SUNSET STATION 1996 TRUST AGREEMENT
dated as of September 25, 1996
between
STATION CASINOS, INC.,
as Grantor
and
FIRST SECURITY TRUST COMPANY OF NEVADA,
as Trustee
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II.
TRUSTEE'S AUTHORIZATIONS AND DIRECTIONS. . . . . . . . . . . . . . . . . . . 1
Section 2.1 Creation of Trust. . . . . . . . . . . . . . . . . . . . 1
Section 2.2 Authorization to Take Certain Actions. . . . . . . . . . 1
Section 2.3 Condition Precedent to Trustee's Obligations and
Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.4 Declaration of Trusts. . . . . . . . . . . . . . . . . . 3
Section 2.5 Security Interest in the Equipment . . . . . . . . . . . 3
ARTICLE III.
COVENANTS OF GRANTOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 3.1 Indemnification of Trustee . . . . . . . . . . . . . . . 3
Section 3.2 Payment of Trustee's Fees, Costs and Expenses. . . . . . 4
ARTICLE IV.
THE CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4.1 The Certificates . . . . . . . . . . . . . . . . . . . . 5
Section 4.2 Registration, Transfers, Exchanges and Cancellation
of Certificates. . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 4.3 Persons Deemed Owners. . . . . . . . . . . . . . . . . . 8
Section 4.4 Mutilated, Destroyed, Lost or Stolen Certificates. . . . 8
Section 4.5 Terms of Certificates. . . . . . . . . . . . . . . . . . 9
Section 4.6 Prepayment of Certificates . . . . . . . . . . . . . . . 9
Section 4.7 Payments from Trust Estate . . . . . . . . . . . . . . . 10
Section 4.8 Method of Payment. . . . . . . . . . . . . . . . . . . . 10
Section 4.9 Application of Payments to Investment or Yield . . . . . 11
Section 4.10 Termination of Interest in Trust Estate . . . . . . . . 11
ARTICLE V.
RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM THE TRUST ESTATE. . . . 11
Section 5.1 Rent and other Lease Payments. . . . . . . . . . . . . . 11
Section 5.2 Payments After Event of Default. . . . . . . . . . . . . 12
Section 5.3 Payments for Other Specific Purposes . . . . . . . . . . 13
Section 5.4 Other Payments . . . . . . . . . . . . . . . . . . . . . 14
Section 5.5 Deposit Account. . . . . . . . . . . . . . . . . . . . . 14
Section 5.6 Investment of Amounts Held by the Trustee. . . . . . . . 14
ARTICLE VI.
DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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Section 6.1 Action Upon Event of Default . . . . . . . . . . . . . . 15
Section 6.2 Waiver of Defaults . . . . . . . . . . . . . . . . . . . 15
Section 6.3 Proceedings by Holders . . . . . . . . . . . . . . . . . 15
ARTICLE VII.
DUTIES OF TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 7.1 Action Upon Lease Event of Default . . . . . . . . . . . 16
Section 7.2 Action Upon Instructions Generally . . . . . . . . . . . 17
Section 7.3 Indemnification, etc.. . . . . . . . . . . . . . . . . . 18
Section 7.4 Duties to Remove Liens and Provide Reports, etc. . . . . 18
Section 7.5 No Action Except Under Trust Agreement or
Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VIII.
THE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 8.1 Acceptance of Trusts and Duties. . . . . . . . . . . . . 18
Section 8.2 Absence of Duties Except as Specified. . . . . . . . . . 19
Section 8.3 No Representations or Warranties . . . . . . . . . . . . 19
Section 8.4 No Segregation of Monies; No Interest. . . . . . . . . . 20
Section 8.5 Reliance; Agents; Advice of Counsel. . . . . . . . . . . 20
Section 8.6 No Compensation from Holders . . . . . . . . . . . . . . 21
Section 8.7 Not Acting in Individual Capacity. . . . . . . . . . . . 21
Section 8.8 Trustee May Own Certificates, etc. . . . . . . . . . . . 21
ARTICLE IX.
SUCCESSOR TRUSTEES AND SEPARATE TRUSTEES . . . . . . . . . . . . . . . . . . 22
Section 9.1 Resignation or Removal of Trustee; Appointment of
Successor. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 9.2 Appointment of Additional and Separate Trustees. . . . . 23
ARTICLE X.
SUPPLEMENTAL TRUST AGREEMENT AND AMENDMENTS TO OPERATIVE DOCUMENTS . . . . . 26
Section 10.1 Supplemental Trust Agreement and Amendments to
Operative Documents With Consent of Holders. . . . . . . . . . . 26
Section 10.2 Supplemental Trust Agreements Without Consent of
Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 10.3 Trustee Protected . . . . . . . . . . . . . . . . . . . 26
Section 10.4 Form of Request . . . . . . . . . . . . . . . . . . . . 27
Section 10.5 Documents Mailed to Holders . . . . . . . . . . . . . . 27
Section 10.6 This Article Exclusive. . . . . . . . . . . . . . . . . 27
ARTICLE XI.
TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 11.1 Termination Upon Performance. . . . . . . . . . . . . . 27
Section 11.2 Termination Generally . . . . . . . . . . . . . . . . . 28
ARTICLE XII.
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MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 12.1 Sale of Equipment Binding . . . . . . . . . . . . . . . 29
Section 12.2 Trust Agreement for Benefit of Holders Only . . . . . . 30
Section 12.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 12.4 Severability. . . . . . . . . . . . . . . . . . . . . . 30
Section 12.5 Successors and Assigns. . . . . . . . . . . . . . . . . 30
Section 12.6 APPLICABLE LAW. . . . . . . . . . . . . . . . . . . . . 30
Section 12.7 Counterparts. . . . . . . . . . . . . . . . . . . . . . 30
Section 12.8 Captions and Table of Contents. . . . . . . . . . . . . 30
Section 12.9 Further Assurances. . . . . . . . . . . . . . . . . . . 31
Section 12.10 Survival of Covenants. . . . . . . . . . . . . . . . . 31
Exhibit A Form of Certificate
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SUNSET STATION 1996 TRUST AGREEMENT
This SUNSET STATION 1996 TRUST AGREEMENT, dated as of September 25, 1996,
is entered into between Station Casinos, Inc., a Nevada corporation (the
"GRANTOR" or "LESSEE"), and First Security Trust Company of Nevada, a Nevada
trust company (together with its successors and assigns, the "TRUSTEE").
WHEREAS, the Grantor wishes to create a trust to acquire its interest in
the Equipment and to lease the Equipment to the Lessee pursuant to the Lease and
to issue the Certificates all in accordance with the terms and conditions of the
Participation Agreement;
AND WHEREAS, the Equipment is subject to the Sublease, which will be
entered into concurrently with entering into of the Lease;
AND WHEREAS, the Trustee is willing to accept the duties and obligations
imposed hereby on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual terms, conditions and
covenants contained herein, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
Capitalized terms used but not otherwise defined herein (including those
used in the foregoing recitals) shall have the meanings specified in Appendix 1
to the Participation Agreement, dated as of the date hereof, among Lessee, the
Persons listed on Schedule I thereto and the Trustee, not individually, except
as expressly set forth therein, but as Trustee, unless the context otherwise
requires.
ARTICLE II.
TRUSTEE'S AUTHORIZATIONS AND DIRECTIONS
Section 2.1 CREATION OF TRUST. Grantor and the Trustee hereby create a
trust (the "TRUST"), which Trust shall be designated as the Sunset Station 1996
Trust.
Section 2.2 AUTHORIZATION TO TAKE CERTAIN ACTIONS. The Grantor hereby
authorizes and directs the Trustee to take, in its capacity as trustee, the
following actions:
(a) To execute and deliver the Participation Agreement, in the form
heretofore or concurrently submitted to and approved by the Holders to be
conclusively evidenced by their execution thereof;
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(b) As of the Closing Date, to execute and deliver, or to accept
the Lease, the Sublease Assignment and each of the other documents,
certificates, and agreements, in the form heretofore or concurrently
submitted to and approved by the Holders, required to be executed and
delivered or accepted by the Trustee under the terms of the Participation
Agreement with regard to the items of Equipment identified in SCHEDULE V
to the Participation Agreement;
(c) As of the Closing Date, to take the actions the Trustee is
required to take under ARTICLE II of the Participation Agreement
including the delivery of the Certificates substantially in the form
attached hereto as EXHIBIT A;
(d) From time to time, to execute, deliver or accept Certificates
of Acceptance and such documents, certificates and agreements in the form
heretofore, concurrently or at such time approved by the Holders, which
are required to be executed and delivered or accepted by the Trustee
under the terms of the Participation Agreement;
(e) Subject to the terms of this Trust Agreement: (i) to exercise
all of the rights and perform all the obligations of the Lessor under the
Lease; (ii) to exercise such rights and perform such obligations as the
Trustee shall have the right to exercise or the obligation to perform
pursuant to this Trust Agreement and the documents the Trustee is
authorized to execute and deliver or accept pursuant to SECTIONs 2.2(a)
through (d) hereof; and (iii) to execute and deliver all other
agreements, instruments and certificates contemplated by the Operative
Agreements to be executed and delivered by the Lessor; and
(f) Subject to the terms of this Trust Agreement, to take such
other action in connection with any of the foregoing as the Requisite
Holders may from time to time direct.
SECTION 2.3 CONDITION PRECEDENT TO TRUSTEE'S OBLIGATIONS AND AUTHORITY.
The obligation and authority of the Trustee to take the actions referred to in
SECTIONS 2.2(b) through (f) hereof shall be subject to the condition precedent
that on the Closing Date, the conditions set forth in the Participation
Agreement with respect to the obligation of the Holders to proceed to closing
shall have been fulfilled to the satisfaction of, or waived by, the Holders
which shall be conclusively evidenced by their payment for the Certificates
pursuant to SECTION 2.2 of the Participation Agreement.
Section 2.4 DECLARATION OF TRUSTS. The Trustee hereby declares that it
does and will hold all estate, right, title and interest in and to the
Equipment, the Operative Documents and any funds transmitted to the Trustee
pursuant to the Operative Documents to which it is a party, including all
amounts of Rent, insurance proceeds, indemnity payments, Purchase Option
payments, Proceeds from the Lessee's exercise of the Sale Option and other
payments of any kind for or with respect to the Equipment, the Lease and
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the Operative Documents (other than indemnity payments to which the Trustee,
individually, is entitled pursuant to any Operative Document), upon the
trusts hereinafter set forth (all such estate, right, title and interest
called the "TRUST ESTATE") for the use and benefit of the Holders, subject,
however, to the terms and conditions of the Operative Documents.
Section 2.5 SECURITY INTEREST IN THE EQUIPMENT. It is the intent of the
Holders that the interest in the Equipment held by the Trustee constitutes a
first priority Lien in all right, title and interest in the Equipment, for the
benefit of the Holders to secure the performance by the Lessee of its
obligations pursuant to the Lease of its obligations to the Lessor pursuant to
the other Operative Documents to which it is a party.
ARTICLE III.
COVENANTS OF GRANTOR
Section 3.1 INDEMNIFICATION OF TRUSTEE. Grantor shall assume liability
for, and shall indemnify, protect, save and keep harmless the Trustee and its
Affiliates, agents and employees (each such person called a "TRUSTEE INDEMNIFIED
PERSON") from and against any and all liabilities, obligations, losses, damages,
penalties, taxes (other than any income taxes on fees or other compensation
received by a Trustee Indemnified Person), claims, actions, proceedings, suits,
costs (including reasonable attorneys' fees), expenses and disbursements of any
kind and nature whatsoever ("TRUST CLAIMS") imposed on, incurred by or asserted
against any Trustee Indemnified Person, in any way relating to or arising out of
this Trust Agreement, the Trust created hereby, the Operative Documents or the
performance or enforcement of any of the terms hereof or thereof, or in any way
relating to or arising out of the manufacture, purchase, acceptance, rejection,
ownership, delivery, lease, sublease, possession, use, operation, maintenance,
condition, sale, return, storage or other disposition of the Equipment, or in
any way relating to or arising out of the administration of the Trust and the
Trust Estate or the action or inaction of any Trustee Indemnified Person
hereunder; PROVIDED, HOWEVER, that: (a) the Grantor shall not be required to
indemnify any Trustee Indemnified Person for any Trust Claims resulting from:
(i) acts or omissions that would constitute the willful misconduct or gross
negligence of such Trustee Indemnified Person; or (ii) such Trustee Indemnified
Person's negligent handling of monies constituting part of the Trust Estate, but
the willful misconduct or gross negligence or, if appropriate, negligence of any
one Trustee Indemnified Person shall not affect the rights of any other Trustee
Indemnified Person hereunder; and (b) the Grantor shall not be required to
indemnify the Trustee with respect to Trust Claims resulting because any
representation or warranty of the Trustee made expressly in its individual
capacity and contained in any Operative Document proves to be untrue or
inaccurate or because any covenant or agreement made or undertaken by the
Trustee in any Operative Document shall have been breached or not complied with.
The indemnities contained in this SECTION 3.1 shall inure to the benefit of each
Trustee Indemnified Person whether or not the transactions contemplated by the
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Participation Agreement are consummated and shall survive the termination of
this Trust Agreement and of the Trust created hereby, and such indemnities are
expressly made for the benefit of, and shall be enforceable by, each Trustee
Indemnified Person even if such Trustee Indemnified Person is no longer a party
to this Trust Agreement or was not a party to this Trust Agreement on the date
of the execution hereof.
Section 3.2 PAYMENT OF TRUSTEE'S FEES, COSTS AND EXPENSES. Upon 30
days' prior written notice, the Grantor shall:
(a) Pay to the Trustee for its services hereunder such fees as may
heretofore and from time to time hereafter be agreed upon by the Trustee
and the Grantor and shall reimburse the Trustee for its costs and
expenses hereunder (including reasonable counsel fees);
(b) Pay to the Trustee such fees as may be reasonably charged and
such costs and expenses (including reasonable counsel fees and expenses)
as may be reasonably incurred by the Trustee in consequence of any
direction of the Grantor given to the Trustee pursuant to SECTION 2.2
hereof; and
(c) Pay to the Trustee such fees as may be reasonably charged and
such costs and expenses (including reasonable counsel fees and expenses)
as may be reasonably incurred in consequence of the Trustee's rendering
extraordinary services or incurring extraordinary costs and expenses,
including services rendered and costs and expenses incurred in connection
with any Lease Event of Default.
ARTICLE IV.
THE CERTIFICATES
Section 4.1 THE CERTIFICATES.
(a) Certificates shall be substantially in the form of EXHIBIT A
hereto (each, a "CERTIFICATE"), and shall, upon issue, be executed by the
Grantor and delivered to the Trustee and the Trustee shall authenticate
and deliver said Certificates to the Holders entitled thereto pursuant to
the Participation Agreement. All Certificates shall be identical in all
respects except for the denominations, dates and registration numbers
thereof and shall be equally and ratably entitled as provided herein to
the benefits hereof and pursuant to the Operative Documents without
preference, priority or distinction on account of the actual time or
times of authentication and delivery, all in accordance with the terms
and provisions of this Trust Agreement. The Certificates are
certificated securities in registered form, within the meaning of Article
8 of the UCC.
(b) The Certificates shall be issued in an original aggregate
investment amount of $40,000,000.
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(c) Each Certificate shall be executed by a duly authorized officer
of the Grantor and shall be authenticated by manual or facsimile
signature on behalf of the Trustee by an authorized officer of the
Trustee. Certificates bearing the manual or facsimile signature of the
individual who was, at the time when such signature was affixed,
authorized to sign on behalf of the Grantor or the Trustee shall not be
rendered invalid, notwithstanding that such individual has ceased to be
authorized prior to the authentication and delivery of such Certificates
or does not hold such office at the date such Certificates are issued.
No Certificate shall be entitled to any benefit under this Trust
Agreement or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form
provided for below executed by or on behalf of the Trustee by the manual
signature of a duly authorized signatory, and such certificate upon any
Certificate shall be conclusive evidence, and the only evidence needed,
that such Certificate has been duly authenticated and delivered
hereunder.
This Certificate is one of the Certificates referred to in the
within-mentioned Trust Agreement.
FIRST SECURITY TRUST COMPANY OF NEVADA,
as Trustee
By:
Name Printed:
Title:
All Certificates shall be dated the date of their authentication and
delivery.
(d) The Certificates to be issued on the Closing Date shall
evidence the entire beneficial ownership of the Trust Estate as of the
Closing Date.
Section 4.2 REGISTRATION, TRANSFERS, EXCHANGES AND CANCELLATION OF
CERTIFICATES.
(a) The Trustee shall maintain at the Corporate Trust Department a
register for the purpose of registering all Certificates and transfers
(other than transfers of a participation in a Certificate pursuant to
SECTION 6.3 of the Participation Agreement and a pledge of a Certificate)
and exchanges thereof (the "CERTIFICATE REGISTER"). A Holder that
intends to transfer a Certificate, or to exchange Certificate(s) of
different denominations shall surrender such Certificate to the Trustee
at the Corporate Trust Department, together with a written request from
such holder for the issuance of one or more new Certificates. Such
notice shall specify the denomination or denominations of such new
Certificate(s) and, in the case of a surrender for registration of
transfer, the name and address of the Person in whose name such new
Certificate(s) are to be registered together with a duly executed letter
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substantially in the form of EXHIBIT H to the Participation Agreement,
from each such transferee. Promptly upon receipt of such documents by
the Trustee, the Grantor shall execute and deliver to the Trustee and the
Trustee shall authenticate and deliver to such Holder, new Certificates
in the same aggregate original investment amount, and dated the same date
as such surrendered Certificate(s). Such new Certificate(s) shall be in
such denomination or denominations and registered in such name or names
as shall be specified in the written request from such Holder. Each
Certificate so surrendered shall be accompanied by a written instrument
of transfer duly executed by the Holder of such Certificate or its
attorney duly authorized in writing. Each new Certificate issued
pursuant to this SECTION 4.2 shall bear a notation by the Trustee of:
(i) the aggregate amounts of investment of the Certificate so surrendered
that: (1) were paid to any Holder thereof at any time prior to the
delivery of such new Certificate(s); and (2) are allocable to such new
Certificate on the basis of the respective original investment amounts
thereof; and (ii) the date to which Yield on such Certificate had been
paid to any Holder thereof at the time of such delivery. All
Certificates issued upon any registration of transfer or exchange of
Certificates shall be valid obligations of the Trust, and shall be
entitled to the same security and benefits under this Trust Agreement as
the Certificates surrendered upon such registration of transfer or
exchange. No transfer of any Certificate shall be valid unless and until
such transfer is registered on the Certificate Register maintained by the
Trustee pursuant to this SECTION 4.2.
(b) The Certificate Register shall at all reasonable times be open
for inspection by any Participant. Upon request by any Holder, or the
Grantor, the Trustee shall furnish such Person, at the expense of such
Person, a list of the names and addresses of all Holders, indicating the
respective unpaid investment amounts and numbers of the Certificates held
by Holders. Every Holder, by receiving and holding a Certificate, agrees
with the Trustee that neither the Trustee, nor any agents of the Trustee,
shall be held accountable by reason of the disclosure of any such
information.
(c) Each Certificate surrendered to the Trustee pursuant to this
SECTION 4.2, SECTION 4.4 or SECTION 4.8 shall be canceled by the Trustee,
and no Certificate shall be issued in lieu thereof except as expressly
permitted by this SECTION 4.2 or SECTION 4.4. The Trustee shall return
all Certificates canceled by it to the Grantor.
(d) Each Certificate delivered to a Holder pursuant to SECTION 4.1
and each Certificate delivered pursuant to SECTION 4.2 shall be issued
without registration of such Certificate under the Securities Act of
1933, as amended, or under any state securities or "blue sky" law, and
without qualification of this Trust Agreement under the Trust Indenture
Act of 1939, as amended. All Certificates issued hereunder shall bear a
legend that shall read substantially as follows:
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THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES OR "BLUE SKY" LAW, AND MAY NOT BE
TRANSFERRED, SOLD OR OFFERED FOR SALE IN VIOLATION OF
SUCH ACT OR LAWS.
Promptly after registration of transfer of any Certificate pursuant to
SECTION 4.2, the Trustee will give notice thereof to the Lessee and
Sublessee specifying the name and address for notices of the transferee
or transferees.
(e) If the Trustee in its individual capacity shall acquire any of
the Certificates, such acquisition shall not operate as a redemption of,
or the satisfaction of the indebtedness represented by, such Certificates
unless and until the same shall be delivered to the Trustee for
cancellation pursuant to this Trust Agreement.
(f) Notwithstanding anything herein contained to the contrary, no
transfer, assignment, pledge or sale, including any of participating
interest therein, of any Certificate shall be effective unless in
conformity with SECTION 6.2 or 6.3 (as applicable) of the Participation
Agreement.
Section 4.3 PERSONS DEEMED OWNERS. Prior to due presentation of a
Certificate for registration of transfer, the Trustee and any agent of the
Trustee may treat the person in whose name any Certificate is registered as the
owner of such Certificate for the purpose of receiving distributions pursuant to
ARTICLE V and for all other purposes whatsoever, and neither the Trustee nor any
agent of the Trustee shall be affected by any notice to the contrary; PROVIDED,
HOWEVER, that in determining whether the Holders evidencing the requisite
investment amount have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Certificates owned by the Lessee, the
Sublessee or any Affiliate thereof shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Certificates which a Responsible Officer in the
Corporate Trust Department of the Trustee knows to be so owned shall be so
disregarded.
Section 4.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If
any Certificate shall become mutilated, destroyed, lost or stolen, then upon
the written request of the Holder thereof, the Grantor shall execute and
deliver to the Trustee and the Trustee shall authenticate and deliver to such
Holder (at the expense of such Holder), a new Certificate. Such new
Certificate shall be: (i) registered in the name in which such mutilated,
destroyed, lost or stolen Certificate was registered; (ii) in the same
original investment amount as such mutilated, destroyed, lost or stolen
Certificate; and (iii) dated the date of such mutilated, destroyed, lost or
stolen Certificate. If the Certificate being replaced has become mutilated,
it shall be surrendered to the Trustee. If the Certificate being replaced
has been destroyed, lost or stolen, the Holder thereof shall furnish to the
Grantor and the Trustee such security or indemnity as
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reasonably may be required by Trustee to save the Trustee harmless from any
loss, however remote (including claims for investment of and Yield on, such
destroyed, lost or stolen Certificate), and evidence satisfactory to the
Grantor and the Trustee of the destruction, loss or theft of such Certificate
and the ownership thereof. Each Certificate issued pursuant to this SECTION
4.4 shall bear a notation by the Trustee of: (i) the aggregate amounts of
investment of such mutilated, destroyed, lost or stolen Certificate that was
paid to any holder thereof at any time prior to the delivery of such new
Certificate; and (ii) the date to which yield on such mutilated, destroyed,
lost or stolen Certificate had been paid to any holder thereof at the time of
such delivery.
Section 4.5 TERMS OF CERTIFICATES.
(a) The amount of the Certificate Advances outstanding from time to
time shall accrue Yield at the Applicable Yield Rate, and the investment
of and Yield on each Certificate shall be due and payable at the times,
provided in SECTION 2.3 of the Participation Agreement. If all or any
portion of the Certificate Advances, any Yield payable thereon or any
other amount payable under the Participation Agreement shall not be paid
when due (whether at stated maturity, acceleration thereof or otherwise),
such overdue amount shall bear interest per annum which is equal to the
Default Rate.
(b) No Certificate is subject to purchase or prepayment, in whole
or in part, except as provided in SECTION 4.6. Any prepayment of a
Certificate shall be accompanied by accrued and unpaid Yield on the
unpaid investment amount of such Certificate to the date of such purchase
or prepayment.
Section 4.6 PREPAYMENT OF CERTIFICATES.
(a) If a Casualty has occurred with respect to all or substantially
all of the Equipment, and Lessee has purchased the Equipment from the
Trustee pursuant to SECTION 9.1 of the Lease, then the Trustee shall
prepay, and there shall become due all Certificates at 100% of the unpaid
investment amount thereof, together with all accrued but unpaid Yield
thereon.
(b) If a termination of the Lease pursuant to SECTION 5.1(a) or 5.4
thereof shall occur, then the Trust shall prepay, and there shall become
due, on the Lease Termination Date all Certificates at 100% of the unpaid
investment amount thereof, together with all accrued but unpaid Yield
thereon to the Lease Termination Date, plus the premium, if any, with
respect to SECTION 5.4.
(c) The Trustee shall give notice of any prepayment of the
Certificates pursuant to this SECTION 4.6 to all Holders promptly after
the Trustee shall have received notice that such prepayment is to occur.
Such notice from the Trustee shall specify the investment amount of the
Certificates held by such Holders so to be prepaid and the date on which
such prepayment is to occur, but failure to give
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such notice to any Holder shall not affect the validity of the
proceedings for such prepayment.
Section 4.7 PAYMENTS FROM TRUST ESTATE. All payments of investment and
Yield to be made by the Trustee under this Trust Agreement shall be made only
from the income and the proceeds from the Trust Estate and only to the extent
that the Trustee shall have sufficient income or proceeds from the Trust Estate
to make such payments. Each Holder, by its acceptance of its Certificates,
agrees: (i) that it will look solely to the income and proceeds from the Trust
Estate to the extent available for distribution to such Holder as herein
provided; and (ii) that in any action or proceeding brought on such
Certificates, on the indebtedness evidenced thereby, on this Trust Agreement or
on any other Operative Document, except as expressly provided with respect to
the Trustee herein or in any other Operative Document, no deficiency or other
monetary judgment shall be sought or obtained against the Trustee for the
indebtedness evidenced by such Certificates, except as is necessary to enforce
the rights and remedies of such Holder under this Trust Agreement and the other
Operative Documents (including, but not by way of limitation, the foreclosure of
the Lien on the Equipment), in which event any such judgment shall be
enforceable against the Trustee only to the extent of the interest of the
Trustee in the Trust Estate and any such judgment shall not be enforceable by
execution or be a Lien on any of the assets of the Trustee other than the
interest of the Trustee in the Trust Estate.
Section 4.8 METHOD OF PAYMENT.
(a) The investment of, and Yield on, each Certificate shall be
payable at the Corporate Trust Department and, subject to the provisions
of SECTION 4.7, shall be paid by the Trustee by transferring by wire
transfer the amount of such payments in immediately available federal
funds to the account or accounts specified for such Holder in SCHEDULE II
to the Participation Agreement until such Holder shall have specified
otherwise by written notice to the Trustee.
(b) The Trustee shall keep a record of each payment made by the
Trustee on account of any amounts due under any of the Certificates and,
upon written request therefor from the Grantor to the Trustee, the
Trustee shall give notice to the Grantor of each such payment.
Section 4.9 APPLICATION OF PAYMENTS TO INVESTMENT OR YIELD. In the case
of each Certificate, each payment of investment thereof, and Yield thereon,
shall be applied, FIRST, to the payment of accrued but unpaid Yield on such
Certificate (including any interest on overdue investment and (to the extent
permitted by applicable law) Yield) to the date of such payment, and SECOND, the
balance, if any, remaining thereafter, to the payment of the unpaid investment
amount of such Certificate, PROVIDED that such Certificate shall not be subject
to prepayment except as provided in SECTION 4.6 or as a result of the
acceleration of the maturity thereof pursuant to SECTION 6.1 hereof.
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Section 4.10 TERMINATION OF INTEREST IN TRUST ESTATE. A Holder shall
have no further interest in, or other right with respect to, the Trust Estate
when and if: (i) the entire investment amount of, and all accrued Yield on, all
Certificates held by such Holder; (ii) all other sums payable to such Holder
pursuant to such Certificates or pursuant to any other Operative Document; and
(iii) all other obligations then due, each shall have been discharged and paid
in full in cash.
ARTICLE V.
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST ESTATE
Section 5.1 RENT AND OTHER LEASE PAYMENTS. Except as otherwise provided
in SECTION 5.2, each installment or other payment of (i) Periodic Rent pursuant
to SECTION 3.1 of the Lease; (ii) Lease Balance, Yield, and other amounts
required to be paid in the event of an early termination pursuant to ARTICLE V
of the Lease or a Casualty to all or substantially all of the Equipment pursuant
to Article IX of the Lease; (iii) Purchase Option Exercise Amount; (iv) any
overdue installment of Rent or other payment due under the Lease (and, to the
extent permitted by applicable law, interest thereon); and (v) Proceeds and Sale
Recourse Amount in the event the Lessee elects the Sale Option pursuant to
SECTION 5.1(b) of the Lease received by the Trustee shall be distributed by the
Trustee on the date such installment or payment is due from the Lessee (or as
soon thereafter as such installment or payment shall be received by the Trustee)
in an amount as shall be required to pay in full the aggregate amount of the
payment or payments of investment, and Yield (including any interest on overdue
investment and, to the extent permitted by applicable law, Yield) then due
(including by reason of notice of prepayment pursuant to SECTION 4.6 hereof),
and in case the amount so to be distributed shall be insufficient to pay the
Holders such Unpaid Investment, and Yield in full, then ratably, without
priority of one over the other, in the proportion that the aggregate amount of
such payments then due under such Certificates held by each such Holder bears to
the aggregate amount of such payments then due under all such Certificates held
by all such Holders.
Section 5.2 PAYMENTS AFTER EVENT OF DEFAULT. All payments received and
amounts held or realized by the Trustee as part of the Trust Estate at any time
when an Event of Default shall have occurred and be continuing and after the
maturity of the Certificates shall have been accelerated pursuant to SECTION 6.1
hereof; as well as all payments or amounts then held or thereafter received by
the Trustee as part of the Trust Estate, shall be distributed forthwith upon
receipt by the Trustee in the following order of priority:
FIRST: (i) so much of such payments or amounts as shall be required
to reimburse first the Trustee and then any Holder for any tax (other
than any income tax payable on Yield or paid pursuant to a Certificate
and on fees and other compensation of the Trustee), expense or other
amount owed to the Trustee or any Holder in
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connection with the collection or distribution of such payments or
amounts to the extent not previously reimbursed by the Grantor
(including, without limitation, the expenses of any sale, taking or
other proceeding, expenses in connection with realizing on any of
the Equipment in the Trust Estate, reasonable attorneys' fees and
expenses, court costs and any other reasonable expenditures
incurred or reasonable expenditures or advances made by the Trustee
or any Holder in the protection, exercise or enforcement of any
right, power or remedy upon such Event of Default whether pursuant
to SECTION 6.2 or otherwise) shall be so applied by the Trustee as
between itself and such Holders; and (ii) so much of such payments
or amounts as shall be required to pay the reasonable fees and
compensation of the Trustee in connection with acting as Trustee
not previously paid by the Grantor, shall be distributed to the
Trustee;
SECOND: (i) so much of such payments or amounts remaining as shall
be required to reimburse the then existing or prior Holders for payments
or deposits pursuant to SECTION 7.3 (to the extent not previously
reimbursed and to the extent not constituting an indemnity paid or
payable for an act constituting gross negligence or wilful misconduct)
shall be distributed to the then existing or prior Holders, ratably,
without priority of one over the other, in accordance with the amount of
the payments or deposits made by each such then existing or prior Holder
pursuant to such SECTION 7.3; and (ii) so much of such payments or
amounts remaining as shall be required to pay the then existing or prior
Holders the amounts payable to them pursuant to the provisions of SECTION
7.1, Article VIII, and SECTION 9.6 of the Participation Agreement and the
amounts of all other unpaid Obligations then due and payable to them
(other than Obligations covered by CLAUSE THIRD of this SECTION 5.2)
shall be distributed to each Holder entitled (including its predecessor
holders thereof) thereto; and in case the aggregate amount so to be paid
in accordance with CLAUSES (i) and (ii) above shall be insufficient to
pay all such amounts as aforesaid, then, ratably, without priority of one
such Person over the other, in the proportion that the amount which would
have been distributed to each such Person pursuant to this CLAUSE SECOND
but for such insufficiency bears to the aggregate amount which would have
been distributed to all such Persons pursuant to this CLAUSE SECOND but
for such insufficiency; and
THIRD, so much of such payments or amounts remaining as shall be
required to pay in full the aggregate unpaid investment amount of, if
any, due and payable on, and all accrued but unpaid Yield (including, to
the extent permitted by applicable law, interest on Yield) on, all of the
Certificates shall be distributed to the Holders, and in case the
aggregate amount so to be distributed shall be insufficient to pay such
unpaid investment, and Yield in full as aforesaid, then, ratably, without
priority of one over the other, in the proportions that the aggregate
unpaid investment amount of, if any, due and payable on, and all accrued
but unpaid Yield to the date of distribution on, all Certificates held by
each such Holder bears
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to the aggregate unpaid investment amount of, and all accrued but
unpaid yield to the date of distribution on, all Certificates held
by all such Holders.
Section 5.3 PAYMENTS FOR OTHER SPECIFIC PURPOSES. Any payments
constituting a part of the Trust Estate received by the Trustee for which no
provision as to the application thereof is made elsewhere in this ARTICLE V and
for which provision as to the application thereof is made in the Participation
Agreement, the Lease or any other Operative Document, shall be applied to
payment to the Person who is entitled thereto in accordance with the purpose for
which such payment was made under the Participation Agreement, the Lease or such
other Operative Documents, as the case may be.
Section 5.4 OTHER PAYMENTS. Except as otherwise provided in SECTIONS
5.2 and 5.3:
(a) Any payments received by the Trustee constituting a part of the
Trust Estate for which no provision as to the application thereof is made
in the Participation Agreement, the Lease or any other Operative
Document, or elsewhere in this ARTICLE V, and
(b) All payments received and amounts realized by the Trustee under
the Lease or otherwise with respect to the Equipment, to the extent
received or realized at any time, as well as any other amounts remaining
as part of the Trust Estate, after payment in full of all unpaid
principal of, if any, due and payable on, and all accrued but unpaid
Yield on, all Certificates,
shall be promptly distributed by the Trustee in the following order of priority:
First, in the manner provided in CLAUSE FIRST of SECTION 5.2; second, in the
manner provided in CLAUSE SECOND of SECTION 5.2; and third, to the Grantor.
Section 5.5 DEPOSIT ACCOUNT. All payments or amounts received by the
Trustee pursuant to SECTION 9.1 of the Lease by reason of a Casualty shall be
held by the Trustee as part of the Trust Estate and, if the Lien on the
applicable Equipment is discharged pursuant to SECTION 11.1 hereof prior to the
time such payments or amounts are disbursed pursuant to the terms of the Lease
or distributed pursuant to SECTION 5.2 hereof shall be distributed to the
Grantor.
Section 5.6 INVESTMENT OF AMOUNTS HELD BY THE TRUSTEE. In the event
that any amounts held by the Trustee are not distributable pursuant to this
ARTICLE V promptly following receipt, such amounts shall be invested by the
Trustee from time to time as the Requisite Holders shall direct, but only in the
following securities: (i) obligations of, or guaranteed as to payment of yield
and investment by, the United States of America that mature not more than 90
days after such investment; (ii) open market commercial paper of any corporation
incorporated under the laws of the United States of America or of any State
thereof that is not an Affiliate of the Grantor, the Sublessee, or the Trustee
and that is rated "prime-1"
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or its equivalent by Moody's Investors Service, Inc. or "A-1" or its
equivalent by Standard & Poor's Corporation; or (iii) certificates of deposit
maturing within 90 days after such investment issued by commercial banks
organized under the laws of the United States of America or of any political
subdivision thereof having a combined capital and surplus in excess of
$1,000,000,000 and rated "B" or better by Thompson Bank Watch, Inc. Any
income or gain realized as a result of any such investment of such amounts
shall be applied to make up any losses resulting from any such investment and
any other income or gain so realized shall be promptly distributed to the
Grantor so long as no Event of Default shall have occurred and be continuing.
Upon incurring any losses from any such investment of such amounts, which
losses are not made up from income or gain as aforesaid, the Trustee shall
promptly notify the Holders and the Grantor thereof. The Trustee shall have
no liability for any loss resulting from any investment of such amounts
pursuant to this SECTION 5.6 other than by reason of the wilful misconduct or
gross negligence of the Trustee. Any investment of such amounts pursuant to
this SECTION 5.6 may be sold (without regard to maturity date) by the Trustee
whenever the Trustee reasonably believes such sale is necessary to make any
distribution required by this ARTICLE V and the Trust Estate has insufficient
funds therefor.
ARTICLE VI.
DEFAULT
Section 6.1 ACTION UPON EVENT OF DEFAULT. If a Lease Event of Default
shall have occurred, upon written instructions from the Requisite Holders, the
Trustee shall terminate the Lease and the Sublease and shall exercise the
remedies set forth in SECTION 10.2 of the Lease and SECTION 10.2 of the Sublease
or take such other actions as may be desired by the Requisite Holders.
Section 6.2 WAIVER OF DEFAULTS. Upon written instructions from the
Requisite Holders or all of the Holders, as applicable, the Trustee shall waive
any Event of Default and its consequences, PROVIDED that in the absence of
written instructions from all Holders, the Trustee shall not waive any Lease
Event of Default.
Section 6.3 PROCEEDINGS BY HOLDERS. No Holder shall have any right to
institute any action or proceeding at law or in equity, or in bankruptcy or
otherwise, upon or under or with respect to this Trust Agreement, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder previously shall have given to the Trustee written notice of a
Lease Event of Default and of the continuation thereof; (b) the Requisite
Holders or all of the Holders, as applicable, shall have made written request to
the Trustee to institute such action or proceeding as Trustee hereunder and
shall have offered to the Trustee such reasonable indemnity as
it may require against the costs, expenses and liabilities to be incurred
therein or thereby; and (c) the Trustee for 30 days after its receipt of such
notice, request and offer of indemnity shall
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have failed to institute any such action or proceeding and no direction
inconsistent with such written request shall have been given to the Trustee;
it being understood and intended, and being expressly covenanted by each
Holder with each other Holder and the Trustee, that no Holder shall have any
right in any manner whatever to affect, disturb or prejudice the rights of
any other Holder or to obtain or seek to obtain priority over or preference
to any other such Holder or to enforce any right under this Trust Agreement,
except in the manner herein provided and for the ratable benefit of all
Holders.
ARTICLE VII.
DUTIES OF TRUSTEE
Section 7.1 ACTION UPON LEASE EVENT OF DEFAULT.
(a) NOTICES. In the event the Trustee shall have actual knowledge
of a Lease Event of Default or an event which with the giving of notice
and/or lapse of time could become a Lease Event of Default, including a
failure to pay Rent on the date it becomes due, and if no other notice is
required to be given with respect thereto by the Trustee hereunder, the
Trustee shall give prompt facsimile or telephonic notice (but in no event
later than the Business Day next succeeding the date on which the Trustee
has actual knowledge of such Lease Event of Default or event) thereof to
the Grantor, the Sublessee and each Holder (confirmed by written notice
sent in the manner provided in SECTION 12.3 hereof). Such notice shall
set forth in reasonable detail the circumstances of such Lease Event of
Default or event if known to the Trustee. If any event which with the
giving of notice and/or lapse of time and with respect to which the
Trustee has given notice as described above matures into a Lease Event of
Default then the Trustee shall again provide notice of such Lease Event
of Default as described above.
(b) CONDITIONS FOR ACTION. Trustee shall take such action, or
refrain from taking such action, with respect to any Lease Event of
Default as the Trustee shall be instructed in writing by the Requisite
Holders or such other percentage of the unpaid investment amount of
outstanding Certificates as may be specified herein or in the
Participation Agreement with respect to any particular action.
(c) ACTUAL KNOWLEDGE OF TRUSTEE. For all purposes of this Trust
Agreement, in the absence of actual knowledge on the part of a
Responsible Officer of the Trustee, the Trustee shall not be deemed to
have knowledge of a Lease Event of Default or an event which with the
giving of notice and/or passage of time could become a Lease Event of
Default (except in the case of the failure of the Lessee to pay any
installment of Rent after the same shall become due and except in the
case of the failure of the Lessee to maintain insurance as required under
SECTION 9.3 of the Lease if the Trustee shall have received notice of
termination or nonrenewal from an insurer or
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broker) unless notified in writing of such Lease Event of Default
or event by a Holder, the Grantor, or the Sublessee.
Section 7.2 ACTION UPON INSTRUCTIONS GENERALLY.
(a) GENERAL ACTION. Upon the written instructions at any time and
from time to time of the Requisite Holders, the Trustee shall: (i) give
such notice or direction or exercise such right, remedy or power or take
such action under the Lease or other Operative Documents as shall be
specified in such instructions; and (ii) approve as satisfactory to it
all matters required by the terms of the Participation Agreement, the
Lease or any other Operative Document to be satisfactory to the Trustee
or the Holders (unless such matter expressly requires the satisfaction of
all Holders), it being understood that without such written instructions
the Trustee shall not approve any such matter as satisfactory to it.
(b) EQUIPMENT AND TRUST ESTATE. Upon the written instructions at
any time and from time to time of the Requisite Holders, the Trustee
shall exercise such right, remedy or power or take such action hereunder
to preserve or protect the Equipment and the Trust Estate (including the
discharge of Liens) as shall be specified in such instructions.
(c) FINANCING STATEMENTS AND ASSIGNED CONTRACTS. Upon the written
instructions at any time and from time to time of any Holder, the Trustee
shall execute any financing statement (and any continuation statement
with respect to any such financing statement) or any other similar
document relating to the security interests and assignments contemplated
by the Participation Agreement, as may be specified in such instructions
(which instructions shall be accompanied by an execution form of such
financing statement or such continuation statement, as the case may be).
Section 7.3 INDEMNIFICATION, ETC. Anything in this Trust Agreement to
the contrary notwithstanding, the Trustee shall not be required to take any
action or refrain from taking any action that shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability unless
it shall have been indemnified in a manner satisfactory to it or unless, in the
reasonable judgment of the Trustee, the indemnities made by the Grantor shall be
adequate for such purpose. The Trustee shall not be required to take any
action, nor shall any other provision of this Trust Agreement be deemed to
impose a duty on the Trustee to take any action, if it shall have been advised
by counsel (which counsel may be an employee of the Trustee) that such action is
contrary to the terms hereof or of any other Operative Document or is otherwise
contrary to law.
Section 7.4 DUTIES TO REMOVE LIENS AND PROVIDE REPORTS, ETC. The
Trustee shall, in its individual capacity and at its own cost and expense,
promptly take such action as may be necessary duly to discharge all Liens on any
part of the Trust Estate that result from any act of or claim against the
Trustee in its individual capacity arising out of any event or
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condition not related to the administration of the Trust Estate. The Trustee
will furnish to each Holder with reasonable promptness after receipt thereof,
duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and other instruments furnished to the
Trustee hereunder or under the Lease or the Participation Agreement or any
other Operative Document, unless, in each case, the Trustee shall reasonably
believe that such Holder shall theretofore have received copies thereof.
Section 7.5 NO ACTION EXCEPT UNDER TRUST AGREEMENT OR INSTRUCTIONS. The
Trustee shall not, and shall not be required to, manage, control, use, sell,
dispose of or otherwise deal with the Equipment except: (a) In accordance with
the powers granted to, or the authority conferred upon, the Trustee pursuant to
this Trust Agreement; or (b) In accordance with the express terms hereof or with
written instructions from Holders with such percentage of the unpaid investment
amount of outstanding Certificates as may be authorized by this Trust Agreement
to deliver such instructions to the Trustee.
ARTICLE VIII.
THE TRUSTEE
Section 8.1 ACCEPTANCE OF TRUSTS AND DUTIES. The Trustee accepts the
trusts hereby created and applicable to it and agrees to perform the same but
only upon the terms of this Trust Agreement, and agrees to receive and disburse
all monies constituting part of the Trust Estate in accordance with the
provisions hereof. The Trustee shall not be answerable or accountable under any
circumstances, except: (a) for its own willful misconduct or gross negligence;
or (b) in the case of the inaccuracy of any representation or warranty expressly
made by the Trustee in its individual capacity; or (c) for the performance of
its obligations under the first sentence of SECTION 7.4 hereof or SECTION 6.1 of
the Participation Agreement.
Section 8.2 ABSENCE OF DUTIES EXCEPT AS SPECIFIED. The Trustee shall
have no duty or obligation to manage, control, use, sell, dispose of or
otherwise deal with the Equipment or any other part of the Trust Estate, or
otherwise to take or refrain from taking any action under, or in connection
with, this Trust Agreement, the Lease, the Sublease, or the Sublease Assignment,
except as expressly provided by the terms of this Trust Agreement, or as
expressly provided in written instructions from the Holders of such percentage
of the unpaid investment amount of outstanding Certificates as may be authorized
by this Trust Agreement to deliver such instructions, in each case given in
accordance with the terms hereof, and no implied duties or obligations shall be
read into this Trust Agreement against the Trustee. Except in accordance with
written instructions or requests furnished pursuant to ARTICLE VII or as
expressly provided in ARTICLE VII and SECTION 6.2 hereof, the Trustee shall have
no duty: (a) to see to any filing of any financing or continuation statements
in respect of any such filing; (b) to see to any insurance on the Equipment or
to effect
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or maintain any such insurance, whether or not the Lessee shall be in default
with respect thereto; (c) to see to the payment or discharge of any tax,
assessment or other governmental charge or any Lien of any kind owing with
respect to, or assessed or levied against, any part of the Trust Estate
(other than Liens arising by, through or under the Trustee in its individual
capacity and not related to the Operative Documents or the transactions
contemplated thereby); (d) to confirm or verify or to inquire into the
failure to receive any financial statements of the Grantor; or (e) to inspect
the Equipment at any time or ascertain or inquire as to the performance or
observance of the Lessee's covenants under the Lease.
Section 8.3 NO REPRESENTATIONS OR WARRANTIES. THE TRUSTEE MAKES:
(a) NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE, VALUE,
CONDITION, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS FOR USE OR FOR ANY
PARTICULAR PURPOSE OF THE EQUIPMENT, OR ANY OTHER REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT WHATSOEVER (except as to
absence of Lessor Liens attributable to Trustee); and (b) no representation or
warranty as to the validity or enforceability of this Trust Agreement, the
Participation Agreement, or any other Operative Document or as to the
correctness of any statement contained in any thereof, except to the extent that
any such statement is expressly made therein by the Trustee. The Trustee makes
no representation as to the value or condition of the Trust Estate or any part
thereof, as to the title of the Trustee thereto or as to the security afforded
hereby.
Section 8.4 NO SEGREGATION OF MONIES; NO INTEREST. All monies
received by the Trustee shall, until used or applied as herein provided, be held
in trust for the purpose for which they were received. Except as otherwise
provided herein, any monies received by the Trustee hereunder need not be
segregated in any manner except to the extent required by law, and such monies
may be deposited under such general conditions as may be prescribed by law in
the general banking department of the Trustee, and the Trustee shall not be
liable for any interest thereon.
Section 8.5 RELIANCE; AGENTS; ADVICE OF COUNSEL.
(a) Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, endorsement on any
Certificate, 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 Person or Persons. The Trustee may accept
in good faith a copy of a resolution of the Board of Directors of the
Lessee or Sublessee, certified by a Responsible Officer thereof as duly
adopted and in full force and effect, as conclusive evidence that such
resolution has been duly adopted by such Board and that the same is in
full force and effect. As to the amount of any payment to which any
Person is entitled pursuant to CLAUSES FIRST and SECOND of SECTION 5.2
hereof, the Trustee may for all purposes hereof rely on a certificate of
such Person. As to any fact or matter the manner of ascertainment of
which is not specifically described herein, or as to which the Trustee
shall deem it desirable to ascertain prior to taking, suffering or
omitting any
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action hereunder, the Trustee may for all purposes hereof rely on a
certificate of a Responsible Officer of the Lessee, Sublessee or
other appropriate Person as to such fact or matter, and such
certificate shall constitute full protection to the Trustee for any
action taken or omitted to be taken by it in good faith in reliance
thereon.
(b) In the administration of the trusts hereunder, the 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, at the
expense of the Trust Estate (but subject to the priorities of payment set
forth in ARTICLE V), consult with counsel, accountants and (with the
prior approval of the Requisite Holders) other skilled Persons to be
selected and retained by it (other than Persons regularly in its employ),
and the 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 who are not
officers or employees of the Trustee or any Affiliate thereof, so long as
the Trustee shall have exercised due care in the good faith selection of
such counsel, accountant or other skilled Person and such advice or
opinion is within the scope of such Person's or Persons' particular area
of professional competence, and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by the Trustee hereunder.
Section 8.6 NO COMPENSATION FROM HOLDERS. The Trustee agrees that it
shall have no right against the Holders for any fee as compensation for its
services hereunder except as expressly provided in SECTION 5.2 hereof.
Section 8.7 NOT ACTING IN INDIVIDUAL CAPACITY. In performing the trusts
hereby created, the Trustee acts solely as Trustee as herein provided and not in
its individual capacity, except as otherwise expressly provided herein.
Section 8.8 TRUSTEE MAY OWN CERTIFICATES, ETC. The Trustee, in its
individual capacity, may buy, sell, own and hold any of the Certificates and may
join in any action which any Holder may be entitled to take with like effect as
if the Trustee were not a party to this Trust Agreement. The Trustee, in its
individual capacity, may also engage in or be interested in any financial or
other transaction with the Grantor, the Sublessee, or any other party to an
Operative Document; PROVIDED that if the Trustee determines that any such
relation is in conflict with its duties under this Trust Agreement, it shall
eliminate the conflict or resign as Trustee. It also is agreed that if a Lease
Event of Default has occurred and is continuing, and if the Trustee, in its
individual capacity, is a creditor of the Grantor or the Sublessee, other than
as a Holder, then the Trustee shall terminate such credit relationship or resign
as Trustee.
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ARTICLE IX.
SUCCESSOR TRUSTEES AND SEPARATE TRUSTEES
Section 9.1 RESIGNATION OR REMOVAL OF TRUSTEE; APPOINTMENT OF SUCCESSOR.
(a) The Trustee or any successor thereto may resign at any time
without cause by giving at least 30 days' prior written notice to the
Grantor, Sublessee and Holders, such resignation to be effective on the
acceptance of appointment by the successor Trustee pursuant to the
provisions of SECTION 9.1(b) hereof. In addition, the Requisite Holders
(excluding, for the purposes of the calculation of the Requisite Holders,
any Certificates held by the Trustee) may at any time remove the Trustee
without cause by an instrument in writing delivered to the Trustee,
Lessee, and Sublessee, and the Trustee shall give prompt written
notification thereof to each Holder. Such removal will be effective on
the acceptance of appointment by the successor Trustee pursuant to the
provisions of SECTION 9.1(b). In the case of the resignation or removal
of the Trustee or in case the Trustee shall become incapable of acting,
the Requisite Holders may appoint a successor Trustee by an instrument
signed by such holders. If a successor Trustee shall not have been
appointed within 30 days after such resignation or removal, the Trustee
or any Holder may apply to any court of competent jurisdiction to appoint
a successor Trustee to act until such time, if any, as a successor shall
have been appointed by the Requisite Holders as above provided. The
successor Trustee so appointed by such court shall immediately and
without further act be superseded by any successor Trustee appointed by
the Requisite Holders as above provided.
(b) Any successor Trustee, whether appointed by a court or by the
Requisite Holders, shall execute and deliver to the Lessee, Sublessee,
each Holder and the predecessor Trustee an instrument accepting such
appointment, and thereupon such successor Trustee, without further act,
shall become vested with all the estates, properties, rights, powers and
duties of the predecessor Trustee hereunder in the trusts hereunder
applicable to it with like effect as if originally named the Trustee
herein; but nevertheless upon the written request of such successor
Trustee or the Requisite Holders, such predecessor Trustee shall execute
and deliver an instrument transferring to such successor Trustee, upon
the trusts herein expressed applicable to it, all the estates,
properties, rights and powers of such predecessor Trustee, and such
predecessor Trustee shall duly assign, transfer, deliver and pay over to
such successor Trustee all monies or other property then held by such
predecessor Trustee hereunder.
(c) Any successor Trustee, however appointed, shall be a bank or
trust company organized under the laws of the United States of America or
any State thereof having a combined capital and surplus of
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at least $250,000,000, if there be such an institution willing,
able and legally qualified to perform the duties of the Trustee
hereunder upon reasonable or customary terms. Additionally, if
there be such an institution willing, able and legally qualified to
perform the duties of the Trustee hereunder upon reasonable or
customary terms, such institution shall have a Corporate Trust
Department in the State of California or Nevada.
(d) Any corporation into which the 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
Trustee shall be a party, or any corporation to which substantially all
the corporate trust business of the Trustee may be transferred, shall be
the Trustee under this Trust Agreement without further act.
Section 9.2 APPOINTMENT OF ADDITIONAL AND SEPARATE TRUSTEES.
(a) Whenever: (i) the Trustee shall deem it necessary or prudent
to conform to any law of any jurisdiction in which any part of the Trust
Estate shall be situated or to make any claim or bring any suit with
respect to or in connection with this Trust Agreement, any other
Operative Document or any of the Equipment; or (ii) the Trustee shall be
advised by counsel satisfactory to it, that it is so necessary or prudent
in the interest of the Holders; or (iii) the Trustee shall have been
requested to do so by the Requisite Holders, then in any such case, the
Trustee shall execute and deliver a Supplemental Trust Agreement hereto
and all other instruments and agreements necessary or proper to
constitute another bank or trust company or one or more Persons approved
by the Trustee, either to act as additional trustee or trustees of all or
any part of the Trust Estate, jointly with the Trustee, or to act as
separate trustee or trustees of all or any part of the Trust Estate, in
any such case with such powers consistent with this Trust Agreement as
may be provided in such Supplemental Trust Agreement hereto, and to vest
in such bank, trust company or Person as such additional trustee or
separate trustee, as the case may be, any property, title, right or power
of the Trustee consistent with this Trust Agreement deemed necessary or
advisable by the Trustee, subject to the remaining provisions of this
SECTION 9.2. The Trustee may execute, deliver and perform any such
conveyance, assignment or other instrument in writing as may be required
by any additional trustee or separate trustee for more fully and
certainly vesting in and confirming to such Person any property, title,
right or power consistent with this Trust Agreement which by the terms of
such Supplemental Trust Agreement are expressly to be conveyed or
conferred to or upon such additional trustee or separate trustee.
(b) Every additional trustee and separate trustee hereunder shall,
to the extent permitted by law, be appointed and act, and the Trustee
shall act, subject to the following provisions and conditions:
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(i) all powers, duties, obligations and rights conferred upon
the Trustee in respect of the receipt, custody, payment of monies or the
investment of monies, shall be exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred
or imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such additional trustee or trustees and separate
trustee or trustees jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed the Trustee
shall be incompetent, unqualified or unable to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Estate in any such jurisdiction) shall be exercised and
performed by such additional trustee or trustees or separate trustee or
trustees;
(iii) no power hereby given to, or exercisable as provided
herein by, any such additional trustee or separate trustee shall be exercised
hereunder by such additional trustee or separate trustee except, to the maximum
extent permitted by applicable law, jointly with, or with the consent of, the
Trustee; and
(iv) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder, except that the Trustee
shall be liable for the consequences of its lack of reasonable care in selecting
any additional or separate trustee hereunder.
If at any time the Trustee shall deem it no longer necessary or prudent
in order to conform to any such law or take any such action or shall be
advised by such counsel that it is no longer so necessary or prudent in
the interest of the Holders, or in the event that the Trustee shall have
been requested to do so in writing by the Requisite Holders, the Trustee
shall execute and deliver a Supplemental Trust Agreement hereto and all
other instruments and agreements necessary or proper to remove any
additional trustee or separate trustee.
(c) Any additional trustee or separate trustee may at any time by
an instrument in writing constitute the Trustee its agent or attorney-in-
fact, with full power and authority, to the extent that may be authorized
by law, to do all acts and things and exercise all discretion that it is
authorized or permitted to do or exercise, for and in its behalf and in
its name. In case any such additional trustee or separate trustee shall
die, become incapable of acting, resign or be removed, all the assets,
property, rights, powers, trusts, duties and obligations of such
additional trustee or separate trustee, as the case may be, so far as
permitted by law, shall vest in and be exercised by the Trustee, without
the appointment of a new
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successor to such additional trustee or separate trustee, unless
and until a successor is appointed in the manner hereinbefore
provided.
(d) Any request, approval or consent in writing by the Trustee to
any additional trustee or separate trustee shall be sufficient warrant to
such additional trustee or separate trustee, as the case may be, to take
such action as may be so requested, approved or consented to.
(e) Each additional trustee and separate trustee appointed pursuant
to this SECTION 9.2 shall be subject to, and shall have the benefit of,
this Trust Agreement as it applies to the Trustee. Notwithstanding any
other provision of this SECTION 9.2, the rights, powers, duties and
obligations of any additional trustee or separate trustee appointed
pursuant to this SECTION 9.2 shall not in any case exceed those intended
to be conferred on the Trustee hereunder.
ARTICLE X.
SUPPLEMENTAL TRUST AGREEMENT AND
AMENDMENTS TO OPERATIVE DOCUMENTS
Section 110.1 SUPPLEMENTAL TRUST AGREEMENT AND AMENDMENTS TO OPERATIVE
DOCUMENTS WITH CONSENT OF HOLDERS. At any time and from time to time, and
subject to the terms and conditions of SECTION 9.15 of the Participation
Agreement: (a) the Grantor and the Trustee shall execute a Supplemental Trust
Agreement for the purpose of adding provisions to, or changing or eliminating
provisions of, this Trust Agreement as specified in such consent; (b) the
Trustee shall (x) enter into such written amendment of or supplement to the
Lease, the Sublease or any other Operative Document to which it is party as the
Lessee or the Sublessee may agree to and as may be specified in such consent, or
(y) execute and deliver such written waiver or modification of the terms of the
Lease, the Sublease or any other Operative Document to which it is a party or
that is assigned to the Trustee hereunder as may be specified in such consent;
and (c) the Trustee shall enter into such amendment of or supplement to the
Participation Agreement as may be specified in such consent.
Section 110.2 SUPPLEMENTAL TRUST AGREEMENTS WITHOUT CONSENT OF
HOLDERS. Without the consent of any Holder but subject to the provisions of
SECTION 10.3, at the request of the Trustee, the Grantor shall join with it
in entering into any Supplemental Trust Agreements: (i) to evidence the
succession of a new entity as the Trustee hereunder, the removal of the
Trustee, or the appointment of any co-trustee or co-trustees or any separate
or additional trustee or trustees, in each case in accordance with the terms
of ARTICLE IX; or (ii) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee, or to make any other provisions with respect
to matters arising under this Trust Agreement that shall not be inconsistent
with the provisions of this Trust Agreement, PROVIDED that
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such action shall not adversely affect the interests of the present or any
past Holder or the Trustee, and each such Holder, the Trustee, and the
Grantor shall have received an opinion of independent counsel, satisfactory
to each such party, to such effect.
Section 110.3 TRUSTEE PROTECTED. If in the opinion of the Trustee any
document required to be executed pursuant to the terms of SECTIONS 10.1 or 10.2
adversely affects any right or duty of or affects any immunity or indemnity in
favor of the Trustee under this Trust Agreement, the Participation Agreement or
any other Operative Document, the Trustee may in its discretion decline to
execute such document. With every such document required to be executed by the
Trustee pursuant to the terms of SECTIONS 10.1 or 10.2, the Trustee shall be
furnished by counsel satisfactory to the Requisite Holders with an opinion
satisfactory in form and substance to the Trustee that such document complies
with the provisions of this Trust Agreement, and that all consents required by
the terms of SECTION 10.1 in connection with the execution of such document have
been obtained. Such counsel may reasonably rely on certificates of appropriate
Persons with respect to factual matters relevant to any such opinion. The
Trustee shall be fully protected in relying on such opinion.
Section 110.4 FORM OF REQUEST. It shall not be necessary for any
written request of the Holders furnished pursuant to SECTION 10.1 to specify the
particular form of the proposed documents to be executed pursuant thereto, but
it shall be sufficient if such request shall indicate the substance thereof.
Section 110.5 DOCUMENTS MAILED TO HOLDERS. Promptly after the execution
by the Trustee of any document entered into pursuant to SECTIONS 10.1 or 10.2,
the Trustee shall mail, by first class mail, postage prepaid, a conformed copy
thereof to each Holder at its address currently shown in the Certificate
Register, but any failure to mail such conformed copies shall not impair or
affect the validity of such document.
Section 110.6 THIS ARTICLE EXCLUSIVE.
(a) This Trust Agreement may not be amended, and no term hereof may
be waived, except by a Supplemental Trust Agreement entered into in
accordance with SECTIONS 10.1 or 10.2 hereof.
(b) No term or provision of this Trust Agreement or any Certificate
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the Person against whom enforcement of
the change, waiver, discharge or termination is sought; and any waiver of
the terms hereof or of any Certificate shall be effective only in the
specific instance and for the specific purpose given.
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ARTICLE XI.
TERMINATION
Section 111.1 TERMINATION UPON PERFORMANCE. This Trust Agreement and
the trusts created hereby shall terminate and this Trust Agreement shall cease
and be of no further force or effect and all of the property, rights and
interests included in the Trust Estate shall revert to and revest in the Grantor
without any other act or formality whatsoever, and the Trustee shall, upon the
written request and at the expense of the Grantor, execute and deliver to, or as
directed in writing by, the Grantor appropriate termination statements, releases
and other instruments (in due form for recording) requisite to evidence the
satisfaction and discharge of the Lease and this Trust Agreement and the
security interest created thereby with respect thereto, to release or reconvey
to the Grantor as directed by the Grantor all of the Trust Estate, freed and
discharged from the provisions contained herein and in the Lease and free of any
interest of any Holder with respect thereto and to release the Grantor from its
covenants herein contained upon the earlier of:
(a) payment in full in cash of all investment of, and all accrued
Yield on, all Certificates and all other Obligations then due to the
Trustee and any Holder (directly or through any predecessor Holders); or
(b) the sale or other final disposition of all Equipment and the
final distribution by the Trustee of all monies or other property or
proceeds constituting part of the Trust Estate in accordance with the
terms of ARTICLE V;
PROVIDED, however, that if at the time referred to in CLAUSE (b) above the
Lessee or the Sublessee shall not have fully complied with all of the terms of
each Operative Document to which such Person is a party, this Trust Agreement
and the trusts created hereby shall continue in full force and effect in
accordance with the terms thereof until such time as each of the Lessee, or the
Sublessee, has fully complied with such terms. Upon any such payment in full of
all amounts referred to in CLAUSE (a) above in accordance with this Trust
Agreement, the Trustee shall pay all remaining monies or other properties or
proceeds held by it under this Trust Agreement to the Grantor and shall give
notice to the Sublessee of such payment, execute and deliver to, or as directed
in writing by, the Grantor all appropriate instruments (in due form for
recording and filing) reasonably requested by the Grantor releasing the
Equipment, the Lease, the Sublease, the Purchase Agreements the trusts created
hereby shall terminate and shall be of no further force or effect.
Section 111.2 TERMINATION GENERALLY.
(a) In the event the Trust created hereby has not previously
terminated pursuant to the terms of SECTION 11.1, it shall terminate upon
the earliest to occur of: (i) the twentieth anniversary of the Closing
Date, unless the Requisite Holders elect to continue the
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Trust created hereby; and (ii) twenty-one years less one day after
the death of the last to survive of all descendants of John D.
Rockefeller, Jr. (except Michael Rockefeller, the son of Nelson
Rockefeller, and his descendants), who are living on the date
hereof, but, without limiting the generality of the foregoing, if
legislation shall become effective providing for the validity or
permitting the holding of assets in a trust for a period in gross
exceeding the period hereinabove stated, then this Trust Agreement
nad the trust created hereby shall not terminate as aforesaid but
shall extend to and continue in effect, but only if such
non-termination and extension shall then be valid under applicable
law, until such time as the same shall, under applicable law, cease
to be valid.
(b) Upon any termination of the Trust pursuant to the provisions of
this SECTION 11.2, the Trustee shall transfer undivided interests in the
Trust Estate to the Holders ratably based on the outstanding investment
amount of the Certificates held by such Holders without recourse or
warranty of any kind (but free of any Lessor Liens resulting from any act
of or claim against the Trustee), and, upon making such transfer and
accounting for all funds that have come into its hands, the Trustee shall
be discharged and free of any further liability hereunder with respect to
the Trust, except such liability, not payable out of the assets of the
Trust Estate, as may be shown by such accounting then to exist in
accordance with the other provisions of this Trust Agreement. No later
than the date of the termination of the Trust, the Trustee shall execute
and deliver to such Holders, or to any Person designated in writing by
such Holders a bill of sale and such other written instruments as such
Holders shall reasonably request, all in form and content reasonably
satisfactory to such Holders evidencing the transfer of title to the
Trust Estate, without recourse or warranty of any kind, but free of
Lessor Liens resulting from any act of or claim against the Trustee, to
such Holders or their designees. Any amounts received by the transferees
of the Trust Estate shall continue to be applied in the manner set forth
in ARTICLE V, hereof.
ARTICLE XII.
MISCELLANEOUS
Section 112.1 SALE OF EQUIPMENT BINDING. Any sale or other conveyance
of the Equipment by the Trustee made pursuant to the terms of this Trust
Agreement or of the Lease shall bind the Holders and shall be effective to
transfer or convey all right, title and interest of the Trustee and the Holders
in and to the Equipment. 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 Trustee.
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Section 112.2 TRUST AGREEMENT FOR BENEFIT OF HOLDERS ONLY. Nothing in
this Trust Agreement, whether express or implied, shall be construed to give to
any Person other than the Holders any legal or equitable right, remedy or claim
under or in respect of this Trust Agreement or any Certificate; but this Trust
Agreement shall be held for the sole and exclusive benefit of the parties hereto
and the Holders from time to time.
Section 112.3 NOTICES. Unless otherwise expressly specified or
permitted by the terms hereof, all notices and communications provided for
herein shall be in writing and shall be duly given in accordance with, and
addressed to the address specified for such Person pursuant to, the
Participation Agreement or, in the case of a Holder, then recorded for such
Person in the Certificate Register.
Section 112.4 SEVERABILITY. Whenever possible, each provision of this
Trust Agreement shall be interpreted in such manner as to be effective and valid
under applicable law; but if any provision of this Trust Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Trust Agreement.
Section 112.5 SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and without limiting SECTION 12.2, inure
to the benefit of, the parties hereto and their respective permitted successors
and assigns and each Holder. Any request, notice, direction, consent, waiver or
other instrument or action by Holder shall bind the successors and assigns of
such holder.
Section 112.6 APPLICABLE LAW. THIS TRUST AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED UNDER THE LAWS OF THE STATE OF NEVADA WITHOUT REGARD TO THE CHOICE
OF LAWS PROVISIONS THEREOF.
Section 112.7 COUNTERPARTS. This Trust Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each executed counterpart constituting an original but all
together one agreement.
Section 112.8 CAPTIONS AND TABLE OF CONTENTS. Section and caption
headings used in this Trust Agreement (including the table of contents, Exhibits
and Schedules thereto) are for convenience of reference only and shall not
affect the construction of this Trust Agreement.
Section 112.9 FURTHER ASSURANCES. The Grantor and the Trustee will
each, at the Grantor's expense, do, execute, acknowledge and deliver all and
every such further acts, deeds, agreements, instruments, conveyances, transfers
and assurances as may be necessary or appropriate in order to protect the right,
title and interest of the Trustee to the Trust Estate and the Holders in the
Trust Estate.
Section 112.10 SURVIVAL OF COVENANTS. All claims pertaining to
representations, warranties, covenants or indemnities of Grantor shall
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survive the termination of the Trust created hereby to the extent such claims
arose out of events or conditions existing prior to such termination.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be executed and delivered as of the date first above written.
Grantor:
STATION CASINOS, INC.
By: /s/ Glenn C. Christenson
-------------------------------
Glenn C. Christenson
Executive Vice President
Chief Financial Officer
and Treasurer
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Trustee:
FIRST SECURITY TRUST COMPANY OF NEVADA,
not in its individual capacity, but
solely as Trustee under the Trust
By: /s/ Nancy M. Dahl
------------------------------------
Nancy M. Dahl
Trust Officer
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