EXHIBIT 10.35
STEAM LESSEE SECURITY AGREEMENT
STEAM LESSEE SECURITY AGREEMENT, dated as of March 30, 1995
(this "Security Agreement"), made by BRANDYWINE WATER COMPANY, a
Delaware corporation (together with its successors and assigns,
the "Steam Lessee"), 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, Panda-Brandywine, L.P. ( 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"),
pursuant to which GE Capital has agreed to (i) provide
construction financing for the Project (including the Distilled
Water Facility), (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
(including the Distilled Water 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, the Steam Lessee will have a leasehold interest in
the Distilled Water Facility pursuant to the Steam Lease, to be
entered into on the Lease Closing Date, between the Partnership
And the Steam Lessees
WHEREAS, it is a condition precedent to the obligations of
GE Capital under the Loan Agreement that the Steam Lessee enter
into this Security Agreement as hereinafter set forth; and
WHEREAS, the Steam Lessee 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 Steam Lessee of the foregoing transactions, the
receipt and sufficiency of which are hereby acknowledged, the
Steam Lessee 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 Steam
Lessee now is, or hereafter will be, bound, or a party,
beneficiary or assignee (including, without limitation, the Steam
Lease), and all other instruments, agreements and documents
executed and delivered with respect to such contracts, any
guarantees or letters of credit provided to the Steam Lessee 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
Steam Lessee and, in any event, shall include, but shall not be
limited to, all equipment used in connection with the Distilled
Water Facility, 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.
"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
Distilled Water Facility Premises.
"GE Capital" shall have the meaning specified in the
recitals 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 Steam
Lessee 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 Steam Lessee'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 Steam
Lessee is now or hereafter may be entitled.
"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 Steam
Lessee 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 Steam Lessee's
business, now owned or hereafter acquired or manufactured by the
Steam Lessee 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
recitals 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
Steam Lessee from time to tame, and claims for insurance,
indemnity, warranty or guaranty effected or held for the benefit
of the Steam Lessee with respect to any of the Collateral, (ii)
any and all payments (in any form whatsoever) made or due and
payable to the Steam Lessee 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 Steam Lessee's rights to payment for goods
(including, without 1imitation, steam) sold or leased, or
services performed, by the Steam Lessee, 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 Steam Lessee
to secure the foregoing, (ii) all of the Steam Lessee's right,
title and interest in and to any goods (including, without
limitation, steam) 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 Steam Lessee or any computer bureau from time to time
acting for the Steam Lessee, (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 Steam Lessee 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 Steam Lessee
hereby pledges, hypothecates, assigns, grants, transfers and
delivers 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 Steam Lessee's right, title and interest
(including any leasehold 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 Steam Lessee and all investments
and securities at any time on deposit in such 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
Security 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 Steam Lessee 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 Steam Lessee may
acquire at any time during the continuation of this Security
Agreement, whether such Collateral is in transit or in the Steam
Lessee's, the Partnership's, 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, the Steam
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 Steam
Lessee, the Partnership or a third party pledgor.
Section 2.3 Power of Attorney. (a) The Steam Lessee hereby
constitutes and appoints the Security Agent or any Person or
agent whom the Security Agent may designate, as the Steam
Lessee's attorney-in-fact, at the Steam Lessee' 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, 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 Steam Lessee'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 Steam Lessee 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
Steam Lessee in the Steam Lessee'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 Steam Lessee'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 Steam
Lessee as debtor;
(viii) If the Steam Lessee 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 Steam Lessee contained in the Steam
Lease or 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 Steam Lessee 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 Steam Lessee'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 Steam Lessee's rights under
any Contract in accordance with Section 6.4.
(b) The Steam Lessee hereby ratifies all that said
attorney shall lawfully do or cause to be done by virtue hereof.
The Steam Lessee hereby acknowledges and agrees that the Security
Agent shall have no fiduciary duties to the Steam Lessee and the
Steam Lessee hereby waives any claims to the rights of a
beneficiary of a fiduciary relationship hereunder.
ARTICLE III
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
The Steam Lessee represents , warrants and covenants , which
representations, warranties and covenants shall survive execution
and delivery of this Security Agreement, as follows:
Section 3.l 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 Steam Lessee is, and as to
Collateral acquired by it from time to time after the date
hereof, the Steam Lessee will be, the owner of all Collateral
free from all Liens (other than Permitted Liens) or other right,
title or interest of any Person. The Steam Lessee 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, and the Steam Lessee 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 Steam Lessee is located at 0000 Xxxxxx
Xxxxxx, Xxxxx 0000/ Xxxxxx, Xxxxx 00000; provided that certain
records concerning the Distilled Water Facility and certain
contracts relating thereto are kept at the Steam Lessee's office
at 0000 X. Xxxxx Xxxxxxx, Xxxxx Xxxxxxxx (Xxxxxx Xxxxxx'x
Xxxxxx), Xxxxxxxx 00000 or at the Site. The Steam Lessee 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
"Brandywine Water Company", 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
Receivable of the Steam Lessee, 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 Steam
Lessee may establish in accordance with the last sentence of this
Section 3.3 . The Steam Lessee 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 Steam Lessee agrees
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 this Security-Agreement 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 Steam Lessee
authorizes the Security Agent to file any such financing
statements in connection with the Lien created by this Security
Agreement without the signature of the Steam Lessee.
Section 3.5 Further Actions. The Steam Lessee 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 Steam Lessee 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 Steam Lessee shall
allow any representative of the Security Agent or GE Capital to
visit and inspect any of the Steam Lessee's 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 Steam
Lessee 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 Steam
Lessee 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).
ARTICLE IV
SPECIAL PR0VISIONS CONCERNING INVENTORY AND EQUIPMENT
Section 4.1 Location of Inventory and Equipment. The Steam
Lessee 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 Steam Lessee
may establish in accordance with the last sentence of this
Section 4.1. The Steam Lessee 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 Inventor Records. The Steam Lessee 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.l Additional Representations and Warranties. As of
the time when each of its Receivables arises, the Steam Lessee
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 Steam Lessee 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 Steam Lessee will make
the same available to the Security Agent for inspection at the
Steam Lessee's chief executive office, without charge to the
Security Agent, at such times as the Security Agent may
reasonably request. The Steam Lessee 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 Steam Lessee) 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 Steam
Lessee 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 Steam
Lessee. The Steam Lessee 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
Steam Lessee will duly fulfill all obligations on its part to be
fulfilled under or in connection with the Receivables and will do
nothing to Unpaid the rights of the Security Agent, the Owner
Trustee and GE Capital in the Receivables.
Section 5.4 Payments Under Contracts and Receivables.
(a) Notice to Obligors under Contracts and Receivables.
The Steam Lessee agrees and confirms that it will notify each
party to the Contracts 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 Steam Lessee thereunder shall, until the
Obligations are paid in full, be made directly to the Security
Agent (which payments shall be credited toward the Steam Lessee's
obligations to make payments to the Partnership pursuant to the
Steam Sales Agreement and the Steam Lease). Unless notified to
the contrary by the Security Agent, and subject to Section 5.3 of
this Security Agreement, the Steam Lessee 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
Steam Lessee shall receive directly from any party to the
Contracts or from any account debtor or other obligor under any
Receivable any payments under the Contracts and the Receivables
otherwise than to the Security Agent, the Steam Lessee shall
receive such payments in a constructive trust for the benefit of
the Security Agent, shall segregate such payments from other
funds of the Steam Lessee, 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 Steam Lessee agrees that the Security Agent
may, at its option, directly notify the account debtors or
obligors with respect to any Receivables to make payments with
respect thereto directly to the Security Agent.
(b) The Steam Lessee agrees to be bound by any
collection, compromise, forgiveness, extension or other action
taken by the Security Agent with respect to the Receivables.
Without notice to or assent by the Steam Lessee, 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 Steam Lessee 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 Steam Lessee or the Security
Agent, shall be borne by the Steam Lessee.
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 Steam Lessee 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 Steam
Lessee'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 6.1, 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 Steam
Lessee may exclusively exercise all of the Steam Lessee's rights,
powers, privileges and remedies under the Contracts.
Section 6.2 Further Protection. The Steam Lessee 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 Steam Lessee 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 Steam Lessee
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 Security 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 Steam Lessee
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 Steam Lessee 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
Steam Lessee as party to any of the Contracts and to notify the
obligor of any Contract Right (the Steam Lessee 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 7.1 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 Steam Lessee 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 Steam Lessee'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 Steam Lessee;
(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 Steam Lessee in writing to turn over
the same to the Security Agent at the Site, in which event the
Steam Lessee 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 Steam Lessee'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 Steam
Lessee 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 15 days written notice to the Steam Lessee
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 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 Steam Lessee (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 STEAM LESSEE 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 STEAM LESSEE WOULD OTHERWISE HAVE UNDER THE
CONSTITUTION OR ANY STATUTE OF THE UNITED STATES OR OF ANY STATE,
and the Steam Lessee 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 Steam Lessee,
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 Steam Lessee hereby: (i) authorizes the Security Agent, in
its sole discretion and without notice to or demand upon the
Steam Lessee and without otherwise affecting the obligations of
the Steam Lessee 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 Steam Lessee
therein and thereto, and shall be a perpetual bar both at law and
in equity against the Steam Lessee 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 Steam Lessee.
Section 7.4 Application of Proceeds, 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 Steam Lessee to
perform or observe any of the provisions hereof, including all
reasonable attorneys fees and second, to the payment of the
Obligations in such order as GE Capital shall determine. Any
surplus remaining after payment in full of all of the Obligations
shall be paid over to the Steam Lessee or to whomever may be
entitled to receive such surplus. The Steam Lessee 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 non 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 Steam Lessee 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 Steam Lessee agrees to
indemnify, reimburse and hold the Security Agent, GE Capital and
the Owner Trustee and the irrespective 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, as sorted 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 trademarking infringement), (iii) the violation of any
requirements of Law of any Governmental Authority applicable to
the Steam Lessee 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 Steam Lessee 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 Steam Lessee 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 Steam Lessee
to comply with its obligations under this Security Agreement or
any other Transaction Document, or any misrepresentation by Steam
Lessee 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
Steam Lessee under this Section 8.l are unenforceable for any
reason, the Steam Lessee 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 9.1 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 xxxxx 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.l of the Loan Agreement and with the
prior written consent of each of the parties hereto.
Section 9.3 Successors and Assigns. This Agreement shall be
binding upon the Steam Lessee 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 Steam Lessee herein or
in any certificate or other instrument delivered by the Steam
Lessee 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 Steam Lessee
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 shal1, 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 Steam Lessee's Duties. Anything contained
herein to the contrary notwithstanding, the Steam Lessee 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
Steam Lessee 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 Steam Lessee, will
promptly execute and deliver to the Steam Lessee 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 Steam Lessee (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 Steam Lessee or
upon the appointment of any intervener or conservator of, or
trustee or similar official for, the Steam Lessee 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 Security 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 SECURITY 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
SECURITY 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 STEAM LESSEE HEREBY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND APPELLATE
COURTS FROM ANY THEREOF. THE STEAM LESSEE 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 STEAM
LESSEE AT ITS ADDRESS REFERRED TO IN SECTION 9.1. THE STEAM
LESSEE 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 STEAM LESSEE 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their duly authorized
officers as of the date first above written.
BRANDYWINE WATER COMPANY
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
Steam Lessee
Brandywine Water Company
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: President and General Counsel
Secured Party
Shawmut Bank Connecticut,
National Association
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Trust Administration
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
