EXHIBIT 10.29
AMENDED AND RESTATED
DEED OF TRUST AND SECURITY AGREEMENT
by
PANDA-BRANDYWINE, L.P.,
Grantor
to
CHICAGO TITLE INSURANCE COMPANY,
Trustee
for the use and benefit of
FLEET NATIONAL BANK
(formerly known as Shawmut Bank Connecticut,
National Association),
as Security Agent, Beneficiary
Dated as of December 18, 1996
THE PRINCIPAL SUM SECURED
BY THIS DEED OF TRUST AND SECURITY AGREEMENT
IS $130,000,000
Real Property Located in the County of
Prince George's, Maryland
After recording please return to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
TABLE OF CONTENTS
Page
ARTICLE I
GENERAL COVENANTS AND AGREEMENTS 9
1.01 Instruments of Further Assurance; Filing and Recording 9
1.02 Warranties of Title 10
1.03 General 10
1.04 Insurance 12
1.05 Monthly Payment of Assessments 12
1.06 Performance of Grantor's Obligations 12
1.07 Additional Advances and Readvances From Beneficiary 13
1.08 Agreements Between Grantor and Beneficiary 14
1.09 Continuance of Use 14
1.10 Leases 14
1.11 Alterations of Security 15
1.12 Liability of Grantor 15
1.13 No Waiver of Remedies 15
ARTICLE II
REMEDIES UPON EVENT OF DEFAULT 16
2.01 Events of Default 16
2.02 Remedies 16
2.03 Applications of Proceeds; Effect of Sale 18
2.04 Abandonment of Sale 18
2.05 Right to Purchase 18
2.06 Waiver of Marshalling, etc. 18
2.07 Remedies not Exclusive 19
2.08 Limitation of Liability 19
ARTICLE III
GENERAL 19
3.01 No Waiver 19
3.02 Notices 19
3.03 Successors and Assigns 19
3.04 Indemnity 20
3.05 Severability 20
3.06 Fixture Filing 20
3.07 GOVERNING LAW 20
3.08 No Merger 20
3.10 Successor Trustee 21
3.11 Actions of Trustee 21
3.12 Trustee as Attorney 21
3.13 Incapacity or Absence from State 21
3.14 Certain Rights of the Power Purchaser 21
Schedule 1 Legal Description of Site
Schedule 2 UCC-1 Financing Statements
AMENDED AND RESTATED
DEED OF TRUST AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED DEED OF TRUST AND SECURITY
AGREEMENT, dated as of December 18, 1996 by PANDA-BRANDYWINE,
L.P., a Delaware limited partnership (the "Grantor"), having an
address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
to CHICAGO TITLE INSURANCE COMPANY, a Missouri corporation having
an address at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Trustee"), for the use and benefit of FLEET NATIONAL BANK
(formerly known as Shawmut Bank Connecticut, National
Association), a national banking association, in its capacity as
Security Agent under the Security Deposit Agreement (as defined
below) (the "Beneficiary" or the "Security Agent"), for the
benefit of the Owner Trustee (and, by collateral assignment, the
Indenture Trustee, each as defined below) and General Electric
Capital Corporation, a New York corporation ("GE Capital"). The
address of the Beneficiary is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. References to this "Deed of Trust" shall mean
this instrument and any and all renewals, modifications,
amendments, supplements, extensions, consolidations,
substitutions, spreaders and replacements of this instrument.
W I T N E S S E T H :
WHEREAS, Grantor, Panda Brandywine Corporation, a
Delaware corporation and the sole general partner of Grantor (the
"General Partner") and GE Capital entered into that certain
Construction Loan Agreement and Lease Commitment dated as of
March 30, 1995 (the "Construction Loan Agreement") pursuant to
which GE Capital (i) provided construction financing for the
Project and (ii) issued the Letters of Credit as collateral
security for certain obligations of the Partnership under the
Power Purchase Agreement;
WHEREAS, Grantor, Trustee and Beneficiary, for the
benefit of the Owner Trustee and GE Capital, entered into the
Deed of Trust and Security Agreement dated as of March 30, 1995
which was recorded on April 12, 1995 in Liber 2078, Folio 447 in
the Land Records of ▇▇▇▇▇▇▇ County, Maryland, and in Liber 10100,
Folio 232 in the Land Records of Prince George's County,
Maryland, as modified by (i) that certain Partial Release dated
October 30, 1996 and recorded in Liber ____, Folio ____ in the
Land Records of ▇▇▇▇▇▇▇ County, Maryland, and Liber ____, Folio
____ in the Land Records of Prince George's County, Maryland,
(ii) the letter concerning the release of assigned agreements
from the Owner Trustee to the Partnership and the Power Purchaser
dated October 30, 1996 and (iii) that certain Partial Release
dated as of December 18, 1996 and recorded in the Land Records of
▇▇▇▇▇▇▇ County, Maryland and the Land Records of Prince George's
County, Maryland immediately prior to the recording of this Deed
of Trust (as further amended, supplemented or otherwise modified
prior to the date hereof, the "Existing Deed of Trust") to secure
the payment and performance by Grantor of all of its obligations
to the Owner Trustee and GE Capital;
WHEREAS, as contemplated by the Construction Loan
Agreement, Grantor and the Owner Trustee have entered into a
lease of the Facility and certain related documents on the date
hereof pursuant to which, among other things, the Owner Trustee
will lease the Facility to Grantor;
WHEREAS, GE Capital has elected to fund the lease of
the Facility with non-recourse indebtedness as a leveraged lease
and, pursuant to Section 3.14 of the Existing Deed of Trust, the
parties hereto have agreed to amend and restate the Existing Deed
of Trust subject to the terms and conditions provided herein;
WHEREAS, contemporaneously with the execution and
delivery hereof, the Owner Trustee is entering into an Indenture
with the Indenture Trustee (as defined below) which, among other
things, provides for the issuance of, and equal and ratable
security for, the Loan Certificates;
WHEREAS, Grantor and GE Capital are entering into the
Letter of Credit Reimbursement Agreement to provide for the
continued issuance by GE Capital of the Letters of Credit;
WHEREAS, it is a condition precedent to the performance
of certain obligations on the Lease Closing Date that the parties
shall have executed and delivered this Amended and Restated Deed
of Trust which amends and restates the Existing Deed of Trust in
all respects;
WHEREAS, the parties hereto desire to execute this Deed
of Trust to satisfy the condition described in the preceding
recital;
WHEREAS, this Deed of Trust secures the same
indebtedness and obligations as the Existing Deed of Trust (other
than certain indebtedness and obligations secured by the Existing
Deed of Trust which have been paid or satisfied prior to the date
of this Deed of Trust), and all applicable transfer and recording
taxes with respect to the Existing Deed of Trust have been paid
in full;
WHEREAS, pursuant to the terms of the Amended and
Restated Security Deposit Agreement, dated as of the date hereof
among Beneficiary, Grantor, the Owner Trustee and the Indenture
Trustee, Beneficiary has agreed to act as security agent on
behalf of GE Capital, the Owner Trustee and the Indenture Trustee
and to hold the Collateral for the benefit of GE Capital and the
Owner Trustee (and, by collateral assignment, the Indenture
Trustee);
WHEREAS, capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to them
in Annex A to the Participation Agreement, dated as of the date
hereof (the "Participation Agreement"), among Grantor, the
General Partner, GE Capital, Fleet National Bank, not in its
individual capacity but solely as owner trustee (in such
capacity, the "Owner Trustee", including any successor owner
trustee appointed in accordance with the terms of the Trust
Agreement and the Participation Agreement) under the Trust
Agreement and as Security Agent under the Security Deposit
Agreement, Credit Suisse, as administrative agent (the
"Administrative Agent") and First Security Bank, National
Association, not in its individual capacity but solely as
indenture trustee (in such capacity, the "Indenture Trustee")
under the Indenture, and the other entities listed on Schedule I
to the Participation Agreement (the "Loan Participants");
NOW, THEREFORE, to secure (i) the unpaid principal
amount of, and accrued interest on (including, without
limitation, interest accruing after the maturity of the LOC
Reimbursement Obligations and interest accruing after the filing
of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the
Grantor, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the LOC Reimbursement
Obligations; (ii) all rent and other amounts which may be payable
by Grantor to GE Capital or the Owner Trustee under any lease of
the Facility, the Participation Agreement and the Reimbursement
Agreement; and (iii) the payment and performance of all other
indebtedness, liabilities and obligations of Grantor to
Beneficiary, GE Capital, the Owner Trustee, the Administrative
Agent, the Indenture Trustee, the Loan Participants, the Trustee
and any other Indemnitee, in each case whether now existing or
hereafter incurred, direct or indirect, absolute or contingent,
secured or unsecured, matured or unmatured, joint or several,
under, arising out of or in connection with this Deed of Trust,
any lease of the Facility, the Reimbursement Agreement, the
Participation Agreement, any other Collateral Security Document,
any other Financing Document and any other document made,
delivered or given in connection therewith or herewith, whether
on account of principal, interest, reimbursement obligations,
fees, indemnitees, costs, expenses (including without limitation
fees and disbursements of counsel) or otherwise (the items set
forth in clauses (i), (ii) and (iii), collectively, the "Lessee
Obligations"), and for the uses and purposes and subject to the
terms and provisions hereof, and in consideration of the premises
and of the covenants herein contained and other good and valuable
consideration the receipt and sufficiency of which are hereby
acknowledged, GRANTOR, INTENDING TO BE LEGALLY BOUND, DOES HEREBY
GRANT, BARGAIN, SELL, CONVEY, WARRANT, ASSIGN, TRANSFER,
MORTGAGE, PLEDGE, SET OVER AND CONFIRM UNTO TRUSTEE, IN TRUST
WITH THE POWER OF SALE FOR THE USE AND BENEFIT OF BENEFICIARY
(FOR THE BENEFIT OF GE CAPITAL AND THE OWNER TRUSTEE, AND BY
COLLATERAL ASSIGNMENT, THE INDENTURE TRUSTEE) AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS, AND GRANTS TO TRUSTEE AND
BENEFICIARY (FOR THE BENEFIT OF GE CAPITAL AND THE OWNER TRUSTEE,
AND BY COLLATERAL ASSIGNMENT, THE INDENTURE TRUSTEE) AND ITS
SUCCESSORS AND ASSIGNS A SECURITY INTEREST IN, UNDER THE UNIFORM
COMMERCIAL CODE OF THE STATE OF MARYLAND, THE FOLLOWING DESCRIBED
PROPERTY, WHETHER NOW OWNED OR HEREAFTER ACQUIRED (collectively,
the "Trust Property"); provided, however, that the maximum
principal sum secured by this Deed of Trust or upon any
contingency which may be secured hereby at any time is
$130,000,000, and $4,377,660.76 of the amount secured was
purchase money for the Site (as defined below) and certain
easements located in Prince George's County, Maryland, and
$316,193.94 of the amount secured was purchase money for certain
easements located in ▇▇▇▇▇▇▇ County, Maryland:
(i) All right, title and interest of Grantor in
and to the tracts of land described in Schedule 1 attached
hereto and made a part hereof (the "Site");
(ii) all the estate, right, title, claim or demand
whatsoever of Grantor, in possession or expectancy, in and
to the Real Estate (as defined below) or any part thereof;
(iii) all right, title and interest of Grantor in,
to and under all easements, rights of way, gores of land,
streets, ways, alleys, passages, sewer rights, waters, water
courses, water and riparian rights, development rights, air
rights, mineral rights and all estates, rights, titles,
interests, privileges, licenses, tenements, hereditament and
appurtenances belonging, relating or appertaining to the
Real Estate (as defined below), and any reversions,
remainders, rents, issues, profits and revenue thereof and
all land lying in the bed of any street, road or avenue, in
front of or adjoining the Real Estate to the center line
thereof;
(iv) all right, title, estate and interest of
Grantor in or to any and all present and future buildings
and improvements now or hereafter erected on the Site and
all fixtures, attachments, appliances, equipment, machinery,
and other articles now or subsequently attached to said
buildings and improvements or used in connection with the
operation of the Facility to be located on the Site (all of
the items enumerated in this clause (iv) being collectively
referred to as the "Improvements"; the Site and the
Improvements, collectively, the "Real Estate");
(v) all right, title, interest and estate of
Grantor now owned or at any time hereafter acquired in and
to the Facility, including all fixtures, equipment and
personalty (collectively called the "Equipment"), now or at
any time hereafter located in or used in connection with the
use of the Real Estate or located in, used in connection
with, or constituting a part or component of, the Facility
(excluding any metering equipment owned by the Power
Purchaser), including, without being limited to, the
Distilled Water Facility, all fuel handling equipment, fuel
receiving and storage, fuel reclaim and boiler feed
equipment, metering and storage equipment, boiler and
related equipment, auxiliary boiler and related equipment,
steam turbine and generator together with their dedicated
auxiliaries, fuel water systems, condensing cooling towers,
emission and wastewater control equipment, compressed air
and related equipment, fire protection equipment, central
control equipment, dynamos, generators, engines, ducts,
switchboards, controls, motors, belting, gas and electric
fixtures, bulbs, apparatus, machinery, fittings, appliances
and appurtenances, burners, furnaces, heaters, boilers,
pipes, pumps, radiators, fans and other power, heating,
plumbing, hot water, sanitary, drainage and ventilating
apparatus and equipment, air conditioning and cooling
systems and equipment, water cooling and condensing
apparatus and equipment, call systems and other
communications systems, fuel conveyors, incinerators,
incinerating fixtures and equipment, and all other articles,
equipment, appliances, implements, devices and accessories
or things whatsoever (including any and all accessions to,
proceeds of, replacements of and substitutions for the
Equipment), used or to be used, or placed or to be placed,
in the Improvements, or located in, used in connection with,
or constituting a part or component of, the Facility,
whether herein enumerated or not, and whether or not affixed
to the Improvements, and which are used or useful in the
operation and maintenance of the Facility, the Improvements
or the Equipment or in the activities conducted therein;
(vi) all right, title and interest of Grantor in
and to all substitutes and replacements of, and all
additions and improvements to, the Site, the Improvements,
the Equipment, the Facility and the remainder of the Real
Estate, subsequently acquired by or released to Grantor or
constructed, assembled or placed by Grantor on the Real
Estate, immediately upon such acquisition, release,
construction, assembling or placement, including, without
limitation, any and all building materials whether stored at
the Real Estate or offsite, and, in each such case, without
any further mortgage, conveyance, assignment or other act by
Grantor;
(vii) all right, title and interest of Grantor in,
to and under all leases, subleases, sub-subleases,
subtenancies, assignments, occupancies, underlettings,
concession agreements, management agreements, licenses and
other agreements relating to the use or occupancy of the
Site, the Improvements, the Equipment, the Facility, any
other part of the Real Estate or any part thereof, now
existing or subsequently entered into by Grantor and whether
written or oral and all guarantees of any of the foregoing
(collectively, as any of the foregoing may be amended,
restated, extended, renewed or modified from time to time,
the "Leases"), and all rights of Grantor in respect of cash
and securities deposited thereunder and the right to receive
and collect the revenues, income, rents, issues and profits
thereof, together with all other rents, royalties, issues,
profits, revenue, income and other benefits arising from the
use and enjoyment of the Trust Property (collectively, the
"Rents");
(viii) all trade names, trade marks, logos,
copyrights, good will and books and records relating to or
used in connection with the operation of the Trust Property
or any part thereof;
(ix) all unearned premiums under insurance
policies now or subsequently obtained by Grantor relating to
the Site, the Improvements, the Equipment, the Facility or
any other part of the Real Estate, and Grantor's interest in
and to all proceeds of any such insurance policies
(including title insurance policies) including the right to
collect and receive such proceeds, subject to the provisions
relating to insurance generally set forth below; and all
awards and other compensation, including the interest
payable thereon and the right to collect and receive the
same, made to the present or any subsequent owner of the
tenant's interest under the Site Lease, the Improvements,
the Equipment, the Facility or any other part of the Real
Estate for the taking by eminent domain, condemnation or
otherwise, of all or any part of the Site or any other part
of the Real Estate, or any easement or other right therein;
(x) all right, title and interest of Grantor in
and to (i) all contracts from time to time executed by
Grantor or any manager or agent on its behalf relating to
the ownership, construction, maintenance, repair, operation,
occupancy, sale or financing of the Real Estate or the
Equipment or any part thereof and all agreements relating to
the purchase or lease of any portion of the Real Estate or
the Equipment or any part thereof or any property which is
adjacent or peripheral to the Real Estate, together with the
right to exercise such options (collectively, the
"Contracts"), any guarantees or letters of credit provided
to Grantor to assure the performance by any party to any
Contract and all moneys or amounts due or to become due
under or with respect to any Contract (including all Special
Payments), any damages arising out of or for breach or
default in respect of any Contract, and all rights of
Grantor to terminate any Contract or to perform or exercise
any remedy thereunder or to exercise any election or option
or to make any decision or determination or to give any
notice, consent, waiver or approval or to take any other
action in respect of any Contract;
(xi) all right, title and interest of Grantor, in
and to any and all monies now or subsequently on deposit for
the payment of real estate taxes or special assessments
against the Real Estate, or for the payment of premiums on
insurance policies covering the foregoing property or
otherwise on deposit with or held by Beneficiary as provided
in this Deed of Trust;
(xii) all right, title and interest of Grantor in
and to the accounts established and maintained pursuant to
the Security Deposit Agreement, all Project Revenues and all
cash, cash equivalents, instruments, letters of credit,
investment and other securities deposited or required to be
deposited with the Trustee or the Beneficiary pursuant to
any provision of this Deed of Trust, the Security Deposit
Agreement or any other Transaction Document, including,
without limitation, the twelve (12) special, segregated and
irrevocable Accounts (and all amounts deposited therein)
established by the Beneficiary at Fleet National Bank
(formerly known as Shawmut Bank Connecticut, National
Association), more specifically described as follows:
Account Number: Name of Account:
0155330010 Revenue Account
0155360010 Warranty Maintenance Reserve Account
0155350010 Rent Reserve Account
0155370010 Insurance and Condemnation Proceeds
Account
0155380010 Special Payment Account
0155390010 Partnership Security Account
0155400010 Distribution Reserve Account
0155340010 Operation and Maintenance Reserve
Account
0155410010 Current Account
0005130010 Completion Account
0005133410 Interest Hedging Account
0005132610 LOC Fee Account
(xiii) all right, title and/or interest of Grantor
in, to and under (A) all now or hereafter existing consents,
licenses, building permits, other permits and governmental
approvals, certificates of occupancy, authorizations and
agreements relating to construction, ownership, management,
completion, occupancy, use or operation of the Trust
Property or any part thereof (collectively, the "Permits"),
to the extent assignment hereunder does not violate the
provisions of such Permits, and (B) all now or hereafter
existing drawings, plans, specifications and similar or
related items relating to the Real Estate or the Equipment
or any part thereof (collectively, the "Plans");
(xiv) all right, title and interest of Grantor in
and to all "Accounts", "Chattel Paper", "Documents",
"Instruments", "Equipment", "General Intangibles", "Goods"
and "Inventory" (each phrase in quotations having the
meaning given in the Uniform Commercial Code of the State of
Maryland as in effect on the date hereof) and all other, if
any, personal, real or mixed property of Grantor, now owned
or hereafter acquired (the "Personal Property");
(xv) all right, title and interest of Grantor in
and to any and all other property that may from time to
time, by delivery or by writing of any kind, be subjected to
the lien hereof by Grantor or by anyone on its behalf or
with its consent, or which may come into the possession or
be subject to the control of the Trustee or the Beneficiary
pursuant to this Deed of Trust, including, without
limitation, all proceeds of any sales or other dispositions
of all or part of the Trust Property, any such property
being hereby assigned to the Trustee for the benefit of the
Beneficiary and subjected or added to the lien or estate
created by this Deed of Trust forthwith upon the acquisition
thereof by Grantor, as fully as if such property were now
owned by Grantor and were specifically described in this
Deed of Trust and subjected to the lien and security
interest hereof; and the Trustee for the benefit of the
Beneficiary is hereby authorized to receive any and all such
property as and for additional security hereunder;
(xvi) all right, title and interest of Grantor in
and to all the remainder or remainders, reversion or
reversions, rents, revenues,issues, profits, royalties,
income and other benefits derived from any of the foregoing,
all of which are hereby assigned to Trustee, who is hereby
authorized to collect and receive the same, to give proper
receipts and acquittances therefor and to apply the same to
the payment of the Lessee Obligations in accordance with the
provisions of this Deed of Trust; and;
(xvii) all right, title and interest of Grantor in
and to all proceeds, products and other "Proceeds" (as such
term is defined in the Uniform Commercial Code of the State
of Maryland as in effect on the date hereof), both cash and
noncash, and including those arising from the sale, lease,
transfer or other use or disposition of any kind or nature,
of the foregoing;
provided, however, that the execution and delivery of this Deed
of Trust is for security only and shall not (a) transfer, pass or
in any way affect or modify the liability or responsibility of
Grantor under or in respect of any Contract, or (b) subject
Beneficiary or Trustee to any liabilities or responsibilities of
Grantor under or in respect of any Contract.
Notwithstanding anything to the contrary contained
herein, this Deed of Trust shall not be deemed to encumber any
property that is perfected by the filing of the UCC-1 financing
statements set forth on Schedule 2 attached hereto.
TO HAVE AND TO HOLD the Trust Property, with all the
privileges and appurtenances thereof, to Trustee, their
successors and assigns for the uses and purposes set forth
herein; PROVIDED NEVERTHELESS, that if all the Lessee Obligations
shall be paid and performed in full, then this Deed of Trust
shall be void and the Trustee shall, on receipt of a written
request therefor from Beneficiary (A) release and discharge the
lien of this Deed of Trust, (B) cause this Deed of Trust to be
cancelled of record and (C) transfer and deliver to Grantor the
Trust Property which is then subject to the lien of this Deed of
Trust and is in the Trustee's possession or control; otherwise it
shall remain in full force and effect.
ARTICLE I
GENERAL COVENANTS AND AGREEMENTS
1.01 Instruments of Further Assurance; Filing and
Recording. (a) Grantor covenants that it shall do, execute,
acknowledge and deliver, or cause to be done, executed,
acknowledged and delivered, such amendments or supplements hereto
and such further acts, instruments and transfers as Beneficiary
or Trustee may reasonably require for the curing of any defect in
the execution or acknowledgment hereof or in the description of
the Trust Property or for the better conveying, assigning,
pledging and confirming unto Trustee or Beneficiary of the Trust
Property conveyed, assigned and pledged hereunder or for properly
evidencing or giving notice of the Lessee Obligations or of each
lien and security interest securing payment of the Lessee
Obligations.
(b) Grantor covenants that (i) upon the execution and
delivery of this Deed of Trust and thereafter, from time to time,
it shall cause this Deed of Trust and each amendment and
supplement hereto (or a memorandum with respect hereto or to such
amendment or supplement) to be filed, registered and recorded and
to be refiled, re-registered and re-recorded in such manner and
in such places as may be required by Beneficiary, GE Capital,
Owner Trustee or Trustee in order to publish notice of and fully
to protect the lien of this Deed of Trust upon, and to perfect or
continue the perfection of the security interests created by this
Deed of Trust in, the Trust Property and (ii) it shall perform or
cause to be performed from time to time any other act as required
by law, and it shall execute or cause to be executed any and all
instruments of further assurance that may be necessary for such
publication, perfection, continuation and protection.
(c) Grantor shall pay all filing, registration and
recording fees, all refiling, re-registration and re-recording
fees, and all reasonable expenses incident to the execution and
acknowledgment of this Deed of Trust, any amendment or supplement
hereto and any instrument of further assurance, and all federal,
state, county and municipal stamp taxes and other taxes, duties,
imposts, assessments and charges arising out of or in connection
with the execution and delivery of this Deed of Trust, any
amendment or supplement hereto or any instruments of further
assurance.
1.02 Warranties of Title. (a) Grantor warrants that
it has good and marketable title to the Trust Property free and
clear of any Lien other than Permitted Liens, and that it has
good right to sell, mortgage and convey the same in manner and
form as provided herein. Grantor shall forever warrant and
defend the title to the Trust Property against the claims and
demands of all persons whomsoever, except those claiming under
Permitted Liens.
(b) Grantor shall proceed with reasonable diligence to
correct any defect in title to the Trust Property, and in this
connection, should there exist upon the Trust Property any Lien,
other than a Permitted Lien, or should any such Lien hereafter
arise, then, unless Beneficiary is the only holder of such other
Lien, or Beneficiary shall have given specific prior written
consent to the creation or continuation thereof, Grantor shall
promptly discharge and remove any such Lien from the Trust
Property.
1.03 General. For the purpose of better securing
payment and performance of the Lessee Obligations, Grantor
covenants and agrees with Beneficiary, for the use and benefit of
Beneficiary, that:
(a) Grantor shall permit, subject to its safety rules
and regulations, Beneficiary, GE Capital and, for so long as
the Indenture shall not have been discharged or terminated,
the Indenture Trustee, and their respective agents,
representatives and employees during normal business hours
and upon reasonable prior notice to go upon, examine,
inspect and remain on the Trust Property, and shall furnish
Beneficiary, GE Capital and the Indenture Trustee all
pertinent information in regard to the development and
operation of the Trust Property as Beneficiary, GE Capital
or the Indenture Trustee may reasonably request; and
(b) Grantor shall notify Trustee, Beneficiary, GE
Capital and, for so long as the Indenture shall not have
been discharged or terminated, the Indenture Trustee, in
writing promptly of the commencement of any legal
proceedings of which it has knowledge affecting title to, or
the lien or security interest of this Deed of Trust upon,
the Trust Property or any part thereof and shall take such
action as may be necessary to preserve Trustee's and
Beneficiary's rights affected thereby; and
(c) Promptly upon demand by Trustee, Beneficiary, GE
Capital or, for so long as the Indenture shall not have been
discharged or terminated, the Indenture Trustee, Grantor
shall pay all reasonable costs and expenses hereafter
advanced or expended by Trustee, Beneficiary, GE Capital or
the Indenture Trustee for legal services rendered in
connection with the enforcement of any rights or remedies of
Beneficiary hereunder, together with interest thereon at a
rate per annum equal to the Overdue Rate from the fifth
(5th) day following demand for payment of such advance or
expenditure until paid; and
(d) Grantor shall comply in all material respects with
all laws, ordinances, rules, regulations and determinations
of any arbitrator, court or other governmental authority
affecting the Trust Property, including, without limitation,
any applicable environmental, zoning or building, use and
land use laws, ordinances, rules or regulations of any
governmental authority, and any applicable covenants and
restrictions, except as permitted pursuant to the
Participation Agreement; and
(e) Grantor shall pay the indebtedness secured by this
Deed of Trust in accordance with the terms hereof and of the
Reimbursement Agreement, any lease of the Facility and each
other Transaction Document and shall perform in all material
respects each term to be performed hereunder and under the
Reimbursement Agreement, any lease of the Facility and each
other Transaction Document;
(f) Grantor shall comply in all material respects with
the requirements of all, and shall not modify, amend or
terminate any, easements and restrictive covenants which
from time to time benefit or burden the whole or any portion
of the Trust Property, and shall also comply in all material
respects with the requirements of, and maintain, preserve,
enforce and renew, all material rights of way, easements,
grants, privileges, licenses, franchises and restrictive
covenants which from time to time benefit or pertain to the
whole or any portion of the Trust Property; and
(g) Any lease or sublease of any portion of the Trust
Property shall be subordinate to the lien of this Deed of
Trust.
1.04 Insurance. (a) Grantor shall maintain, or cause
to be maintained, policies of insurance of the types, in the
amounts and otherwise as required by subsection 6.6 of the
Participation Agreement.
(b) In the event of a sale of the Trust Property to
Beneficiary under this Deed of Trust or other acquisition of the
Trust Property or any part thereof by Beneficiary, such policies
of insurance shall become the absolute property of Beneficiary,
but receipt of any insurance proceeds and any disposition of the
same by Beneficiary shall not constitute a waiver of any rights
of Beneficiary, statutory or otherwise, and specifically shall
not constitute a waiver of any remedies of Trustee or Beneficiary
if an Event of Default (as defined below) shall occur and be
continuing hereunder.
1.05 Monthly Payment of Assessments. Grantor agrees
that, upon the occurrence and during the continuance of an Event
of Default, Grantor shall pay to Beneficiary on a monthly basis
as hereinafter set forth a sum equal to the municipal and other
governmental real estate and personal property taxes and other
assessments next due on the Trust Property and all premiums next
due for fire and other casualty insurance required of Grantor
hereunder, less all sums already paid therefor, divided by the
number of months to elapse not less than one (1) month prior to
the date when said taxes and assessments will become delinquent
and when such premiums will become due. Grantor agrees that
should there be insufficient funds so deposited with Beneficiary
for said taxes, assessments and premiums when due, it will upon
demand by Beneficiary promptly pay to Beneficiary amounts
necessary to make such payments in full; any surplus funds may be
credited toward future such taxes, assessments and premiums; and
if Beneficiary shall have commenced foreclosure proceedings,
Grantor agrees that Beneficiary may apply such funds toward the
payment of the Lessee Obligations without causing thereby a
waiver of any rights, statutory or otherwise, and specifically
such application shall not constitute a waiver of any remedies
hereunder. Grantor hereby assigns to Beneficiary all the
foregoing sums so held hereunder for such purposes.
1.06 Performance of Grantor's Obligations. Should
Grantor fail to make any payment or do any act as and in the
manner provided in this Deed of Trust, which failure lasts beyond
any applicable notice and cure period or may materially impair
Beneficiary's security hereof, Trustee or Beneficiary, without
obligation so to do and without notice to or demand upon Grantor
and without releasing Grantor from any Lessee Obligations, may
make or do the same in such manner and to such extent as Trustee
or Beneficiary may deem necessary to protect the security hereof.
In connection therewith (without limiting its general powers),
Trustee and Beneficiary shall each have and hereby is given the
right, but not the obligation, upon the occurrence and during the
continuance of an Event of Default (i) to enter upon and take
possession of the Trust Property, (ii) to make additions,
alterations, repairs and improvements to the Trust Property which
it may consider necessary or proper to keep the Trust Property in
good condition and repair; (iii) to appear and participate in any
action or proceeding adversely affecting or which may adversely
affect the security hereof or the rights or powers of
Beneficiary; (iv) to pay, purchase, contest or compromise any
encumbrance, claim, charge, lien or debt (other than Permitted
Liens) which in the judgment of Trustee or Beneficiary may
adversely affect the security of this Deed of Trust or be prior
or superior hereto; (v) to procure insurance for risks covering
Beneficiary's interest in the event Grantor fails to provide,
maintain, keep in force or deliver and furnish to Beneficiary the
policies of insurance required by subsection 1.04 of this Deed of
Trust and subsection 6.6 of the Participation Agreement; and (vi)
in exercising such powers, to pay reasonably necessary expenses,
including engagement of counsel or other necessary or desirable
consultants. Grantor hereby irrevocably constitutes and appoints
Beneficiary and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact upon the
occurrence and during the continuance of an Event of Default with
full irrevocable power and authority in the place and stead of
Grantor and in the name of Grantor or in its own name, from time
to time in Beneficiary's discretion to take any and all action
and to execute any and all instruments which Beneficiary may deem
necessary or desirable for the purpose of carrying out the terms
of this Deed of Trust and the Financing Documents. Upon demand
of Trustee or Beneficiary, Grantor shall pay all reasonable costs
and expenses advanced or expended by Trustee or Beneficiary in
connection with the exercise by Trustee or Beneficiary of the
foregoing rights, including, without limitation, costs of
evidence of title, court costs, appraisals, surveys, reasonable
attorneys' fees and expenses and insurance premiums, together
with interest thereon at the Overdue Rate from the date of such
advance or expenditure until paid.
1.07 Additional Advances and Readvances From
Beneficiary. Upon written request of Grantor, GE Capital may,
subject to the terms of the Financing Documents, at its sole
option, from time to time make advances and readvances to Grantor
in addition to advances outstanding on the date hereof, whether
or not pursuant to the Financing Documents or any other document,
provided, however, that the total principal secured hereby and
remaining unpaid, including any such advances, shall not at any
one time exceed the sum of $130,000,000. If requested by
Beneficiary, Grantor shall execute and deliver to GE Capital a
note or other agreement evidencing each and every such further
advance or readvance which may be made, and each and every such
note or other agreement shall contain such terms and conditions
as GE Capital may require. Grantor shall pay when due all such
further advances or readvances with interest and other charges
thereon, as applicable. Said further advances or readvances,
each note and agreement evidencing the same, the Financing
Documents and any lease of the Facility shall all be secured
hereby. All provisions of this Deed of Trust shall apply to each
further advance or readvance as well as to all other indebtedness
secured hereby, including, without limitation, all indebtedness
under the Financing Documents and any lease of the Facility.
Nothing herein contained, however, shall limit the amount secured
by this Deed of Trust if such amount is increased by advances
made by GE Capital as herein elsewhere provided for to protect
the security encumbered hereby.
1.08 Agreements Between Grantor and Beneficiary. Any
agreement hereafter made by Grantor and Beneficiary pursuant to
this Deed of Trust shall be superior to the rights of the holder
of any subsequent lien or encumbrance to the extent allowed by
law.
1.09 Continuance of Use. Grantor agrees that if at
any time the then existing use or occupancy of the Site, the
Facility or any other part of the Trust Property shall, pursuant
to any zoning or other law, ordinance or regulation be permitted
only so long as such use or occupancy shall continue, Grantor
shall not cause or permit such use or occupancy to be
discontinued without the prior written consent of Beneficiary and
GE Capital.
1.10 Leases. Grantor shall submit all Leases to
Beneficiary, GE Capital, and, for so long as the Indenture shall
not have been discharged or terminated, the Indenture Trustee,
for their examination and approval in writing prior to the
execution, delivery and commencement thereof, which approval
shall not be unreasonably withheld or delayed; any Lease not so
approved shall not be valid; and Grantor at its cost and expense,
upon request of Beneficiary, shall cause any parties in
possession of or using the Site, the Facility or any other part
of the Real Estate under any such Lease to vacate and cease the
use thereof immediately; and Grantor acknowledges that
Beneficiary and GE Capital may from time to time at its option
enter upon the Real Estate and take any other action in court or
otherwise to cause such parties to vacate and cease using the
Real Estate; the reasonable costs and expenses of Beneficiary in
so doing shall be paid by Grantor to Beneficiary on demand
thereof and shall be part of the indebtedness secured by this
Deed of Trust as costs and expense incurred to preserve and
protect the security; such rights of Beneficiary shall be in
addition to all its other rights as beneficiary for breach by
Grantor of the requirements of this Deed of Trust.
1.11 Alterations of Security. Without affecting the
liability of Grantor or any other person (except any person
expressly released in writing) for performance of any Lessee
Obligations secured hereby or for performance of any Lessee
Obligation contained herein, in any lease of the Facility or in
any other Financing Document, and without affecting the rights of
Beneficiary, GE Capital or the Owner Trustee with respect to any
security not expressly released in writing, Grantor agrees that
Beneficiary, GE Capital or the Owner Trustee may at any time and
from time to time, either before or after the Lease Termination
Date and without notice or consent:
a. Release any person liable for payment or
for performance of any of the Lessee Obligations;
b. Exercise or refrain from exercising or
waive any right Beneficiary, GE Capital or the Owner
Trustee may have;
c. Accept additional security of any kind; or
d. Release or otherwise deal with any
property and premises, real or personal, securing the
Lessee Obligations, including all or any part of the
Trust Property.
1.12 Liability of Grantor. It is expressly agreed by
Grantor that, anything herein to the contrary notwithstanding,
Grantor shall remain liable under each Contract to observe and
perform all the conditions and obligations to be observed and
performed by it thereunder, all in accordance with and pursuant
to the terms and provisions of each such Contract. Neither
Trustee nor Beneficiary nor GE Capital nor the Owner Trustee
shall have any obligation or liability under any Contract by
reason of or arising out of this Deed of Trust or assignment to
Trustee or Beneficiary of any payment relating to any Contract,
nor shall Trustee or Beneficiary nor GE Capital nor the Owner
Trustee be required or obligated in any manner to perform or
fulfill any of the obligations of Grantor under or pursuant to
any Contract, or to make any payment, or to make any inquiries as
to the nature or the sufficiency of any payment received by it or
the sufficiency of any performance by any party under any
Contract, or to present or file any claim, or to take any action
to collect or enforce any performance or the payment of any
amounts which may have been assigned to it or to which it may be
entitled at any time or times.
1.13 No Waiver of Remedies. Receipt of rents, awards,
proceeds and any other moneys or evidences thereof, pursuant to
the provisions hereunder, and any disposition of the same by
Beneficiary shall not constitute a waiver of the power of sale,
right of foreclosure, or any other remedy if an Event of Default
shall occur and be continuing hereunder.
ARTICLE II
REMEDIES UPON EVENT OF DEFAULT
2.01 Events of Default. Any of the following events
shall be deemed an Event of Default hereunder:
(a) Any Event of Default described in Section 6 of the
Reimbursement Agreement or any event of default under any
lease of the Facility (or other event which, pursuant to the
terms of any lease of the Facility, would permit the lessor
thereunder to exercise remedies in respect of the Facility)
shall constitute an Event of Default hereunder;
(b) It shall be an Event of Default hereunder if
Grantor shall fail to perform any covenant or agreement
contained or referred to herein to be performed by Grantor
and, in the case of any affirmative covenant, such failure
shall continue unremedied for a period of 30 days after
written notice thereof from the Beneficiary to the Grantor.
(c) It shall be an Event of Default hereunder if,
without the prior written consent of Beneficiary, Grantor
shall sell, assign, mortgage or otherwise transfer or
encumber or be or become liable under any agreement for the
lease, hire or use of any of the Trust Property, except in
accordance with the terms and conditions hereof and of the
Financing Documents.
2.02 Remedies. (a) General. If an Event of Default
shall have occurred and be continuing, then in any and each such
event the aggregate of the Lessee Obligations and other sums
secured hereby shall, either automatically or at the option of GE
Capital, as provided in Section 6 of the Reimbursement Agreement,
become due and payable immediately as fully and completely as if
originally stipulated then to be paid, and the Owner Trustee and
GE Capital may exercise the rights and remedies specified in any
lease of the Facility, and the Trust Property shall be subject to
the power of sale, foreclosure and such other action as may be
available at law or in equity for the enforcement hereof and
realization upon the Trust Property. Grantor, in accordance with
the applicable rules of the Maryland Rules of Procedure or any
Public General Law or Public Local Law of the State of Maryland
relating to deeds of trust or mortgages, does hereby, for itself
and its successors and assigns, grant to the Trustee the power of
sale and assent to the passage and entry of a decree for the sale
of the Trust Property by any circuit court having jurisdiction
over the Trust Property. At the sole option of the Security
Agent, any sale or foreclosure of the Trust Property may be
combined with any sale or foreclosure of any other Collateral
held by the Security Agent, including without limitation, under
any security agreement between Grantor and the Security Agent.
To the extent permitted under Maryland law and
notwithstanding anything to the contrary hereinbefore provided,
if an Event of Default shall occur and be continuing (regardless
of the pendency of any proceeding which has or might have the
effect of preventing Grantor from complying with the provisions
hereof), Beneficiary shall have the option, but not the
obligation, to exercise any one or more of the following remedies
in addition to any other right, power or remedy provided for
herein or at law or in equity: (i) cure such Event of Default
itself; (ii) declare immediately due and payable all or any part
of the Lessee Obligations; (iii) bring an action or proceeding,
at law or in equity, to specifically enforce any provision
contained herein; (iv) direct Trustee to exercise Trustee's power
of sale with respect to the Trust Property in accordance with the
Maryland Rules of Procedure and any other legal requirements
affecting the Trust Property; Grantor assents to the passage of a
decree for the sale of the Trust Property upon the occurrence and
during the continuance of an Event of Default by any court having
jurisdiction and Grantor authorizes and empowers Trustee, upon
the occurrence and during the continuance of an Event of Default,
to sell Grantor's interest in the Trust Property, in accordance
with the Maryland Rules of Procedure and any other legal
requirements affecting the Trust Property; no readvertisement of
any sale shall be required if the sale is adjourned by
announcement, at the time and place set therefor, of the time and
place to which the same is to be adjourned ex parte; (v) take
possession of, or obtain the appointment of a receiver for the
purpose of taking possession of the Trust Property; and (vi)
institute and maintain an action of judicial foreclosure against
all or any part of the Trust Property (either for the entire
Lessee Obligations or for such amounts as are then due and
payable, subject to the continuing lien or estate of this Deed of
Trust for the balance of the Lessee Obligations not then due and
payable) conducted in accordance with the laws of the State of
Maryland and the provisions hereof. The expenses (including
receiver's fees, counsel fees, costs and agent's compensation)
incurred pursuant to the powers herein contained shall be secured
hereby.
(b) Possession of Mortgaged Property. Upon the
occurrence and during the continuance of an Event of Default,
each of Beneficiary and GE Capital may personally, or by its
agents, attorneys and employees and without regard to the
adequacy or inadequacy of the Trust Property or any other
collateral as security for the Lessee Obligations enter into and
upon the Trust Property and each and every part thereof and
exclude Grantor and its agents and employees therefrom without
liability for trespass, damage or otherwise (Grantor hereby
agreeing to surrender possession of the Trust Property to
Beneficiary upon demand at any such time) and use, operate,
manage, maintain and control the Trust Property and every part
thereof. Following such entry and taking of possession,
Beneficiary shall be entitled, without limitation, (x) to lease
all or any part or parts of the Trust Property for such periods
of time and upon such conditions as Beneficiary may, in its
discretion, deem proper, (y) to enforce, cancel or modify any
Lease and (z) generally to execute, do and perform any other act,
deed, matter or thing concerning the Trust Property as
Beneficiary or GE Capital shall deem appropriate as fully as
Grantor might do.
2.03 Applications of Proceeds; Effect of Sale.
Beneficiary shall pay, distribute and apply the proceeds of any
such sale or foreclosure first, to the payment of (i) all
reasonable costs and expenses of such sale or foreclosure,
including reasonable attorneys' fees and disbursements, trustee's
commissions and auctioneer's commissions (as allowed by the
appropriate rules of the courts), and the just compensation of
Beneficiary for services rendered in connection therewith or in
connection with any proceeding to sell if a sale is not
completed, and (ii) all reasonable charges, expenses and advances
incurred or made by Beneficiary or GE Capital in order to protect
the lien and security interest of this Deed of Trust or the
security afforded hereby, together with interest at the Overdue
Rate, and second, to the Lessee Obligations in accordance with
the terms of the Security Deposit Agreement. Said sale or
foreclosure shall forever be a bar against Grantor, its legal
representatives, successors and assigns, and all other persons
claiming under any of them. It is expressly agreed that the
purchaser may rely upon the recitals in each conveyance as full
evidence of the truth of the matters therein stated, and, as to
any purchaser, all lawful prerequisites to said sale shall be
conclusively presumed to have been performed.
2.04 Abandonment of Sale. If foreclosure should be
commenced by Beneficiary, Beneficiary may at any time before the
sale abandon the sale, and may at any time or times thereafter
again commence foreclosure; and, irrespective of whether
foreclosure is commenced by Beneficiary, Beneficiary may
institute suit for collection of the Lessee Obligations.
2.05 Right to Purchase. Beneficiary, GE Capital, the
Owner Trustee, the Indenture Trustee or any Loan Participant
shall have the right to become the purchaser at any sale made
hereunder, by being the highest bidder, and credit upon all or
any part of the Lessee Obligations shall be deemed cash paid for
the purposes of this Article II.
2.06 Waiver of Marshalling, etc. All rights of
marshalling of assets or sale in inverse order of alienation,
including any such rights with respect to the Trust Property in
the event of foreclosure of any lien or security interest at any
time securing the Lessee Obligations or any part thereof
(including, without limitation, the lien and security interests
hereby created), are hereby waived.
2.07 Remedies not Exclusive. No lien, security
interest, right or remedy in favor of Beneficiary granted in or
secured by this Deed of Trust shall be considered as exclusive,
but all liens, security interests, rights and remedies under this
Deed of Trust shall be cumulative of each other, and of all
others which Beneficiary, GE Capital or the Owner Trustee may now
or hereafter have as security for the payment of the Lessee
Obligations.
2.08 Limitation of Liability. There shall be full
recourse to Grantor and all of its assets for the liabilities of
the Grantor under this Deed of Trust and the other Transaction
Documents, but in no event shall any Partner, Affiliate of any
Partner, or any officer, director or employee of Grantor, any
Partner or their Affiliates or any holder of any equity interest
in any Partner be personally liable or obligated for such
liabilities of Grantor 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
Grantor, any Partner or any of their Affiliates in connection
with the financing contemplated under the Transaction Documents.
Subject to the foregoing limitation on liability, Beneficiary may
▇▇▇ or commence any suit, action or proceeding against any
Partner or any Affiliate in order to obtain jurisdiction over
Grantor 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 III
GENERAL
3.01 No Waiver. No exercise by Beneficiary of, or
delay by Beneficiary in exercising, any right or remedy
hereunder, or otherwise afforded by law, shall operate as a
waiver, or preclude the exercise of any such right or other right
or remedy, including the right of foreclosure, if an Event of
Default shall occur and be continuing.
3.02 Notices. All notices, requests, demands and
other communications hereunder shall be made in accordance with
Section 13.2 of the Participation Agreement, except that the
addresses of Trustee and the Beneficiary shall be as shown on the
first page of this Deed of Trust.
3.03 Successors and Assigns. The covenants and
agreements herein contained shall bind, and the benefits and
advantages thereof shall inure to, the respective successors and
assigns of Beneficiary, GE Capital, the Owner Trustee and the
Indenture Trustee and the respective permitted successors and
assigns of Grantor, subject nevertheless to the limitations on
assignment by Grantor contained herein.
3.04 Indemnity. Grantor shall, subject to Section
2.08 hereof, indemnify and save Beneficiary, GE Capital, Owner
Trustee, Indenture Trustee, Administrative Agent, each Loan
Participant and Trustee harmless from and against and shall
reimburse Beneficiary, GE Capital, Owner Trustee, Indenture
Trustee, Administrative Agent, each Loan Participant and Trustee
for, all liabilities, obligations, damages, fines, penalties,
claims, demands, reasonable costs, charges, judgments and
reasonable expenses (including reasonable attorneys' fees and
expenses) which may be imposed upon or incurred or paid by or
asserted against Beneficiary's, GE Capital's, Owner Trustee's,
Indenture Trustee's, Administrative Agent's, each Loan
Participant's or Trustee's interest in the Trust Property by
reason of or in connection with any failure on the part of
Grantor to perform or comply with any of the covenants and
agreements contained herein or in the lease of the Facility or
any other Transaction Document on its part to be complied with or
performed. The provisions of this subsection 3.04 shall not in
any way be affected by the absence in any case of any insurance
or by the failure or refusal of any insurance company to perform
any obligation on its part.
3.05 Severability. If any obligation or portion of
this Deed of Trust is determined to be invalid or unenforceable
under law, it shall not affect the validity or enforcement of the
remaining obligations or portions hereof.
3.06 Fixture Filing. This Deed of Trust is also a
fixture filing with respect to the Personal Property which is to
become fixtures and is to be recorded in the Land Records of
Prince George's County. No inference should be drawn from this
fixture filing that Beneficiary concedes that any Personal
Property is or will become fixtures on the Real Estate. To the
extent that this Deed of Trust is a fixture filing, it is merely
precautionary.
3.07 GOVERNING LAW. THIS DEED OF TRUST SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF MARYLAND.
3.08 No Merger. Unless expressly provided otherwise,
in the event that ownership of this Deed of Trust and title to
the Trust Property or any estate therein shall become vested in
the same person or entity, this Deed of Trust shall not merge in
such title but shall continue as a valid lien on the Trust
Property for the amount secured hereby.
3.10 Successor Trustee. Beneficiary shall have the
right to appoint a substitute, or a successor trustee, to act as
Trustee hereunder by written designation recorded among the land
records of the city or county in the State of Maryland where this
Deed of Trust is recorded. Such right shall extend to the
appointment of other successor and substitute trustees
successively until the Lessee Obligations hereby secured have
been paid and performed in full or until the Trust Property is
sold hereunder, and each substitute and successor trustee shall
succeed to all of the rights and powers of the original Trustee
named herein.
3.11 Actions of Trustee. The Trustee shall be
protected in acting upon any notice, request, consent, demand,
statement, note or other paper or document believed by it to be
genuine and to have been signed by the party or parties
purporting to sign the same. The Trustee shall not be liable for
any error of judgment, nor for any act done or step taken or
omitted, nor for any mistake of law or fact, nor for anything
which it may do or refrain from doing in good faith nor generally
shall the Trustee have any accountability hereunder except for
his individual willful default.
3.12 Trustee as Attorney. The Trustee may act
hereunder and may sell and convey the Trust Property as herein
provided although the Trustee has been, may now be or may
hereafter be, attorney or agent of any beneficiary, in respect of
any matter or business whatsoever.
3.13 Incapacity or Absence from State. It is further
understood and agreed that in the event of the disability of any
Trustee, or of such Trustee's absence from the State of Maryland,
the rights, powers, privileges, discretions, duties, obligations,
and trust hereby created and reposed in the Trustee may be
executed by any other Trustee (should there be more than one
Trustee at any time) with the same legal force, effect and virtue
as though executed by both or all of them.
3.14 Certain Rights of the Power Purchaser. Nothing
in this Deed of Trust 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 Grantor.
Without limiting the scope of the foregoing, the Trustee and the
Security Agent agree, for the exclusive benefit of the Power
Purchaser and not the Grantor, that the exercise of remedies or
any similar action under this Deed of Trust is subject to, and
shall be conducted in a manner consistent with, the Power
Purchaser's 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).
3.15 Assignment to Indenture Trustee. In order to
secure the indebtedness evidenced by the Loan Certificates and
certain other obligations as provided in the Indenture, the
Indenture provides, among other things, for the assignment by the
Owner Trustee to the Indenture Trustee of all of its right, title
and interest in, to and under this Deed of Trust, to the extent
set forth in the Indenture, and for the creation of a Lien on and
security interest in the Lessor's Estate in favor of the
Indenture Trustee, and in furtherance thereof, Grantor and the
Owner Trustee have entered into the Security Deposit Agreement.
Grantor hereby acknowledges and consents to such assignment and
such security interest and hereby acknowledges that to the extent
set forth in the Indenture, the Indenture Trustee shall have the
right in its own name (in certain cases together with the Owner
Trustee and in other cases to the exclusion of the Owner Trustee,
all as set forth in Section 3.10 of the Indenture) to direct the
Beneficiary to take or refrain from taking action under this Deed
of Trust, including the right (i) of the Beneficiary to exercise
any election or option, and to make any decision or
determination, and to give any notice, consent, waiver or
approval under this Deed of Trust or in respect thereof, (ii) to
exercise any and all of the rights, powers and remedies of the
Beneficiary hereunder and (iii) to receive all moneys payable to
the Beneficiary under this Deed of Trust. Grantor will make all
payments hereunder in accordance with the Security Deposit
Agreement.
3.16 Amendment and Restatement. This Deed of Trust
amends and restates the Existing Deed of Trust in its entirety.
This Deed of Trust secures the same indebtedness and obligations
as the Existing Deed of Trust (other than certain indebtedness
and obligations secured by the Existing Deed of Trust which have
been paid or satisfied prior to the date of this Deed of Trust).
All applicable transfer and recording taxes with respect to the
Existing Deed of Trust have been paid in full. The Existing Deed
of Trust, as amended and restated hereby, is and shall remain in
full force and effect.
IN WITNESS WHEREOF, Grantor and Beneficiary have caused
this instrument to be duly executed and delivered by their
respective duly authorized representatives, as of the day and
year first above written.
PANDA-BRANDYWINE, L.P.
By: Panda Brandywine Corporation,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
FLEET NATIONAL BANK,
as Security Agent only, Beneficiary
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
CHICAGO TITLE INSURANCE COMPANY,
as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
This is to certify that the within instrument was
prepared under the supervision of the undersigned who is an
attorney admitted to practice before the Court of Appeals of
Maryland.
__________________________
Name:
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
PERSONALLY APPEARED on this 18th day of December, 1996,
the above-named ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice President of PANDA
BRANDYWINE CORPORATION, the general partner of PANDA-BRANDYWINE,
L.P., a Delaware limited partnership, and acknowledged the
foregoing to be his free act and deed in his said capacity and
the free act and deed of said PANDA BRANDYWINE CORPORATION and
PANDA-BRANDYWINE, L.P.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Notary Public
Type or print name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Notary Public, State of New York
No. 01K05067234
Commission Expires, October 15, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
: ss.:
COUNTY OF NEW YORK )
PERSONALLY APPEARED on this 18th day of December, 1996, the
above-named ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Assistant Vice President of FLEET
NATIONAL BANK, a national banking association, as Security Agent
only, Beneficiary, and acknowledged the foregoing to be his free
act and deed in his said capacity and the free act and deed of
said FLEET NATIONAL BANK, as Security Agent only, Beneficiary.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Notary Public
Type or print name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Notary Public, State of New York
No. 01K05067234
Commission Expires, October 15, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
: ss.:
COUNTY OF New York )
PERSONALLY APPEARED on this 18th day of December, 1996,
the above-named ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President of CHICAGO
TITLE INSURANCE COMPANY, a national banking association, and
acknowledged the foregoing to be his free act and deed in his
said capacity and the free act and deed of said CHICAGO TITLE
INSURANCE COMPANY.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. Konovali
Notary Public
Type or print name: ▇▇▇▇▇▇▇▇▇ ▇. Konovali
Notary Public, State of New York
No. 01K05067234
Commission Expires, October 15, 1998
Schedule 1
Description of Site
[Reference Election District in Prince George's County]