EXHIBIT 10.32
Exhibit AA to
Participation Agreement
AMENDED AND RESTATED TRUST AGREEMENT
dated as of December 18, 1996
between
GENERAL ELECTRIC CAPITAL CORPORATION,
as Owner Participant
and
FLEET NATIONAL BANK,
as Owner Trustee
230 MW Natural Gas-Fired Qualifying
Cogeneration Facility located in Brandywine,
Maryland
AMENDED AND RESTATED TRUST AGREEMENT
This AMENDED AND RESTATED TRUST AGREEMENT, dated as of
December 18, 1996 between GENERAL ELECTRIC CAPITAL CORPORATION, a
New York corporation (the "Owner Participant" or "GE Capital")
and FLEET NATIONAL BANK (formerly known as Shawmut Bank
Connecticut, National Association), a national banking
association (the "Owner Trustee").
W I T N E S S E T H :
WHEREAS, the Owner Participant formed the Trust created
by the Trust Agreement dated as of March 30, 1995 (the "Original
Trust Agreement") for the purpose of, among other things as of
the date hereof, (a) leasing the Site from the Partnership
pursuant to the Site Lease and subleasing the Site back to the
Partnership pursuant to the Site Sublease and (b) purchasing the
Facility from the Partnership and leasing the Facility back to
the Partnership pursuant to the Facility Lease, and otherwise
carrying out certain transactions contemplated by the Transaction
Documents;
WHEREAS, the Owner Participant desires to (a) finance a
portion of the purchase price of the Facility by causing the
issuance and sale of Loan Certificates by the Owner Trustee to
the Holders pursuant to a Trust Indenture and Security dated as
of the date hereof (the "Indenture") by the Owner Trustee in
favor of the Indenture Trustee; and (b) secure such Loan
Certificates pursuant to the Indenture;
WHEREAS, in connection with the transactions
contemplated by the foregoing, (a) the Owner Participant, the
Owner Trustee, the Partnership, the General Partner, the
Indenture Trustee, the Administrative Agent, the Security Agent
and the Loan Participants are entering into the Participation
Agreement, dated as of the date hereof (the "Participation
Agreement"), to set forth their respective rights and obligations
with respect thereto and (b) the Owner Participant and the Owner
Trustee are entering into this Amended and Restated Trust
Agreement to amend and restate the Original Trust Agreement; and
WHEREAS, Fleet National Bank is willing to continue to
act as trustee hereunder.
NOW THEREFORE, in consideration of the mutual covenants
and agreements herein contained and for such other good and
valuable consideration, receipt of which is hereby acknowledged,
the parties hereto hereby agree to amend and restate the Original
Trust Agreement as follows:
ARTICLE I
Definitions
SECTION 1.1. Certain Definitions. For all purposes of
this Agreement, the following terms shall have the following
meanings:
"Agreement" shall mean this Trust Agreement, as the
same may be supplemented, amended or otherwise modified from
time to time in accordance with the terms of this Agreement.
"Expenses" shall have the meaning set forth in
Section 7.1 of this Agreement.
"Facility Lease" or "Lease" shall mean the Facility
Lease, dated as of the Lease Closing Date, to be entered
into between the Lessee and the Owner Trustee, as the same
may be supplemented, amended or modified from time to time
in accordance with the terms thereof and of the other
Transaction Documents.
"Lessee" shall mean Panda-Brandywine, L.P. and its
successors and, to the extent permitted by the Lease, its
assigns thereunder.
"Owner Participant" shall mean General Electric Capital
Corporation, a New York corporation, and each other person
or persons that may from time to time become a party to this
Agreement pursuant to the terms of Section 11.9 hereof, and
their respective successors and assigns.
"Owner Trustee" shall mean Fleet National Bank, as
trustee hereunder, and any successor trustee hereunder.
"Trust Estate" shall have the meaning therefor set
forth in Section 2.1 of this Agreement.
SECTION 1.2. Terms Defined Elsewhere. All capitalized
terms used but not defined in this Agreement shall have the
meanings specified in Annex A to the Participation Agreement.
ARTICLE II
Authority to Execute and Perform Various Documents;
Declaration of Trust by Owner Trustee
SECTION 2.1. Authority To Execute and Perform Various
Documents. The Owner Participant hereby authorizes and directs
the Owner Trustee, and the Owner Trustee hereby agrees for the
benefit of the Owner Participant: (a) to execute and deliver the
Facility Lease, the Site Lease, the Site Sublease, the Security
Deposit Agreement, the Participation Agreement, the Indenture,
the Interest Hedging Agreement, the ▇▇▇▇ of Sale and the Present
Assignment, (b) to issue and deliver the Loan Certificates to the
Holders pursuant to the Indenture and (c) subject to the terms
and conditions of this Agreement, to execute and deliver all such
further instruments, certificates and documents, and take such
other actions, as may be contemplated by, and to exercise all of
the rights and perform all of the duties and obligations to be
exercised or performed by the Owner Trustee under the Transaction
Documents and the other instruments as set forth therein. The
Owner Trustee further agrees to take such other actions and to
execute, deliver and perform such other agreements, instruments,
documents and certificates as the Owner Participant may from time
to time authorize and direct to give effect to the foregoing.
All of the estate, right, title and interest of the Owner Trustee
in and to the Facility, the Transaction Documents and other
property of the Owner Trustee held pursuant to this Agreement,
including, without limitation, all Basic Rent, Supplemental Rent,
all other sums of any nature whatsoever to be paid or received by
the Owner Trustee under the Facility Lease, the Site Lease, the
Site Sublease or under any other Transaction Document, all of the
right, title and interest of the Owner Trustee under the
Collateral Security Documents and all of the property rights and
interests granted to the Owner Trustee pursuant to the Site
Lease, are hereinafter referred to as the "Trust Estate."
SECTION 2.2. Declaration of Trust by Owner Trustee.
The Owner Trustee hereby declares that it will hold all its
estate, right, title and interest in and to the properties which
are part of the Trust Estate upon the trusts set forth herein and
for the use and benefit of the Owner Participant subject,
however, to the lien and security interest in the Trust Estate
granted to the Indenture Trustee for the benefit of the Holders
as provided in the Indenture so long as the Lien under the
Indenture has not been discharged.
ARTICLE III
Payments
SECTION 3.1. Payments from Trust Estate Only. All
payments to be made by the Owner Trustee under this Agreement
shall be made solely from the income of and the proceeds from the
Trust Estate and only to the extent that the Owner Trustee shall
have received income or proceeds from the Trust Estate, except as
specifically provided in Section 6.1 hereof. The Owner
Participant agrees that it shall look solely to the income of and
proceeds from the Trust Estate to the extent available for
distribution to the Owner Participant as herein provided and
that, except as specifically provided herein, the Owner Trustee
shall not be liable in its individual capacity to the Owner
Participant for any amounts payable under this Agreement or
subject to any liability in its individual capacity under this
Agreement.
SECTION 3.2. Method of Payment. In the case of
distributions that are to be made by the Owner Trustee to the
Owner Participant pursuant to this Agreement, such distributions
shall be paid by the Owner Trustee to the Owner Participant in
accordance with the terms of the Security Deposit Agreement, or
by otherwise crediting the amount to be distributed to the Owner
Participant to an account maintained by the Owner Participant or
such nominee with the Owner Trustee, in immediately available
funds, or by transferring such amount in immediately available
funds to a banking institution with bank wire transfer facilities
for the account of the Owner Participant or such nominee, as
instructed from time to time by the Owner Participant. The Owner
Trustee shall make distributions to the Indenture Trustee and the
Interest Hedging Counterparty by paying the amount to be
distributed to the Indenture Trustee in accordance with the
Indenture and the Security Deposit Agreement.
ARTICLE IV
Distributions
SECTION 4.1. Distribution of Payments. The Owner
Participant and the Owner Trustee acknowledge that the Facility
Lease is security for the Loan Certificates pursuant to the
Indenture and that, so long as the Lien of the Indenture has not
been discharged, all moneys payable by the Lessee to the Owner
Trustee thereunder (other than Excepted Payments) are subject to
priority application in favor of the Indenture Trustee, pursuant
to the terms of the Indenture and the Security Deposit Agreement.
If, pursuant to the provisions of the Security Deposit Agreement
and the Indenture, the Owner Trustee receives any payments and
amounts with respect to the Trust Estate, such amounts shall be
distributed forthwith upon receipt in the following order of
priority: first, so much of such payment or amount as shall be
required to reimburse the Owner Trustee for any fees or Expenses
not reimbursed by the Owner Participant or the Lessee as to which
the Owner Trustee is entitled to be reimbursed hereunder shall be
retained by the Owner Trustee; and, second, the balance, if any,
of such payment or amount remaining thereafter shall be
distributed to the Owner Participant, provided that all amounts
constituting Excepted Payments shall be paid directly to the
Person entitled thereto. In the event that any amounts are
received by the Owner Trustee directly from the Lessee (other
than Excepted Payments) while the Indenture is in force, the
Owner Trustee shall forthwith upon receipt transfer such amounts
to the Security Agent for application in accordance with the
terms of the Security Deposit Agreement.
SECTION 4.2. Distribution of Trust Estate. Whenever
the terms of this Agreement shall require the Owner Trustee to
distribute or transfer the entire Trust Estate to any Person, the
Owner Trustee shall be entitled to retain such moneys as shall
then be held by the Owner Trustee as a part of the Trust Estate
and as shall be required to reimburse the Owner Trustee for any
fees or Expenses not reimbursed by the Owner Participant or the
Lessee as to which the Owner Trustee is entitled to be paid or
reimbursed hereunder.
ARTICLE V
Duties of the Owner Trustee
SECTION 5.1. Notice of Event of Default. In the event
the Owner Trustee shall have knowledge of a default under any
Transaction Document or an Event of Loss or an Event of
Regulation, the Owner Trustee shall give prompt (but in no case
later than two Business Days) telex, telefax, telephonic or
telegraphic notice of such occurrence to the Owner Participant
followed by prompt written confirmation thereof to the Owner
Participant and the Indenture Trustee. Subject to the terms of
Section 5.3 hereof, the Owner Trustee shall take or refrain from
taking such action with respect to such default, not inconsistent
with the provisions of the Transaction Documents, as the Owner
Trustee shall be instructed in writing by the Owner Participant.
If the Owner Trustee shall not have received such written
instructions from the Owner Participant within 20 days after
mailing notice of such default to the Owner Participant, the
Owner Trustee may, subject to instructions received pursuant to
the preceding sentence, take or refrain from taking such action,
but shall be under no duty to, and shall have no liability
(except in the event of its own willful misconduct or gross
negligence) for its failure or refusal to, take or refrain from
taking any action with respect to such default, not inconsistent
with the provisions of the Transaction Documents, as it shall
deem advisable and in the best interests of the Owner
Participant. For all purposes of this Agreement, in the absence
of actual knowledge of an officer in the Corporate Trust
Administration Department of the Owner Trustee, the Owner Trustee
shall not be deemed to have knowledge of a default unless it
receives written notification thereof given by or on behalf of
the Lessee, the Owner Participant or the Indenture Trustee. The
Owner Trustee shall have no duty to inquire as to whether a
default has occurred.
SECTION 5.2. Action upon Instructions. Subject to the
terms of Sections 5.1 and 5.3 hereof, upon the written
instructions of the Owner Participant, the Owner Trustee shall
take or refrain from taking such action or actions not
inconsistent with the terms of the Facility Lease and the other
Transaction Documents as may be specified in such instructions.
SECTION 5.3. Indemnification. The Owner Trustee shall
not be required to take or refrain from taking any action under
this Agreement, the Facility Lease or the other Transaction
Documents (other than the actions specified in the first sentence
of Section 5.1 hereof and the last sentence of Section 5.4
hereof) unless the Owner Trustee shall have been indemnified by
the Owner Participant or any other Person, in manner and form
satisfactory to the Owner Trustee, against any liability, cost or
expense (including reasonable attorneys' fees) that may be
incurred in connection therewith, other than any liability, cost
or expense resulting from the willful misconduct, bad faith or
gross negligence of the Owner Trustee. If the Owner Participant
shall have directed the Owner Trustee to take or refrain from
taking any action under this Agreement, the Facility Lease or the
other Transaction Documents, the Owner Participant agrees to
furnish such indemnity as shall be satisfactory to the Owner
Trustee (provided that the written undertaking of Owner
Participant shall be satisfactory under this sentence) and in
addition pay the reasonable compensation of the Owner Trustee for
services performed or to be performed pursuant to such directive.
The Owner Trustee shall not be required to take any action under
Section 5.1 or 5.2, nor shall any other provision of this
Agreement be deemed to impose a duty on the Owner Trustee to take
any action, if the Owner Trustee shall have been advised by
counsel that such action is contrary to the terms hereof or of
the Facility Lease or any of the other Transaction Documents to
which the Owner Trustee is a party or is otherwise contrary to
law.
SECTION 5.4. No Duties Except as Specified in Trust
Agreement or Instructions. The Owner Trustee shall not have any
duty or obligation to manage, control, use, operate, sell, lease,
dispose of or otherwise deal with the Facility, the Site or any
interest therein or any other part of the Trust Estate, or
otherwise to take or refrain from taking any action under, or in
connection with, any document contemplated hereby to which the
Owner Trustee is a party, except as expressly provided by the
terms of this Agreement or in written instructions from the Owner
Participant received pursuant to Section 5.1 or 5.2 hereof, and
no implied duties or obligations shall be read into this
Agreement against the Owner Trustee. The Owner Trustee
nevertheless shall, in its individual capacity and at its own
cost and expense, and without any right of indemnity in respect
of any such cost or expense under Section 7.1 of this Agreement,
promptly take all actions as may be necessary to discharge any
Liens on any part of the Trust Estate arising by, through or
under the Owner Trustee in its individual capacity, not related
or connected to its ownership interest in the Facility, its
status as lessor under the Facility Lease, the administration of
the Trust Estate or any other transaction contemplated by the
Facility Lease or any of the Transaction documents, and shall
otherwise comply with the terms of the Facility Lease and the
other Lease Documents.
SECTION 5.5. No Action Except Under Specified
Documents or Instructions. The Owner Trustee shall not manage,
control, use, operate, sell, lease, dispose of or otherwise deal
with the Facility, the Site or any other part of the Trust Estate
except (i) in accordance with the terms of this Agreement or any
other Transaction Document to which the Owner Trustee is a party,
(ii) in accordance with the powers granted to, or the authority
conferred upon, the Owner Trustee pursuant to this Agreement or
(iii) in accordance with the written instructions from the Owner
Participant pursuant to Section 5.1 or 5.2 hereof.
SECTION 5.6. Absence of Duties. Except in accordance
with written instructions furnished pursuant to Section 5.1 or
5.2 and except as provided in, and without limiting the
generality of, Sections 5.1, 5.4 and 5.5, the Owner Trustee shall
have no duty (a) to record or file any of the Transaction
Documents, or any notice or financing statement with respect
thereto, to maintain any such recording or filing, or to rerecord
or refile any Transaction Document, (b) to obtain insurance on
the Facility or to effect or maintain any such insurance, whether
or not the Lessee shall be in default with respect thereto, other
than to forward to the Owner Participant any notices, policies,
certificates or binders furnished to the Owner Trustee by the
Lessee or its insurance brokers to the extent that any of the
same shall not state on its face or otherwise that it has been
previously furnished directly to Owner Participant, (c) except as
provided in the last sentence of Section 5.4 hereof, to pay or
discharge any tax, assessment or other governmental charge or any
Lien owing with respect to, or assessed or levied against, any
part of the Trust Estate, (d) to confirm or verify any financial
statements of the Lessee or (e) to inspect the Facility at any
time or ascertain or inquire as to the performance or observance
of any of the covenants of the Lessee in the Transaction
Documents.
ARTICLE VI
The Owner Trustee
SECTION 6.1. Acceptance of Trusts and Duties. (a)
The Owner Trustee accepts the trusts hereby created and agrees to
perform the same but only upon the terms of this Agreement. The
Owner Trustee also agrees to disburse all moneys actually
received by it constituting part of the Trust Estate in
accordance with the terms of the Security Deposit Agreement and
this Agreement. The Owner Trustee shall not be answerable or
accountable under any circumstances in its individual capacity,
except (i) for its own willful misconduct, bad faith or gross
negligence or its failure to use ordinary care to disburse funds,
(ii) for liabilities that may result from the inaccuracy of any
representation or warranty of the Owner Trustee contained in the
Transaction Documents or from the failure by the Owner Trustee to
perform its obligations under the last sentence of Section 5.4
hereof, or (iii) for taxes, fees or other charges based on or
measured by any fees, commissions or compensation received by the
Owner Trustee for acting as trustee in connection with any of the
transactions contemplated by the Facility Lease or the other
Transaction Documents.
(b) Whether or not expressly so provided, every
provision of this Agreement relating to the conduct or affecting
the liability of or affording protection to the Owner Trustee
shall be subject to the provisions of Section 6.1(a) hereof.
SECTION 6.2. Furnishing of Documents. The Owner
Trustee shall furnish to the Owner Participant, promptly upon
receipt thereof, duplicates or copies of all reports, notices,
requests, demands, certificates, financial statements and other
instruments furnished to the Owner Trustee under this Agreement
or the other Transaction Documents (including, without
limitation, the Power Purchase Agreement) to the extent that any
of the same shall not state on its face or otherwise that it has
been previously furnished directly to the Owner Participant or
the Owner Trustee shall have determined that the same has already
been furnished to the Owner Participant.
SECTION 6.3. No Representations or Warranties as
to the Facility or the Transaction Documents. THE OWNER TRUSTEE
DOES NOT MAKE AND SHALL NOT BE DEEMED TO HAVE MADE (i) ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE,
VALUE, CONDITION, DESIGN, OPERATION, MERCHANTABILITY, COMPLIANCE
WITH SPECIFICATIONS, FREEDOM FROM PATENT OR TRADEMARK
INFRINGEMENT, ABSENCE OF LATENT DEFECTS OR FITNESS FOR USE OF THE
FACILITY OR ANY OTHER REPRESENTATION OR WARRANTY OF ANY NATURE
WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE FACILITY,
except that the Owner Trustee hereby represents and warrants to
the Owner Participant that the Facility shall be free of Liens
that result from acts of or claims against the Owner Trustee, in
its individual capacity, not related or connected to its
ownership interest in the Facility, its status as lessor under
the Facility Lease, the administration of the Trust Estate or any
other transaction contemplated by the Facility Lease or any of
the Transaction Documents, or (ii) any representation or warranty
as to the validity, legality or enforceability of the Facility
Lease or any of the other Transaction Documents or as to the
correctness of any statement contained therein, except to the
extent that any such statement is expressly made in this
Agreement or is expressly made in any other Transaction Document
as a representation by the Owner Trustee, in its individual
capacity and except that the Owner Trustee, in its individual
capacity, hereby represents and warrants to the Owner Participant
that the execution, delivery and performance of this Agreement,
the Facility Lease and each other Transaction Document to which
it is a party have been duly authorized by all necessary
corporate or other action on its part required to be taken and do
not contravene the Owner Trustee's charter or by-laws or any law
or contractual restriction binding on or affecting the Owner
Trustee, and such agreements have been or will be executed by
duly authorized officers of the Owner Trustee.
SECTION 6.4. No Segregation of Moneys; No Interest.
Except as otherwise provided herein, moneys received by the Owner
Trustee hereunder need not be segregated in any manner except to
the extent required by law and may be deposited under such
general conditions as may be prescribed by law, and the Owner
Trustee shall not be liable for any interest thereon except as
may be agreed to by it.
SECTION 6.5. Reliance; Advice of Counsel. The Owner
Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or
paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Owner Trustee may
accept a certified copy of a resolution of the Board of Directors
or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body
and that the same is in full force and effect. As to any fact or
matter the manner of ascertainment of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof
rely on a certificate, signed by the president or any vice
president and by the treasurer or an assistant treasurer or the
secretary or an assistant secretary of the relevant party, as to
such fact or matter, and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted
to be taken by it in good faith in reliance thereon. In the
administration of the trusts hereunder, the Owner Trustee may
execute any of the trusts or powers hereof and perform its powers
and duties hereunder directly or through agents or attorneys and
may consult with counsel, accountants and other skilled persons
of generally accepted competence to be selected and retained by
it (other than persons regularly employed by it), and the Owner
Trustee shall not be liable for anything done, suffered or
omitted in good faith by it in accordance with the advice or
opinion of any such counsel, accountants or other skilled persons
appointed by it hereunder with due care and not contrary to this
Agreement.
SECTION 6.6. Not Acting in Individual Capacity.
Except as provided in this Article VI and as otherwise expressly
provided in this Agreement and elsewhere in the Transaction
Documents, in accepting the trusts hereby created, the Owner
Trustee acts solely as trustee hereunder and not in its
individual capacity and all Persons (other than the Owner
Participant to the extent provided in this Agreement) having any
claim against the Owner Trustee by reason of the transactions
contemplated hereby shall look only to the Trust Estate for
payment or satisfaction thereof, except as specifically provided
in this Article VI or except to the extent the Owner Trustee
shall otherwise expressly agree in this Agreement or in any other
Transaction Document.
SECTION 6.7. Interpretation of Trust Agreement. If
the Owner Trustee is uncertain as to the application of any
provision of this Agreement, or such provision is ambiguous as to
its application or is, or appears to be, in conflict with any
other applicable provision hereof, or if this Agreement permits
any determination by the Owner Trustee or is silent or incomplete
as to the course of action which the Owner Trustee is required to
take with respect to a particular set of facts, the Owner Trustee
may seek instructions from the Owner Participant and shall not be
liable to any Person to the extent that it acts in good faith in
accordance with the instructions of the Owner Participant.
SECTION 6.8. Exculpatory Provisions. Any and all
exculpatory provisions, immunities and indemnities in favor of
the Owner Trustee under this Agreement shall inure to the benefit
of the Owner Trustee as a trustee and in its individual capacity
under or as a party to any Transaction Document or under any
other agreement referred to herein.
SECTION 6.9. Fees; Compensation. Except as provided
in Section 5.3 or 7.1 hereof, the Owner Trustee agrees that it
shall have no right against the Owner Participant for any fee as
compensation for its services hereunder.
ARTICLE VII
Indemnification of Owner Trustee by Owner Participant
SECTION 7.1. Owner Participant to Indemnify Owner
Trustee. The Owner Participant agrees to pay (or reimburse the
Owner Trustee, in its individual capacity, for) all reasonable
fees (including its ongoing administrative fees) and expenses of
the Owner Trustee, in its individual capacity, hereunder,
including, without limitation, the reasonable compensation,
expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee, in its individual
capacity, may employ in connection with the exercise and
performance of its rights and duties hereunder, under the
Facility Lease or any other Transaction Document. The Owner
Participant agrees to assume liability for, and to indemnify the
Owner Trustee, in its individual capacity, against and from, any
and all liabilities, obligations, losses, damages, taxes, claims,
actions, suits, costs, expenses and disbursements (including
legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may be imposed on, incurred by
or asserted at any time against the Owner Trustee, in its
individual capacity, (whether or not indemnified against by other
parties) in any way relating to or arising out of the
administration of the Trust Estate or the action or inaction of
the Owner Trustee, in its individual capacity, hereunder, under
the Facility Lease or any other Transaction Document; provided,
that the Owner Participant shall not be required to indemnify the
Owner Trustee, in its individual capacity, for Expenses arising
or resulting from any of the matters described in the last
sentence of Section 6.1(a) hereof; and provided further that the
Owner Participant shall be required to indemnify the Owner
Trustee only if and to the extent that the Owner Trustee, in its
individual capacity, does not receive payment from the Lessee
within a reasonable period of time after demand on the Lessee
therefor. The indemnities contained in this Section 7.1 shall
survive the termination of this Agreement.
ARTICLE VIII
Termination of Trust Agreement
SECTION 8.1. Termination of Trust Agreement. This
Agreement and the trusts created hereby shall terminate and the
Trust Estate shall, subject to Article IV hereof, be distributed
to the Owner Participant, and this Agreement shall be of no
further force or effect, upon the earlier of (i) the sale or
other final disposition by the Owner Trustee of all property
constituting part of the Trust Estate and the final distribution
by the Owner Trustee of all moneys or other property or proceeds
constituting part of the Trust Estate in accordance with the
terms of Article IV hereof, if at such time the Lessee shall have
fully complied with all the terms of the Facility Lease, and (ii)
21 years less one day after the death of the last survivor of all
of the past and present members of the "Rolling Stones", the
world's greatest rock-and-roll band, and their legitimate
descendants, in each case living on the date of this Agreement,
provided that if this Trust Agreement and the trusts created
hereby shall be or become valid under applicable law for a period
subsequent to the 21st anniversary of the death of such last
survivor, or if legislation shall become effective providing for
the validity thereof for a period in gross exceeding the period
hereinabove stated, then this Agreement and the trusts created
hereby shall not terminate as aforesaid but shall extend to and
continue in effect, but only if such nontermination and extension
shall then be valid under applicable law, until such time as the
same shall, under applicable law, cease to be valid.
SECTION 8.2. Termination at Option of Owner
Participant. The provisions of Section 8.1 hereof
notwithstanding, this Agreement and the trusts created hereby
shall terminate and the Trust Estate shall be distributed to the
Owner Participant, and this Agreement shall be of no further
force and effect, upon the election of the Owner Participant by
notice to the Owner Trustee if such notice shall be accompanied
by the written agreement of the Owner Participant assuming all
the obligations of the Owner Trustee under or contemplated by the
Facility Lease and each other Transaction Document to which the
Owner Trustee is a party, and all other obligations of the Owner
Trustee incurred by it as trustee hereunder. Such written
agreement shall be satisfactory in form and substance to the
Owner Trustee and shall release the Owner Trustee from all
further obligations of the Owner Trustee hereunder and under the
agreements and other instruments referred to in this Section.
SECTION 8.3. Action by Owner Trustee on
Termination. Upon termination pursuant to Section 8.1 or 8.2
hereof, the Owner Trustee shall, subject to the last sentence of
Section 6.1(a) hereof, take such action as may be requested by
the Owner Participant to transfer the Trust Estate to the Owner
Participant including, without limitation, execution of
instruments of transfer or assignment with respect to any
Transaction Documents to which the Owner Trustee is a party.
ARTICLE IX
Successor Owner Trustees, Co-Owner Trustees
and Separate Owner Trustees
SECTION 9.1. Resignation of Owner Trustee;
Appointment of Successor. (a) The Owner Trustee may resign at
any time without cause by giving at least 60 days' prior written
notice to the Owner Participant, the Indenture Trustee and the
Lessee, such resignation to be effective upon the acceptance
pursuant to Section 9.1(b) of the trusteeship by a successor
Owner Trustee. In addition, the Owner Participant may at any
time remove the Owner Trustee without cause by an instrument in
writing delivered to the Owner Trustee and the Lessee, such
removal to be effective upon the acceptance of appointment by a
successor Owner Trustee under Section 9.1(b) hereof. In case of
the resignation or removal of the Owner Trustee the Owner
Participant may appoint a successor Owner Trustee by an
instrument signed by the Owner Participant. If a successor Owner
Trustee shall not have been appointed within 30 days after the
giving of written notice of such resignation or the delivery of
the written instrument with respect to such removal, the Owner
Trustee, the Indenture Trustee or the Owner Participant may apply
to any court of competent jurisdiction to appoint a successor
Owner Trustee to act until such time, if any, as a successor
shall have been appointed as above provided. Any successor Owner
Trustee so appointed by such court shall immediately and without
further act be superseded by any successor Owner Trustee
appointed as above provided within one year from the date of the
appointment by such court.
(b) Any successor Owner Trustee, however appointed,
shall execute and deliver to the predecessor Owner Trustee an
instrument accepting such appointment, and thereupon such
successor Owner Trustee, without further act, shall become vested
with all the estates, properties, rights, powers, duties and
trusts of the predecessor Owner Trustee in the trusts hereunder
with like effect as if originally named the Owner Trustee herein;
but nevertheless, upon the written request of such successor
Owner Trustee, such predecessor Owner Trustee shall execute and
deliver an instrument transferring to such successor Owner
Trustee, upon the trusts herein expressed, all the estates,
properties, rights, powers, duties and trusts of such predecessor
Owner Trustee, and such predecessor Owner Trustee shall duly
assign, transfer, deliver and pay over to such successor Owner
Trustee all moneys or other property then held by such
predecessor Owner Trustee upon the trusts herein expressed.
(c) Any successor Owner Trustee, however appointed,
shall be a bank or trust company incorporated and doing business
within the United States of America and having a combined capital
and surplus of at least $75,000,000, if there be such an
institution willing, able and legally qualified to perform the
duties of the Owner Trustee hereunder upon reasonable or
customary terms; provided, however, that the appointment of such
bank or trust company as successor Owner Trustee shall not
violate any provision of any law or regulation or create a
relationship which would be in violation thereof, and all
consents and approvals of, and filings and declarations with, any
governmental authority which are necessary in connection with
such appointment shall have been obtained or made and shall be in
full force and effect.
(d) Any corporation into which the Owner Trustee may
be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any
corporation to which substantially all the corporate trust
business of the Owner Trustee may be transferred, shall, subject
to the terms of Section 9.1(c) hereof, be the Owner Trustee under
this Agreement without further act.
SECTION 9.2. Co-Owner Trustees and Separate Owner
Trustees. Whenever the Owner Trustee or the Owner Participant
shall deem it necessary or prudent in order either to conform to
any law of any jurisdiction in which all or any part of the Trust
Estate shall be situated or to make any claim or bring any suit
with respect to the Trust Estate or the Facility Lease or any
other Transaction Document, or the Owner Trustee or the Owner
Participant shall be advised by counsel satisfactory to it that
it is so necessary or prudent, the Owner Trustee and the Owner
Participant shall execute and deliver an agreement supplemental
hereto and all other instruments and agreements, and shall take
all other action, necessary or proper to constitute another bank
or trust company or one or more persons (and the Owner Trustee
may appoint one or more of its officers) either as co-trustee or
co-trustees jointly with the Owner Trustee of all or any part of
the Trust Estate, or as separate trustee or separate trustees of
all or any part of the Trust Estate, and to vest in such persons,
in such capacity, such title to the Trust Estate or any part
thereof, and such rights or duties as may be necessary or
desirable, all for such period and under such terms and
conditions as are satisfactory to the Owner Trustee and the Owner
Participant. If any co-trustee or separate trustee shall die,
become incapable of acting, resign or be removed, the title to
the Trust Estate and all rights and duties of such co-trustee or
separate trustee shall, so far as permitted by law, vest in and
be exercised by the Owner Trustee, without the appointment of a
successor to such co-trustee or separate trustee. No appointment
of, or action by, any additional trustee will relieve the Owner
Trustee of any of its obligations under, or otherwise affect any
of the terms of this Agreement or its obligations under the
Transaction Documents. The foregoing notwithstanding, no
appointment of, or action by, any additional trustee will relieve
the Owner Trustee of any of its obligations under, or otherwise
affect any of the terms of, the Indenture and the Loan
Certificates, or affect the interests of the Indenture Trustee or
any Holder.
ARTICLE X
Supplements and Amendments
SECTION 10.1. Supplements and Amendments. At the
written request of the Owner Participant this Agreement shall be
amended by a written instrument signed by the Owner Trustee and
the Owner Participant, but if in the opinion of the Owner Trustee
any instrument required to be so executed adversely affects any
right, duty or liability of, or immunity or indemnity in favor
of, the Owner Trustee under this Agreement or any of the
documents contemplated hereby to which the Owner Trustee is a
party, or would cause or result in any conflict with or breach of
any terms, conditions or provisions of, or default under, the
charter or by-laws of the Owner Trustee, the Transaction
Documents or any other document contemplated hereby to which the
Owner Trustee is a party, the Owner Trustee may in its sole
discretion decline to execute such instrument; provided, however,
that without the consent of the Indenture Trustee, no provision
of this Trust Agreement shall be amended if such amendment would
adversely affect the rights of the Indenture Trustee or the
Holders as are provided in the Transaction Documents.
ARTICLE XI
Miscellaneous
SECTION 11.1. No Legal Title to Trust Estate in Owner
Participant. The Owner Participant shall not have title to any
part of the Trust Estate. No transfer, by operation of law or
otherwise, of any right, title and interest of the Owner
Participant in and to the Trust Estate or hereunder shall operate
to terminate this Agreement or the trusts hereunder or entitle
any successor or transferee of the Owner Participant to an
accounting or to the transfer to it of legal title to any part of
the Trust Estate.
SECTION 11.2. Sale of Trust Estate by Owner Trustee is
Binding. Any sale or other conveyance of any of the Trust Estate
or any interest therein by the Owner Trustee made pursuant to the
terms of this Agreement, the Facility Lease or any other
Transaction Document shall bind the Owner Participant and shall
be effective to transfer or convey all right, title and interest
of the Owner Trustee and the Owner Participant in and to the
Trust Estate. No purchaser or other grantee shall be required to
inquire as to the authorization, necessity, expediency or
regularity of such sale or conveyance or as to the application of
any sale or other proceeds with respect thereto by the Owner
Trustee.
SECTION 11.3. Limitations on Rights of Others.
Nothing in this Agreement, whether express or implied, shall be
construed to give to any person other than the Owner Trustee and
the Owner Participant (and, where specifically noted that a right
exists in favor of the Indenture Trustee, the Indenture Trustee)
any legal or equitable right, remedy or claim under or in respect
of this Agreement, any covenants, conditions or provisions
contained herein or the Trust Estate.
SECTION 11.4. Notices. Unless otherwise expressly
specified or permitted by the terms hereof, all notices shall be
in writing and delivered by hand or mailed by first class mail,
postage prepaid and (a) if to the Owner Trustee, addressed to it
at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention:
Corporate Trust Administration, or to such other address as the
Owner Trustee may have set forth in a written notice to the Owner
Participant, (b) if to the Owner Participant addressed to it at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention:
Vice President, Energy Project Operations, or in each case, to
such other address as such Person shall have furnished by notice
to the Owner Trustee and (c) if to the Indenture Trustee,
addressed to it as set forth in the Participation Agreement.
Whenever any notice in writing is required to be given by the
Owner Trustee or the Owner Participant, such notice shall be
deemed given and such requirement satisfied if such notice is
mailed by first class mail, postage prepaid, addressed as
provided above.
SECTION 11.5. Severability. Any provision of this
Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
SECTION 11.6. Limitation on Owner Participant's
Liability. The Owner Participant shall not have any liability
for the performance of the obligations of the Owner Trustee under
this Agreement except as expressly set forth herein.
SECTION 11.7. Separate Counterparts. This Agreement
may be executed by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute but
one and the same instrument.
SECTION 11.8. Successors and Assigns. All covenants
and agreements contained herein shall be binding upon, and inure
to the benefit of, the Owner Trustee and its successors and
assigns and the Owner Participant and its successors and, to the
extent permitted by Section 11.9 hereof, its assigns, all as
herein provided. Any request, notice, direction, consent, waiver
or other instrument or action by the Owner Participant shall bind
the successors and assigns of such Owner Participant.
SECTION 11.9. Transfer of Interests. Subject to the
provisions of the Participation Agreement, the Owner Participant
may transfer, sell, assign or otherwise dispose of all or any
part of its interest hereunder. In the event of any sale,
transfer, assignment or other disposition of such interest (the
entity to which such interest is sold, transferred, assigned or
otherwise conveyed being hereinafter called the "Transferee"),
the Transferee shall become a party to this Agreement and shall
agree to be bound by all the terms of and shall undertake all or
an appropriate part of the obligations of the Owner Participant
contained in this Agreement in such manner as is satisfactory to
the Owner Trustee. No such sale, transfer, assignment or other
disposition shall violate any provision of law or regulation or
create a relationship which would be in violation thereof. The
Owner Trustee shall not be on notice of or otherwise bound by any
such sale, transfer, assignment or other disposition unless and
until it shall have received an executed counterpart of the
instrument of such sale, transfer, assignment or other
disposition and such evidence that the same is in accordance with
this Section 11.9 as the Owner Trustee shall reasonably require.
Upon any such disposition to a Transferee as above provided, such
Transferee shall be deemed an "Owner Participant" for all
purposes hereof, and shall be deemed to have made all or an
appropriate part of the payments previously made by its
predecessor Owner Participant and to have acquired an appropriate
interest in the Trust Estate, and each reference herein to the
Owner Participant shall thereafter be deemed to refer to, or to
include, as the case may be, such Transferee.
SECTION 11.10. Headings; No Implied Waiver. The
headings of the various Articles and Sections herein are for
convenience of reference only and shall not modify, define,
expand or limit any of the terms or provisions hereof. No term
or provision of this Agreement may be changed, waived, discharged
or terminated orally, but only by an instrument in writing
entered into as provided in Section 10.1; and any such waiver of
the terms hereof shall be effective only in the specific instance
and for the specific purpose given.
SECTION 11.11. Governing Law. This Agreement shall in
all respects be governed by, and construed in accordance with,
the internal laws of the State of Connecticut without regard to
the conflict of laws principles thereof.
SECTION 11.12. Performance by Owner Participant. Any
obligation of the Owner Trustee hereunder or under the Facility
Lease or any other Transaction Document may be performed by the
Owner Participant, and any performance shall not be construed as
a revocation of the trusts created hereby.
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed by their respective officers
hereunto duly authorized, as of the day and year first above
written.
GENERAL ELECTRIC CAPITAL
CORPORATION, as Owner
Participant
By:_________________________
Title:
FLEET NATIONAL BANK, as
Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President