EXHIBIT 10.34
TRUST AGREEMENT
dated as of March 30, 1995
between
GENERAL ELECTRIC CAPITAL CORPORATION,
as Owner Participant
and
SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION,
as Owner Trustee
230 MW Natural Gas - Fired Qualifying Cogeneration Facility
located in Brandywine, Maryland
_________________________________________________________________
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of March 30, 1995 between
GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation (the
"Owner Participant" or "GE Capital') and 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 desires to form the Trust
created hereby for the purpose of, among other things (a) as of
the date hereof, 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) as of the Lease Closing
Date, 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; and
WHEREAS, Shawmut Bank Connecticut, National Association is
willing to act as trustee hereunder and to accept the Trust
created hereby;
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 as follows:
ARTICLE I
Definitions
SECTION l.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 teens 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 tee, 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.
"Loan Agreement" shall mean the Construction Loan Agreement
and Lease Commitment, dated as of March 30, 1995, among the
Partnership, the General Partner and GE Capital, as amended,
supplemented or otherwise modified from time to time.
"Owner Participant" shall mean General Electric Capital
Corporation, a New York corporation, and each other person or
persons the t may f ram 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 Shawmut Bank Connecticut,
National Association, 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 shal1 have the meanings
specified in Appendix A to the Loan 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 ▇▇▇▇ of Sale and the Present Assignment
and (b) 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.
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.l 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 at 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.
ARTICLE IV
Distributions
SECTION 4.1. Distribution of Payments. Subject to the
provisions of the Security Deposit Agreement, all payments and
amounts received by the Owner Trustee with respect to the Trust
Estate 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.
SECTION 4.2. Distribution of Trust Estate. Whenever the
terns 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 no t 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. 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 shad 1 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 or the Owner Participant. 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. l 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 no t 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
tincturing 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 pert of 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.l 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 51 or 5.2 hereof.
SECTION 5.6. Absence of Duties. Except in accordance with
written instructions furnished pursuant to Section 5.l or 5.2 and
except as provided in, and without limiting the generality of,
Sections 5.l, 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 re-record or re-file 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
or 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 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 Trustees 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: Avarice 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.l 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 for) all reasonable fees (including its Ongoing
administrative fees) and expenses of the Owner Trustee hereunder,
inch tiding, without limitation, the reasonable compensation,
expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee 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 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 (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 hereunder, under the
Facility Lease or any other Transaction Document, except only
that the Owner Participant shall not be required to indemnify the
Owner Trustee for Expenses arising or resulting from any of the
matters described in the last sentence of Section 6.1(a) hereof;
but only if and to the extent that the Owner Trustee 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.l 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 worlds 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 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 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.
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, car 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.
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 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. 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. 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: Attorney-in-Fact
SHAWMUT BANK CONNECTICUT,
NATIONAL ASSOCIATION, as Owner Trustee
By:_____________________________
Title: Assistant Vice President