Attached files
EXHIBIT 10.40
AMENDED AND RESTATED SECURITY AGREEMENT
THIS AMENDED AND RESTATED SECURITY AGREEMENT (the Agreement), dated as of December
31, 2009, is entered into by and between ORWELL NATURAL GAS COMPANY, an Ohio corporation (the
Debtor), and THE HUNTINGTON NATIONAL BANK, a national banking association (the
Lender).
WITNESSETH THAT:
WHEREAS, the Debtor is (or will be with respect to after-acquired property) the legal and
beneficial owner and the holder of the Collateral (as defined in Section 1 hereof); and
WHEREAS, the Debtor and the Lender are party to that certain Commercial Security Agreement
dated December 9, 2008 (the Existing Security Agreement) entered into in connection with
that certain Business Loan Agreement of even date therewith between the Debtor and the Lender (the
Existing Loan Agreement) pursuant to which the Lender made certain loans and extensions
of credit to the Debtor; and
WHEREAS, pursuant to that certain Amended and Restated Loan Agreement (as it may hereafter
from time to time be further restated, amended, modified or supplemented, the Credit
Agreement) dated as of even date herewith by and among the Lender, the Debtor as the Borrower
named therein, and the Guarantors, parties thereto have amended and restated the Existing Loan
Agreement, pursuant to which the Lender has agreed to continue to make certain loans and other
extensions of credit to the Debtor; and
WHEREAS, the obligation of the Lender to continue to make loans and extend credit under the
Credit Agreement is subject to the condition, among others, that the Debtor secure the Debtors
obligations to the Lender under the Credit Agreement, the other Loan Documents and otherwise as
more fully described herein in the manner set forth herein.
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto covenant and agree as
follows:
1. Terms which are defined in the Credit Agreement and not otherwise defined herein are used
herein as defined therein. The following words and terms shall have the following meanings,
respectively, unless the context hereof otherwise clearly requires:
(i) Code means the Uniform Commercial Code as in effect in the State of Ohio on the
date hereof and as amended from time to time except to the extent that the conflict of law rules of
such Uniform Commercial Code shall apply the Uniform Commercial Code as in effect from time to time
in any other state to specific property or other matters.
(ii) Collateral means all of the Debtors right, title and interest in, to and under
the following described property of the Debtor (each capitalized term used in this definition shall
have in this Agreement the meaning given to it by the Code):
(a) all now existing and hereafter acquired or arising Accounts, Goods (excluding
Inventory), Health Care Insurance Receivables, General Intangibles, Payment
Intangibles, Deposit Accounts, Chattel Paper (including, without limitation, Electronic
Chattel Paper), Documents, Instruments, Software, Investment Property, Letters of Credit,
Letter of Credit Rights, advices of credit, money, Commercial Tort Claims as listed on
Schedule B hereto (as such Schedule is amended or supplemented from time to time),
Equipment, Fixtures, and Supporting Obligations, together with all products of and
Accessions to any of the foregoing and all Proceeds of any of the foregoing (including
without limitation all insurance policies and proceeds thereof);
(b) to the extent, if any, not included in clause (a) above, each and every other item
of personal property and fixtures (excluding Inventory), whether now existing or hereafter
arising or acquired, including, without limitation, all licenses, contracts and agreements,
and all collateral for the payment or performance of any contract or agreement, together
with all products and Proceeds (including all insurance policies and proceeds) of any
Accessions to any of the foregoing; and
(c) all present and future business records and information, including computer tapes
and other storage media containing the same and computer programs and software (including
without limitation, source code, object code and related manuals and documentation and all
licenses to use such software) for accessing and manipulating such information.
(iii) Debt shall mean and include the following: (a) all now existing and hereafter
arising Indebtedness and Obligations of the Debtor to the Lender under the Credit Agreement, the
other Loan Documents entered into between the Debtor and the Lender, including all obligations,
liabilities, and indebtedness, whether for principal, interest, fees, expenses, or otherwise, of
the Debtor to the Lender, now existing or hereafter incurred under the Credit Agreement or the
Notes or the Guaranty Agreement or any of the other Loan Documents as any of the same or any one or
more of them may from time to time be amended, restated, modified, or supplemented, together with
any and all extensions, renewals, refinancings, and refundings thereof in whole or in part (and
including obligations, liabilities, and indebtedness arising or accruing after the commencement of
any bankruptcy, insolvency, reorganization, or similar proceeding with respect to the Debtor or
which would have arisen or accrued but for the commencement of such proceeding, even if the claim
for such obligation, liability or indebtedness is not enforceable or allowable in such proceeding,
and including all obligations, liabilities and indebtedness arising from any extensions of credit
under or in connection with the Loan Documents from time to time, regardless whether any such
extensions of credit are in excess of the amount committed under or contemplated by the Loan
Documents or are made in circumstances in which any condition to extension of credit is not
satisfied); (b) all reimbursement obligations of the Debtor with respect to any one or more Letters
of Credit issued by Lender; (c) all indebtedness, loans, obligations, expenses and liabilities of
the Debtor to the Lender arising out of any interest rate protection agreement or cash management
agreement provided by the Lender; and (d) any sums advanced by the Lender or which may otherwise
become due pursuant to the provisions of the Credit Agreement, the Notes, this Agreement, or any
other Loan Documents or pursuant to any other document or instrument at any time delivered to the
Lender in connection therewith, including commitment, letter of credit, Lender or other fees and
charges, and indemnification obligations under any such document or instrument, together with all
interest payable on any of the foregoing, whether such sums are
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advanced or otherwise become due before or after the entry of any judgment for foreclosure or
any judgment on any Loan Document or with respect to any default under any of the Debt.
(iv) Receivables means all of the Collateral except Equipment, Goods, Deposit
Accounts, Software, Investment Property and Fixtures.
2. As security for the due and punctual payment and performance of the Debt in full, the
Debtor hereby agrees that the Lender shall have, and the Debtor hereby grants to and creates in
favor of the Lender, a continuing first priority lien on and security interest under the Code in
and to the Collateral subject only to Permitted Encumbrances. Without limiting the generality of
Section 4 below, the Debtor further agrees that with respect to each item of Collateral as to which
(i) the creation of a valid and enforceable security interest is not governed exclusively by the
Code or (ii) the perfection of a valid and enforceable first priority security interest therein
under the Code cannot be accomplished either by the Lender taking possession thereof or by the
filing in appropriate locations of appropriate Code financing statements, the Debtor will at its
expense execute and deliver to the Lender and hereby does authorize the Lender to execute and file
such documents, agreements, notices, assignments and instruments and take such further actions as
may be reasonably requested by the Lender from time to time for the purpose of creating a valid and
perfected first priority lien and security interest on such item, subject only to Permitted
Encumbrances, enforceable against the Debtor and all third parties to secure the Debt.
3. The Debtor represents and warrants to the Lender, subject to any and all regulations
affecting the Debtor by the nature of its business as a public utility, that (a) the Debtor has
good and marketable title to the Collateral, (b) except for the security interest granted to and
created in favor of the Lender and Permitted Encumbrances, all the Collateral is free and clear of
any Encumbrance, (c) the Debtor will defend the Collateral against all material claims and demands
of all persons at any time claiming the same or any interest therein, (d) each Account and General
Intangible is genuine and enforceable in accordance with its terms, subject to reasonable reserves
on the Debtors financial statements, and the Debtor will defend the same against all claims,
demands, recoupment, setoffs, and counterclaims at any time asserted, and (e) at the time any
Account or General Intangible becomes subject to this Agreement, each such Account or General
Intangible will be a good and valid Account representing a bona fide sale of goods or services by
the Debtor and such goods will have been shipped to the respective account debtors or the services
will have been performed for the respective account debtors (or for those on behalf of whom the
account debtors are obligated on the Accounts), and no such Account or General Intangible will at
such time be subject to any claim for credit, allowance, setoff, recoupment, defense, counterclaim
or adjustment by any account debtor or otherwise, subject to reasonable reserves on the Debtors
financial statements, (f) the exact legal name of the Debtor is as set forth on the signature page
hereto, and (g) the state of incorporation, formation or organization as applicable, of the Debtor
is as set forth on Schedule A hereto.
4. The Debtor will faithfully preserve and protect the Lenders security interest in the
Collateral as a prior perfected security interest under the Code, superior and prior to the rights
of all third Persons, except for holders of Permitted Encumbrances, and will do all such other acts
and things and will, upon request therefor by the Lender, execute, deliver, file and record, and
the Debtor hereby authorizes the Lender to so file, all such other documents and instruments,
including, without limitation, financing statements, security agreements, assignments and
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documents and powers of attorney with respect to the Collateral, and pay all filing fees and
taxes related thereto, as the Lender in its reasonable discretion may deem necessary or advisable
from time to time in order to attach, continue, preserve, perfect, and protect said security
interest (including the filing at any time or times after the date hereof of financing statements
under, and in the locations advisable pursuant to, the Code); and the Debtor hereby irrevocably
appoints the Lender, its officers, employees and agents, or any of them, as attorneys-in-fact for
the Debtor to execute, deliver, file and record such items for the Debtor and in the Debtors name,
place and stead. This power of attorney, being coupled with an interest, shall be irrevocable for
the life of this Agreement.
5. The Debtor covenants and agrees, subject to restrictions imposed by any applicable law or
regulation, that:
(i) it will defend the Lenders right, title and lien on and security interest in and to the
Collateral and the proceeds thereof against the claims and demands of all Persons whomsoever, other
than any Person claiming a right in the Collateral pursuant to an agreement between such Person and
the Lender;
(ii) it will not suffer or permit to exist on any Collateral any Encumbrance except for
Permitted Encumbrances;
(iii) it will not take or omit to take any action, the taking or the omission of which might
result in a material alteration (except as permitted by the Credit Agreement) or impairment of the
Collateral or of the Lenders rights under this Agreement;
(iv) it will not sell, assign or otherwise dispose of any portion of the Collateral except as
permitted in Section 6.6 [Disposition of Assets] of the Credit Agreement;
(v) it will (a) except for such Collateral delivered to the Lender pursuant to this Section or
otherwise now or hereafter under the control of the Lender, obtain and maintain sole and exclusive
possession of the Collateral, (b) maintain its chief executive office and keep the Collateral and
all records pertaining thereto at the locations specified on the Security Interest Data Summary
attached as Schedule A hereto, unless it shall have given the Lender prior notice and taken
any action reasonably requested by the Lender to maintain its security interest therein, (c) notify
the Lender if an Account becomes evidenced or secured by an Instrument or Chattel Paper and deliver
to the Lender upon the Lenders request therefor all Collateral consisting of Instruments and
Chattel Paper immediately upon the Debtors receipt of a request therefor, (d) deliver to the
Lender possession of all Collateral the possession of which is required to perfect the Lenders
lien thereon or security interest therein or the possession of which grants priority over a Person
filing a financing statement with respect thereto, (e) execute control agreements and cause, to the
best of its ability, other Persons to execute acknowledgments in form and substance reasonably
satisfactory to the Lender evidencing the Lenders control with respect to all Collateral the
control or acknowledgment of which perfects the Lenders security interest therein, including
Letters of Credit, Letter of Credit Rights, Electronic Chattel Paper, Deposit Accounts and
Investment Property, and (f) keep materially accurate and complete books and records concerning the
Collateral and such other books and records as the Lender may from time to time reasonably require;
and
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(vi) it will promptly furnish to the Lender such information and documents relating to the
Collateral as the Lender may reasonably request, including, without limitation, all invoices,
Documents, contracts, Chattel Paper, Instruments and other writings pertaining to the Debtors
contracts or the performance thereof, all of the foregoing to be certified upon request of the
Lender by an authorized officer of the Debtor;
(vii) it shall immediately notify the Lender if any Account arises out of contracts with the
United States or any department, agency or instrumentality thereof or any one or more of the states
of the United States or any department, agency, or instrumentality thereof, and upon the request of
the Lender will execute any instruments and take any steps required by the Lender so that all
monies due and to become due under such contract shall be assigned to the Lender and notice of the
assignment given to and acknowledged by the appropriate government agency or authority under the
Federal Assignment of Claims Act;
(viii) the Debtor will not change its state of incorporation, formation or organization
without the prior written consent of the Lender;
(ix) the Debtor will not change its name without providing thirty (30) days prior written
notice to the Lender;
(x) except as otherwise permitted by the Credit Agreement, the Debtor shall preserve its
corporate existence and shall not (a) in one, or a series of related transactions, merge into or
consolidate with any other entity, the survivor of which is not the Debtor, or (b) sell all or
substantially all or its assets;
(xi) If the Debtor shall at any time acquire a Commercial Tort Claim, the Debtor shall
promptly notify the Lender in a writing signed by the Debtor of the details thereof and grant to
the Lender in such writing a security interest therein and in the proceeds thereof, with such
writing to be in forms and substance reasonably satisfactory to the Lender and such writing shall
constitute a supplement to Schedule B hereto;
(xii) The Debtor hereby authorizes the Lender to, at any time and from time to time, file in
any one or more jurisdictions financing statements that describe the Collateral, together with
continuation statements thereof and amendments thereto, and which contain any information required
by the Code or any other applicable statute applicable to such jurisdiction for the sufficiency or
filing office acceptance of any financing statements, continuation statements, or amendments. The
Debtor agrees to furnish any such information to the Lender promptly upon request. Any such
financing statements, continuation statements, or amendments may be signed by the Lender on behalf
of the Debtor if the Lender so elects and may be filed at any time in any jurisdiction; and
(xiii) the Debtor shall at any time and from time to time take such steps as the Lender may
reasonably request as are necessary for the Lender to insure the continued perfection of the
Lenders security interest in the Collateral with the same priority required hereby and the
preservation of its rights therein.
6. The Debtor assumes full responsibility for taking any and all necessary steps to preserve
the Lenders rights with respect to the Collateral against all Persons other than anyone
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asserting rights in respect of a Permitted Encumbrance. The Lender shall be deemed to have
exercised reasonable care in the custody and preservation of the Collateral in its possession if
the Lender takes such action for that purpose as the Debtor shall request in writing,
provided that such requested action will not, in the judgment of the Lender, impair the
security interest in the Collateral created hereby or the Lenders rights in, or the value of, the
Collateral, and provided further that such written request is received by the Lender in
sufficient time to permit the Lender to take the requested action.
7. (i) At any time and from time to time whether or not an Event of Default then exists and
without prior notice to or consent of the Debtor, the Lender may at its option take such actions as
the Lender deems appropriate (a) to attach, perfect, continue, preserve and protect the Lenders
first priority security interest in or lien on the Collateral, (b) to inspect, audit and verify the
Collateral, including reviewing all of the Debtors books and records and copying and making
excerpts therefrom, and (c) to add all liabilities, obligations, costs and expenses reasonably
incurred in connection with the foregoing clauses (a) and (b) to the Debt, to be paid by the Debtor
to the Lender upon demand;
(ii) At any time and from time to time after an Event of Default exists and is continuing
and without prior notice to or consent of the Debtor, the Lender may at its option take such action
as the Lender deems appropriate (a) to maintain, repair, protect and insure the Collateral, and/or
(b) to perform, keep, observe and render true and correct any and all covenants, agreements,
representations and warranties of the Debtor hereunder, and (c) to add all liabilities,
obligations, costs and expenses reasonably incurred in connection with the foregoing clauses (a)
and (b) to the Debt, to be paid by the Debtor to the Lender upon demand.
8. After there exists any Event of Default which has not been cured or waived under the Credit
Agreement:
(i) The Lender shall have and may exercise all the rights and remedies available to a secured
party under the Code in effect at the time, and such other rights and remedies as may be provided
by law and as set forth below, including without limitation to take over and collect all of the
Debtors Receivables and all other Collateral, and to this end the Debtor hereby appoints the
Lender, its officers, employees and agents, as its irrevocable, true and lawful attorneys-in-fact
with all necessary power and authority to (a) take possession immediately, with or without notice,
demand, or legal process, of any of or all of the Collateral wherever found, and for such purposes,
enter upon any premises upon which the Collateral may be found and remove the Collateral therefrom,
(b) require the Debtor to assemble the Collateral and deliver it to the Lender or to any place
designated by the Lender at the Debtors expense, (c) receive, open and dispose of all mail
addressed to the Debtor and notify postal authorities to change the address for delivery thereof to
such address as the Lender may designate, (d) demand payment of the Receivables, (e) enforce
payment of the Receivables by legal proceedings or otherwise, (f) exercise all of the Debtors
rights and remedies with respect to the collection of the Receivables, (g) settle, adjust,
compromise, extend or renew the Receivables, (h) settle, adjust or compromise any legal proceedings
brought to collect the Receivables, (i) to the extent permitted by applicable law, sell or assign
the Receivables upon such terms, for such amounts and at such time or times as the Lender deems
advisable, (j) discharge and release the Receivables, (k) take control, in any manner, of any item
of payment or proceeds from any account debtor, (l) prepare,
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file and sign the Debtors name on any Proof of Claim in Bankruptcy or similar document
against any account debtor, (m) prepare, file and sign the Debtors name on any notice of lien,
assignment or satisfaction of lien or similar document in connection with the Receivables, (n) do
all acts and things necessary, in the Lenders sole discretion, to fulfill the Debtors or any
Guarantors obligations to the Lender under the Credit Agreement, Loan Documents or otherwise, (o)
endorse the name of the Debtor upon any check, Chattel Paper, Document, Instrument, invoice,
freight bill, bill of lading or similar document or agreement relating to the Receivables; (p) use
the Debtors stationery and sign the Debtors name to verifications of the Receivables and notices
thereof to account debtors; (q) access and use the information recorded on or contained in any data
processing equipment or computer hardware or software relating to the Receivables or other
Collateral or proceeds thereof to which the Debtor has access, (r) demand, sue for, collect,
compromise and give acquittances for any and all Collateral, (s) prosecute, defend or compromise
any action, claim or proceeding with respect to any of the Collateral, and (t) take such other
action as the Lender may deem appropriate, including extending or modifying the terms of payment of
the Debtors debtors. This power of attorney, being coupled with an interest, shall be irrevocable
for the life of this Agreement. To the extent permitted by law, the Debtor hereby waives all
claims of damages due to or arising from or connected with any of the rights or remedies exercised
by the Lender pursuant to this Agreement, except claims for physical damage to the Collateral
arising from gross negligence or willful misconduct by the Lender.
(ii) The Lender shall have the right to lease, sell or otherwise dispose of all or any of the
Collateral at public or private sale or sales for cash, credit or any combination thereof, with
such notice as may be required by law (it being agreed by the Debtor that, in the absence of any
contrary requirement of law, ten (10) days prior notice of a public or private sale of Collateral
shall be deemed reasonable notice), in lots or in bulk, for cash or on credit, all as the Lender,
in its sole discretion, may deem advisable. Such sales may be adjourned from time to time with or
without notice. The Lender shall have the right to conduct such sales on the Debtors premises or
elsewhere and shall have the right to use the Debtors premises without charge for such sales for
such time or times as the Lender may see fit. The Lender may purchase all or any part of the
Collateral at public or, if permitted by law, private sale and, in lieu of actual payment of such
purchase price, may set off the amount of such price against the Debt.
(iii) The Debtor, at its cost and expense (including the cost and expense of any of the
following referenced consents, approvals etc.) will promptly execute and deliver or cause the
execution and delivery of all applications, certificates, instruments, registration statements, and
all other documents and papers the Lender may request in connection with the obtaining of any
consent, approval, registration, qualification, permit, license, accreditation, or authorization of
any other Governmental Authority or other Person necessary or appropriate for the effective
exercise of any rights hereunder or under the other Loan Documents. Without limiting the
generality of the foregoing, the Debtor agrees that in the event the Lender shall exercise its
rights hereunder or pursuant to the other Loan Documents, to sell, transfer, or otherwise dispose
of, or vote, consent, operate, or take any other action in connection with any of the Collateral,
the Debtor shall execute and deliver (or cause to be executed and delivered) all applications,
certificates, assignments and other documents that the Lender requests to facilitate such actions
and shall otherwise promptly, fully, and diligently cooperate with the Lender and any other Persons
in making any application for the prior consent or approval of any Governmental
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Authority or any other Person to the exercise by the Lender of any such rights relating to all
or any of the Collateral. Furthermore, because the Debtor agrees that the remedies at law of the
Lender for failure of the Debtor to comply with this Subsection (iii) would be inadequate, and that
any such failure would not be adequately compensable in damages, the Debtor agrees that this
Subsection (iii) may be specifically enforced.
(iv) Without limiting the rights and remedies of the Lender otherwise provided hereunder and
under the other Loan Documents, the Lender may, without notice to the Debtor which notice is
expressly waived by the Debtor, in order to better secure the Lender, to the extent permitted by
law, direct the account debtors to make payments of all monies paid or payable thereon directly to
the Lender or to a lockbox designated by the Lender (and, at the request of the Lender, the Debtor
shall indicate on all billings that payments thereon are to be made to the Lender) and give any
account debtors so notified and directed the receipt of the Lender for any such payment as a full
release for the amount so paid.
9. The lien on and security interest in the Debtors Collateral granted to and created in
favor of the Lender by this Agreement shall be for the benefit of the Lender. The Debtor shall
remain liable to the Lender for and shall pay to the Lender, for the Lenders benefit, any
deficiency which may remain after such sale or collection.
10. If the Lender repossesses or seeks to repossess any of the Collateral pursuant to the
terms hereof because of the occurrence of an Event of Default, then to the extent it is
commercially reasonable for the Lender to store any Collateral on any of the Debtors premises, the
Debtor hereby agrees to lease to the Lender on a month-to-month tenancy for a period not to exceed
one hundred twenty (120) days at the Lenders election, at a rental of One Dollar ($1.00) per
month, the premises on which the Collateral is located, provided it is located on premises owned or
leased by the Debtor. The foregoing rights shall be in addition to all rights of Lender granted
under the Mortgages conveyed by the Debtor to the Lender.
11. No failure or delay on the part of the Lender in exercising any right, remedy, power or
privilege hereunder shall operate as a waiver thereof or of any other right, remedy, power or
privilege of the Lender hereunder; nor shall any single or partial exercise of any such right,
remedy, power or privilege preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. No waiver of a single Event of Default shall be deemed a
waiver of a subsequent Event of Default. All waivers under this Agreement must be in writing. The
rights and remedies of the Lender under this Agreement are cumulative and in addition to any rights
or remedies which it may otherwise have, and the Lender may enforce any one or more remedies
hereunder successively or concurrently at its option.
12. All notices, statements, requests and demands given to or made upon either party hereto in
accordance with the provisions of this Agreement shall be given or made as provided in Section
10.3 [Notices] of the Credit Agreement.
13. The Debtor agrees that as of the date hereof, all information contained on the Security
Interest Data Schedule attached hereto as Schedule A is accurate and complete and contains
no omission or misrepresentation. The Debtor shall promptly notify the Lender, and in any case
within fifteen (15) days, of any changes in the information set forth thereon.
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14. The Debtor acknowledges that the provisions hereof giving the Lender rights of access to
books, records and information concerning the Collateral and the Debtors operations and providing
the Lender access to the Debtors premises are intended to afford the Lender with immediate access
to current information concerning the Debtor and its activities, including without limitation, the
value, nature and location of the Collateral so that the Lender can, among other things, make an
appropriate determination after the occurrence of an Event of Default, whether and when to exercise
its other remedies hereunder and at law, including without limitation, instituting a replevin
action should the Debtor refuse to turn over any Collateral to the Lender. The Debtor further
acknowledges that should the Debtor at any time fail to promptly provide such information and
access to the Lender, the Debtor acknowledges that the Lender would have no adequate remedy at law
to promptly obtain the same. The Debtor agrees that the provisions hereof may be specifically
enforced by the Lender and waives any claim or defense in any such action or proceeding that the
Lender has an adequate remedy at law.
15. This Agreement shall be binding upon and inure to the benefit of the Lender and its
successors and assigns, and the Debtor and each of its successors and assigns, except that the
Debtor may not assign or transfer the Debtors obligations hereunder or any interest herein.
16. This Agreement shall be deemed to be a contract under the laws of the State of Ohio and
for all purposes shall be governed by and construed in accordance with the laws of said State
excluding its rules relating to conflicts of law.
17. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction
shall not invalidate the remaining provisions hereof, and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction.
18. The Debtor hereby irrevocably submits to the nonexclusive jurisdiction of the Court of
Common Pleas of Lake County, Ohio or of the District Court of the United States for the Northern
District of Ohio in any action or proceeding arising out of or relating to this Agreement, and the
Debtor hereby irrevocably agrees that all claims in respect of such action or proceeding may be
heard and determined in the Court of Common Pleas of Lake County, Ohio or the District Court of the
United States for the Northern District of Ohio. The Debtor hereby waives to the fullest extent it
may effectively do so, the defense of an inconvenient forum to the maintenance of any such action
or proceeding.
19. THE DEBTOR AND THE LENDER EACH HEREBY WAIVES ANY RIGHT TO A TRIAL BY A JURY IN RESPECT OF
ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT
OR ANY OTHER DOCUMENTS OR TRANSACTIONS RELATING THERETO.
20. This Agreement may be executed in any number of counterparts, and by different parties
hereto in separate counterparts, each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute one and the same instrument. The Debtor acknowledges and
agrees that a telecopy transmission to the Lender of the signature pages hereof
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purporting to be signed on behalf of the Debtor shall constitute effective and binding
execution and delivery hereof by the Debtor.
21. The Existing Security Agreement is hereby amended and restated in its entirety as provided
herein, and this Agreement is not intended to constitute, nor does it constitute, an interruption,
suspension of continuity, satisfaction, discharge of prior duties, novation, or termination of the
liens, security interests, indebtedness, loans, liabilities, expenses, or obligations under the
Existing Loan Agreement, and as the Existing Loan Agreement has been amended and restated by the
Credit Agreement, or the Existing Security Agreement. The Debtor and the Lender acknowledge and
agree that the Existing Security Agreement has continued to secure the indebtedness, loans,
liabilities, expenses, and obligations under the Existing Loan Agreement, and as so amended and
restated by the Credit Agreement, since the date of execution of the Existing Security Agreement;
and that this Agreement is entitled to all rights and benefits originally pertaining to the
Existing Security Agreement.
[SIGNATURE PAGE FOLLOWS]
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[SIGNATURE PAGE TO AMENDED AND RESTATED SECURITY AGREEMENT]
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly authorized, have
executed and delivered this Agreement as of the day and year first above set forth.
ORWELL NATURAL GAS COMPANY |
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By: | /s/ Richard M. Osborne | (Seal) | |||
Name: | Richard M. Osborne | ||||
Title: | Chairman and COO | ||||
THE HUNTINGTON NATIONAL BANK |
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By: | /s/ Bruce G. Shearer | |||
Name: | Bruce G. Shearer | |||
Title: | Senior Vice President | |||