EXHIBIT 10.27
DEED OF TRUST AND SECURITY AGREEMENT
by
PANDA-BRANDYWINE, L.P., Grantor
CHICAGO TITLE INSURANCE COMPANY, Trustee
for the use and benefit of
SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION,
as Security Agent, Beneficiary
__________________________
Dated as of March 30, 1995
---------------------------
THE PRINCIPAL SUM SECURED
BY THIS DEED OF TRUST AND SECURITY AGREEMENT
IS $130,000,000
Real Property Located in the Counties of Prince George's
and ▇▇▇▇▇▇▇, Maryland
__________________________________________________
After recording please return to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
TABLE OF CONTENTS
Page
ARTICLE I GENERAL COVENANTS AND AGREEMENTS 8
1.01 Instruments of Further Assurance;
Filing and Recording 8
1.02 Warranties of Title 9
1.03 General 9
1.04 Insurance 10
1.05 Monthly Payment of Assessments 11
1.06 Performance of Grantor's Obligations 11
1.07 Additional Advances and Readvances From
Beneficiary 12
1.08 Agreements Between Grantor and Beneficiary 13
1.09 Continuance of Use 13
1.10 Leases 13
1.11 Alterations of Security 13
1.12 Liability of Grantor 14
1.13 No Waiver of Remedies 14
ARTICLE II REMEDIES UPON EVENT OF DEFAULT 14
2.01 Events of Default 14
2.02 Remedies 15
2.03 Applications of Proceeds; Effect of Sale 17
2.04 Abandonment of Sale 17
2.05 Right to Purchase 17
2.06 Waiver of Marshalling, etc. 17
2.07 Remedies not Exclusive 17
2.08 Limitation of Liability 18
ARTICLE III GENERAL 18
3.01 No Waiver 18
3.02 Notices 18
3.03 Successors and Assigns 18
3.04 Indemnity 19
3.05 Severability 19
3.06 Fixture Filing 19
3.07 GOVERNING LAW 19
3.08 No Merger 19
3.09 Easement Provisions 19
3.10 Successor Trustee 20
3.11 Actions of Trustee 20
3.12 Trustee as Attorney 20
3.13 Incapacity or Absence from State 21
3.14 Leveraged Lease 21
3.15 Certain Rights of the Power Purchaser 21
Schedule A Legal Description of Site
Schedule B Easements
Schedule C UCC-1 Financing Statements
DEED OF TRUST AND SECURITY AGREEMENT
THIS DEED OF TRUST AND SECURITY AGREEMENT,
dated as of March 30, 1995 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 SHAWMUT BANK CONNECTICUT, NATIONAL
ASSOCIATION, a national banking association, in its
capacity as Security Agent under the Security Deposit
Agreement (as defined in the Loan Agreement referred to
below) (the "Beneficiary"), for the benefit of the Owner
Trustee (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
and GE Capital are parties to that certain Construction
Loan Agreement and Lease Commitment dated as of even date
herewith (as the same may be amended, supplemented or
otherwise modified from time to time, the "Loan
Agreement");
WHEREAS, capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned
to them in Appendix A to the Loan Agreement;
WHEREAS, pursuant to the Loan Agreement and
subject to the terms and conditions contained therein, GE
Capital has agreed, among other things, (i) to make
construction loans to Grantor in an aggregate amount not
to exceed $215,000,000 in order to enable Grantor to
acquire fee title to the Site and acquire the Easements
and to develop, purchase, construct and
operate the Facility, (ii) to issue one or more Letters
of Credit for the account of Grantor in a stated amount
not to exceed $12,453,460 in the aggregate to secure
certain obligations of Grantor under the Power Purchase
Agreement, (iii) acting through the Owner Trustee, (A) to
lease the Site and obtain the rights to use the Easements
from Grantor and (B) to sublease the Site and re-grant
the rights to use the Easements back to Grantor, (iv)
upon Final Completion, to make equity loans to Grantor
(or the Partners) in an aggregate amount not to exceed
$20,000,000, and (v) upon Final Completion, acting
through the Owner Trustee, (A) to purchase the Facility
from Grantor and (B) to lease the Facility back to
Grantor;
WHEREAS, Beneficiary desires by the execution and
delivery of this Deed of Trust to secure, among other
things, the Obligations (as defined below) of Grantor
under the Loan Agreement and under any lease of the
Facility which may now or hereafter exist, as amended
from time to time (a "Lease of the Facility");
WHEREAS, all references herein to (i) the "Notes",
shall mean the Note issued pursuant to subsection 2.4 of
the Loan Agreement, any Note issued by the Grantor
pursuant to subsection 5.9(b)(ii) of the Loan Agreement
and any Note issued to any assignee of GE Capital
pursuant to subsection 9.6 of the Loan Agreement, as the
same may be amended, supplemented, otherwise modified or
replaced from time to time, (ii) the "Letters of Credit",
shall mean the Letters of Credit issued pursuant to
subsection 2.9 of the Loan Agreement, as the same may be
amended, supplemented, otherwise modified or replaced
from time to time, and (iii) the "Transaction Documents",
shall mean the Transaction Documents, as the same may be
amended, supplemented, otherwise modified or replaced
from time to time;
NOW THEREFORE, to secure (i) (x) the principal
amount of and interest on all Loans from time to time
outstanding under the Loan Agreement (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 Grantor, whether or not a claim for postfiling or post-
petition interest is allowed in such proceeding), (y) all
LOC Reimbursement Obligations from time to time
outstanding under the Loan Agreement and all other
obligations of Grantor in respect of the Letters of
Credit from time to time outstanding and all fees and
costs related thereto and (z) all fees under the Loan
Agreement; (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; and (iii) the payment
and performance of all other indebtedness, liabilities
and obligations of Grantor to Beneficiary, GE Capital,
the Owner Trustee and Trustee, 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, the Loan Agreement
(including, without limitation, Section 5.2 thereof), any
Lease of the Facility, the Site Lease, the Site Sublease,
the Notes and the other Transaction Documents (the items
set forth in clauses (i), (ii) and (iii), collectively,
the "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 of the making of the Loans, the issuance of
the Letters of Credit and the purchase and lease of the
Facility by the Owner Trustee 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
THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, AND GRANTS TO
TRUSTEE AND BENEFICIARY (FOR THE BENEFIT OF GE CAPITAL
AND THE OWNER 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 is purchase money for the Site (as defined
below) and the Easements (as defined below) located in
Prince George's County, Maryland, and $316,193.94 of the
amount secured is purchase money for the Easements
located in ▇▇▇▇▇▇▇ County, Maryland:
(i) All right, title and interest of Grantor
in and to the tracts of land described in Schedule A
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 (the
"Easements"), including, without limitation, those
set forth in Schedule B hereto (collectively, the
"Easement Agreements"), 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; all of Grantor's
claims and rights to the payment of damages arising
under the Bankruptcy Code from any rejection of any
Easement Agreement by the grantor thereunder or any
other party;
(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, the Improvements and the
Easements 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, the Transmission
Facilities, the Effluent Pipeline, 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 9 special, segregated and
irrevocable Accounts (and all amounts deposited
therein) established by the Beneficiary at Shawmut
Bank Connecticut, National Association, more
specifically described as follows: Account Number:
Name of Account:
30-24-100-▇▇▇▇▇▇▇ Revenue Account
▇▇-▇▇-▇▇▇-▇▇▇▇▇▇▇ Warranty Maintenance Reserve Account
30-24-100-▇▇▇▇▇▇▇ Rent Reserve Account
30-24-100-▇▇▇▇▇▇▇ Insurance and Condemnation Proceeds Account
30-24-100-▇▇▇▇▇▇▇ Special Payment Account
30-24-100-▇▇▇▇▇▇▇ Partnership Security Account
30-24-100-▇▇▇▇▇▇▇ Distribution Reserve Account
30-24-100-▇▇▇▇▇▇▇ Operation Maintenance Reserve Account
▇▇-▇▇-▇▇▇-▇▇▇▇▇▇▇ Current 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 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 C
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
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 Obligations
or of each lien and security interest securing payment of
the 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 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 and GE Capital
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 and GE Capital all pertinent information in
regard to the development and operation of the Trust
Property as Beneficiary and GE Capital may reasonably
request; and
(b) Grantor shall notify Trustee, Beneficiary
and GE Capital 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 or GE Capital, Grantor shall pay all
reasonable costs and expenses hereafter advanced or
expended by Trustee, Beneficiary or GE Capital 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
Default 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 Loan Agreement; and
(e) Grantor shall pay the indebtedness secured
by this Deed of Trust in accordance with the terms hereof
and of the Notes, the Loan 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 Notes, the Loan
Agreement, any Lease of the Facility and each other
Transaction Document; and
(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.
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 Loan 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
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 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 Loan 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 Loan
Agreement. 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
Default 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 Loan Agreement, 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 Loan
Agreement or the Notes 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 Loan Agreement, the Notes 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 Loan Agreement,
the Notes 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 and GE Capital 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 Obligations secured hereby or for
performance of any Obligation contained herein, in the
Loan Agreement, in the Notes, in any Lease of the
Facility or in any other Transaction 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
maturity of the Notes or 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 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 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
8 of the Loan Agreement or any event of default under any
Lease of the Facility (or other event which, pursuant to
the terms of such 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 Loan Agreement.
(d) It shall be an Event of Default hereunder
if any Easement Agreement shall terminate or be
terminated or the use of any Easement by Grantor or
Beneficiary is discontinued for any period.
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 Obligations and other
sums secured hereby shall, either automatically or at the
option of GE Capital, as provided in Section 8 of the
Loan 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 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 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 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
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 Default Rate, and second, to the
Obligations owing to GE Capital and the Owner Trustee in
such order as GE Capital shall determine. 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 Obligations.
2.05 Right to Purchase. Beneficiary, GE
Capital and the Owner Trustee 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 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 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
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 9.2 of the Loan 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 and the Owner 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 and Trustee harmless from and
against and shall reimburse Beneficiary, GE Capital,
Owner Trustee 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 Trustee, Beneficiary or
Beneficiary'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 Loan Agreement, any
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
and ▇▇▇▇▇▇▇ 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.
3.09 Easement Provisions. (a) Grantor shall
not at any time take any action or refrain from taking
any action that adversely affects Grantor's, Trustee's or
Beneficiary's rights to use any or all of the Easements
in the manner contemplated in the Easement Agreements, as
such instruments exist on the date hereof.
(b) If it shall be deemed that a particular
Easement Agreement is an executory contract for the
purposes of Section 365 of the Bankruptcy Code and there
shall be filed by or against Grantor a petition under the
Bankruptcy Code and Grantor, as grantee under an Easement
Agreement, shall determine to reject such Easement
Agreement pursuant to Section 365(a) of the Bankruptcy
Code, then Grantor shall give Trustee, Beneficiary and GE
Capital not less than twenty (20) days' prior notice of
the date on which Grantor shall apply to the Bankruptcy
Court for authority to reject such Easement Agreement.
Trustee and Beneficiary shall each have the right, but
not the obligation, to serve upon Grantor within such
twenty (20) day period a notice stating that Trustee or
Beneficiary, as applicable, demands that Grantor assume
and assign the Easement Agreement to Trustee or
Beneficiary pursuant to Section 365 of the Bankruptcy
Code. If Trustee or Beneficiary shall serve upon Grantor
the notice described in the preceding sentence, Grantor
shall not seek to reject such Easement Agreement and
shall comply with the demand provided for in the
preceding sentence. In addition, effective upon the entry
of an order for relief with respect to Grantor under the
Bankruptcy Code, Grantor hereby assigns and transfers to
Trustee and Beneficiary a non-exclusive right to apply to
the Bankruptcy Court under subsection 365(d)(4) of the
Bankruptcy Code for an order extending the period during
which the Easement Agreement may be rejected or assumed.
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 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 Leveraged Lease. If, upon the sale of
the Facility by the Grantor to the Owner Trustee in
accordance with the provisions of the Loan Agreement, GE
Capital exercises its option under subsection 5.8 of the
Loan Agreement to borrow funds to finance (or refinance)
a portion of the purchase price of the Facility, Grantor
agrees to execute a supplement hereto to provide for such
provisions as are customary and appropriate in respect of
leveraged lease transactions.
3.15 Certain Rights of the Power Purchaser.
Nothing in this Deed of Trust and Security Agreement
shall be deemed to limit the provisions of the Consent of
the Power Purchaser, which provisions are solely for the
benefit of the Power Purchaser and not the 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 and Security Agreement 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).
IN WITNESS WHEREOF, Grantor has caused this
instrument to be executed by its General Partner hereunto
duly authorized, as of the day and year first above
written.
PANDA-BRANDYWINE, L.P.
By: Panda Brandywine
Corporation, its
General Partner
By:___________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
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 )
I hereby certify, that on this 10th day of
April, in the year 1995, before the subscriber, a Notary
Public in the State of New York, personally appeared
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who acknowledged himself to be the
President of Panda Brandywine Corporation, the
general partner of Panda-Brandywine L.P., and that he, as
such officer, being authorized to do so, executed the
foregoing instrument for the purposes therein contained
by signing the name of such corporation by himself as
such officer.
Witness my hand and notarial seal the day and
year last above written.
_____________________
Notary Public
[Notary Seal] My commission expires: 10/15/96
▇▇▇▇▇▇ ▇▇▇▇▇
Notary Public, State of New York
No. ▇▇-▇▇▇▇▇▇▇
Qualified in New York County
Certificated Filed in New York County
Commission Expires October 15, 1996
_________________________
Schedule A
Description of Site
[Reference Election District in Prince George's County]
Schedule B Easements
Schedule C UCC-1 Financing Statements