EXHIBIT 4.6
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TRUST AGREEMENT
between
FLEET NATIONAL BANK,
Owner Participant
and
WILMINGTON TRUST COMPANY,
Owner Trustee
Dated as of May 19, 1997
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Certain Paraxylene Production Facility
Assets Located in Beaumont, Texas
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TABLE OF CONTENTS
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Page
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Section 1. Definitions................................ 1
Section 2. Authority to Execute and Perform Various
Documents.................................. 1
Section 3. Declaration of Trust....................... 2
3.1 Appointment of Owner Trustee............... 2
3.2 Declaration of Trust by Owner Trustee...... 2
Section 4. Payments................................... 2
4.1 Payments from Trust Estate Only............ 2
4.2 Method of Payment.......................... 3
Section 5. Distributions.............................. 3
5.1 Payments to Indenture Trustee.............. 3
5.2 Payments to Owner Trustee.................. 4
5.3 Excepted Payments.......................... 4
5.4 Certain Distributions to Owner Participant. 4
5.5 Certain Distributions to Lessee............ 4
Section 6. Certain Duties of Owner Trustee............ 5
6.1 Notice of Certain Events................... 5
6.2 Action Upon Instructions................... 5
6.3 Indemnification............................ 6
6.4 No Duties Except as Specified.............. 6
6.5 No Action Except Under Specified Documents
or Instructions............................ 7
6.6 Tax Returns; Records....................... 7
6.7 Absence of Certain Duties.................. 8
6.8 Place of Administration.................... 8
Section 7. The Owner Trustee.......................... 8
7.1 Acceptance of Trust and Duties............. 8
7.2 Furnishing of Documents.................... 9
7.3 No Representations or Warranties as to the
Facility Assets or Documents............... 9
7.4 No Segregation of Moneys; No Interest...... 10
7.5 Reliance................................... 10
7.6 Not Act in Individual Capacity............. 11
Section 8. Indemnification; Compensation.............. 11
8.1 Indemnification of Trust Company........... 11
8.2 Compensation and Expenses.................. 13
Page
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Section 9. Termination of Trust Agreement............. 13
9.1 Termination of Trust Agreement............. 13
9.2 Termination at Option of Owner Participant. 14
9.3 Distribution of Trust Estate Upon
Termination................................ 14
Section 10. Successor Owner Trustee, Additional and
Separate Owner Trustees.................... 15
10.1 Resignation and Successors................. 15
10.2 Additional and Separate Trustees........... 17
Section 11. Supplements and Amendments................. 20
11.1 Supplements and Amendments................. 20
11.2 Limitation on Amendments................... 20
11.3 Discretion as to Execution of Documents.... 20
Section 12. Miscellaneous.............................. 21
12.1 No Legal Title to Trust Estate in the
Owner Participant.......................... 21
12.2 Sale of the Facility Assets by Owner
Trustee Is Binding......................... 21
12.3 Notices.................................... 21
12.4 Severability of Provisions................. 21
12.5 Separate Counterparts...................... 22
12.6 Successors and Assigns..................... 22
12.7 Transfer of Owner Participant's Interest... 22
12.8 Headings; Table of Contents................ 23
12.9 GOVERNING LAW.............................. 23
12.10 Performance by Owner Participant........... 23
12.11 The Owner Trustee Documents................ 23
12.12 Performance of Obligations to Indenture
Trustee.................................... 23
12.13 Trust Agreement for Benefit of Parties
Only....................................... 23
12.14 Limitation on Owner Participant's
Liability.................................. 24
TRUST AGREEMENT
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THIS TRUST AGREEMENT, dated as of May, 19, 1997, is between FLEET
NATIONAL BANK, a national banking association, as Owner Participant (the
"Owner Participant"), and WILMINGTON TRUST COMPANY, a Delaware banking corpora-
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tion, in its individual capacity (the "Trust Company") and as Owner Trustee (the
"Owner Trustee"). In consideration of the mutual agreements herein contained,
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the agreements contained in the other Operative Documents and the acceptance
by the Trust Company of the trust hereby created, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
Section 1. Definitions. For the purposes hereof, terms used herein and
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not otherwise defined shall have the respective meanings assigned to them in
Appendix A to the Participation Agreement, dated as of May 28, 1997, among
the Owner Trustee, the Owner Participant, Mobil Chemical Finance (Texas) Inc.
(the "Lessee") and State Street Bank and Trust Company, as Indenture Trustee,
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Pass Through Trustee and Loan Participant (the "Participation Agreement").
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Unless otherwise indicated, references in this Trust Agreement to Sections,
subsections, paragraphs and Appendices are to Sections, subsections, paragraphs
and Appendices of this Trust Agreement.
Section 2. Authority to Execute and Perform Various Documents. The
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Owner Participant hereby authorizes and directs the Owner Trustee and the Owner
Trustee agrees for the benefit of the Owner Participant (i) on the date hereof,
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to execute and deliver the Participation Agreement; (ii) on the Closing Date,
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upon receipt of the authorization and direction by the Owner Participant
pursuant to Section 2.10 of the Participation Agreement, to execute and deliver
the Operative Documents contemplated to be executed and delivered by the Owner
Trustee on the Closing Date and take the other actions contemplated to be taken
by the Owner Trustee on the Closing Date in the Operative Documents; (iii) to
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execute and deliver any other agreement, instrument or certificate contemplated
by the Operative Documents (collectively, with the Operative Documents, the
"Owner Trustee Documents"); (iv) subject to the terms of this Trust Agreement
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and of the other Operative Documents to which the Owner Trustee is a party, to
take whatever action shall be required to be taken by the Owner Trustee by the
terms of, and exercise its rights (upon instructions received from the Owner
Participant) and perform its duties under, each of the
documents, agreements, instruments and certificates referred to in clauses (i),
(ii) and (iii) of this Section 2 as set forth in such documents, agreements,
instruments and certificates and (v) subject to the terms of this Trust
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Agreement and the other Operative Documents to which it is a party, to take such
other action in connection with the foregoing as the Owner Participant may from
time to time direct in written instructions to the Owner Trustee.
Section 3. Declaration of Trust.
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3.1 Appointment of Owner Trustee. The Owner Participant hereby
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appoints and constitutes the Trust Company as the Owner Trustee hereunder to
act as trustee of the Trust Estate for the purposes and in accordance with the
terms set forth herein.
3.2 Declaration of Trust by Owner Trustee. The Trust Company
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hereby declares that it will hold as Owner Trustee all estate, right, title and
interest of the Owner Trustee in and to the Facility and the Owner Trustee Docu-
ments, including without limitation, all amounts of Rent, insurance proceeds,
sales proceeds, rental proceeds, and requisition, indemnity or other payments of
any kind to which the Owner Trustee is entitled pursuant to the terms of the
Owner Trustee Documents, but specifically excluding Excepted Payments
(collectively, the "Trust Estate"), upon the trust set forth herein and for the
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use and benefit of the Owner Participant as sole beneficiary, subject, however,
to the provisions of and the Lien created by the Indenture.
Section 4. Payments.
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4.1 Payments from Trust Estate Only. All payments to be made by
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the Owner Trustee under this Trust Agreement shall be made only from the assets
of or income and proceeds from the Trust Estate and only to the extent that the
Owner Trustee shall have received income or proceeds from the Trust Estate to
make such payments in accordance with the terms hereof, except as specifically
provided herein. The Owner Participant agrees that it will look solely to the
assets of or the income and proceeds from the Trust Estate to the extent
available for payment as herein provided and that, except as expressly provided
herein or in any other Owner Trustee Document, the Trust Company shall not be
liable for any amounts payable under this Trust Agreement and shall not be
subject to any liability under this Trust Agreement.
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4.2 Method of Payment. (a) All amounts payable to the Owner
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Participant, to the Indenture Trustee, or to the Lessee pursuant to this Trust
Agreement shall be paid by the Owner Trustee, (i) if to the Owner Participant,
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by transferring such amount in immediately available funds to such account at
such financial institution as the Owner Participant from time to time may direct
or (ii) if to the Indenture Trustee, in the manner specified in the Indenture or
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(iii) if to the Lessee, by transferring such amount in immediately available
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funds to such account at such financial institution as the Lessee from time to
time may direct.
(b) Notwithstanding the foregoing, the Owner Trustee will pay, if so
requested by the Owner Participant in writing, any or all amounts payable by the
Owner Trustee hereunder to the Owner Participant either (i) by crediting such
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amount or amounts to an account or accounts maintained by the Owner Participant
with the Trust Company in immediately available funds; (ii) by payment at the
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address for payment specified in Schedule 1 to the Participation Agreement in
immediately available funds or (iii) by mailing an official bank check or checks
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in such amount or amounts payable to the Owner Participant at such address as
the Owner Participant shall have designated in writing to the Owner Trustee.
(c) The Owner Trustee will pay all amounts payable to the Owner
Participant by the Owner Trustee hereunder on the day received (or on the next
succeeding Business Day if the funds to be so distributed shall not have been
received by the Owner Trustee prior to 12:00 p.m., New York City time, and the
Owner Trustee shall not have been reasonably able to distribute such funds to
the Owner Participant on the day received).
Section 5. Distributions.
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5.1 Payments to Indenture Trustee. Until the Lien of the
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Indenture shall have been discharged pursuant to the terms thereof, all Basic
Rent, Supplemental Rent or other payments of any kind (other than Excepted
Payments) payable to the Owner Trustee (other than from the Indenture Trustee)
and included in the Trust Estate shall be payable directly to the Indenture
Trustee for distribution in accordance with the provisions of the Indenture,
and if any such amount or payment is received by the Owner Trustee, such amount
or payment upon receipt thereof shall be paid over to the Indenture Trustee
without deduction, set-off or adjust-
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ment of any kind for distribution in accordance with the provisions of the
Indenture; provided, however, that any payments received by the Owner Trustee
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from (i) the Lessee with respect to the Owner Trustee's fees and disbursements,
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or (ii) the Owner Participant pursuant to Section 8, shall not be paid over to
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the Indenture Trustee but shall be retained by the Owner Trustee and applied
toward the purpose for which such payments were made.
5.2 Payments to Owner Trustee. Any payment of the type referred
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to in Section 5.1 received by the Owner Trustee after the Indenture shall have
been discharged pursuant to the terms thereof, any payment received from the
Indenture Trustee other than as specified in Section 5.3 and any other amount
received as part of the Trust Estate and for the application or distribution of
which no provision is made herein shall, subject to Section 5.5, be distributed
forthwith upon receipt by the Owner Trustee in the following order of priority:
first, so much of such payment as shall be required to reimburse the Owner
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Trustee for any expenses not otherwise reimbursed as to which the Owner Trustee
is entitled to be so reimbursed pursuant to the provisions hereof shall be
retained by the Owner Trustee; second, so much of the remainder for which
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provision as to the application thereof is contained in any of the Operative
Documents or any of the other Owner Trustee Documents shall be applied and
distributed in accordance with the terms of such Operative Document or such
other Owner Trustee Document, as the case may be and third, the balance, if any,
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shall be paid to the Owner Participant.
5.3 Excepted Payments. Any Excepted Payment received by the Owner
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Trustee shall be paid by the Owner Trustee to the Person to whom such Excepted
Payment is payable pursuant to the terms of the Operative Documents.
5.4 Certain Distributions to Owner Participant. All amounts from
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time to time distributable by the Indenture Trustee to the Owner Participant
pursuant to the terms of the Indenture shall, if paid to the Owner Trustee, be
distributed by the Owner Trustee to or at the direction of the Owner
Participant.
5.5 Certain Distributions to Lessee. After the Indenture shall
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have been discharged pursuant to the terms thereof, any payment of the type
referred to in Section 5.1 received by the Owner Trustee with respect to the
Facility, if required by the terms of the Lease, shall be distributed to the
Lessee, or shall be held and invested and
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distributed by the Owner Trustee pursuant to Section 19.7 of the Lease, as the
case may be.
Section 6. Certain Duties of Owner Trustee.
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6.1 Notice of Certain Events. In the event that the Owner Trustee
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shall have Actual Knowledge of any Lease Event of Default, any Indenture Event
of Default or any Event of Loss, the Owner Trustee shall give prompt telephonic
notice thereof (promptly confirmed in writing) to the Owner Participant, the
Lessee and the Indenture Trustee, unless (in the case of notice to the Indenture
Trustee or the Lessee) such Lease Event of Default, Indenture Event of Default
or Event of Loss, as the case may be, has been remedied before the giving of
such notice and the Owner Trustee has Actual Knowledge that such Lease Event of
Default, Indenture Event of Default or Event of Loss has been so remedied.
Subject to the terms of Section 6.3, the Owner Trustee shall, after the
occurrence of any such event, take or refrain from taking such action with
respect thereto, not inconsistent with the provisions of the Operative
Documents, as the Owner Trustee shall be instructed in writing by the Owner
Participant. If the Owner Trustee shall not have received instructions as above
provided within twenty (20) days after such notice of such event to the Owner
Participant, the Owner Trustee may, until it shall have received such
instructions and subject to the provisions of the Operative Documents, take such
action or refrain from taking such action (but shall be under no duty to take or
refrain from taking any action) with respect to such Lease Event of Default,
Indenture Event of Default or Event of Loss, as it shall deem advisable in the
best interests of the Owner Participant.
6.2 Action Upon Instructions. (a) Subject to the terms of
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Sections 6.1 and 6.3, upon the written instructions at any time and from time
to time of the Owner Participant, the Owner Trustee shall take or refrain from
taking such action or actions, which actions shall not be inconsistent with
the provisions of any of the Operative Documents or the Owner Trustee Documents,
as may be specified in such instructions. In the event that the Owner Trustee
is unsure of the application of any provision of this Trust Agreement or any
other Owner Trustee Document, the Owner Trustee may request and rely upon
instructions of the Owner Participant.
(b) Notwithstanding anything to the contrary set forth in Section 2, the
Owner Trustee shall not, without instructions from the Owner Participant, (x)
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exercise any
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right to retain the Facility Assets under Section 7 of the Lease, (y) terminate
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the Lease except pursuant to the last sentence of Section 6.1 or (z) consent to
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or approve any action or document as being satisfactory to the Owner Trustee, or
waive any condition or the performance of any obligation in favor of the Owner
Trustee or the Trust Estate, or release the Lessee from any obligation under
the Operative Documents.
6.3 Indemnification. The Owner Trustee shall not be required to
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take or refrain from taking any action under Section 6.1 or 6.2 (other than the
actions specified in the first sentence of Section 6.1) unless the Owner Trustee
shall have been indemnified by the Owner Participant, in manner and form
reasonably satisfactory to the Owner Trustee, against any liability, fee, cost
or expense (including without limitation reasonable attorneys' fees) which may
be incurred or charged in connection therewith, other than any such liability,
fee, cost or expense which results from the willful misconduct (including
without limitation willful breach of contract) or gross negligence of the Owner
Trustee, or the failure of the Owner Trustee to use ordinary care in the receipt
and disbursement of funds, and, if the Owner Participant shall have directed the
Owner Trustee to take or refrain from taking any action under any Operative
Document, the Owner Participant agrees to furnish such indemnity (subject to the
foregoing limitation) as shall be reasonably satisfactory to the Owner Trustee,
and in addition, to the extent not otherwise paid pursuant to the terms of any
other Operative Document or Owner Trustee Document, to pay the reasonable
compensation of the Owner Trustee for the services performed or to be performed
by it pursuant to such direction as set forth in Section 8.2. The Owner Trustee
shall not be required to take any action under any Operative Document or any
Owner Trustee Document if the Owner Trustee reasonably shall determine, or shall
have been advised by counsel, that such action is likely to result in
unindemnified personal liability to the Owner Trustee or is contrary to the
terms hereof or of any documents contemplated hereby to which the Owner
Trustee is a party, or otherwise contrary to law, and the Owner Trustee in such
case shall deliver promptly to the Owner Participant written notice of the basis
of its refusal to act.
6.4 No Duties Except as Specified. The Owner Trustee shall not
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have any power, right, authority, duty or obligation to manage, control, use,
make any payment in respect of, register, record, insure, inspect, sell, dispose
of or otherwise deal with the Facility, any of the Facility
6
Assets or any other part of the Trust Estate, or to otherwise take or refrain
from taking any action under, or in connection with, any Owner Trustee Document
or any of the other Operative Documents, except as expressly provided by the
terms of this Trust Agreement, the other Operative Documents or the Owner
Trustee Documents or in written instructions from the Owner Participant received
pursuant to Section 6.1 or 6.2, and no implied duties or obligations shall be
read into this Trust Agreement against the Owner Trustee. Notwithstanding and
without limiting the foregoing, the Trust Company agrees that it will, in its
individual capacity and at its own expense, without any right to indemnification
hereunder, promptly take all action necessary to discharge and satisfy in full
any Lessor's Lien attributable to it in its individual capacity on any part of
the Trust Estate and will claim no indemnity therefor hereunder or under the
Participation Agreement or under any other Operative Document.
6.5 No Action Except Under Specified Documents or Instructions.
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The Owner Trustee shall not have any right, power or authority to, and the Owner
Trustee agrees that it will not, manage, control, use, sell, dispose of or
otherwise deal with the Facility, any of the Facility Assets or any other part
of the Trust Estate except as (i) expressly required by the terms of any Owner
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Trustee Document or (ii) expressly directed or authorized in written
--
instructions from the Owner Participant pursuant to Section 6.1 or 6.2, but
subject always to the provisions of, and the Lien created by, the Indenture and
the rights of the Lessee under the Lease and the other Operative Documents.
6.6 Tax Returns; Records. The Owner Trustee shall be responsible
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for the maintaining of all appropriate books and records relating to the receipt
and disbursement of all money which it may receive or be entitled to hereunder
or under any agreement contemplated hereby. The Owner Trustee agrees, at the
request and expense of the Owner Participant, to file an application with the
Internal Revenue Service for a taxpayer identification number with respect
to the trust created hereby and to prepare or cause to be prepared and to sign
and/or file all tax returns with respect to the transactions contemplated hereby
or any agreement referred to herein; provided, however, that the Owner Trustee
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shall send a copy of the contemplated return to the Owner Participant not more
than sixty (60) nor less than thirty (30) days prior to the due date of the
return. The Owner Participant, upon request, will furnish the Owner Trustee with
all such information as may be reasonably
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required from the Owner Participant in connection with the preparation of such
tax returns. The Owner Trustee shall keep copies of all returns delivered to or
filed by it.
6.7 Absence of Certain Duties. Except in accordance with written
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instructions furnished pursuant to Sections 6.1 and 6.2, and without limiting
the generality of Section 6.4, the Owner Trustee shall not have any duty (i) to
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file, record or deposit any Operative Document or Owner Trustee Document,
including without limitation this Trust Agreement, or any other document, or to
maintain any such filing, recording or deposit, or to refile, re-record or re-
deposit any such document; (ii) to obtain insurance with respect to the Facility
--
or to effect or maintain any such insurance, other than to receive and forward
to the Owner Participant any notices, policies, certificates or binders
furnished to the Owner Trustee by the Lessee or its insurance brokers; (iii) to
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maintain or mark the Facility or any of the Facility Assets; (iv) to pay or
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discharge any tax, assessment or other governmental charge, or any Lien or
encumbrance of any kind, owing with respect to or assessed or levied against any
part of the Trust Estate, except as provided in Section 6.4 or 7.1 hereof; (v)
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to confirm, verify, investigate or inquire into the failure to receive any
reports or financial statements of the Lessee or the Guarantor; (vi) to inspect
--
the Facility at any time, or to ascertain or inquire as to the performance or
observance of any of the covenants of the Lessee or any other Person under any
Operative Document or Owner Trustee Document with respect to the Facility or
any other part of the Trust Estate or (vii) to manage, control, use, sell,
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dispose of or otherwise deal with the Facility or any other part of the Trust
Estate, or any part thereof, except as provided in clauses (i) and (ii) of
Section 6.5.
6.8 Place of Administration. The principal place of
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administration of the trust created hereby shall be in Wilmington, Delaware.
Section 7. The Owner Trustee.
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7.1 Acceptance of Trust and Duties. The Owner Trustee accepts the
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trust hereby created and agrees to perform the same on the terms of this Trust
Agreement. The Owner Trustee also agrees to disburse all moneys actually
received by it constituting part of the Trust Estate pursuant to the terms of
this Trust Agreement. The Trust Company shall not be answerable or accountable
under any circumstances except, and in the case of such exceptions shall not
8
be entitled to indemnity hereunder or under any other Operative Document, (i)
-
for its own willful misconduct (including without limitation willful breach of
contract) or gross negligence; (ii) in the case of the inaccuracy of any of its
--
representations or warranties contained in Section 7.3 hereof or in Section 8 of
the Participation Agreement or in any written certificate delivered pursuant to
any Operative Document given expressly in its individual capacity and not in its
capacity as a trustee hereunder; (iii) as arising from its failure to perform
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obligations expressly undertaken by it in the last sentence of Section 6.4
hereof or expressly undertaken by it in Section 11.2 of the Participation
Agreement; (iv) for any Tax based on or measured by any fees, commissions or
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compensation received by it for acting as Owner Trustee in connection with any
of the transactions contemplated by the Operative Documents or (v) for its
-
failure to use ordinary care in the receipt and disbursement of funds.
7.2 Furnishing of Documents. The Owner Trustee will furnish to
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the Owner Participant, promptly upon receipt thereof, duplicates or copies of
all reports, notices, requests, demands, opinions, certificates, financial
statements and any other instruments furnished to the Owner Trustee under any
Operative Document or any Owner Trustee Document, unless the Owner Trustee shall
have determined that the same already has been actually received by the Owner
Participant.
7.3 No Representations or Warranties as to the Facility Assets or
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Documents. (a) NEITHER THE TRUST COMPANY NOR THE OWNER TRUSTEE MAKES ANY
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REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR
CONDITION OF THE FACILITY ASSETS OR ANY PART THEREOF, THE MERCHANTABILITY
THEREOF OR THE FITNESS THEREOF FOR ANY PARTICULAR PURPOSE, TITLE TO THE FACILITY
ASSETS OR ANY PART THEREOF, THE QUALITY OF THE MATERIALS OR WORKMANSHIP THEREOF
OR CONFORMITY THEREOF TO SPECIFICATIONS, OR THE PRESENCE OR ABSENCE OF ANY
LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, except that the Trust
Company hereby represents and warrants that (i) on the Closing Date, the Owner
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Trustee shall have received whatever right, title and/or interest in or to the
Facility as was conveyed to the Owner Trustee by Mobil Oil Corporation and (ii)
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the Facility shall be free and clear of Lessor's Liens attributable to Trust
Company, and (b) neither the Trust Company nor the Owner Trustee makes any
representation or warranty as to the validity or enforceability of any Operative
Document, or as to the correctness of any statement therein, except to the
9
extent that any such representation, warranty or statement is expressly made in
an Operative Document or in any written certificate delivered pursuant thereto
by the Owner Trustee or the Trust Company and except that the Trust Company
hereby represents and warrants that this Trust Agreement has been duly executed
and delivered by the Trust Company and each of the Owner Trustee Documents has
been or will be executed and delivered by officers of the Trust Company or by
the Owner Trustee who are or will be duly authorized to execute and deliver
documents on its behalf.
7.4 No Segregation of Moneys; No Interest. Except as otherwise
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provided herein, in any other Operative Document or in written instructions from
the Owner Participant, moneys received by the Owner Trustee hereunder need not
be segregated in any manner except to the extent required by law, and may be
deposited under such general conditions as may be prescribed by law, and the
Owner Trustee shall not be liable for any interest thereon.
7.5 Reliance. The Owner Trustee shall not incur any liability to
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anyone in acting upon any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond or other document or paper
reasonably believed by the Owner Trustee in good faith to be genuine and
reasonably believed by the Owner Trustee in good faith to be signed by the
proper party or parties. Any request, direction, order or demand of the Owner
Participant or the Lessee mentioned herein or in any other Operative
Document to which the Owner Trustee is a party shall be sufficiently evidenced
by an Officer's Certificate of the Owner Participant or the Lessee, as the case
may be. The Owner Trustee may accept in good faith a certified copy of a
resolution of the Board of Directors or other governing body of any corporate
party as conclusive evidence that such resolution has been duly adopted by such
body and that the same is in full force and effect. As to any fact or matter
the manner of ascertainment of which is not specifically prescribed herein, the
Owner Trustee may for all purposes hereof rely on an Officer's Certificate of
the relevant party as to such fact or matter, and such Officer's Certificate
shall constitute full protection to the Owner Trustee for any action taken or
omitted to be taken by it in good faith in reliance thereon. In the
administration of the trust hereunder, each of the Trust Company and the Owner
Trustee may execute any of the trusts or powers hereof and perform its powers
and duties hereunder directly or through agents or attorneys and may consult
with counsel, accountants and other skilled Persons to be selected and
employed
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by it, and neither the Trust Company nor the Owner Trustee shall be liable for
anything done, suffered or omitted: (i) by such agents or attorneys appointed
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by it in good faith, or (ii) in good faith by it in accordance with the advice
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or opinion of any such counsel, accountants or other skilled Persons so long as
such advice or opinion pertains to such matters as the Owner Trustee may
reasonably presume to be within the scope of such Person's expertise.
7.6 Not Act in Individual Capacity. Except as provided in this
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Trust Agreement, in accepting the trust hereby created the Owner Trustee agrees
to act solely as trustee hereunder and not in its individual capacity, and all
Persons having any claim against the Owner Trustee by reason of the transactions
contemplated by the Operative Documents or the Owner Trustee Documents shall
look only to the Trust Estate (or a part thereof, as the case may be) for
payment or satisfaction thereof, except as specifically provided in this Trust
Agreement or such Operative Document and except to the extent the Owner Trustee
otherwise shall agree in any Owner Trustee Document.
Section 8. Indemnification; Compensation.
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8.1 Indemnification of Trust Company. The Owner Participant
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agrees to assume liability for, and to indemnify and hold harmless the Trust
Company against and from any and all liabilities, obligations, damages, taxes
(excluding any taxes, fees or other charges payable by the Trust Company or
measured by any compensation received by the Owner Trustee for its services
hereunder), claims, actions, suits, out-of-pocket costs, expenses and disburse-
ments of any kind and nature whatsoever, including without limitation the
reasonable fees and expenses of counsel but excluding internal costs and
expenses such as salaries and overhead (collectively, "Trust Expenses") which
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may be imposed on, incurred by or asserted at any time against the Trust Company
(whether or not also indemnified by any other Person; provided, however, that to
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the extent the Trust Company shall have actually received any payment in the
nature of an indemnity payment from any such other Person relating to a claim
hereunder, the Trust Company shall not be entitled to the amount of any such
payment pursuant to this Section 8.1 (notwithstanding that the Trust Company may
have returned any such amount to the paying party)) in any way relating to or
arising out of (i) the administration of the Trust Estate or the action or
-
inaction of the Trust Company hereunder or under the other Operative Documents;
(ii) the Facility or any part thereof; (iii) the Operative
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Documents or any of them, the issuance of the Secured Notes or the making of any
investment in the Facility, payments made pursuant to any thereof or the
enforcement by the Trust Company of any of its rights under the Operative
Documents, or any other transaction contemplated by the Operative Documents or
(iv) the manufacture, financing, construction, purchase, ownership, acquisition,
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acceptance, rejection, delivery, nondelivery, possession, transportation, lease,
sublease, mortgaging, granting of a security interest in, preparation,
installation, condition, transfer of title, rental, use, operation, storage,
maintenance, modification, alteration, repair, assembly, sale, return,
abandonment or other application or disposition of all or any part of the
Facility Assets or any interest therein or in the Facility, including without
limitation (A) claims or penalties arising from any violation of law or
-
liability in tort (strict or otherwise); (B) loss of or damage to any property
-
or the environment or death or injury to any Person; (C) latent or other
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defects, whether or not discoverable and (D) any claim for patent, trademark or
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copyright infringement, except only that the Owner Participant shall not be
required to indemnify the Trust Company for Trust Expenses arising or resulting
from any of the matters (1) described in clauses (i) through (v) of the last
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sentence of Section 7.1 or (2) for which the Lessee would not have been required
-
to indemnify the Trust Company pursuant to Section 12.1 or 12.2 of the
Participation Agreement (disregarding for this purpose (x) clauses (1), (3),
-
(5), (7), (9), (10) (to the extent such Indenture Event of Default is
attributable to the Owner Participant) and (11) of the proviso to Section
12.1(a) of the Participation Agreement and (y) Sections 12.2(b)(2), 12.2(b)(5),
-
12.2(b)(10), 12.2(b)(11), 12.2(b)(15) (to the extent that any such Lien is
attributable to the Owner Participant) and 12.2(b)(17) (to the extent imposed
upon the Trust Company) of the Participation Agreement). The indemnities
contained in this Section 8.1 shall survive the termination of this Trust
Agreement. To secure the foregoing indemnities, the Owner Trustee shall be
entitled to apply any amount otherwise distributable to the Owner Participant
pursuant to Section 5.2 against any such indemnity which has not been paid when
due. The indemnities contained in this Section 8.1 extend to the Trust Company
only and shall not be construed as indemnities of the Trust Estate. The Trust
Company agrees that, before asserting any right to indemnification under this
Trust Agreement, in its individual capacity, or in its capacity as Owner
Trustee, it shall first demand and pursue by appropriate means, for a reasonable
period of time, its corresponding right to indemnifica-
12
tion, if any, pursuant to Section 12 of the Participation Agreement.
8.2 Compensation and Expenses. The Owner Trustee agrees that it
-------------------------
shall have no right against the Owner Participant or the Trust Estate for any
fee as compensation for its services or for its expenses, to the extent the
Lessee or the Lessor has paid such amounts pursuant to Section 2.9 or 12.1(f) of
the Participation Agreement. Subject to the preceding sentence, the Owner
Participant shall pay, or reimburse the Owner Trustee for, all reasonable
expenses of the Owner Trustee, together with reasonable compensation for its
services hereunder as provided herein, unless and to the extent that the Owner
Trustee otherwise receives payment or reimbursement pursuant to any Operative
Document, whether or not the transactions contemplated hereby are consummated.
Section 9. Termination of Trust Agreement.
------------------------------
9.1 Termination of Trust Agreement. Subject to the terms of the
------------------------------
Participation Agreement, the Lease, the Indenture and Sections 5 and 8.1, this
Trust Agreement and the trust created hereby shall terminate and the Trust
Estate shall be distributed to the Owner Participant, and this Trust Agreement
shall be of no further force or effect, upon the earlier of (i) the sale or
-
other final disposition by the Owner Trustee of all property constituting part
of the Trust Estate and the final distribution by the Owner Trustee of all
moneys or other property or proceeds constituting part of the Trust Estate in
accordance with the terms of Section 5 and (ii) 110 years less one day after the
--
earlier execution of this Trust Agreement by either the Trust Company or the
Owner Participant, but if any rights, privileges or options hereunder shall be
or become valid under applicable law for a period subsequent to such time (or,
without limiting the generality of the foregoing, if legislation shall become
effective providing for the validity or permitting the effective grant of such
rights, privileges and options for a period in gross exceeding the period for
which such rights, privileges and options are hereinabove stated to extend and
be valid), then such rights, privileges or options shall not terminate as afore-
said but shall extend to and continue in effect, but only if such nontermination
and extension shall then be valid under applicable law, until such time as the
same shall cease to be valid under applicable law.
13
9.2 Termination at Option of Owner Participant. The provisions of
------------------------------------------
Section 9.1 notwithstanding, but subject to Section 11.2, this Trust Agreement
and the trust created hereby shall terminate and the Trust Estate shall be
distributed to the Owner Participant, and this Trust Agreement shall be of no
further force and effect, upon the election of the Owner Participant by notice
to the Owner Trustee to revoke the trust created hereby; provided that, in
--------
addition to the giving of such notice, the Owner Participant, with the
cooperation of the Owner Trustee, shall execute and deliver such written
agreements and instruments and take such actions as shall be necessary in order
to cause the succession of the Owner Participant to all the rights, title,
interests, duties and liabilities of the Owner Trustee under the Operative
Documents (including without limitation the obligations of the Owner Trustee in
Section 5 herein and other than obligations attributable to any gross negligence
or willful misconduct of the Trust Company or any breach by the Owner Trustee of
its obligations under the Operative Documents); provided, however, that,
-------- -------
except in connection with the exercise of remedies by the Owner Trustee pursuant
to Section 16.1 of the Lease, no such termination shall occur without the
express written consent of the Lessee, and, prior to any such termination, the
Lien of the Indenture on the Indenture Estate shall have been released, and full
payment of the principal of or, premium (if any) and interest on the Secured
Notes shall have been made or the Indenture Trustee shall have consented to such
termination. In addition, the Owner Participant may not withdraw any part of
the Trust Estate subject to the Lien of the Indenture prior to the discharge of
such Lien with respect to such part of the Trust Estate without the express
written consent of the Indenture Trustee. The written agreements and
instruments referred to in the first proviso to the first sentence of this
Section 9.2 shall be reasonably satisfactory in form and substance to the Owner
Trustee and shall release the Owner Trustee from all further obligations of the
Owner Trustee hereunder and under the agreements and other instruments mentioned
in the first sentence of this Section 9.2.
9.3 Distribution of Trust Estate Upon Termination. Upon any
---------------------------------------------
termination of the trust created hereby pursuant to Section 9.1 or 9.2, the
Owner Trustee shall transfer title to the Trust Estate (and assign all its
right, title and interest in, to and under each Operative Document) to the Owner
Participant or its designee. No later than the effective date of termination of
the trust created hereby the Owner Trustee or its designee shall
14
execute and deliver to the Owner Participant a special warranty deed, bill of
sale and assignment and other written instrument or instruments prepared by the
Owner Participant in form and substance reasonably satisfactory to the Owner
Trustee evidencing the transfer of title to the Trust Estate to the Owner
Participant and, no later than the effective date of such termination, the Owner
Participant shall execute and deliver to the Owner Trustee a written
instrument in form and substance reasonably satisfactory to the Owner Trustee
evidencing discharge of the Owner Trustee from its obligations hereunder and
under the other Operative Documents to which the Owner Trustee is a party
except those theretofore accrued and its obligations to release Lessor's Liens.
Section 10. Successor Owner Trustee, Additional and Separate Owner
------------------------------------------------------
Trustees.
--------
10.1 Resignation and Successors. (a) The Owner Trustee may resign
--------------------------
at any time without cause by giving at least thirty (30) days' prior written
notice to the Owner Participant, with a copy to the Indenture Trustee and the
Lessee, such resignation to be effective on the acceptance of appointment by a
successor to the Owner Trustee under paragraph (b) of this Section 10.1. In
addition, the Owner Participant at any time may remove the Owner Trustee without
cause by an instrument in writing delivered to the Owner Trustee, the Indenture
Trustee and the Lessee, such removal to be effective upon the acceptance of
appointment by a successor to the Owner Trustee under paragraph (b) of this
Section 10.1. In case of the resignation or removal of the Owner Trustee, the
Owner Participant may appoint a successor to the Owner Trustee by an instrument
in writing, signed by the Owner Participant. If a successor to the Owner
Trustee shall not have been appointed within thirty (30) days after the giving
of written notice of such resignation or the delivery of the written instrument
with respect to such removal, the Owner Trustee, the Owner Participant, the
Indenture Trustee or the Lessee may apply to any court of competent jurisdiction
to appoint a successor to the Owner Trustee reasonably acceptable to the Owner
Participant and the Lessee to act until such time, if any, as a successor shall
have been appointed as above provided in this Section 10.1. Any successor so
appointed by such court shall immediately and without further act be
superseded by any successor to the Owner Trustee appointed as above provided
in this Section 10.1.
15
(b) Any successor Owner Trustee, however appointed, shall execute and
deliver to the predecessor Owner Trustee an instrument accepting such
appointment and shall give the Owner Participant, the Indenture Trustee and
Lessee written notice of such acceptance. Upon the execution and delivery of
such instrument, such successor Owner Trustee, without further act (provided
that any required Governmental Actions have been obtained), shall become vested
with all the estates, properties, rights, powers, duties and trusts of the
predecessor Owner Trustee in the trust hereunder with like effect as if
originally named an Owner Trustee herein; provided, however, that upon the
-------- -------
written request of such successor Owner Trustee, such predecessor Owner
Trustee shall execute and deliver an instrument transferring to such successor
Owner Trustee, upon the trust herein expressed, all estates, properties, rights,
powers, duties and trusts of such predecessor trustee as the Owner Trustee
hereunder, and such predecessor trustee shall duly assign, transfer, deliver and
pay over to such successor Owner Trustee all moneys or other property then held
by such predecessor trustee as the Owner Trustee upon the trust herein
expressed, together with all the books and records maintained by such
predecessor trustee with respect to such trust pursuant to Section 6.6. Upon
the appointment of any successor Owner Trustee hereunder, the predecessor
trustee, pursuant to written instructions of the Owner Participant, will execute
all documents and take all reasonable action within its control in order to
cause such title held in the Trust Estate by such predecessor trustee to be
transferred to the successor Owner Trustee.
(c) Any successor to the Owner Trustee, however appointed, shall be a
bank or trust company incorporated and doing business within the United States
of America and having a combined capital and surplus of at least $50,000,000,
reasonably acceptable to the Owner Participant and the Lessee, and regularly
engaged in or having expertise in leveraged leasing, if there be such an
institution willing, able and legally qualified to perform the duties of the
Owner Trustee hereunder upon reasonable or customary terms.
(d) Any corporation into which the Owner Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Owner Trustee shall be
a party, or any corporation to which substantially all the corporate trust
business of the Owner Trustee may be transferred, shall be, subject to
compliance with the terms
16
of paragraph (c) of this Section 10.1, the Owner Trustee under this Trust
Agreement without further act.
10.2 Additional and Separate Trustees. (a) If the Owner Trustee
--------------------------------
or the Owner Participant shall conclude that it is necessary or prudent in order
to conform to the law of any jurisdiction in which all or any part of the Trust
Estate shall be situated, or to make or defend any claim or bring or defend any
suit with respect to the Trust Estate, the Secured Notes or any Operative
Document, or pursuant to advice of counsel satisfactory to it, or if the Owner
Trustee shall have been directed to do so by the Owner Participant, the Owner
Trustee shall appoint another Person to act as additional or separate trustee
for all or any part of the Trust Estate with such property, title, right, power
or duty as the Owner Trustee and the Owner Participant may determine. In case
any such additional trustee or separate trustee shall resign or be removed, all
the assets, property, rights, powers or duties of such additional trustee or
separate trustee, as the case may be, so far as permitted by any applicable law,
shall vest in and be exercised by a new successor to such additional trustee,
appointed in the manner otherwise provided in this Trust Agreement.
(b) In the event that either the Owner Participant or the Owner Trustee
shall determine to appoint another Person as additional or separate trustee,
the Owner Trustee and the Owner Participant shall execute and deliver an
agreement supplemental 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 Owner Trustee and the Owner Participant, either to act
as an additional trustee or trustees of all or any part of the Trust Estate,
jointly with the Owner 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 as may be
provided in such agreement supplemental 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 deemed necessary or proper by the
Owner Trustee or the Owner Participant, subject to the remaining provisions of
this Section 10.2. In the event the Owner Participant shall not have joined in
the execution of such agreement supplemental hereto within fifteen (15) days
after the receipt of a written request from the Owner Trustee so to do without
providing a reasonable basis for such failure to join, the Owner Trustee may act
under the foregoing provisions of this Section 10.2 without the con-
17
currence of the Owner Participant, and the Owner Participant hereby appoints the
Owner Trustee its agent and attorney-in-fact to act for the Owner Participant
under the foregoing provisions of this Section 10.2 in the event of the occur.
rence of such contingency. The Owner Trustee may execute, deliver and perform
any deed, conveyance, assignment or other instrument in writing as may be
required by an additional trustee or separate trustee for more fully and cer-
tainly vesting in and confirming to such Person any property, title, right or
power which, by the terms of such agreement supplemental hereto, are expressed
to be conveyed or conferred to or upon such additional trustee or separate
trustee, and the Owner Participant shall, upon the Owner Trustee's request, join
therein and execute, acknowledge and deliver the same, and the Owner Participant
hereby appoints the Owner Trustee its agent and attorney-in-fact to execute,
acknowledge and deliver any such deed, conveyance, assignment or other
instrument in the event that such Owner Participant shall not itself execute
and deliver the same within fifteen (15) days after receipt by it of such
request so to do.
(c) Every additional trustee and separate trustee hereunder shall, to the
extent permitted by law, be appointed to act and the Owner Trustee shall act,
subject to the following provisions and conditions:
(i) to the extent permitted by applicable law, all powers, duties,
obligations and rights conferred or imposed upon the Owner Trustee in
respect of the receipt, custody, management, investment and payment of
moneys, shall be exercised solely by the Owner Trustee;
(ii) all other rights, powers, duties, and obligations conferred or
imposed upon the Owner Trustee shall be conferred or imposed upon and
exercised or performed by the Owner Trustee and such additional trustee or
trustees and separate trustee or trustees jointly, except to the extent
that, under any law of the jurisdiction in which any particular act or acts
are to be performed, the Owner Trustee shall be incompetent or
unqualified 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;
18
(iii) no power hereby given to, or with respect to which it is hereby
provided may be exercised by, any such additional trustee or separate
trustee shall be exercised hereunder by such additional trustee or separate
trustee except jointly with, or with the consent of, the Owner Trustee and
(iv) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder.
(d) If at any time the Owner Trustee and the Owner Participant shall deem
it no longer necessary or prudent in order to conform to any applicable law or
shall be advised by its counsel that it is no longer necessary or prudent in the
interest of the Owner Trustee and the Owner Participant to maintain the
appointment of such additional or separate trustee as provided herein, the Owner
Trustee and the Owner Participant shall execute and deliver any agreement
supplemental hereto and all other instruments and agreements necessary or proper
to remove any such additional or separate trustee. In the event that the Owner
Participant shall not have joined in the execution of such agreement
supplemental hereto, instruments and agreements, the Owner Trustee may act on
behalf of the Owner Participant to the same extent provided above in this
Section 10.2.
(e) Any additional trustee or separate trustee may at any time by an
instrument in writing constitute the Owner Trustee; its agent or attorney-in-
fact with full power and authority, to the extent which may be authorized by
applicable law, to do all acts and things and exercise all discretion which 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 Owner Trustee without necessity of any act by any party and
without the appointment of a new successor to such additional or separate
trustee, unless and until a successor is appointed in the manner provided in
this Section 10.2.
(f) Each additional or separate trustee appointed pursuant to this
Section 10.2 shall be subject to, and shall have the benefit of, Sections 6.1
through 6.7 and Sections 7.1, 8.1 and 11.2 insofar as they apply to the
19
Owner Trustee. No additional separate trustee shall be appointed pursuant to
this Section 10.2 without the consent of the Lessee, such consent not to be
unreasonably withheld. No appointing of, or action by, any additional trustee
will relieve the Owner Trustee of any of its or his obligations hereunder or
under any other Operative Document.
Section 11. Supplements and Amendments.
--------------------------
11.1 Supplements and Amendments. Subject to the terms of the
--------------------------
Operative Documents at any time and from time to time, upon the written request
of the Owner Participant, (i) the Owner Trustee, together with the Owner
-
Participant, shall execute a supplement to this Trust Agreement for the purpose
of adding provisions to, or changing or eliminating provisions of, this Trust
Agreement as specified in such request, and (ii) the Owner Trustee shall,
--
subject to compliance with the applicable provisions of Article IX of the
Indenture, enter into such written amendment of or supplement to any other
Operative Document to which the Owner Trustee is a party as the Indenture
Trustee and the Lessee may agree to and as may be specified in such request, or
execute and deliver such written waiver or modification of or consent under the
terms of any such Operative Document as the Lessee and, unless the Lien of the
Indenture has been discharged, the Indenture Trustee may agree to and as may be
specified in such request.
11.2 Limitation on Amendments. The provisions of Section 11.1
------------------------
notwithstanding, but subject to Sections 11.1(g) and 17.6(b) of the
Participation Agreement, (i) this Trust Agreement may not be revoked or
-
terminated by the Owner Participant and (ii) the Owner Participant shall not
--
request the Trust Company to execute any amendment which would result in the
trust created hereunder being terminated or which would materially adversely
affect the Indenture Estate, in either case prior to the release of the Lien of
the Indenture on the Indenture Estate or prior to the payment in full of the
principal of, premium (if any) and interest on the Secured Notes unless the
Indenture Trustee shall have consented to any such revocation, termination or
amendment.
11.3 Discretion as to Execution of Documents. If in the reasonable
---------------------------------------
opinion of the Owner Trustee any document required to be executed pursuant to
the terms of Section 11.1 (i) adversely affects any right, duty, immunity, or
-
indemnity in favor of the Owner Trustee hereunder or under any other Operative
Document to which the Owner
20
Trustee is a party or (ii) would cause or result in any conflict with or any
--
breach of any term, condition or provision of, or default under, its charter
documents or by-laws or any document contemplated hereby to which it is a party,
the Owner Trustee may in its discretion decline to execute such document.
Section 12. Miscellaneous.
-------------
12.1 No Legal Title to Trust Estate in the Owner Participant. The
-------------------------------------------------------
Owner Participant shall not have legal title to any part of the Trust Estate.
No transfer, by operation of law or otherwise, of any right, title and interest
of the Owner Participant in and to the Trust Estate or hereunder shall operate
to terminate this Trust Agreement or the trust created hereby or entitle any
successor or transferee to an accounting or to the transfer to it of legal title
to any part of the Trust Estate.
12.2 Sale of the Facility Assets by Owner Trustee Is Binding. Any
-------------------------------------------------------
sale, transfer or other conveyance of any part of the Facility or other property
included in the Trust Estate or any part thereof by the Owner Trustee made
pursuant to the terms of this Trust Agreement or any other Operative Document
shall bind the Owner Participant and shall be effective to transfer or convey
all right, title and interest of the Owner Trustee and the Owner Participant
in and to the Facility or other property included in the Trust Estate or part
thereof, as the case may be. No purchaser or other grantee shall be required to
inquire as to the authorization, necessity, expediency or regularity of such
sale or conveyance or as to the application of any sale or other proceeds with
respect thereto by the Owner Trustee.
12.3 Notices. Unless otherwise expressly specified or permitted by
-------
the terms hereof, all notices hereunder shall be given as provided in Section
17.3 of the Participation Agreement.
12.4 Severability of Provisions. Any provision of this Trust
--------------------------
Agreement which may be determined by competent authority to be invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without invalidating or
rendering unenforceable any remaining terms and provisions hereof, and any
such invalidity or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. The parties
shall negotiate in good faith to replace such provision with
21
an appropriate legal provision. To the extent permitted by applicable law, the
parties hereto hereby waive any provision thereof that renders any term or
provision hereof invalid or unenforceable in any respect.
12.5 Separate Counterparts. This Trust 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.
12.6 Successors and Assigns. This Trust Agreement, including the
----------------------
terms and provisions hereof, shall be binding upon the Owner Participant, the
Trust Company or the Owner Trustee, whichever is applicable pursuant to the
terms hereof, and their respective successors and assigns, and inure to the
benefit of the Owner Participant, the Trust Company or the Owner Trustee,
whichever is applicable pursuant to the terms hereof, and their respective
successors and permitted assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by the Owner
Participant shall bind the successors and assigns of the Owner Participant.
12.7 Transfer of Owner Participant's Interest. (a) All provisions
----------------------------------------
of Section 13 of the Participation Agreement shall (with the same force and
effect as if set forth in full, mutatis mutandis, in this Section 12.7) be
----------------
applicable to any assignment, conveyance or other transfer by any Owner
Participant of any of its right, title or interest in and to the Trust Estate or
this Trust Agreement or any other Operative Document.
(b) In the event that at any time there shall be more than one Owner
Participant pursuant to the provisions of Section 13 of the Participation
Agreement, then in each such case, as used herein, the term "Owner Participant"
shall be deemed to refer to each such Owner Participant, except that any
reference to consents, approvals or waivers of the "Owner Participant" as used
herein shall require the consent, approval or waiver of each such Owner
Participant. At any time that there shall be required to be made hereunder any
distribution, disbursement, assignment or other transfer of monies or any other
item whatsoever, then such distribution, disbursement, assignment or other
transfer shall be made pro rata to each Owner Participant existing at such time
in accordance with their respective interests hereunder. If there shall be more
than one Owner Participant, no Owner Participant shall be liable for performance
22
by any other Owner Participant of such other Owner Participant's obligations
under the Operative Documents or in respect of actions taken by any other Owner
Participant except as otherwise expressly so set forth.
12.8 Headings; Table of Contents. The division of this Trust
---------------------------
Agreement into sections, the provision of a table of contents and the insertion
of headings are for convenience of reference only and shall not affect the
construction or interpretation hereof.
12.9 GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
12.10 Performance by Owner Participant. Any obligation of the Trust
--------------------------------
Company or the Owner Trustee hereunder or under any other Operative Document
or other document contemplated hereby may be performed by the Owner Participant
and any such performance shall not be construed as a revocation of the
trust created hereby.
12.11 The Owner Trustee Documents. If any provision in this Trust
---------------------------
Agreement shall conflict with or otherwise be inconsistent with the terms of any
Owner Trustee Document, the terms of the Owner Trustee Document shall control.
12.12 Performance of Obligations to Indenture Trustee. After the
--------------------------------------- -------
Indenture shall have been discharged pursuant to the terms thereof, the
provisions of this Trust Agreement which require or permit any action by, any
consent, approval or authorization of, the furnishing of any document, paper
or information to, or the performance of any other obligation to, the Indenture
Trustee shall not be effective, and the Sections hereof containing such provi-
sions shall be read as though there were no such references to any such
requirements or permissions.
12.13 Trust Agreement for Benefit of Parties Only. Unless otherwise
-------------------------------------------
expressly provided herein, nothing herein shall be construed to give any Person
other than the Owner Trustee and the Owner Participant any legal or equitable
right, remedy or claim under or in respect of this Trust Agreement, and this
Trust Agreement shall be held to be for the sole and exclusive benefit of the
Owner Trustee and the Owner Participant, provided, however that it is intended
-------- -------
that (i) the Indenture Trustee be a third party
-
23
beneficiary with respect to Sections 4.2(a)(ii), 5.1, 6.1, 9.2, 11.2 and 12.13
hereof and (ii) the Lessee be a third party beneficiary with respect to Sections
--
4.2(a)(iii), 5.5, 6.1, 9.2, 10.1(c), 11.2, 12.2 and 12.13 hereof.
12.14 Limitation on Owner Participant's Liability. Except as
-------------------------------------------
expressly set forth herein, the Owner Participant shall not have any liability
for the performance of this Trust Agreement.
24
IN WITNESS WHEREOF, the parties hereto have each caused this Trust
Agreement to be duly executed as of the date first above written.
WILMINGTON TRUST COMPANY, not in its individual
capacity, except as expressly provided herein,
but as Owner Trustee
By:
----------------------------------------------
Name:
Title:
FLEET NATIONAL BANK
By: ----------------------------------------------
Name:
Title:
25