EXHIBIT 10.32.13
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EQUITY FUNDING AGREEMENT
[P1]
Dated as of December 30, 1996
among
ROCKY MOUNTAIN LEASING CORPORATION,
AIG MATCHED FUNDING CORP.,
PHILIP MORRIS CAPITAL CORPORATION,
FLEET NATIONAL BANK,
not in its individual capacity
but solely as Owner Trustee
and
SUNTRUST BANK, ATLANTA,
not in its individual capacity
but solely as Co-Trustee
ROCKY MOUNTAIN PUMPED
STORAGE HYDROELECTRIC FACILITY
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EQUITY FUNDING AGREEMENT
This EQUITY FUNDING AGREEMENT, dated as of December 30, 1996 (this
"Agreement"), among ROCKY MOUNTAIN LEASING CORPORATION, a corporation organized
under the laws of the State of Delaware (herein together with its successors and
permitted assigns, called "RMLC"), AIG MATCHED FUNDING CORP., a corporation
organized under the laws of the State of Delaware (herein together with its
successors and permitted assigns, called "AIGMFC"), FLEET NATIONAL BANK, not in
its individual capacity but solely as Owner Trustee (herein together with its
successors and permitted assigns, the "Owner Trustee"), SUNTRUST BANK, ATLANTA,
not in its individual capacity but solely as Co-Trustee (herein together with
its successors and permitted assigns, the "Co-Trustee") under a Trust Agreement
dated as of December 30, 1996 with the Owner Participant (as hereinafter
defined) and PHILIP MORRIS CAPITAL CORPORATION (herein together with its
successors and permitted assigns, the "Owner Participant").
WITNESSETH:
WHEREAS, RMLC has entered into the Participation Agreement referred to
below with, among others, the Owner Trustee, the Co-Trustee and the Owner
Participant;
WHEREAS, the Co-Trustee, as Lessor, and RMLC, as Lessee, have entered into
a lease as contemplated by the Participation Agreement (the "Facility Lease")
under which RMLC has undertaken to make certain lease payments to the
Co-Trustee;
WHEREAS, RMLC has agreed to make certain payments to the Owner Participant
pursuant to Section 16 of the Participation Agreement; and
WHEREAS, in consideration for the payment by RMLC to AIGMFC of the
Specified Sum (as hereinafter defined), AIGMFC is willing to make certain
payments to the Co-Trustee or the Owner Participant on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is HEREBY AGREED:
ARTICLE 1. DEFINITIONS.
Capitalized terms used in this Agreement and not otherwise defined herein
shall have the respective meanings specified in Appendix A to the Participation
Agreement, dated as of December 30, 1996, among Oglethorpe Power Corporation,
RMLC, Owner Participant, Co-Trustee, Owner Trustee and Utrecht-America Finance
Co. The general provisions of Appendix A apply to terms used in this Agreement
and specifically defined herein.
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"Accreted Value" means an amount equal the discounted present value
(computed using a discount rate equal to 6.745%) on any relevant date of
calculation of the unpaid amounts of Scheduled Payments that would on such date
or thereafter become payable under Section 3.1 hereof.
"Collateral" means at any time the cash and Securities delivered to or held
by the Collateral Agent pursuant to Article 4 hereof.
"Collateral Agent" means an independent third party selected by AIGMFC,
with the approval of the Owner Participant (such approval not to be unreasonably
withheld), to act as agent hereunder to hold the Collateral.
"Collateral Requirement" means (A) if the Collateral consists of Securities
defined in clause (i) of the definition of Securities herein, an amount equal to
104% of the Accreted Value or (B) if the Collateral consists of Securities
defined in clause (ii) of the definition of Securities herein, an amount equal
to 105% of the Accreted Value.
"Collateral Value" means, in the case of cash, the amount thereof, and, in
the case of Securities, the Market Value thereof.
"Early Termination Date" has the meaning set forth in Section 3.2(a)
hereof.
"Federal Funds Closing" means the closing of the Federal Funds wire in New
York, New York.
"Fee" means $26,585,263.03.
"Formula Valuation Amount" means an amount, determined by AIGMFC and
subject to verification by the Owner Participant, equal to the discounted
present value (computed using a discount rate equal to the FVA Yield) to the
Early Termination Date of the unpaid amounts of Scheduled Payments that would on
the payment date hereunder or thereafter would have become payable under Section
3.1 hereof; provided, however, that in no event shall the Formula Valuation
Amount on any date of calculation be greater than the Accreted Value on such
date.
"FVA Yield" means the weighted average rate, as calculated by AIGMFC and
subject to verification by the Owner Participant, determined on the basis of
three quotations from Reference Market-makers, of the yields on U.S. Treasury
STRIPs maturing closest to the Payment Dates set forth on Schedule A hereto,
plus the applicable STRIP spread set forth in the table below opposite the
period during which the Early Termination Date occurs. The STRIP yields will be
determined on the basis of the average of the offered rates quoted by at least
three (3) Reference Market-makers.
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Early Termination Date Occurring STRIP Spreads
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January 1, 2004 - December 31, 2008: 95 basis points
January 1, 2009 - December 31, 2013: 75 basis points
January 1, 2014 - December 31, 2018: 65 basis points
January 1, 2019 and thereafter: 50 basis points
"Guarantee" means the guarantee of the Guarantor, dated the date hereof,
substantially in the form attached hereto as Exhibit B.
"Guarantor" means American International Group, Inc., the corporate parent
of AIGMFC, together with its successors and assigns permitted by Section 8 of
the Guarantee.
"Guarantor Downgrading" means that the ratings issued by S&P and Moody's of
the long-term unsecured, unsubordinated debt obligations issued by the Guarantor
are withdrawn, suspended or reduced below "AA-", in the case of S&P, and below
"Aa3", in the case of Moody's, during the term of this Agreement.
"Market Amount" means an amount, determined by AIGMFC and subject to
verification by the Owner Participant, on the basis of quotations from Reference
Market-makers for the dollar amount that would be payable on the Early
Termination Date to AIGMFC in consideration of an agreement between AIGMFC
(taking into account the Guarantor's Guarantee, with respect to the obligations
of AIGMFC) and the quoting Reference Market-maker, with the Early Termination
Date as the date of commencement of such agreement, that would require AIGMFC to
perform its payment and other obligations hereunder that would, but for the
occurrence of the Early Termination Date, fall due on or after the Early
Termination Date. AIGMFC (or its agent) will request each Reference Market-maker
to provide its quotation as of 11:00 a.m., New York City time, on the Early
Termination Date. If more than three (3) such quotations are provided, the
Market Amount will be the arithmetic mean of the quotations without regard to
the quotations having the highest and lowest values. If exactly three (3) such
quotations are provided, the Market Amount will be the quotation remaining after
disregarding the quotations having the highest and lowest values. For this
purpose, if more than one quotation has the same highest value or lowest value,
then one of such quotations shall be disregarded. If fewer than three (3)
quotations are provided, the Market Amount will be determined in good faith by
AIGMFC subject to acceptance by the Owner Participant.
"Market Value" of any Securities means at any time the closing offer price
for such Securities on the preceding Business Day as reported in The Wall Street
Journal or such other third party pricing source selected in good faith by
AIGMFC and consented to by the Owner Participant, such consent not to be
unreasonably withheld (plus accrued and unpaid interest and principal to the
extent not included therein).
"Payment Date" means each of the dates listed on Schedule A hereto.
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"Reference Market-makers" means leading financial institutions selected in
good faith by AIGMFC and consented to by the Owner Participant, such consent not
to be unreasonably withheld.
"RMLC Creditor" means any creditor of RMLC, RMLC as debtor in possession,
or any trustee, receiver, liquidator, custodian or other similar official of
RMLC appointed as such in an involuntary case, voluntary case or other
proceeding seeking liquidation, reorganization or other similar relief to RMLC
or its assets.
"Scheduled Payments" means at any time the amounts payable by AIGMFC
pursuant to Section 3.1 by reference to Schedule A.
"Securities" means (i) securities issued or guaranteed by the United States
Government, including United States Treasury obligations and any other
obligations the timely payment of principal and interest of which are guaranteed
by the United States Government, and (ii) bonds, notes, debentures, obligations
or other evidence of indebtedness issued and/or guaranteed by Federal National
Mortgage Association, Federal Home Loan Mortgage Corporation, Government
National Mortgage Association or any other agency or instrumentality of the
United States of America, rated "AAA" by S&P or "Aaa" by Moody's or, if such
securities are not then rated by S&P or Moody's, issued by an agency or
instrumentality of the United States of America whose long-term unsecured debt
is then rated "AAA" by S&P or "Aaa" by Moody's.
"Termination Amount" means, with respect to the Early Termination Date, (A)
the Market Amount if the Early Termination Date occurs (i) prior to January 1,
2004 or (ii) as a result of a termination of the Facility Lease pursuant to
Section 13.1(ii) or Section 13.1(iii) where the Sublessee has elected to
terminate the Facility Sublease pursuant to Sections 13.1(ii) or (iii) of the
Facility Sublease, or (iii) based solely upon circumstances resulting from any
amendment or modification to the Operative Documents to which the Co-Trustee,
the Owner Trustee or the Owner Participant is a party entered into without the
prior written consent of AIGMFC; or (B) the greater of the Market Amount and the
Formula Valuation Amount if the Early Termination Date occurs on or after
January 1, 2004 other than as a result of the circumstances specified in clause
(A)(ii) above.
ARTICLE 2. CONSIDERATION.
Section 2.1. Payments by AIGMFC. AIGMFC hereby agrees that subject to and
in consideration for the absolute and irrevocable payment by RMLC to AIGMFC on
the Closing Date of the Fee in immediately available funds to the account
specified by AIGMFC in Schedule B attached hereto, AIGMFC shall make to the
Co-Trustee or the Owner Participant the payments required under Article 3
hereof.
Section 2.2. Fee. RMLC hereby acknowledges that payment of the Fee is
absolute, unconditional and irrevocable and shall not be refundable to RMLC
under any circumstance or for any reason, including, without limitation, the
bankruptcy or insolvency of,
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or any other matter affecting, any party hereto, RMLC or any other Person, or
any action under the Oglethorpe Mortgage. RMLC agrees that (i) it will not have
any right, title or interest in or to any portion of the Fee and upon payment of
the Fee to AIGMFC, the Fee will cease to be an asset of RMLC and will become an
asset solely of AIGMFC, (ii) such payment of the Fee will be irrevocable once
made and will not be subject to avoidance or recapture by RMLC or any RMLC
Creditor and (iii) neither RMLC nor any RMLC Creditor will be entitled to assert
any Lien or claim, or to exercise remedies, with respect to such payment.
Section 2.3. Direct Obligations. The payment obligations of AIGMFC
hereunder constitute direct obligations to the Co-Trustee and the Owner
Participant, enforceable by the Co-Trustee and the Owner Participant against
AIGMFC in accordance with the terms of this Agreement. The right of the
Co-Trustee and the Owner Participant to receive payments hereunder represents a
separate and independent right of each such Person.
Section 2.4. Obligations Unconditional, Irrevocable and Absolute. AIGMFC
acknowledges and agrees that its obligations to pay all Scheduled Payments and
the Termination Amount in accordance with the terms of this Agreement constitute
absolute, irrevocable and unconditional obligations of AIGMFC itself, without
regard to any circumstance whatsoever, including, without limitation, (a) any
setoff, counterclaim, recoupment or other right which AIGMFC or any Affiliate
may have against the Co-Trustee, the Owner Trustee, the Owner Participant, RMLC,
Oglethorpe or any other Person, (b) any insolvency, bankruptcy, reorganization
or similar proceedings with respect to, or any other matter affecting, RMLC, any
other party hereto, Oglethorpe or any other Person, or any obligation of RMLC
under the Facility Lease or any Operative Document, or any application of
Section 502(b)(6) or other provision under the Bankruptcy Code that purports to
limit RMLC's obligations under the Facility Lease or any other Operative
Document, (c) any invalidity, unenforceability or termination of, or amendment,
modification, waiver or consent with respect to, the Facility Lease or any other
Operative Document for any reason whatsoever, including any action taken
pursuant to the Oglethorpe Mortgage, or (d) any other cause whether similar or
dissimilar to the foregoing, it being the intention of the parties hereto that
all Scheduled Payments and the Termination Amount shall be payable in all events
in the manner and at the times provided for herein.
ARTICLE 3. PAYMENTS.
Section 3.1. Scheduled Payments. AIGMFC, in consideration for payment by
RMLC of the Fee, shall make payments to the Co-Trustee (or as the Co-Trustee
otherwise directs) in the amounts and on the dates specified on Schedule A
hereto.
Section 3.2. Special Payment.
(a) Upon delivery to AIGMFC of a payment certificate in the form attached
hereto as Exhibit A (the "Payment Certificate") (delivered to AIGMFC at the
address specified in Schedule B attached hereto no later than three (3) Business
Days prior to the payment date specified in the Payment Certificate) from either
the Co-Trustee or the Owner Participant,
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AIGMFC shall pay to the Co-Trustee or the Owner Participant (or as the
Co-Trustee or Owner Participant otherwise directs), whichever is specified in
the Payment Certificate, on the date specified in the Payment Certificate (the
"Early Termination Date") an amount equal to the Termination Amount.
(b) Upon payment in full of the Termination Amount pursuant to Section
3.2(a), AIGMFC shall be released from the payment of any future Scheduled
Payments under Section 3.1, provided, however, that if the Early Termination
Date is a Payment Date, AIGMFC shall also pay (but without duplication of
payment) to the Co-Trustee the Scheduled Payment payable on such Payment Date.
Section 3.3. Overdue Interest. Any amount payable by AIGMFC hereunder which
shall not be paid when due shall bear interest at Prime Rate plus 2% from the
due date of such amount until the date of its payment.
Section 3.4. No Other Payments or Obligations. Except as expressly provided
in this Article 3, AIGMFC shall have no obligation to make any payment hereunder
and shall have no obligation in respect of any Operative Document or other
document relevant to any transaction related hereto or contemplated by any
Operative Document; provided that nothing in this Section 3.4. shall limit any
remedies the Co-Trustee or the Owner Participant may have against AIGMFC or the
Guarantor for any breach of its obligations under this Agreement or the
Guarantee. In the event that any payment under this Agreement is rescinded or
must otherwise be returned for any reason whatsoever, AIGMFC shall remain liable
hereunder with respect to such amounts as if such payment had not been made.
Section 3.5. Time, Place and Method of Making Payments. All payments
required to be made hereunder shall be made to the Co-Trustee or the Owner
Participant (or its designees) in immediately available funds. AIGMFC agrees (a)
that it will instruct, prior to 10:00 A.M., New York City time, on the date on
which a payment is due to be made by it hereunder, an appropriate bank to make
such payment by FedWire transfer to the Co-Trustee's or the Owner Participant's
respective address for payments specified on Schedule B hereto (or at such other
place as the Co-Trustee or the Owner Participant may designate in writing to
AIGMFC by two (2) Business Days' notice prior to the date on which such payment
is due) and (b) that such payment will be effected by no later than Federal
Funds Closing on such date.
Section 3.6. Payment Upon Written Notice; Etc. (a) Scheduled Payments under
Section 3.1 shall be made by AIGMFC without further act or notice by any Person.
Payments specified in Section 3.2 hereof shall be made upon delivery of the
Payment Certificate described in Section 3.2(a) hereof or as otherwise agreed by
AIGMFC and the Owner Participant.
(b) AIGMFC agrees that it shall pay each amount payable by it hereunder to
the Co-Trustee or the Owner Participant (or its designees) in accordance with
the provisions hereof without offset, deduction or withholding (other than
deduction or withholding of tax, which shall be permitted) and without regard to
any conflicting payment instruction delivered by any
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Person. AIGMFC shall notify the Co-Trustee and the Owner Participant as soon as
practicable of any amounts deducted or withheld from payments under this
Agreement.
(c) AIGMFC may rely, without inquiry, upon any notice or certificate under
Section 3.2 hereof purported to be signed by a properly authorized officer or
other representative of the appropriate signatory and its obligations pursuant
to Section 3.2 to make payments described in Section 3.2 shall be conditioned
only upon the delivery to it of a properly executed Payment Certificate and
shall not be conditioned in any manner upon the correctness of matters stated in
such Payment Certificate.
(d) Each of the Co-Trustee, the Owner Trustee and the Owner Participant
shall provide AIGMFC with a properly completed United States Internal Revenue
Service Form W-9 upon the execution of this Agreement. The Co-Trustee and the
Owner Participant shall cooperate with AIGMFC in determining AIGMFC's
withholding obligations in respect of payments under this Agreement.
Section 3.7. Use of Payments. It is understood and agreed that AIGMFC will
have no responsibility or obligation with respect to the applications of monies
upon their payment to the Person entitled thereto pursuant to the provisions
hereof.
Section 3.8. Business Day Convention. Unless otherwise specified herein,
any relevant date for a payment to be made by AIGMFC that would otherwise fall
on a day that is not a Business Day will be made on the first succeeding day
that is a Business Day, without additional interest on such payment.
ARTICLE 4. GUARANTEE AND RATINGS EVENT.
Section 4.1. Guarantee. It is understood and agreed that each of the
Co-Trustee, the Owner Trustee and the Owner Participant, in entering into this
Agreement, is and will be relying on the Guarantee pursuant to which the
Guarantor has, among other things, unconditionally guaranteed the full and
prompt payment of any and all obligations of AIGMFC hereunder to the extent, on
the terms and as provided in the Guarantee.
Section 4.2. Ratings Event. Upon the occurrence and continuance of a
Guarantor Downgrading and upon the written request of the Owner Participant,
AIGMFC, within ten (10) Business Days of such written request, shall deliver
Collateral to the Collateral Agent, the aggregate Collateral Value of which
shall be equal to or greater than the then current Collateral Requirement.
AIGMFC hereby agrees to grant to the Co-Trustee and the Owner Participant a
first perfected security interest in all the Collateral delivered or transferred
to the Collateral Agent hereunder and in any and all proceeds of and
distributions on such Collateral all in a manner and pursuant to documentation
in form and substance satisfactory to the Owner Participant. AIGMFC agrees to
use its reasonable efforts to notify the Owner Participant upon a Guarantor
Downgrading; provided, that AIGMFC shall not be liable to the Owner Participant
for any failure to provide such notification.
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Section 4.3. Collateral Valuation. The Collateral Agent shall, not later
than 5:00 p.m. New York City time on each Tuesday, or if any such Tuesday is not
a Business Day, on the next following Business Day, determine the aggregate
Collateral Value (subject to verification by the Owner Participant) and shall
notify AIGMFC by telephone on such date (such notice to be confirmed in writing)
of such amount and provide to AIGMFC and the Owner Participant any information
that AIGMFC and the Owner Participant may reasonably request regarding the
Collateral Agent's determination thereof. If such amount is less than the
Collateral Requirement on such day, AIGMFC shall, before the close of business
on the second Business Day following the date of such determination, deliver to
the Collateral Agent additional Collateral having an aggregate Collateral Value
on such day not less than the amount of such deficiency and deliver written
notification of such delivery to the Owner Participant on such date.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES.
Each party hereto represents and warrants to the others on the date hereof
that:
(a) Organization. It has full power and authority to conduct its business
as presently conducted, to own or hold under lease its properties and to
execute, deliver and perform this Agreement.
(b) Due Authorization. Its execution, delivery and performance of this
Agreement have been duly authorized by all necessary action on its part and do
not require any stockholder approval, or any approval or consent of, or notice
to, any trustee or holder of any indebtedness or obligation of such party or any
Governmental Entity.
(c) Legal, Valid and Binding Obligations. This Agreement has been duly
executed and delivered by it and constitutes its legal, valid and binding
obligation enforceable against it in accordance with its terms except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, and other similar laws affecting it or the rights of its creditors
generally and by general principles of equity applicable to it or its creditors
regardless whether enforcement is pursuant to a proceeding in equity or at law.
ARTICLE 6. ASSIGNMENT.
Section 6.1. Assignment. The Co-Trustee or the Owner Participant may
transfer, assign, pledge, repledge or otherwise dispose of, or grant any option,
participation or interest in, with respect to or measured by, or any proceeds
with respect to the rights of the Co-Trustee or the Owner Participant,
respectively, as a beneficiary under this Agreement to any Person or to any
transferee of all or a part of the Co-Trustee's or the Owner Participant's
respective right, title and interest in the Operative Documents or the Undivided
Interest. Any transferee of any portion
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of the Co-Trustee's or the Owner Participant's respective rights under this
Agreement shall provide AIGMFC with an Internal Revenue Service Form W-9, or any
successor form, and shall be subject to the provisions of Section 3.6 hereof in
the same manner as the Co-Trustee and the Owner Participant. In no event may
there be any transfer or assignment by the Co-Trustee or the Owner Participant
to a person not a United States person as defined in Section 7701(a)(30) of the
Internal Revenue Code of 1986, as amended, without the prior written consent of
AIGMFC, which consent will not be unreasonably withheld. Any transfer or
assignment by the Co-Trustee or the Owner Participant pursuant to the foregoing
shall become effective upon the giving of written notice of such transfer or
assignment to AIGMFC. Without limiting the generality of the foregoing, any
payment in accordance with the provisions hereof by AIGMFC to the Co-Trustee or
the Owner Participant or their respective assignees shall release AIGMFC from
any further liability hereunder to the Co-Trustee, the Owner Participant and any
other Person in respect of such payment. RMLC may not assign or pledge its
rights, if any, hereunder to any Person other than the Co-Trustee and the Owner
Participant (which shall be entitled to re-assign, pledge or repledge such
rights only as set forth in the first sentence of this Section 6.1), without the
prior written consent of AIGMFC. AIGMFC may not assign its rights or obligations
hereunder to any United States corporation that is solvent without the consent
of the Co-Trustee and the Owner Participant, except that AIGMFC may transfer
this Agreement or any of its interests and obligations hereunder to any
subsidiary of AIGMFC or any subsidiary of the Guarantor, provided that (i) the
Co-Trustee and the Owner Participant receive thirty (30) days prior written
notice of such proposed assignment, (ii) the assignee shall assume all the
rights and obligations of AIGMFC hereunder in a manner that is not adverse to
the Owner Participant's interest and pursuant to a written agreement
satisfactory to the Owner Participant, (iii) prior to such transfer the
Guarantor shall confirm in writing to AIGMFC, RMLC, the Co-Trustee and the Owner
Participant that the Guarantee by the Guarantor relating to this Agreement shall
remain in full force and effect after such assignment and (iv) RMLC, the
Co-Trustee and the Owner Participant shall have received an opinion or opinions
of counsel to such assignee and the Guarantor, substantially similar to those
delivered in connection with the execution of this Agreement, as to the
enforceability of this Agreement and the Guarantee and such other matters as the
Owner Participant may reasonably request.
ARTICLE 7. MISCELLANEOUS.
Section 7.1. Release of AIGMFC. Any payment in accordance with the
provisions hereof by AIGMFC to the Co-Trustee or the Owner Participant shall
release AIGMFC from any further liability hereunder in respect of such payment
to the Co-Trustee and the Owner Participant and any other Person in respect of
such payment.
Section 7.2. Notices. All notices, demand or other communications hereunder
shall be given or made in writing and shall be delivered personally, or sent by
certified or registered mail or overnight delivery service, return receipt
requested, postage prepaid, or telecopy to the party to whom they are directed
at the respective addresses therefor set forth in Schedule B hereto, or at such
other address as may be designated by notice from such party to all
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other parties hereto. Any notice, demand or other communication given in a
manner prescribed in this Section 7.2 shall be deemed to have been delivered on
receipt.
Section 7.3. Waiver. Any forbearance, failure, or delay by the Co-Trustee
or the Owner Participant in exercising any right or power shall not preclude the
further exercise thereof, and all of such rights and powers shall continue in
full force and effect until specifically waived by the Co-Trustee or the Owner
Participant.
Section 7.4. Amendment and Waiver. Neither this Agreement, or any provision
hereof may be changed, waived, discharged or terminated, except by a writing
signed by AIGMFC, RMLC, the Co-Trustee, the Owner Trustee and the Owner
Participant.
Section 7.5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 7.6. Interpretation. The headings of the sections hereof are for
convenience of reference only and shall not affect the meaning or construction
of any provision hereof.
Section 7.7. 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 7.8. Chattel Paper. To the extent, if any, that this Agreement
constitutes chattel paper (as such term is defined in the Uniform Commercial
Code as in effect in any applicable jurisdiction), no security interest in this
Agreement may be created through the transfer or possession of any counterpart
hereof other than the original counterpart, which shall be identified as the
counterpart containing the receipt therefor executed by the Co-Trustee and the
Owner Participant on the signature page thereof.
Section 7.9. 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 7.10. Integration of Terms. This Agreement contains the entire
agreement between the parties relating to the subject matter hereof and
supersedes all oral statements and prior writings with respect thereto and may
not be terminated except as provided herein.
Section 7.11. Survival. All warranties, representations, indemnities and
covenants made by either party hereto, herein or in any certificate or other
instrument delivered by either such party or on the behalf of such party under
this Agreement, shall be considered to have been relied upon by the other party
hereto and shall survive the consummation of the transactions
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contemplated hereby and in the Operative Documents regardless of any
investigation made by either party or on behalf of such party.
Section 7.12. Further Assurances. Each party hereto will promptly and duly
execute and deliver such further documents to make such further assurances for
and take such further action reasonably requested by any party to whom such
first party is obligated, all as may be reasonably necessary or appropriate to
carry out more effectively the intent and purpose of this Agreement.
Section 7.13. Consent to Jurisdiction and Service of Process. Each of the
parties hereto (i) hereby irrevocably submits to the nonexclusive jurisdiction
of the Supreme Court of the State of New York, New York County (without
prejudice to the rights of any party to remove to the United States District
Court for the Southern District of New York) and to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York, for the purposes of any suit, action or other proceeding arising out
of this Agreement, or the subject matter hereof or any of the transactions
contemplated hereby or thereby brought by any of the parties hereto or their
successors or assigns, (ii) hereby irrevocably agrees that all claims in respect
of such action or proceeding may be heard and determined in such New York State
court or, to the fullest extent permitted by Applicable Law, in such Federal
court, and (iii) to the extent permitted by Applicable Law, hereby irrevocably
waives, and agrees not to assert, by way of motion, as a defense, or otherwise,
in any such suit, action or proceeding any claim that it is not personally
subject to the jurisdiction of the above-named courts, that the suit, action or
proceeding is improper or that this Agreement, or the subject matter hereof may
not be enforced in or by such court. A final judgment obtained in respect of any
action, suit or proceeding referred to in this Section 7.13 shall be conclusive
and may be enforced in other jurisdictions by suit or judgment or in any manner
as provided by Applicable Law. Each of the parties hereto hereby consents to
service of process by registered mail, Federal Express, UPS, DHL or similar
courier at the address to which notices to it are to be given, it being agreed
that service in such manner shall constitute valid service upon such party or
its respective successors or assigns in connection with any such action or
proceeding only; provided, however, that nothing in this Section 7.13 shall
affect the right of any of such parties or their respective successors or
assigns to serve legal process in any other manner permitted by Applicable Law
or affect the right of any of such parties or its respective property in the
courts of other jurisdictions.
Section 7.14. Limitation of Liability. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed and delivered
by each Trust Company, not individually or personally but solely as owner
trustee under the Trust Agreement, in the exercise of the powers and authority
conferred and vested in each respective Trustee, (b) each of the
representations, undertakings and agreements herein made on the part of each
Trustee is made and intended not as personal representations, undertakings and
agreements by each Trust Company but is made and intended for the purpose of
binding only each Trust Company, (c) nothing herein contained shall be construed
as creating any liability on each Trust Company, individually or personally, to
perform any covenant either expressed or implied herein, all such liability, if
any, being expressly waived by the parties hereto or by any Person claiming by,
through or under the parties hereto and (d) under no circumstances shall each
Trust Company be personally liable for
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the payment of any indebtedness or expenses of each respective Trustee or be
liable for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Co-Trustee under this Agreement. In addition,
each of the parties hereto acknowledges and agrees that the Co-Trustee has been
appointed by the Owner Participant and the Owner Trustee for the limited purpose
of exercising those trust powers in the State of Georgia which may not be
exercised by the Owner Trustee under applicable law, and that, except as
otherwise required by applicable law, the Co-Trustee shall not be obligated to
take any action hereunder unless expressly directed in writing by the Owner
Trustee or the Owner Participant in accordance with the terms of the Trust
Agreement.
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IN WITNESS WHEREOF, each of RMLC, AIGMFC, the Co-Trustee, the Owner Trustee
and the Owner Participant has caused this Agreement to be duly executed and
delivered by their respective officers thereto duly authorized.
ROCKY MOUNTAIN LEASING
CORPORATION
By:/s/ J. E. Kofron
-----------------------------------
Name:
Title:
AIG MATCHED FUNDING CORP.
By:/s/ Kathleen M. Furlong
-----------------------------------
Name: Kathleen M. Furlong
Title: Treasurer
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FLEET NATIONAL BANK, not in its
individual capacity but solely as Owner Trustee
By:/s/ Frank McDonald
-----------------------------------
Name: Frank McDonald
Title: Vice President
SUNTRUST BANK, ATLANTA, not in its
individual capacity but solely as Co-Trustee
By:/s/ Bryan Echols
-----------------------------------
Name:
Title:
PHILIP MORRIS CAPITAL CORPORATION
By:/s/ Steven P. Seagrift
-----------------------------------
Name:
Title:
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CERTAIN OF THE RIGHT, TITLE AND INTEREST IN AND TO THIS AGREEMENT AND THE
PAYMENT OBLIGATIONS OF AIGMFC HAVE BEEN ASSIGNED, PLEDGED AND/OR REPLEDGED TO
AND ARE SUBJECT TO A FIRST PRIORITY SECURITY INTEREST IN FAVOR OF THE
UNDERSIGNED, UNDER THE EQUITY FUNDING PLEDGE AGREEMENT DATED AS OF DECEMBER 30,
1996. THIS AGREEMENT HAS BEEN EXECUTED IN SEVERAL COUNTERPARTS. ONLY THE
ORIGINAL COUNTERPART CONTAINS THE RECEIPT THEREFOR EXECUTED BY THE UNDERSIGNED
ON THE SIGNATURE PAGE THEREOF. SEE SECTION 7.8 HEREOF FOR INFORMATION CONCERNING
THE RIGHTS OF THE HOLDERS OF THE VARIOUS COUNTERPARTS THEREOF.
Receipt of this original counterpart of this Agreement is hereby
acknowledged on this 30th day of December, 1996.
SUNTRUST BANK, ATLANTA, not in its individual
capacity but solely as Co-Trustee, and
PHILIP MORRIS CAPITAL CORPORATION, as Secured
Parties
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
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SCHEDULE TO EXHIBIT 10.32.13
EQUITY FUNDING AGREEMENT (P1)
The following table indicates for each transaction the name of the
corresponding Owner Participant:
Agreement Date Owner Participant
---------- ------------------ --------------------------------------
P1 December 30, 1996 Philip Morris Capital Corporation
P2 January 3, 1997 Philip Morris Capital Corporation
F3 December 30, 1996 First Chicago Leasing Corporation
F4 December 30, 1996 First Chicago Leasing Corporation
N5 December 30, 1996 NationsBanc Leasing & R.E. Corporation
N6 January 3, 1997 NationsBanc Leasing & R.E. Corporation
The Exhibits and Schedules to the Equity Funding Agreement (P1) are not
filed herewith; however, the registrant hereby agrees that such Exhibits and
Schedules will be provided to the Commission upon request.
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