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EXHIBIT 4(b)(5)
Trust Agreement
Dated as of December __, 1994
Between
BNY Capital Funding Corp.,
Owner Participant
and
State Street Bank and Trust Company,
Owner Trustee
Covered Hoppers and Tank Cars
UTC Trust No. 1994-A
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
Section 1.1. Definitions....................................................... 1
Section 1.2. Interpretation.................................................... 1
ARTICLE II
AUTHORITY DECLARATION OF TRUST
Section 2.1. Authority to Execute and Perform Various Documents................ 1
Section 2.2. Declaration of Trust.............................................. 2
ARTICLE III
DISTRIBUTIONS AND PAYMENTS
Section 3.1. Payments to the Indenture Trustee................................. 2
Section 3.2. Payments to the Owner Trustee; Other Parties...................... 2
Section 3.3. Certain Distributions to the Owner Participant.................... 3
Section 3.4. Excepted Property................................................. 3
Section 3.5. Method of Payment................................................. 3
ARTICLE IV
CERTAIN DUTIES OF THE OWNER TRUSTEE
Section 4.1. Notice of Certain Events.......................................... 4
Section 4.2. Action Upon Instructions.......................................... 4
Section 4.3. Indemnification................................................... 4
Section 4.4. No Duties Except as Specified..................................... 5
Section 4.5. No Action Except Under Specified Agreements or Instructions....... 5
Section 4.6. Tax Returns; Records.............................................. 5
Section 4.7. Absence of Certain Duties......................................... 6
Section 4.8. Finishing of Documents............................................ 6
ARTICLE V
THE OWNER TRUSTEE
Section 5.1. Acceptance of Trusts and Duties................................... 7
Section 5.2. No Representations or Warranties as to Equipment of Documents..... 7
Section 5.3. No Segregation of Moneys; No Interest............................. 8
Section 5.4. Reliance, Advice of Counsel....................................... 8
Section 5.5. Not Acting in Individual Capacity................................. 9
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ARTICLE VI
INDEMNIFICATION
Section 6.1. Indemnification of Trust Company.................................. 9
Section 6.2. Expenses.......................................................... 10
ARTICLE VII
TERMINATION TRUST AGREEMENT
Section 7.1. Termination of Trust Agreement.................................... 11
Section 7.2. Termination at Option of the Owner Participant.................... 11
ARTICLE VIII
SUCCESSOR OWNER TRUSTEES, CO-OWNER TRUSTEES
AND SEPARATE OWNER TRUSTEES
Section 8.1. Resignation of the Owner Trustee; Appointment of Successor....... 12
Section 8.2. Additional and Separate Trustees................................. 13
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS
Section 9.1. Supplements and Amendments........................................ 15
ARTICLE X
MISCELLANEOUS
Section 10.1. No Legal Title to Trust Estate in the Owner Participant........... 15
Section 10.2. Sale of Accepted Equipment by the Owner Trustee is Binding........ 16
Section 10.3. Notices........................................................... 16
Section 10.4. Severability...................................................... 16
Section 10.5. Separate Counterparts............................................. 16
Section 10.6. Waivers, etc...................................................... 16
Section 10.7. Successors and Assigns............................................ 16
Section 10.8. Transfer of Owner Participant's Interest.......................... 16
Section 10.9. Actions of the Owner Participants................................. 17
Section 10.10. Headings; Table of Contents....................................... 17
Section 10.11. Governing Law..................................................... 17
Section 10.12. Benefit........................................................... 17
Section 10.13. Performance by the Owner Participant.............................. 17
Section 10.14. Conflict with Operative Agreements................................ 17
Section 10.15. Limitation on Owner Participant's Liability....................... 17
Section 10.16. Identification of Trust........................................... 18
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TRUST AGREEMENT
This Trust Agreement is entered into as of December , 1994 between
BNY Capital Funding Corp., a New York corporation (the "Owner Participant"),
and State Street Bank and Trust Company, a Massachusetts banking corporation
(in its individual capacity, "Trust Company," and otherwise not in its
individual capacity but solely as trustee hereunder, the "Owner Trustee"). In
consideration of the mutual agreements herein contained, the agreements
contained in the other Operative Agreements and the acceptance by Trust Company
of the trusts hereby created, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. The capitalized terms used in this Trust
Agreement have the meanings given in Appendix A unless otherwise defined herein
or unless the context otherwise requires. For all purposes hereof, the
following terms shall have the following meanings:
"Accepted Equipment" means all of the Accepted Units.
"Accepted Unit" means each Unit that has been purchased by the Owner
Trustee pursuant to the Participation Agreement.
"Actual Knowledge" of Trust Company or the Owner Trustee means actual
knowledge of, including any written notices received by, a responsible officer
in the Corporate Trust Administration of Trust Company.
Section 1.2. Interpretation. 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.
The terms "hereof," "herein," "hereby," "hereto" and "hereunder" refer to this
Trust Agreement, taken as a whole. References to a given agreement or
instrument are references to such agreement or instrument as originally entered
into, as modified, amended, supplemented and restated through the date as of
which such reference is made.
ARTICLE II
AUTHORITY DECLARATION OF TRUST
Section 2.1. Authority to Execute and Perform Various Documents. The
Owner Participant hereby authorizes and directs the Owner Trustee to, and the
Owner Trustee agrees for the benefit of the Owner Participant that it will, (i)
execute and
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deliver the Participation Agreement, (ii) on the Closing Date, upon receipt of
the confirmation by the Owner Participant pursuant to Section 2.4 of the
Participation Agreement, execute and deliver the Operative Agreements
contemplated by the Participation Agreement to be executed and delivered by the
Owner Trustee on the Closing Date, in the respective forms thereof in which
delivered by the Owner Participant to the Owner Trustee for execution and
delivery, and to take the other actions contemplated to be taken by the Owner
Trustee on the Closing Date in Section 2 of the Participation Agreement, (iii)
execute and deliver any other agreement, instrument or certificate contemplated
by the Operative Agreements as the Owner Participant from time to time may
direct in writing, (iv) subject to the terms of this Trust Agreement, exercise
the rights (upon written instructions received from the Owner Participant) and
perform the duties of the Owner Trustee under each of the documents,
agreements, instruments and certificates referred to in clauses (i) through
(iii) of this Section 2.1 as set forth in such documents, agreements,
instruments and certificates, and (v) subject to the terms of this Trust
Agreement, take such other action in connection with the foregoing as the Owner
Participant may from time to time direct in writing.
Section 2.2. Declaration of Trust. The Trust Company hereby declares
that it will hold as Owner Trustee all estate, right, title and interest of the
Owner Trustee in and to the Accepted Equipment and the Owner Trustee
Agreements, and any other property contributed by the Owner Participant
pursuant to the terms of any of the Operative Agreements, including without
limitation all amounts of Rent, insurance proceeds and requisition, indemnity
or other payments of any kind, but specifically excluding Excepted Property
(collectively, the "Trust Estate"), upon the trusts set forth herein and for
the use and benefit of the Owner Participant as sole beneficiary, subject,
however, to the provisions of and the Lien created by the Indenture.
ARTICLE III
DISTRIBUTIONS AND PAYMENTS
Section 3.1. Payments to the Indenture Trustee. Until the Lien of the
Indenture shall have been discharged pursuant to the terms thereof, all Basic
Rent, Supplemental Rent, insurance proceeds and requisition or other payments
of any kind (other than payments constituting Excepted Property and other than
payments received from the Indenture Trustee) for or with respect to any
Accepted Unit payable to the Owner Trustee 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 adjustment of any kind for distribution
in accordance with the provisions of the Indenture.
Section 3.2. Payments to the Owner Trustee; Other Parties. Any
payment of the type referred to in Section 3.1 (other than payments
constituting Excepted
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Property) 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 3.4 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 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 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 provision as to the
application thereof is contained in the Lease, any of the other Operative
Agreements or any of the other Owner Trustee Agreements shall be applied and
distributed in accordance with the terms of the Lease, such other Operative
Agreement or such other Owner Trustee Agreement, as the case may be; and third,
the balance, if any, shall be paid to the Owner Participant.
Section 3.3. Certain Distributions to the Owner Participant. All
amounts from 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 the Owner Participant.
Section 3.4. Excepted Property. Anything in this Trust Agreement to
the contrary notwithstanding, any amounts or payments constituting Excepted
Property received by the Owner Trustee shall be paid promptly by the Owner
Trustee to the Person to whom such amounts or payments are payable pursuant to
the terms of the Operative Agreements.
Section 3.5. Method of Payment.
(a) All amounts payable to the Owner Participant or to the Indenture
Trustee pursuant to this Trust Agreement shall be paid by the Owner Trustee, if
to the Owner Participant, by transferring such amount in immediately available
funds to the account of the Owner Participant specified in Schedule 2 to the
Participation Agreement or, if to the Indenture Trustee, in the manner
specified in the Indenture. The Owner Trustee shall pay such amounts on the
day received, or on the next succeeding Business Day if the funds to be so paid
shall not have been received by the Owner Trustee by 1:00 p.m. New York time,
provided that the Owner Trustee shall use reasonable efforts to invest
overnight in Specified Investments at the direction and for the benefit of the
Owner Participant all funds received by it at or later than 1:00 p.m. New York
time.
(b) Notwithstanding the foregoing, the Owner Trustee will pay, if so
requested by the Owner Participant in writing, any or all amounts in
immediately available funds payable by the Owner Trustee hereunder to the Owner
Participant either (i) by crediting such amount or amounts to an account or
accounts maintained by the Owner Participant with Trust Company, (ii) by
payment to such account at such financial institution as the Owner Participant
may from time to time direct in writing
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or (iii) by mailing an official bank check or checks in such amount or amounts
payable to the Owner Participant at such address as the Owner Participant may
from time to time designate in writing.
ARTICLE IV
CERTAIN DUTIES OF THE OWNER TRUSTEE
Section 4.1. Notice of Certain Events. In the event that the Owner
Trustee shall have Actual Knowledge of any Lease Default, Lease Event of
Default, Indenture Default, Indenture Event of Default or 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 such Lease Default, Lease Event of Default, Indenture Default, Indenture
Event of Default of 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 Default, Lease Event of Default, Indenture Default, Indenture Event of
Default or Event of Loss has been so remedied. Subject to the terms of Section
4.3, the Owner Trustee shall take or refrain from taking such action with
respect thereto, not inconsistent with the provisions of the Operative
Agreements, with respect thereto as the Owner Trustee shall be instructed in
writing by the Owner Participant.
Section 4.2. Action Upon Instruction. Subject to the terms of Sections
4.1 and 4.3, upon the written instructions at any time and from time to time of
the Owner Participant, the Owner Trustee will take such of the following
actions as may be specified in such instructions: (i) give such notice or
direction or exercise such right, remedy or power under the Owner Trustee
Agreements with respect thereto or to any Accepted Equipment, including,
without limitation, the right to transfer, assign or convey the Owner Trustee's
interest in the Owner Trustee Agreements or any Accepted Unit, or take such
other action with respect to the Owner Trustee Agreements or any Accepted Unit
as shall be specified in such instructions; and (ii) after the expiration or
earlier termination of the Lease with respect to any Accepted Unit, convey all
of the Owner Trustee's right, title and interest in and to such Accepted Unit
to the Owner Participant or for such amount, on such terms and to such
purchaser or purchasers as shall be designated in such instructions, or net
lease such Accepted Unit as designated in such instructions; provided, however,
that if such instructions have not been delivered to the Owner Trustee prior to
the expiration of one year following such expiration or earlier termination of
the Lease, the Owner Trustee shall transfer title to such right, title and
interest to the Owner Participant.
Section 4.3. Indemnification. The Owner Trustee shall not be required
to take or refrain from taking any action under Section 4.1 or 4.2 (other than
the actions specified in the first sentence of Sections 3.1 and 4.1 and the
last sentence of Section 4.4) unless the Owner Trustee shall have been
indemnified, 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
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charged in connection therewith, other than any such liability, fee, cost or
expense which results from the willful misconduct or gross negligence of the
Owner Trustee. The Owner Trustee shall not be required to take any action under
any Operative Agreement or any Owner Trustee Agreement (other than the actions
specified in the first sentence of Section 4.1) 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.
Section 4.4. No Duties Except as Specified. The Owner Trustee shall
not have any duty or obligation to manage, control, use, make any payment in
respect of, register, record, insure, inspect, sell, dispose of or otherwise
deal with any Accepted Unit 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 Agreement or any of the other Operative Agreements, except as
expressly provided by the terms of this Trust Agreement, the Indenture or the
Owner Trustee Agreements or in written instructions from the Owner Participant
received pursuant to Section 4.1 or 4.2; and no implied duties or obligations
shall be read into this Trust Agreement against the Owner Trustee.
Notwithstanding and without limiting the foregoing, Trust Company agrees that
it will promptly (without any right to indemnification hereunder) take all
action necessary to discharge any Lessor's Lien attributable to Trust Company on
any part of the Trust Estate or Indenture Estate. Trust Company agrees to
indemnify, protect, save and keep harmless the Owner Participant from and
against any loss, cost or expense (including reasonable legal fees and
expenses) incurred by the Owner Participant as a result of the imposition or
enforcement of any such Lessor's Lien against the Accepted Units, any interest
herein or on the Trust Estate or the Indenture Estate resulting from the
Lessor's Liens attributable to Trust Company.
Section 4.5. No Action Except Under Specified Agreements or
Instructions. The Owner Trustee shall have no right, power or authority to,
and the Owner Trustee agrees that it will not, manage, control, use, sell,
dispose of or otherwise deal with any Accepted Unit or any other part of the
Trust Estate except as (i) expressly provided by the terms of this Trust
Agreement, (ii) expressly required by the terms of any Owner Trustee Agreement
or (iii) expressly directed or authorized in written instructions from the
Owner Participant pursuant to Section 4.1 or 4.2.
Section 4.6. Tax Returns; Records. The Owner Trustee shall be
responsible for the keeping 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 expense of the Lessee to file an application with the Internal
Revenue Service for a taxpayer identification number with respect to the trust
created by this Trust Agreement. The Owner Participant shall be responsible for
causing to be prepared all income tax returns required to be filed by the
Owner Participant. The Owner Trustee shall be
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responsible for causing to be prepared, at the request of the Owner
Participant and the expense of the Lessee, all income tax returns required to
be filed with respect to the trusts created hereby and shall execute and file
such returns. The Owner Trustee and the Owner Participant, upon request, will
furnish each other with all such information as may be reasonably required in
connection with the preparation of such tax returns; provided that the Owner
Trustee shall send a completed copy of such return to the Owner Participant not
more than 60 nor less than 30 days prior to the due date of the return
(provided that the Owner Trustee shall have timely received all necessary
information to complete and deliver to the Owner Participant such return). The
Owner Trustee shall keep copies of all returns delivered to or filed by it.
Section 4.7. Absence of Certain Duties. Except in accordance with
written instructions furnished pursuant to Sections 4.1 and 4.2, and except as
expressly provided in any Owner Trustee Agreement, and without limiting the
generality of Section 4.4, the Owner Trustee shall not have any duty to (i)
file, record or deposit any Operative Agreement or Owner Trustee Agreement,
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
redeposit any such document, except that the Owner Trustee shall, upon written
request by the Lessee or the Owner Participant, sign and file such documents as
Lessee or the Owner Participant prepares as necessary to maintain the filing
and recordation for the Lease, any Lease Supplement, the Indenture and any
Indenture Supplement in the name of the Owner Trustee with the ICC pursuant to
49 U.S.C. Section 11303 of the Interstate Commerce Act or Registrar General of
Canada pursuant to Section 90 of the Railway Act of Canada, or as otherwise
required under applicable law, and to the extent that such documents for that
purpose are supplied by the Lessee pursuant to any of the Operative Agreements,
timely submit any and all such documents and reports with respect to the
Accepted Units which may from time to time be required by the ICC, the AAR, or
any other authority having jurisdiction, (ii) obtain insurance with respect to
any Accepted Unit 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) maintain or mark any Accepted Unit, (iv) pay or
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 Sections 4.4 or 5.1, and Section
6.3 of the Participation Agreement, (v) confirm, verify, investigate or inquire
into the failure to receive any reports or financial statements of the Lessee,
(vi) inspect the Accepted Equipment at any time, or ascertain or inquire as to
the performance or observance of any of the covenants of the Lessee or any
other Person under any Operative Agreement or Owner Trustee Agreement with
respect to any Accepted Unit or any other part of the Trust Estate or (vii)
manage, control, use, sell, dispose of or otherwise deal with any Accepted Unit
or any other part of the Trust Estate, or any part thereof, except as provided
in clauses (i), (ii) and (iii) of Section 4.5.
Section 4.8. Finishing of Documents. The Owner Trustee will furnish to
the Owner Participant, promptly upon receipt thereof, duplicates or copies of
all
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reports, notices, requests, demands, opinions, certificates, financial
statements and any other instruments furnished to the Owner Trustee under any
Operative Agreement or any Owner Trustee Agreement, unless the Owner Trustee
shall have determined that the same already has been furnished to the Owner
Participant.
ARTICLE V
THE OWNER TRUSTEE
Section 5.1 Acceptance of Trusts and Duties. Trust Company accepts the
trusts hereby created and agrees to perform the same on the terms of this Trust
Agreement. Trust Company also agrees to disburse all moneys actually received
by it constituting part of the Trust Estate pursuant to the terms of this Trust
Agreement. Trust Company shall not be answerable or accountable under any
circumstances except (i) for its own willful misconduct or gross negligence
(including, without limitation, in connection with any activities of the Owner
Trustee in violation of Section 4.5), (ii) in the case of the breach or
inaccuracy of any of its representations or warranties contained in any
Operative Agreement given expressly in its individual capacity and not in its
capacity as a trustee hereunder, (iii) as arising from its failure to perform
obligations expressly undertaken by it in the penultimate and last sentence of
Section 4.4 hereof or expressly undertaken by it in its individual capacity
under the Participation Agreement, (iv) for any Taxes based on or measured by
any fees, commissions or compensation received by it for acting as Owner
Trustee in connection with any of the transactions contemplated by the
Operative Agreements or (v) for its failure to disburse or invest funds in
accordance with the terms hereof or the Lease or for any negligence or willfull
misconduct of the Owner Trustee arising out of its obligations under Sections
4.1, 4.6 or 8.2.
Section 5.2. No Representations or Warranties as to Equipment of
Documents.
(a) NEITHER TRUST COMPANY NOR THE OWNER TRUSTEE MAKES ANY REPRESENTATION
OR WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE DESIGN, OPERATION OR
CONDITION OF ANY UNIT OR ANY PART THEREOF, THE MERCHANTABILITY THEREOF OR THE
FITNESS THEREOF FOR ANY PARTICULAR PURPOSE, TITLE TO ANY UNIT 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 Trust Company hereby
represents and warrants that (i) on the Closing Date for such Accepted Unit,
the Owner Trustee shall have received whatever title thereto was conveyed to it
by the Lessee and (ii) while a part of the Trust Estate, such Accepted Unit
shall be free and clear of Lessor's Liens attributable to it.
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(b) Neither Trust Company nor the Owner Trustee makes any representation
or warranty as to the validity or enforceability of any Operative Agreement, or
as to the correctness of any statement therein, except to the extent that any
such representation, warranty or statement is expressly made therein or in any
written certificate delivered pursuant thereto by the Owner Trustee or Trust
Company and except that Trust Company hereby represents and warrants that this
Trust Agreement has been duly executed and delivered by Trust Company and each
of the Owner Trustee Agreements has been or will be executed and delivered by
officers of the Owner Trustee who are or will be duly authorized to execute and
deliver documents on its behalf, and that each of this Agreement and each of
the other Owner Trustee Agreements constitutes (assuming the due authorization,
execution, and delivery of this Agreement and each such other agreement by the
other parties thereto) the legal, valid and binding obligation of the Trust
Company (or the Owner Trustee if expressly stated therein) enforceable against
it in accordance with its terms except as limited by bankruptcy, insolvency,
reorganization or other similar laws or equitable principles of general
application to or affecting the enforcement of creditors rights generally from
time to time in effect.
Section 5.3. No Segregation of Moneys; No Interest. Except as required by
Section 3.5 of the Lease or Section 2.4 of the Participation Agreement, moneys
received by the Owner Trustee hereunder need not be segregated in any manner
except to the extent required by law, and such moneys 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.
Section 5.4. Reliance, Advice of Counsel. The Owner Trustee shall not
incur any liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or
other document or paper reasonably believed by it in good faith to be genuine
and reasonably believed by it 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 Agreement 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 trusts hereunder, the Owner Trustee may execute any of the trusts or powers
hereof and perform its powers and duties hereunder directly or through agents
or attorneys, and may consult with counsel, accountants and other skilled
persons to be selected and employed by it (other than persons regularly
employed by it), and the Owner Trustee shall not be liable for anything done,
suffered
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or omitted in good faith by it in accordance with the written advice or opinion
within the scope of the competence of any such counsel, accountants or other
skilled persons and not contrary to this Trust Agreement, except for the use of
due care in the appointment of counsel, accountants or other skilled persons.
Section 5.5. Not Acting in Individual Capacity. Trust Company is entering
into this Agreement and accepting the trust created hereby in its individual
capacity. Otherwise, except as provided in this Trust Agreement and in the
other Operative Agreements, Trust Company 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 Agreements or the Owner Trustee Agreements 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
and except to the extent the Owner Trustee otherwise shall agree in any Owner
Trustee Agreement.
ARTICLE VI
INDEMNIFICATION
Section 6.1. Indemnification of Trust Company. The Owner Participant
agrees to assume liability for, and to indemnify and hold harmless Trust
Company against and from any and all liabilities, obligations, losses, damages,
taxes (excluding any taxes, fees or other charges payable by Trust Company or
measured by any compensation received by Trust Company for its services
hereunder), penalties, claims, actions, suits, proceedings, costs, expenses and
disbursements of any kind and nature whatsoever, including, without limitation,
the reasonable fees and expenses of counsel (collectively, "Trust Expenses")
which may be imposed on, incurred by or asserted against Trust Company (whether
or not also indemnified by any other Person; provided, however, that to the
extent 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,
Trust Company shall not be entitled to the amount of any such payment pursuant
to this Section 6.1) in any way relating to or arising out of (i) the
administration of the Trust Estate or the action or inaction of Trust Company
hereunder or under the other Operative Agreements, (ii) any Accepted Equipment
or any part thereof, (iii) the Operative Agreements or any of them, or the
enforcement by Trust Company of any of its rights under the Operative
Agreements, or (iv) the design, manufacture, financing, refinancing,
installation, acceptance, rejection, ownership, delivery, nondelivery, lease,
sublease, possession, control, use, operation, condition, modification,
servicing, maintenance, repair, improvement, replacement, sale, return or other
disposition of the Accepted Equipment, any Accepted Unit or any part thereof
including, without limitation, (A) any inadequacy or deficiency or defect
therein, including latent defects, whether or not discoverable or any claim
based on negligence or arising from any violation of law or for strict
liability in tort or any claim for patent, trademark or copyright tort or any
claim for patent, trademark or copyright infringement, and (B) any loss or
damage to property or the environment
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or injury or death to any Person; provided that, the Owner Participant shall
not be required to indemnify Trust Company for Trust Expenses arising or
resulting from any of the matters described in clauses (i) through (v) of the
last sentence of Section 5.1; and; provided further that the Owner Participant
shall be liable under this Section 6.1 only to the extent that the Trust
Company is indemnified by the Lessee pursuant to Section 7 of the Participation
Agreement (with the exception of the limitations to Lessee's indemnification
obligations set forth in Sections 7.2(d)(i), 7.2(d)(iv) to the extent relating
to any such transfer by the Owner Participant or transfer by the Owner Trustee
at the direction of the Owner Participant and 7.2(d)(vi) (when the Owner
Trustee is acting on instructions from the Owner Participant) of the
Participation Agreement); and provided further, that before asserting its right
to indemnification pursuant to this Section 6.1, the Trust Company shall first
demand its corresponding right to indemnification, if any, pursuant to Section
7 of the Participation Agreement (but need not exhaust any or all remedies
available thereunder), and the Owner Participant shall have the right to pursue
any such remedies against the Lessee which are not pursued by the Trust
Company. The indemnities contained in this Section 6.1 shall survive the
termination of this Trust Agreement. To secure the foregoing indemnities, the
Trust Company shall be entitled to apply any amount otherwise distributable to
the Owner Participant pursuant to Section 3.2 against any such indemnity which
has not been paid when due. The indemnities contained in this Section 6.1
extend to Trust Company only and shall not be construed as indemnities of the
Trust Estate. The payor of any indemnity under this Section 6.1 shall be
subrogated to any right of the Person indemnified in respect of the matter as
to which such indemnity was paid.
Section 6.2. Expenses. The Owner Participant shall pay, or reimburse the
Owner Trustee for, all reasonable expenses of the Owner Trustee, including,
without limitation, the reasonable expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and duties under
the Operative Agreements, unless and to the extent that the Owner Trustee
otherwise receives payment or reimbursement pursuant to any Operative
Agreement, whether or not the transactions contemplated hereby are consummated;
provided that the Owner Participant shall have no obligation hereunder to the
extent Lessee is not obligated to pay such amounts pursuant to Section 2.5 of
the Participation Agreement. The Owner Trustee agrees to look first to the
Lessee for such payment pursuant to Section 2.5 of the Participation Agreement.
Except as provided herein, the Owner Trustee and Trust Company shall have no
right to compensation with respect to the transactions contemplated by the
Operative Agreements.
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ARTICLE VII
TERMINATION TRUST AGREEMENT
Section 7.1. Termination of Trust Agreement.
(a) Subject to the terms of the Participation Agreement, the Indenture and
Section 7.2, this Trust Agreement and the trusts 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 Article III and (ii) twenty-one
(21) years less one day after the death of the last survivor of all of the
descendants living on the date of this Trust Agreement of Joseph P. Kennedy,
the late ambassador of the United States to Great Britain, but if any rights,
privileges or options hereunder shall be or become valid under applicable law
for a period subsequent to the twenty-first anniversary of the death of such
last survivor (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 aforesaid but shall extend to and continue in
effect, but only if such nontermination and extension shall then be valid under
applicable law, until such time as the same shall cease to be valid under
applicable law.
(b) Except as expressly provided in Section 7.2, the Owner Participant
shall not be entitled to revoke or terminate this Trust Agreement or the trust
created hereby. Except as otherwise provided herein, the Owner Participant may
not withdraw any of the Trust Estate until the Lien of the Indenture on the
Trust Estate shall have been discharged pursuant to the terms thereof.
Section 7.2. Termination at Option of the Owner Participant. The
provisions of Section 7.1 notwithstanding, this Trust Agreement and the trusts
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 trusts 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 Agreements (other than obligations
attributable to any gross negligence or willful misconduct of Trust Company or
any breach by the Owner Trustee of its obligations under the Operative
Agreements); provided, however, that until the Lien of the Indenture on the
Trust Estate shall have been discharged pursuant to the terms thereof the Owner
Participant may not revoke such trusts without the consent of the Indenture
Trustee. The written
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agreements and instruments referred to in the preceding sentence 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
preceding sentence.
ARTICLE VIII
SUCCESSOR OWNER TRUSTESS, CO-OWNER TRUSTEES
AND SEPARATE OWNER TRUSTEES
Section 8.1. Resignation of the Owner Trustee; Appointment of Successor.
(a) The Owner Trustee may resign as the Owner Trustee at any time without
cause by giving at least thirty (30) days' prior written notice to the Owner
Participant, 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 8.1. 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 8.1. 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 or the Owner Participant may apply to any court of
competent jurisdiction to appoint a successor to the Owner Trustee to act until
such time, if any, as a successor shall have been appointed as above provided
in this Section 8.1. Any successor to the Owner Trustee 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 8.1.
(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, shall
become vested with all the estates, properties, rights, powers, duties and
trusts of the predecessor Owner Trustee in the trusts hereunder with like
effect as if originally named a 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 trusts herein expressed, all the 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
trusts herein expressed. Upon the appointment
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of any successor Owner Trustee hereunder, the predecessor Owner 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
title to the Trust Estate to be transferred to the successor Owner Trustee.
(c) Any successor Owner Trustee, however appointed, shall be a bank or
trust company incorporated and doing business within the United States of
America and having a combined capital and surplus of at least $100,000,000, if
there be such an institution willing, able and legally qualified to perform the
duties of the Owner Trustee hereunder upon reasonable or customary terms.
(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 of paragraph (c) of this Section 8.1, the Owner
Trustee under this Trust Agreement without further act; provided, that such
corporation shall in no event be the Indenture Trustee.
Section 8.2. 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
or any Operative Agreement, or pursuant to advice of counsel satisfactory to
it, or if the Owner Trustee shall have been instructed 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 of the Owner Trustee 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 of the
Owner Trustee as may be provided in such agreement supplemental hereto, and to
vest in such bank, trust company or Person as such
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additional trustee or separate trustee, as the case may be, any property,
title, right or power of the Owner Trustee deemed necessary or proper by the
Owner Trustee or the Owner Participant, subject to the remaining provisions of
this Section 8.2. 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 certainly 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.
(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) all powers, duties, obligations and rights conferred or
imposed upon the Owner Trustee in respect of the receipt, custody,
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 by 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;
(iii) no power hereby given to, or which 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
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separate trustee. The Owner Participant, at any time, by an instrument in
writing may remove any separate trustee or additional trustee.
(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 8.2.
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS
Section 9.1. Supplements and Amendments. Subject to Section 10.05 of the
Indenture, at the written request of the Owner Participant (and subject to the
provisions of Sections 6.5 and 6.6 of the Participation Agreement), this Trust
Agreement and each other Owner Trustee Agreement shall be amended by a written
instrument signed by Trust Company and the Owner Participant; provided,
however, if in the reasonable opinion of Trust Company any instrument required
to be so executed adversely affects any right, duty or liability of, or
immunity or indemnity in favor of, Trust Company under this Trust Agreement or
any of the documents contemplated hereby to which it is a party, or would cause
or result in any conflict with or breach of any term, condition or provision
of, or default under, its charter documents or by-laws, Trust Company in its
reasonable discretion may decline to execute such instrument, unless the Trust
Company is indemnified therefor under Section 4.3, as determined by the Trust
Company in its reasonable discretion.
ARTICLE X
MISCELLANEOUS
Section 10.1. 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, or
insolvency, dissolution or other termination of the Owner Participant, shall
operate to terminate this Trust Agreement or the trusts 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.
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Section 10.2 Sale of Accepted Equipment by the Owner Trustee is Binding.
Any sale, transfer or other conveyance of any Accepted Unit or part thereof by
the Owner Trustee made pursuant to the terms of this Trust Agreement or the
Lease 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 such Accepted Unit 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.
Section 10.3. Notices. Unless otherwise expressly specified or permitted
by the terms hereof, all notices hereunder shall be given as provided in
Section 10.4 of the Participation Agreement.
Section 10.4. Severability. If any term or provision of this Trust
Agreement is invalid or unenforceable in any jurisdiction, such term or
provision shall 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.
Section 10.5. Separate Counterparts. This Trust Agreement may be
executed by the parties hereto in any number of counterparts and by the parties
hereto on separate counterparts, each of which when so executed and delivered
shall be an original, and all of which shall together constitute but one and
the same instrument.
Section 10.6. Waivers, etc. No term or provision hereof may be changed,
waived, discharged or terminated orally, but may be changed, waived, discharged
or terminated by an instrument in writing, and any waiver of the terms hereof
shall be effective only in the specific instance and for the specific purpose
given.
Section 10.7. Successors and Assigns. This Trust Agreement, including
the terms and provisions hereof, shall be binding upon the Owner Participant
and 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 and 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.
Section 10.8. Transfer of Owner Participant's Interest. All provisions
of Section 6.1 of the Participation Agreement shall (with the same force and
effect as if set forth in full, mutatis mutandis, in this Section 10.8) be
applicable to any assignment, conveyance or other transfer by the Owner
Participant of any of its right,
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title or interest in and to the Trust Estate or this Trust Agreement or any
other Operative Agreement.
Section 10.9. Actions of the Owner Participants. If at any time prior
to the termination of this Trust Agreement there is more than one Owner
Participant, then during such time, if any action is required to be taken by the
Owner Participant, such action shall be taken by or on behalf of all Owner
Participants and whenever any direction, authorization, approval, consent,
instruction or other action is permitted to be given or taken by the Owner
Participant it shall be given or taken only upon such percentage agreement of
the Owner Participants as all Owner Participants may instruct the Owner
Trustee.
Section 10.10. 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.
Section 10.11. Governing Law. The terms of this Trust Agreement and
the rights and obligations of the parties hereto shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts made and to be performed entirely within such State.
Section 10.12. Benefit. Nothing herein, whether express or implied,
shall be construed to give any Person other than the Owner Trustee, the
Indenture Trustee and the Owner Participant any legal or equitable right,
remedy or claim under or in respect of this Trust Agreement.
Section 10.13. Performance by the Owner Participant. Any obligation of
Trust Company or the Owner Trustee hereunder or under any other Operative
Agreement 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 trusts created hereby.
Section 10.14. Conflict with Operative Agreements. If this Trust
Agreement (or any instructions given by the Owner Participant pursuant hereto)
shall require that any action be taken with respect to any matter or any other
Operative Agreement (or any instruction duly given in accordance with the
terms thereof) shall require that a different action be taken with respect to
such matter, and such actions shall be mutually exclusive, the provisions of
such other Operative Agreement, in respect thereof, shall control.
Section 10.15. Limitation on Owner Participant's Liability. The Owner
Participant shall not have any liability for the performance of this Trust
Agreement, except as expressly set forth herein.
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Section 10.16. Identification of Trust. The trust created hereunder may be
referred to for convenience as UTC Trust No. 1994-A.
In Witness Whereof, the parties hereto have each caused this Trust
Agreement to be duly executed and delivered as of the day and year first above
written.
STATE STREET BANK AND TRUST
COMPANY
By: _________________________
Name:
Title:
BNY CAPITAL FUNDING CORP.
By: _________________________
Name:
Title:
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