms.
ARTICLE II
ASSIGNMENT AND GRANT OF SECURITY INTERESTS
Section 2.1 Assignment and Grant of Security Interest.
(a) As collateral security for the prompt and complete
payment and performance when due of all of the
Obligations, the Partnership hereby assigns and grants
to the Security Agent, for the benefit of the Owner
Trustee and GE Capital, a continuing security interest
of first priority, in all of the Partnership's right,
title and interest in, to and under
(i) all Receivables,
(ii) all Inventory,
(iii) all Equipment,
(iv) all General Intangibles,
(v) all Contracts and all Contract Rights,
(vi) all amounts from time to time held in any
checking, savings, deposit or other account of the
Partnership and all investments and securities at
any time on deposit in such accounts (including
all of the Accounts) and all income or gain earned
thereon,
(vii) all Governmental Actions, provided, that any
Governmental Action which by its terms or by
operation of law would become void, voidable,
terminable or revocable if mortgaged, pledged or
assigned hereunder or if a security interest
therein were granted hereunder are expressly
excepted and excluded from the Lien and the terms
of this Agreement to the extent necessary so as to
avoid such voidness, voidability, terminability or
revocability,
(viii) all Fixtures,
(ix) without limiting the generality of the foregoing,
all other personal property, rights, interests,
goods, Instruments, Chattel Paper, Documents,
credits, claims, demands and assets of the
Partnership whether now existing or hereafter
acquired from time to time, and
(x) any and all additions and accessions to any of the
foregoing, all improvements thereto, all
substitutions and replacements therefor and all
products and Proceeds thereof (all of the above
collectively, the "Collateral").
(b) The security interest granted to the Security Agent,
for the benefit of the Owner Trustee and GE Capital,
pursuant to this Security Agreement extends to all
Collateral of the kind which is the subject of this
Security Agreement which the Partnership may acquire at
any time during the continuation of this Security
Agreement, whether such Collateral is in transit or in
the Partnerships, the Security Agent's, the Owner
Trustee' s, GE Capital' s, or any other Person' s
constructive, actual or exclusive occupancy or
possession.
Section 2.2 Security Interest Absolute. All rights of the
Security Agent and all security interests hereunder, shall be
absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Loan
Agreement, any other Loan Document, the Facility Lease,
any other Lease Document or any other agreement or
instrument relating thereto;
(b) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Obligations,
or any other amendment or waiver of or any consent to
any departure from the Loan Agreement or any other Loan
Document, the Facility Lease, or any other Lease
Document;
(c) any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or
consent to departure from any guaranty, for all or any
of the Obligations; or
(d) any other circumstance which might otherwise constitute
a defense available to, or a discharge of, the
Partnership or a third party xxxxxxx.
Section 2.3 Power of Attorney.
(a) The Partnership hereby constitutes and appoints the
Security Agent or any Person or agent whom the Security
Agent may designate, as the Partnership's attorney-in-
fact, at the Partnership's reasonable cost and expense,
to exercise at any time following the occurrence and
during the continuance of an Event of Default or a
Lease Event of Default all or any of the following
powers, in accordance with and subject to the terms and
conditions of the Project Documents, which, being
coupled with an interest, shall be irrevocable until
all of the Obligations have been paid in full:
(i) To receive, take, endorse, sign, assign and
deliver, all in the Security Agent's name or the
Partnership's name, any and all checks, notes,
drafts, and other documents or instruments
relating to the Collateral;
(ii) To receive, open and dispose of all mail addressed
to the Partnership and to notify postal
authorities to change the address for delivery
thereof to such address as the Security Agent
designates;
(iii) To request from account debtors of the
Partnership in the Partnership's name, the
Security Agent's name, or in the name of the
Security Agent's designee, information concerning
the Receivables and the amounts owing thereon;
(iv) To transmit to account debtors indebted on
Receivables notice of the Security Agent's
interest therein;
(v) To notify account debtors indebted on Receivables
to make payment directly to the Security Agent;
(vi) To take or bring, in the Partnership's name or the
Security Agent's name, all steps, actions, suits
or proceedings deemed by the Security Agent to be
necessary or desirable to enforce or effect
collection of the Receivables;
(vii) To prepare, sign and file any Uniform
Commercial Code financing statements in the name
of the Partnership as debtor;
(viii) If the Partnership shall have failed to do so
in a timely manner, to take or cause to be taken
all actions necessary to perform or comply or
cause performance or compliance with the covenants
of the Partnership contained in the Loan Documents
and the Lease Documents;
(ix) To sign and endorse any invoices, freight or
express bills, bills of lading, storage or
warehouse receipts, drafts against debtors,
assignments, verifications, notices and other
documents in connection with any of the
Collateral;
(x) To defend any suit, action or proceeding brought
against the Partnership with respect to any
Collateral;
(xi) To settle, compromise or adjust any suit, action
or proceeding described in the preceding clause
and, in connection therewith, to give such
discharges or releases as the Security Agent may
deem appropriate;
(xii) Generally, to sell or transfer and make any
agreement with respect to or otherwise deal with
any of the Collateral as fully and completely as
though the Security Agent were the absolute owner
thereof for all purposes, and to do, at the
Security Agent's option and the Partnership's
expense, at any time, or from time to time, all
acts and things which the Security Agent deems
necessary to protect, preserve or realize upon the
Collateral and the Liens of the Security Agent
thereon;
(xiii) To execute, in connection with any
foreclosure, any endorsements, assignments or
other instruments of conveyance or transfer with
respect to the Collateral; and
(xiv) To exercise the Partnership's rights under
any Contract in accordance with Section 6.4.
(a) The Partnership hereby ratifies all that said attorney
shall lawfully do or cause to be done by virtue hereof.
The Partnership hereby acknowledges and agrees that the
Security Agent shall have no fiduciary duties to the
Partnership and the Partnership hereby waives any
claims to the rights of a beneficiary of a fiduciary
relationship hereunder.
ARTICLE III
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
The Partnership represents, warrants and covenants, which
representations, warranties and covenants shall survive execution
and delivery of this Security Agreement, as follows:
Section 3.1 Validity of Lien. This Security Agreement is
effective to create, as security for the Obligations, a legal,
valid and enforceable Lien on, and security interest in, all of
the Collateral in favor of the Security Agent, for the benefit of
GE Capital and the Owner Trustee, superior to and prior to the
rights of all third Persons and subject to no other Liens.
Section 3.2 No Liens.
(a) The Partnership is, and as to Collateral acquired by it
from time to time after the date hereof, the
Partnership will be, the owner of all Collateral free
from all Liens or other right, title or interest of any
Person (other than Permitted Liens). The Partnership
shall defend the Collateral against all Liens and
demands of all Persons at any time claiming the same or
any interest therein adverse to the Security Agent, the
Owner Trustee or GE Capital.
(b) There is no financing statement (or similar statement
or instrument of registration under the law of any
jurisdiction) covering or purporting to cover any
interest of any kind in the Collateral, other than the
financing statement previously filed in favor of GE
Capital, as agent, securing obligations under the
Development Loan Agreement, and the Partnership will
not execute or authorize to be filed in any public
office any financing statement (or similar statement or
instrument of registration under the law of any
jurisdiction) or statements relating to the Collateral,
except financing statements filed or to be filed in
respect of and covering the security interests granted
hereby to the Security Agent.
Section 3.3 Chief Executive Office; Name; Records. The chief
executive office of the Partnership is located at 0000 Xxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000; provided that certain
records concerning the Project and certain contracts relating
thereto are kept at the Partnership's office at 0000 X. Xxxxx
Xxxxxxx, Xxxxx Xxxxxxxx (Xxxxxx Xxxxxx'x Xxxxxx), Xxxxxxxx 00000
or at the Site. The Partnership will not (a) move its chief
executive office (or change the location(s) where records
concerning the Project are kept), or (b) change its name from,
nor carry on business under any name other than Panda-Brandywine,
L.P., unless it has complied with the requirements of the last
sentence of this Section 3.3. The originals of all documents
evidencing all Contracts and Receivables of the Partnership, and
the only original books of accounts and records concerning the
Collateral are, and will continue to be, kept at, and controlled
and directed (including, without limitation, for general
accounting purposes) from, such chief executive office (or such
other office set forth above), or at such new location for such
chief executive office as the Partnership may establish in
accordance with the last sentence of this Section 3.3. The
Partnership shall not establish a new location for its chief
executive office or change its name or the name under which it
presently conducts its business until (i) it has given to the
Security Agent and GE Capital not less than 30 days' prior
written notice of its intention so to do, clearly describing such
new location or specifying such new name, as the case may be, and
providing such other information in connection therewith as the
Security Agent or GE Capital may reasonably request and (ii) with
respect to such new location or such new name, as the case may
be, it shall have taken all action, reasonably satisfactory to
the Security Agent and GE Capital, to maintain the security
interest of the Security Agent, on behalf of the Owner Trustee
and GE Capital, in the Collateral intended to be granted hereby
at all times fully perfected and in full force and effect.
Section 3.4 Financing Statements. The Partnership agrees that
it shall ensure that all necessary and appropriate recordings and
filings will be effected by the Security Agent in all necessary
and appropriate public offices (as determined by GE Capital) so
that the Lien created by the Collateral Security Documents will
at all times constitute a perfected Lien on, and security
interest in, the Collateral prior and superior to all other
Liens, all in accordance with the Uniform Commercial Code as
enacted in any and all relevant jurisdictions or any other
relevant Law. The Partnership authorizes the Security Agent to
file any such financing statements in connection with the Lien
created by the Collateral Security Documents without the
signature of the Partnership.
Section 3.5 Further Actions. The Partnership will, at its own
expense, make, execute, endorse, acknowledge, file and/or deliver
to the Security Agent from time to time such lists, descriptions
and designations of its Collateral, bills of lading, documents of
title, vouchers, invoices, schedules, powers of attorney,
certificates, reports and other assurances or instruments and
take such further steps relating to the Collateral and other
property or rights covered by the security interest hereby
granted, which are necessary or desirable to create, perfect,
preserve, protect or validate any security interest granted
pursuant to this Security Agreement or to enable the Security
Agent to exercise and enforce its rights under this Security
Agreement with respect to such security interest.
Section 3.6 Taxes, Claims, etc. So long as this Security
Agreement is in effect, the Partnership shall pay (a) all taxes,
assessments and governmental charges imposed upon it or upon its
property, and (b) all claims (including, without limitation,
claims for labor, materials, supplies or services) which might,
if unpaid, become a Lien upon its property, unless, in each case,
the validity or amount thereof is subject to Contest.
Section 3.7 Right of Inspection. The Partnership shall allow
any representative of the Security Agent or GE Capital to visit
and inspect any of the Partnerships properties, including,
without limitation, the Inventory and Equipment, to examine its
books of record and account, including, without limitation, the
Inventory Records, and to make extracts therefrom and to receive
true copies of any papers, documents or instruments relating to
the Collateral, and to discuss its affairs, finances and accounts
with its officers, all at such times and as often as the Security
Agent or GE Capital may request.
Section 3.8 Additional Statements and Schedules. The
Partnership shall execute and deliver to the Security Agent, from
time to time, solely for the Security Agent's convenience in
maintaining a record of the Collateral, such written statements
and schedules as the Security Agent may reasonably require
designating, identifying or describing the Collateral.
Section 3.9 Warehouse Receipts Non-Negotiable. The
Partnership agrees that if any warehouse receipt or receipt in
the nature of a warehouse receipt is issued with respect to any
of its Inventory, such warehouse receipt or receipt in the nature
thereof shall not be drawn in such a manner as to be
"'negotiable" (as such term is used in Section 7-104 of the
Uniform Commercial Code as in effect in any relevant jurisdiction
or under other relevant law).
Section 3.10 Recourse; Limitation of Liability. There shall be
full recourse to the Partnership and all of its assets for the
liabilities of the Partnership under this Security Agreement and
the other Transaction Documents, but in no event shall any
Partner, Affiliate of any Partner, or any officer, director or
employee of the Partnership, any Partner or their Affiliates or
any holder of any equity interest in any Partner be personally
liable or obligated for such liabilities of the Partnership
except as may be specifically provided in any other Transaction
Document to which such Partner is a party or in the event of
fraudulent actions, knowing misrepresentations, gross negligence
or willful misconduct by the Partnership, any Partner or any of
their Affiliates in connection with the financing contemplated
under the Transaction Documents . Subject to the foregoing
limitation on liability, the Security Agent may xxx or commence
any suit, action or proceeding against any Partner or any
Affiliate thereof in order to obtain jurisdiction over the
Partnership in order to enforce its rights and remedies
hereunder. Nothing herein contained shall limit or be construed
to limit the liabilities and obligations of any Partner or any
Affiliate thereof in accordance with the terms of any other
Transaction Document creating such liabilities and obligations to
which such Partner or Affiliate is a party.
ARTICLE IV
SPECIAL PROVISIONS CONCERNING INVENTORY AND EQUIPMENT
Section 4.1 Location of Inventory and Equipment. The
Partnership agrees that all Inventory and Equipment now held or
subsequently acquired by it shall be kept at (or shall be in
transport to) the Site, or such new location as the Partnership
may establish in accordance with the last sentence of this
Section 4.1. The Partnership may establish a new location for
Inventory and Equipment only if (i) it shall have given to the
Security Agent and GE Capital 30 days' prior written notice of
its intention so to do, clearly describing such new location and
providing such other information in connection therewith as the
Security Agent or GE Capital may reasonably request, and (ii)
with respect to such new location, it shall have taken all action
necessary to maintain the security interest of the Security Agent
in the Collateral intended to be granted hereby at all times
fully perfected and in full force and effect.
Section 4.2 Inventory Records. The Partnership shall maintain
such current Inventory Records as the Security Agent may from
time to time reasonably request.
ARTICLE V
SPECIAL PROVISIONS CONCERNING RECEIVABLES,
CONTRACTS AND INSTRUMENTS
Section 5.1 Additional Representations and Warranties. As of
the time when each of its Receivables arises, the Partnership
shall be deemed to have represented and warranted that such
Receivable and all records, papers and documents relating thereto
(if any) are genuine and in all respects what they purport to be,
and that all papers and documents (if any) relating thereto:
(i) will (subject to dispute, return, replacement,
settlement or compromise) evidence indebtedness
unpaid and owed by such account debtor arising out
of the performance of labor or services or the
sale and delivery of the merchandise listed
therein, or both,
(ii) will be the only original writings evidencing and
embodying such obligation of the account debtor
named therein (other than copies created for
purposes other than general accounting purposes),
(iii) will (subject to dispute, return,
replacement, settlement or compromise and any
limits due to applicable bankruptcy, insolvency,
moratorium or other similar rights affecting
creditors, rights generally and general principles
of equity) evidence true and valid obligations,
enforceable in accordance with their respective
terms, not subject to the fulfillment of any
contract or condition whatsoever unless set forth
in the writing, and
(iv) will be in compliance and will conform with all
applicable requirements of Law.
Section 5.2 Maintenance of Records; Legending of Records. The
Partnership will keep and maintain at its own cost and expense
satisfactory and complete records of its Receivables, including,
but not limited to, records of all payments received and all
credits granted thereon, and the Partnership will make the same
available to the Security Agent for inspection at the
Partnership's chief executive office, without charge to the
Security Agent, at such times as the Security Agent may
reasonably request. The Partnership shall, without charge to the
Security Agent, deliver all tangible evidence that the Security
Agent may request of its Receivables (including, without
limitation, all documents evidencing the Receivables) and books
and records to the Security Agent or to its representatives
(copies of which evidence and books and records may be retained
by the Partnership) at any time upon the Security Agent's demand.
If an Event of Default or a Lease Event of Default occurs and
continues, and if the Security Agent so directs, the Partnership
shall legend in form and substance satisfactory to the Security
Agent, the Receivables and Contracts, as well as books, records
and documents evidencing or pertaining to the Receivables with an
appropriate reference to the fact that the Receivables and
Contracts have been assigned to the Security Agent, for the
benefit of GE Capital and the Owner Trustee, and that the
Security Agent has a security interest therein.
Section 5.3 Modification of Terms; No Payment to the
Partnership. The Partnership shall not rescind or cancel any
indebtedness evidenced by any Receivable or make any adjustment
with respect thereto, or extend or renew the same, or compromise
or settle any dispute, claim, suit or legal proceeding relating
thereto, or sell any Receivable or interest therein, without the
prior written consent of the Security Agent or GE Capital. The
Partnership will duly fulfill all obligations on its part to be
fulfilled under or in connection with the Receivables and will do
nothing to impair the rights of the Security Agent, the Owner
Trustee and GE Capital in the Receivables.
Section 5.4 Payments Under Project Documents and Receivables.
(a) Notice to Obligors under Project Documents and
Receivables. The Partnership agrees and confirms that
it will notify each party to the Project Documents and
each account debtor or obligor under the Receivables of
the grant of the security interest therein and
assignment thereof to the Security Agent and instruct
each of them that all payments due or to become due and
all amounts payable to the Partnership hereunder shall,
until the Obligations are paid in full, be made
directly to the Security Agent as provided in the
Security Deposit Agreement. Unless notified to the
contrary by the Security Agent, and subject to Section
5.3 of this Security Agreement, the Partnership shall,
at its expense, enforce collection of any amounts
payable with respect to each of the Receivables.
(b) Non-Payment to the Security Agent. In the event the
Partnership shall receive directly from any party to
the Project Documents or from any account debtor or
other obligor under any Receivable any payments under
the Project Documents and the Receivables otherwise
than to the Security Agent, the Partnership shall
receive such payments in a constructive trust for the
benefit of the Security Agent, shall segregate such
payments from other funds of the Partnership, and,
shall forthwith transmit and deliver such payments to
the Security Agent in accordance with the terms of the
Security Deposit Agreement.
Section 5.5 Direction to Account Borrowers, Contracting
Parties; etc.
(a) The Partnership agrees that the Security Agent may, at
its option, directly notify the account debtors or
obligors with respect to any Receivables and/or under
any Project Documents to make payments with respect
thereto directly to the Security Agent.
(b) The Partnership agrees to be bound by any collection,
compromise, forgiveness, extension or other action
taken by the Security Agent with respect to the
Receivables and/or Project Documents. Without notice
to or assent by the Partnership, the Security Agent may
apply any or all amounts then in, or thereafter
deposited with any financial institution in any
checking, savings, deposit or other account of the
Partnership in accordance with the provisions of the
Loan Agreement, the Security Deposit Agreement and the
Facility Lease. The reasonable costs and expenses
(including reasonable attorneys, fees) of collection,
whether incurred by the Partnership or the Security
Agent, shall be borne by the Partnership.
Section 5.6 Instruments. At such time that an Event of
Default or a Lease Event of Default shall have occurred and be
continuing, the Partnership promptly shall deliver all
Instruments to the Security Agent appropriately endorsed to the
order of the Security Agent as further security hereunder.
ARTICLE VI
SPECIAL PROVISIONS CONCERNING CONTRACTS
Section 6.1 Security Interest in Contract Rights. The
Partnership's assignment and grant, pursuant to Section 2.1, to
the Security Agent, for the benefit of GE Capital and the Owner
Trustee, of a security interest in all of its right, title and
interest in and to each and all of the Contracts and the contract
rights thereunder, includes, but is not limited to:
(a) all (i) rights to payment under any Contract and (ii)
payments due and to become due under any Contract, in
each case whether as contractual obligations, damages
or otherwise;
(b) all of its claims, rights, powers, or privileges and
remedies under any Contract; and
(c) all of its rights under any Contract to make
determinations, to exercise any election (including,
but not limited to, election of remedies) or option or
to give or receive any notice, consent, waiver or
approval together with full power and authority with
respect to any Contract to demand, receive, enforce,
collect or provide receipt for any of the foregoing
rights or any property the subject of any of the
Contracts, to enforce or execute any checks, or other
instruments or orders, to file any claims and to take
any action which, in the reasonable opinion of the
Security Agent, may be necessary or advisable in
connection with any of the foregoing (the Contracts,
together with all of the foregoing in this Section 6.l,
the "Contract Rights");
provided, however, that until the occurrence and continuance of
an Event of Default or a Lease Event of Default, notwithstanding
anything else herein to the contrary, the Partnership may,
subject to the terms and provisions of the Loan Agreement and the
Facility Lease, exclusively exercise all of the Partnerships
rights, powers, privileges and remedies under the Contracts.
Section 6.2 Further Protection. The Partnership warrants and
forever shall defend its title to the Contract Rights against the
claims and demands of any Person and hereby grants the Security
Agent full power and authority, upon the occurrence or during the
continuance of an Event of Default or a Lease Event of Default to
take all actions as the Security Agent reasonably deems necessary
or advisable to effectuate the provisions set forth in this
sentence.
Section 6.3 Partnership Remains Liable under Receivables and
Contracts. Anything herein to the contrary notwithstanding
(including, without limitation, the grant of any rights to the
Security Agent, the Owner Trustee or GE Capital) the Partnership
shall remain liable under each of the Receivables and Contracts
to observe and perform all the conditions and obligations to be
observed and performed by it thereunder, all in accordance with
the terms of any agreement giving rise to each such Receivable or
Contract. The Security Agent, the Owner Trustee and GE Capital
shall have no obligation or liability under any Receivable (or
any agreement giving rise thereto) or Contract by reason of or
arising out of this Agreement or the receipt by the Security
Agent, the Owner Trustee or GE Capital of any payment relating to
such Receivable or Contract pursuant hereto or pursuant to the
Security Deposit Agreement, nor shall the Security Agent, the
Owner Trustee or GE Capital be obligated in any manner to perform
any of the obligations of the Partnership under or pursuant to
any Receivable (or any agreement giving rise thereto) or under or
pursuant to any Contract, to make any payment, to make any
inquiry as to the nature or the sufficiency of any payment
received by it or as to the sufficiency of any performance by any
party under any Receivable (or any agreement giving rise thereto)
or under any Contract, to present or file any claim, to take any
action to enforce any performance or to collect the payment of
any amounts which may have been assigned to it or to which it may
be entitled at any time or times.
Section 6.4 Remedies. Upon the occurrence of any Event of
Default or Lease Event of Default and the continuance thereof,
the Security Agent shall have the rights set forth in Article VII
hereof, and in addition may (a) enforce all remedies, rights,
powers and privileges of the Partnership under any or all of the
Contracts, (b) sell any or all of the Contract Rights at public
or private sale upon at least 10 days prior written notice and/or
(c) substitute itself or any nominee or trustee in lieu of the
Partnership as party to any of the Contracts and to notify the
obligor of any Contract Right (the Partnership hereby agreeing to
deliver any such notice at the request of the Security Agent)
that all payments and performance under the relevant Contract
shall be made or rendered to the Security Agent or such other
Person as the Security Agent may designate.
ARTICLE VII
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
OR LEASE EVENT OF DEFAULT
Section 7.l Remedies; Obtaining the Collateral upon Default.
Upon the occurrence of any Event of Default or Lease Event of
Default and the continuance thereof, the Security Agent shall be
entitled to exercise all the rights and remedies of a secured
party under the Uniform Commercial Code as in effect in any
relevant jurisdiction to enforce this Security Agreement and the
security interests contained herein, and, in addition, subject to
any mandatory requirements of Law then in effect, the Security
Agent may, in addition to its other rights and remedies
hereunder, including without limitation under Sections 7 .2 and
7. 6, and also its (and GE Capital's and the Owner Trustee' s)
rights under the other Loan Documents and the Lease Documents, do
any of the following:
(a) personally, or by trustees or attorneys, immediately
take possession of the Collateral or any part thereof,
from the Partnership or any other Person who then has
possession of any part thereof with or without notice
or process of law, and for that purpose may enter upon
the Partnership's or such other Person's premises where
any of the Collateral is located and remove the same
and use in connection with such removal any and all
services, supplies, aids and other facilities of the
Partnership;
(b) instruct the obligor or obligors on any agreement,
instrument or other obligation (including, without
limitation, the Receivables and the Contracts)
constituting the Collateral to make any payment
required by the terms of such instrument or agreement
directly to the Security Agent; and
(c) take possession of the Collateral or any part thereof,
by directing the Partnership in writing to turn over
the same to the Security Agent at the Site, in which
event the Partnership shall at its own expense:
(i) forthwith turn over the same to the Security Agent
at the Site;
(ii) store and keep any Collateral so turned over to
the Security Agent at the Site pending further
action by the Security Agent as provided in
Section 7.2; and
(iii) while the Collateral shall be so stored and
kept, provide such guards and maintenance services
as shall be necessary to protect the same and to
preserve and maintain them in good condition.
The Partnership's obligation to turn over the Collateral as set
forth above is of the essence of this Security Agreement and,
accordingly, upon application to a court of equity having
jurisdiction, the Security Agent shall be entitled to obtain a
decree requiring specific performance by the Partnership of said
obligation.
Section 7.2 Remedies; Disposition of the Collateral. Any
Collateral repossessed by the Security Agent under or pursuant to
Section 7.l and any other Collateral, whether or not so
repossessed by the Security Agent, may, to the extent permitted
by any contract terms governing such Collateral, be sold, leased
or otherwise disposed of under one or more contracts or as an
entirety, and without the necessity of gathering at the place of
sale the property to be sold, and in general in such manner, at
such time or times, at such place or places and on such terms
(whether cash or credit, and in the case of credit, without
assumption of future credit risk) as the Security Agent may, in
compliance with applicable requirements of Law, determine to be
commercially reasonable. Any of the Collateral may be sold,
leased or otherwise disposed of, in the condition in which the
same existed when taken by the Security Agent or after any
overhaul or repair which the Security Agent shall determine to be
commercially reasonable. Any such disposition shall be made upon
not less than 10 days' written notice to the Partnership
specifying the time such disposition is to be made and, if such
disposition shall be a public sale, specifying the place of such
sale. Any such sale may be adjourned by announcement at the time
and place fixed therefor, and such sale may, without further
notice, be made at the time and place to which it was so
adjourned. To the extent permitted by applicable requirements of
Law, the Security Agent (or the Owner Trustee or GE Capital) may
bid for and become the buyer of the Collateral or any item
thereof offered for sale at a public auction without
accountability to the Partnership (except to the extent of
surplus money received as provided in Section 7.4).
Section 7.3 Waiver.
(a) Except as otherwise provided in this Security
Agreement, THE PARTNERSHIP HEREBY WAIVES, TO THE EXTENT
PERMITTED BY APPLICABLE LEGAL REQUIREMENTS, NOTICE OR
JUDICIAL HEARING IN CONNECTION WITH THE SECURITY
AGENT'S TAKING POSSESSION OR THE SECURITY AGENT'S
DISPOSITION OF ANY OF THE COLLATERAL, INCLUDING,
WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND
HEARING FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY
SUCH RIGHT WHICH THE PARTNERSHIP WOULD OTHERWISE HAVE
UNDER THE CONSTITUTION OR ANY STATUTE OF THE UNITED
STATES OR OF ANY STATE, and the Partnership hereby
further waives:
(i) all damages occasioned by such taking of
possession except any damages which are finally
judicially determined to have been the direct
result of the Security Agent's gross negligence or
willful misconduct;
(ii) all other requirements as to the time, place and
terms of sale or other requirements with respect
to the enforcement of the Security Agent's rights
hereunder; and
(iii) all rights of redemption, appraisement,
valuation, stay, extension or moratorium now or
hereafter in force under any applicable law in
order to prevent or delay the enforcement of this
Security Agreement or the absolute sale of the
Collateral or any portion thereof, and the
Partnership, for itself and all who may claim
under it, insofar as it or they may now or
hereafter lawfully do so, hereby waives the
benefit of such laws.
(b) Without limiting the generality of the foregoing, the
Partnership hereby:
(i) authorizes the Security Agent, in its sole
discretion and without notice to or demand upon
the Partnership and without otherwise affecting
the obligations of the Partnership hereunder from
time to time, to take and hold other collateral
granted to it by any other Person (in addition to
the Collateral) for payment of any Obligations, or
any part thereof, and to exchange, enforce or
release such other collateral or any part thereof,
and to accept and hold any endorsement or
guarantee of payment of the Obligations or any
part thereof, and to release or substitute any
endorser or guarantor or any other person granting
security for or in any way obligated upon any
Obligations, or any part thereof; and
(ii) waives and releases any and all right to require
the Security Agent to collect any of the
Obligations from any specific item or items of
Collateral or from any other party liable as
guarantor or in any other manner in respect of any
of the Obligations or from any collateral (other
than the Collateral) for any of the Obligations.
(c) Any sale of, or the grant of options to purchase, or
any other realization upon, any Collateral shall,
provided that it is done in accordance with applicable
law and this Security Agreement, operate to divest all
right, title, interest, claim and demand, either at law
or in equity, of the Partnership therein and thereto,
and shall be a perpetual bar both at law and in equity
against the Partnership and against any and all Persons
claiming or attempting to claim the Collateral so sold,
optioned or realized upon, or any part thereof, from,
through and under the Partnership.
Section 7.4 Application of Proceeds; Partnership Liable for
Deficiency. Except as otherwise specified therein, the proceeds
of any Collateral obtained pursuant to Section 5.4 or 7.1 or
disposed of pursuant to Section 7.2 shall be applied, first, to
the payment of any expenses incurred by the Security Agent in
connection with the administration of this Security Agreement,
the custody, preservation or sale of, collection from or other
realization from, any of the Collateral, the exercise or
enforcement of any of its rights hereunder or the failure by the
Partnership to perform or observe any of the provisions hereof,
including all reasonable attorney's fees and second, to the
payment of the Obligations in such order as GE Capital may
direct. Any surplus remaining after payment in full of all of
the Obligations shall be paid over to the Partnership or to
whomever may be entitled to receive such surplus. The
Partnership shall be liable for any deficiency remaining after
any application of funds pursuant hereto.
Section 7.5 Remedies Cumulative; No Waiver. Each and every
right, power and remedy hereby specifically given to the Security
Agent shall be in addition to every other right, power and remedy
specifically given to the Security Agent (or the Owner Trustee or
GE Capital) under this Security Agreement and the other
Transaction Documents, or now or hereafter existing at law or in
equity, or by statute, and each and every right, power and remedy
whether specifically herein given or otherwise existing may be
exercised from time to time or simultaneously and as often and in
such order as may be deemed expedient by the Security Agent. All
such rights, powers and remedies shall be cumulative, and the
exercise or the partial exercise of one shall not be deemed a
waiver of the right to exercise of any other. No delay or
omission of the Security Agent in the exercise of any of its
rights, remedies, powers and privileges hereunder or partial or
single exercise thereof, and no renewal or extension of any of
the Obligations, shall impair any such right, remedy, power or
privilege or shall constitute a waiver thereof.
Section 7.6 Discontinuance of Proceedings. In case the
Security Agent shall have instituted any proceeding to enforce
any right, power or remedy under this Security Agreement by
foreclosure, sale, entry or otherwise, and such proceeding shall
have been discontinued or abandoned for any reason or shall have
been determined adversely to the Security Agent, then, in every
such case, the Partnership and the Security Agent shall be
restored to their former positions and rights hereunder with
respect to the Collateral, subject to the security interest
created under this Security Agreement, and all rights, remedies
and powers of the Security Agent shall continue as if no such
proceeding had been instituted.
ARTICLE VIII
INDEMNITY
Section 8.1 Indemnity.
(a) The Partnership agrees to indemnify, reimburse and hold
the Security Agent, GE Capital and the Owner Trustee
and their respective successors, assigns, officers,
directors, employees, and agents (each individually, an
"Indemnitee,'' and collectively, "Indemnitees")
harmless from any and all liabilities, obligations,
damages, injuries, penalties, claims, demands, actions,
suits, judgments and any and all costs and expenses
(including reasonable attorneys, fees and
disbursements) (such expenses, collectively, the
"Expenses") of whatsoever kind and nature imposed on,
asserted against or incurred by any of the Indemnitees
in any way relating to or arising out of:
(i) this Security Agreement, any other Transaction
Document, or the documents executed in connection
herewith and therewith or connected with the
administration of the transactions contemplated
hereby and thereby, or the enforcement of any of
the terms hereof or thereof, or the preservation
of any rights hereunder or thereunder,
(ii) the ownership, purchase, delivery, control,
acceptance, lease, financing, possession,
operation, condition, sale, return or other
disposition, or use of, the Collateral (including,
without limitation, latent or other defects,
whether or not discoverable, and any claim for
patent or trademark infringement),
(iii) the violation of any requirements of Law
(including any Environmental Law) of any
Governmental Authority applicable to the
Partnership or the Project,
(iv) any tort (including, without limitation, claims
arising or imposed under the doctrine of strict
liability, or for or on account of injury to or
the death of any Person (including any
Indemnitee), or property damage), or
(v) any contract claim, excluding (x) those finally
judicially determined to have arisen solely from
the gross negligence or willful misconduct of any
Indemnitee or (y) unless specifically provided for
elsewhere in this Agreement, those arising out of
the actions of any Indemnitee while in possession
or control of the Collateral.
(b) Without limiting the application of Section 8.1(a), the
Partnership agrees to pay, or reimburse the Security
Agent, the Owner Trustee and GE Capital for any and all
reasonable fees, costs and expenses of whatever kind or
nature incurred in connection with the preservation,
protection or validation of the Security Agent's Liens
on, and security interest in, the Collateral,
including, without limitation, all fees and taxes in
connection with the recording or filing of instruments
and documents in public offices, payment or discharge
of any taxes or Liens upon or in respect of the
Collateral, premiums for insurance with respect to the
Collateral and all other fees, costs and expenses in
connection with protecting, maintaining or preserving
the Collateral and the Security Agent's interest
therein, whether through judicial proceedings or
otherwise, or in defending or prosecuting any actions,
suits or proceedings arising out of or relating to the
Collateral.
(c) Without limiting the application of Section 8.1(a) or
(b), the Partnership agrees to pay, indemnify and hold
each Indemnitee harmless from and against any losses,
costs, damages and expenses which such Indemnitee may
suffer, expend or incur in consequence of or growing
out of any failure of the Partnership to comply with
its obligations under this Security Agreement or any
other Transaction Document, or any misrepresentation by
Partnership in this Security Agreement or any other
Transaction Document, or in any statement or writing
contemplated by or made or delivered pursuant to or in
connection with this Security Agreement or any other
Transaction Document.
(d) If and to the extent that the obligations of the
Partnership under this Section 8.1 are unenforceable
for any reason, the Partnership hereby agrees to make
the maximum contribution to the payment and
satisfaction of such obligations which is permissible
under applicable requirements of Law.
Section 8.2 Obligations Secured by Collateral. Any amounts
paid by any Indemnitee as to which such Indemnitee has the right
to reimbursement, and any amounts paid by the Security Agent in
preservation of any of its rights or interest in the Collateral,
together with interest on such amounts from the date paid until
reimbursement in full at a rate per annum equal at all times to
the Overdue Rate, shall constitute Obligations secured by the
Collateral.
ARTICLE IX
MISCELLANEOUS
Section 9.l Notices. All notices and other communications to
any party hereunder shall be in writing (including telecopy or
similar teletransmission or writing) and shall be given to such
party at its address or telecopy number set forth on Annex I
hereto or such other address or telecopy number as such party may
hereafter specify by written notice to the other party. Each
such notice or other communication shall be effective (i) if
given by telecopy, when such telecopy is transmitted by confirmed
telecopier to the telecopy number specified in this Section, (ii)
if given by mail, 5 days after such communication is deposited in
the mails with first class postage prepaid, addressed as
aforesaid or (iii) if given by any other means (including,
without limitation, by air courier, when delivered at the address
specified in this Section.
Section 9.2 Amendment. None of the terms and conditions of
this Security Agreement may be amended, changed, waived, modified
or varied in any manner whatsoever except in accordance with the
provisions of subsection 9.1 of the Loan Agreement and with the
prior written consent of each of the parties hereto.
Section 9.3 Successors and Assigns. This Security Agreement
shall be binding upon the Partnership and its successors and
assigns and shall inure to the benefit of the Security Agent, GE
Capital, the Owner Trustee and their respective successors and
assigns.
Section 9.4 Survival.
(a) All agreements, statements, representations and
warranties made by the Partnership herein or in any
certificate or other instrument delivered by the
Partnership or on its behalf under this Security
Agreement shall be considered to have been relied upon
by the Security Agent and shall survive the execution
and delivery of this Security Agreement and the other
Transaction Documents regardless of any investigation
made by the Security Agent, or on its behalf, until the
Obligations shall have been paid in full.
(b) The indemnity obligations of the Partnership contained
in Article VIII shall continue in full force and effect
notwithstanding the full payment of the Obligations and
notwithstanding the discharge thereof.
Section 9.5 Headings Descriptive. The headings of the several
sections of this Security Agreement are inserted for convenience
only and shall not in any way affect the meaning or construction
of any provision of this Security Agreement.
Section 9.6 Severability. Any provision of this Security
Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
Section 9.7 Partnerships Duties. Anything contained herein to
the contrary notwithstanding, the Partnership shall remain liable
to perform all of its obligations under or with respect to the
Collateral, and neither shall the Security Agent have any
obligations or liabilities under or with respect to any
Collateral by reason of or arising out of this Security
Agreement, nor shall the Security Agent be required or obligated
in any manner to perform or fulfill any of the obligations of the
Partnership under or with respect to any Collateral.
Section 9.8 Termination; Release. When all Obligations have
been indefeasibly paid in full, this Security Agreement shall
terminate (except as provided in Section 9.4), and the Security
Agent, at the request and expense of the Partnership, will
promptly execute and deliver to the Partnership the proper
instruments (including Uniform Commercial Code termination
statements on form UCC-3) acknowledging the termination of this
Security Agreement, and will duly assign, transfer and deliver to
the Partnership (without recourse and without any representation
or warranty of any kind) such of the Collateral as may be in the
possession of the Security Agent and has not theretofore been
sold or otherwise applied or released pursuant to this Security
Agreement.
Section 9.9 Reinstatement. This Security Agreement shall
continue to be effective or be reinstated, as the case may be, if
at any time any amount received by the Security Agent, the Owner
Trustee or GE Capital in respect of the Obligations is rescinded
or must otherwise be restored or returned by the Security Agent,
the Owner Trustee or GE Capital upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Partnership or
upon the appointment of any intervenor or conservator of, or
trustee or similar official for, the Partnership or any
substantial part of its assets, or upon the entry of an order by
a bankruptcy court avoiding payment of such amount, or otherwise,
all as though such payments had not been made.
Section 9.10 Counterparts. This Agreement may be executed in
any number of counterparts, each of which, when so executed and
delivered, shall be an original, but all of which together shall
constitute one and the same instrument.
Section 9.11 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER
OF JURY TRIAL.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH
AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK,
EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND
EXCEPT TO THE EXTENT THE VALIDITY OR PERFECTION OF THE
SECURITY INTERESTS HEREUNDER, OR REMEDIES HEREUNDER,
ARE GOVERNED BY THE LAWS OF ANY JURISDICTION OTHER THAN
THE STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT AND ANY ACTION FOR ENFORCEMENT OF ANY
JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES
OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AND,
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
PARTNERSHIP HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-
EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND
APPELLATE COURTS FROM ANY THEREOF. THE PARTNERSHIP
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF
ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE
PARTNERSHIP AT ITS ADDRESS REFERRED TO IN SECTION 9.1.
THE PARTNERSHIP HEREBY IRREVOCABLY WAIVES ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
BROUGHT IN THE COURTS REFERRED TO ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR
CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED IN ANY OTHER
JURISDICTION.
(c) EACH OF THE PARTNERSHIP AND THE SECURITY AGENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY MATTER ARISING
HEREUNDER.
Section 9.12 Leveraged Lease. If, upon the sale of the
Facility by the Partnership to the Owner Trustee in accordance
with the provisions of the Loan Agreement, GE Capital exercises
its option under subsection 5.8 of the Loan Agreement to borrow
funds to finance (or refinance) a portion of the purchase price
of the Facility, the Partnership agrees to execute a supplement
hereto to provide for such provisions as are customary and
appropriate in respect of leveraged lease transactions.
Section 9.13 Certain Rights of Power Purchaser. Nothing in
this Security Agreement shall be deemed to limit the provisions
of the Consent of the Power Purchaser, which provisions are
solely for the benefit of the Power Purchaser and not the
Partnership. Without limiting the scope of the foregoing, the
Security Agent agrees, for the exclusive benefit of the Power
Purchaser and not the Partnership, that the exercise of remedies
or any similar action under this Security Agreement is subject
to, and shall be conducted in a manner consistent with, the Power
Purchasers rights under (i) the Consent of the Power Purchaser
and (ii) the Power Purchase Agreement and the Transfer Agreement
(to the extent such rights under the Power Purchase Agreement and
the Transfer Agreement are not explicitly waived by the Power
Purchaser in accordance with the terms of the Consent of the
Power Purchaser).
IN WITNESS WHEREOF, the parties hereto have caused this Security
Agreement to be executed and delivered by their duly authorized
officers as of the date first above written.
PANDA-BRANDYWINE, L.P.
By: Panda Brandywine Corporation,
its sole general partner
By: __________________________________
Name: Xxxxxx X. Xxxxxx
Title: President
SHAWMUT BANK CONNECTICUT, NATIONAL
ASSOCIATION, as Security Agent
By: __________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
______________________________________________________________________
Annex I to
Security Agreement
Partnership
Panda-Brandywine, L.P.
c/o Panda Brandywine Corporation
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: President and General Counsel
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Secured Party
Shawmut Bank Connecticut,
National Association, as Security Agent
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Trust Administration
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
