EXECUTION COPY
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TRUST AGREEMENT
Dated as of December 29, 2000
among
FEDERAL-MOGUL CORPORATION,
THE SUBSIDIARIES OF FEDERAL-MOGUL CORPORATION PARTIES HERETO
and
WILMINGTON TRUST COMPANY,
as Trustee
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Table of Contents
Page
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PREAMBLE.....................................................................................1
DECLARATION OF TRUST.........................................................................3
SECTION 1. DEFINED TERMS....................................................................4
1.1 Definitions...................................................................4
SECTION 2. ACCELERATION OF SECURED OBLIGATIONS.............................................10
2.1 Notices of Acceleration......................................................10
2.2 General Authority of the Trustee over the Collateral.........................10
2.3 Right to Initiate Judicial Proceedings.......................................11
2.4 Right to Appoint a Receiver..................................................11
2.5 Exercise of Powers; Instructions of Required Secured Parties.................11
2.6 Remedies Not Exclusive.......................................................12
2.7 Waiver and Estoppel..........................................................13
2.8 Limitation on Trustee's Duty in Respect of Collateral........................13
2.9 Limitation by Law............................................................13
2.10 Rights of Secured Parties under Secured Instruments..........................13
SECTION 3. COLLATERAL ACCOUNT; DISTRIBUTIONS...............................................14
3.1 The Collateral Account.......................................................14
3.2 Control of Collateral Account................................................14
3.3 Investment of Funds Deposited in Collateral Account..........................14
3.4 Application of Moneys........................................................14
3.5 Application of Moneys Distributable to Surety Party..........................17
3.6 Trustee's Calculations.......................................................18
3.7 Pro Rata Sharing.............................................................18
SECTION 4. AGREEMENTS WITH TRUSTEE.........................................................18
4.1 Delivery of Secured Instruments..............................................18
4.2 Information as to Secured Parties, Administrative Agent and Surety Parties...19
4.3 Compensation and Expenses....................................................19
4.4 Stamp and Other Similar Taxes................................................19
4.5 Filing Fees, Excise Taxes, Etc...............................................20
4.6 Indemnification..............................................................20
4.7 Trustee's Lien...............................................................20
4.8 Further Assurances...........................................................20
4.9 Obligors.....................................................................21
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SECTION 5. THE TRUSTEE.....................................................................21
5.1 Acceptance of Trust..........................................................21
5.2 Exculpatory Provisions.......................................................21
5.3 Delegation of Duties.........................................................22
5.4 Reliance by Trustee..........................................................22
5.5 Limitations on Duties of Trustee.............................................23
5.6 Moneys to be Held in Trust...................................................24
5.7 Resignation and Removal of the Trustee.......................................24
5.8 Status of Successor Trustee..................................................25
5.9 Merger of the Trustee........................................................25
5.10 Co-Trustee; Separate Trustee.................................................25
5.11 Treatment of Payee or Indorsee by Trustee; Representatives of Secured
Parties......................................................................26
SECTION 6. MISCELLANEOUS...................................................................27
6.1 Notices......................................................................27
6.2 No Waivers...................................................................27
6.3 Amendments, Supplements and Waivers..........................................27
6.4 Headings.....................................................................28
6.5 Severability.................................................................28
6.6 Successors and Assigns.......................................................28
6.7 Currency Conversions.........................................................28
6.8 Governing Law................................................................29
6.9 Counterparts.................................................................29
6.10 Termination..................................................................29
6.11 New Obligors.................................................................30
6.12 Inspection by Regulatory Agencies............................................30
6.13 Confidentiality..............................................................30
6.14 Submission to Jurisdiction; Waivers..........................................31
6.15 WAIVERS OF JURY TRIAL........................................................31
EXHIBITS
A Form of Notice of Acceleration
B Form of Assumption Agreement
ANNEXES
I Trust Security Documents
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TRUST AGREEMENT, dated as of December 29, 2000, among FEDERAL-MOGUL
CORPORATION, a Michigan corporation (the "Company"), the subsidiaries of the
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Company from time to time parties hereto (together with the Company, the
"Obligors") and WILMINGTON TRUST COMPANY, a Delaware banking corporation, as
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trustee (the "Trustee").
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W I T N E S S E T H:
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WHEREAS, the Company is a party to the Credit Agreement (such term and
other capitalized terms used in these recitals being used with the definitions
given to such terms in Section 1.1 hereof), and to induce the Lenders parties
thereto to agree to certain amendments to the Credit Agreement and to extend
additional credit pursuant thereto, the Company has agreed to cause its
obligations with respect to the Credit Agreement, the other Loan Documents,
certain Hedge Agreements and certain Cash Management Obligations to be secured
by security interests in the Collateral; and
WHEREAS, to induce the Surety Parties to issue the Surety Bonds for
the account of the Company and/or one or more Subsidiaries of the Company, the
Company has agreed to cause its obligations with respect to the Surety Bonds to
be secured by security interests in the Collateral.
DECLARATION OF TRUST
NOW, THEREFORE, in order to secure the payment of the Secured
Obligations and in consideration of the premises and the mutual agreements set
forth herein, the Trustee does hereby declare that it holds and will hold as
trustee in trust under this Trust Agreement all of its right, title and interest
in, to and under the Trust Security Documents and the collateral granted to the
Trustee thereunder whether now existing or hereafter arising (and the Obligors
do hereby consent thereto).
TO HAVE AND TO HOLD the Trust Security Documents and the entire
Collateral (the right, title and interest of the Trustee in the Trust Security
Documents and the Collateral being hereinafter referred to as the "Trust
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Estate") unto the Trustee and its successors in trust under this Trust Agreement
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and its assigns forever.
IN TRUST NEVERTHELESS, under and subject to the conditions herein set
forth and for the benefit of the Secured Parties, and for the enforcement of the
payment of all Secured Obligations, and as security for the performance of and
compliance with the covenants and conditions of this Trust Agreement, each of
the Secured Instruments and each of the Trust Security Documents.
PROVIDED, HOWEVER, that these presents are upon the condition that if
the Obligors, their successors or assigns, shall satisfy the conditions set
forth in Section 6.10, then this Trust Agreement, and the estates and rights
hereby assigned, shall cease, determine and be void; otherwise they shall remain
and be in full force and effect.
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IT IS HEREBY FURTHER COVENANTED AND DECLARED, that the Trust Estate is
to be held and applied by the Trustee, subject to the further covenants,
conditions and trusts hereinafter set forth.
SECTION 1.
DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein, terms defined
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in the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
(b) The following terms shall have the respective meanings set forth
below:
"Administrative Agent" shall mean The Chase Manhattan Bank, in its
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capacity as Administrative Agent under the Credit Agreement, and any
successor Administrative Agent appointed thereunder.
"Borrower" shall mean any Borrower referred to in the Credit
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Agreement.
"Cash Equivalents" shall mean (i) securities with maturities of one
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year or less from the date of acquisition issued or fully guaranteed or
insured by the United States Government or any agency thereof, (ii)
certificates of deposit and eurodollar time deposits with maturities of one
year or less from the date of acquisition and overnight bank deposits of
any Lender or of any commercial bank having capital and surplus in excess
of $500,000,000, (iii) repurchase obligations of any Lender or of any
commercial bank satisfying the requirements of clause (ii) of this
definition, having a term of not more than 30 days with respect to
securities issued or fully guaranteed or insured by the United States
Government, (iv) commercial paper of a domestic issuer rated at least A-2
by Standard & Poor's Rating Services ("S&P") or P-2 by Moody's Investors
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Service, Inc. ("Moody's"), (v) securities with maturities of one year or
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less from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or foreign
government (as the case may be) are rated at least A by S&P or A by Moody's
(or an equivalent rating for such foreign securities), (vi) securities with
maturities of one year or less from the date of acquisition backed by
standby letters of credit issued by any Lender or any commercial bank
satisfying the requirements of clause (ii) of this definition or (vii)
shares of money market mutual or similar funds which invest exclusively in
assets satisfying the requirements of clauses (i) through (vi) of this
definition, which may include such funds for which the Trustee or an
Affiliate provides services or receives compensation.
"Cash Management Obligations": all obligations and liabilities of the
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Company and its Subsidiaries (whether directly or as a guarantor) owed to
any Lender, any Lender Affiliate or the Administrative Agent arising under
or in connection with treasury,
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depositary and cash management services or arrangements or in connection
with any automated clearinghouse transfer of funds services or
arrangements.
"Collateral" shall mean, collectively, all collateral in which the
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Trustee is granted a security interest pursuant to any Trust Security
Document.
"Collateral Account" shall have the meaning given to such term in
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Section 3.1.
"Credit Agreement" shall mean the Fourth Amended and Restated Credit
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Agreement, dated as of December 29, 2000, among the Company, the Foreign
Subsidiary Borrowers parties thereto, the Lenders parties thereto and The
Chase Manhattan Bank, as Administrative Agent, as the same may be amended,
amended and restated, supplemented or otherwise modified from time to time.
"Credit Agreement Obligations" shall mean, collectively, (i) (a) the
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unpaid principal of and interest on the Loans, the Reimbursement
Obligations and all other obligations and liabilities of the Borrowers to
the Administrative Agent or any Lender (including, without limitation,
interest accruing at the then applicable rate provided in the Credit
Agreement after the maturity of the Loans outstanding thereunder and
interest accruing at the then applicable rate provided in the Credit
Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating
to any Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), whether direct or indirect,
absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, the Credit
Agreement, this Trust Agreement, any Notes, any Letter of Credit or any
other Loan Document or any other document made, delivered or given in
connection therewith, (b) all obligations and liabilities of the Company or
any of its Subsidiaries to any Lender or Lender Affiliate (including,
without limitation, interest accruing at the then applicable rate provided
in any Secured Hedge Agreement after the maturity of any amount payable
thereunder and interest accruing at the then applicable rate provided in
any Secured Hedge Agreement after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or like proceeding,
relating to the Company or any of its Subsidiaries, whether or not a claim
for post-filing or post-petition interest is allowed in such proceeding),
whether direct or indirect, absolute or contingent, due or to become due,
or now existing or hereafter incurred, which may arise under, out of, or in
connection with, any Secured Hedge Agreement or any document made,
delivered or given in connection therewith, and (c) all Cash Management
Obligations, in each case whether the obligations and liabilities described
in any of the foregoing clauses (a), (b) or (c) are on account of
principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Administrative Agent or to the Lenders or
Lender Affiliates that are required to be paid by the Company or any of its
Subsidiaries pursuant to the terms of any of the foregoing agreements) and
(ii) the Guarantor Credit Agreement Obligations.
"Distribution Date" shall mean each date fixed by the Trustee for a
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distribution to the Secured Parties of funds held in the Collateral
Account, the first of which shall be within 120 days after the Trustee
receives a Notice of Acceleration and the remainder of
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which shall be monthly thereafter on the day of the month corresponding to
the first Distribution Date (or, if there be no such corresponding day, the
last day of such month) provided that if any such day is not a business
day, such Distribution Date shall be the next business day.
"First Priority Secured Obligations": without duplication, (a) with
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respect to the Company, all Credit Agreement Obligations owing (i) under
the Credit Agreement and the other Loan Documents to the Lenders in respect
of the New Money Facilities in an aggregate principal amount not exceeding
$375,000,000 and (ii) to any Lender, or any Lender Affiliate, in respect of
any Specified Hedge Agreement; provided, that the maximum amount of First
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Priority Secured Obligations relating to any Specified Hedge Agreement
shall not exceed the Hedge Agreement Cap Amount relating to such Specified
Hedge Agreement; and (b) with respect to each Obligor other than the
Company, such Obligor's Guarantor Credit Agreement Obligations owing (i)
under the Subsidiary Guarantee and the other Loan Documents to the Lenders
in respect of the New Money Facilities in an aggregate principal amount not
exceeding $375,000,000 and (ii) to any Lender, or any Lender Affiliate, in
respect of any Specified Hedge Agreement; provided, that the maximum amount
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of First Priority Secured Obligations relating to any Specified Hedge
Agreement shall not exceed the Hedge Agreement Cap Amount relating to such
Specified Hedge Agreement.
"Guarantor Credit Agreement Obligations" shall mean, with respect to
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any Obligor other than the Company, all obligations and liabilities of such
Obligor which may arise under or in connection with the Subsidiary
Guarantee or any Trust Security Document or other Loan Document to which
such Obligor is a party, in each case whether on account of guarantee
obligations, reimbursement obligations, fees, indemnities, costs, expenses
or otherwise (including, without limitation, all fees and disbursements of
counsel to the Administrative Agent or the Lenders that are required to be
paid by such Obligor pursuant to the terms of any Trust Security Document
or any other Loan Document).
"Guarantor Surety Bond Obligations" shall mean with respect to any
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Obligor, all obligations and liabilities of such Obligor which may arise
under or in connection with any Surety Bond Guarantee to which such Obligor
is a party, in each case whether on account of guarantee obligations,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to
the relevant Surety Party that are required to be paid by such Obligor
pursuant to the terms of any Surety Bond Document).
"Hedge Agreement Basket Amount" shall mean, initially $5,000,000, as
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such amount may be increased pursuant to Section 15.19 of the Credit
Agreement.
"Hedge Agreement Cap Amount" shall mean, in respect of any Specified
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Hedge Agreement, an amount equal to the amount of the Hedge Agreement
Basket Amount allocated to such Specified Hedge Agreement in the manner
provided in Section 15.19 of the Credit Agreement.
"Lender" shall mean any Lender referred to in the Credit Agreement.
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"New Money Facilities": the collective reference to the Supplemental
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Revolving Credit Facility and the Tranche C Term Loans.
"1994 Indenture" shall mean the Indenture, dated as of August 12,
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1994, between the Company and U.S. Bank Trust National Association, as
successor to Continental Bank, as trustee, as amended, supplemented or
otherwise modified from time to time.
"1998 Supplemental Indenture" shall mean the First Supplemental
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Indenture, dated June 30, 1998, to the Indenture, dated as of June 29,
1998, among the Company, certain of its subsidiaries, and The Bank of New
York, as trustee, as amended, supplemented or otherwise modified from time
to time.
"1999 Indenture" shall mean the Indenture, dated as of January 20,
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1999, among the Company, certain of its subsidiaries, and The Bank of New
York, as trustee, as amended, supplemented or otherwise modified from time
to time.
"Notice of Acceleration" shall mean a notice delivered to the Trustee
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by the Administrative Agent with respect to Credit Agreement Obligations,
or by the relevant Surety Party with respect to Surety Bond Obligations,
stating that (a) Credit Agreement Obligations or the Surety Bond
Obligations, as the case may be, have not been paid in full at the stated
final maturity thereof and any applicable grace period has expired or (b) a
default has occurred under the provisions of the relevant Secured
Instrument and, as a result thereof, all Credit Agreement Obligations of
the type described in clause (i)(a) of the definition of "Credit Agreement
Obligations" in this Section 1.1 or all Surety Bond Obligations, as the
case may be, outstanding under such Secured Instrument have become
immediately due and payable and have not been paid. Each Notice of
Acceleration shall be in substantially the form of Exhibit A to this Trust
Agreement.
"Obligors" shall have the meaning assigned in the preamble hereto.
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"Opinion of Counsel" shall mean an opinion in writing signed by legal
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counsel satisfactory to the Trustee, who may be counsel regularly retained
by the Trustee.
"Other Collateral" shall mean all Collateral other than Restricted
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Collateral.
"Other Collateral Sub-Account" shall have the meaning assigned in
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Section 3.1 of this Trust Agreement.
"Other Secured Obligations" shall mean all Secured Obligations other
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than First Priority Secured Obligations.
"Proceeds" shall mean all "proceeds" as such term is defined in
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Section 9-306(1) of the Uniform Commercial Code in effect in the State of
New York on the date hereof.
"Required Secured Parties" shall mean, as of a particular date,
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Secured Parties holding (or representing) more than 50% of the aggregate
principal amount of the Secured Obligations outstanding under the Secured
Instruments on such date. For the purpose of this definition, (i) the
Administrative Agent shall be deemed to hold or represent, and shall be
entitled to vote and give notices and directions with respect to, the
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Credit Agreement Obligations, (ii) the amount of the Credit Agreement
Obligations shall include (A) the undrawn face amount of, and any
unreimbursed drawings under, any Letter of Credit issued under the Credit
Agreement, (B) the Hedge Agreement Cap Amount with respect to each
outstanding Specified Hedge Agreement and (C) the aggregate amount of Cash
Management Obligations and (iii) the amount of Surety Bond Obligations
shall include the undrawn face amount of, and any unreimbursed drawings
under, any Surety Bond.
"Restricted Collateral" shall mean all Collateral constituting "any
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Principal Property owned by the Company or any Restricted Subsidiary or
shares of capital stock or evidence of Indebtedness of any Restricted
Subsidiary" within the meaning of (i) Section 10.9 of the 1994 Indenture,
(ii) Section 3.8 of the 1999 Indenture or (iii) Section 3.1 of the 1998
Supplemental Indenture.
"Restricted Collateral Secured Obligations" shall mean, at any time,
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Secured Obligations that may be secured by the Restricted Collateral
without creating a requirement pursuant to Section 10.9 of the 1994
Indenture, Section 3.1 of the 1998 Supplemental Indenture or Section 3.8 of
the 1999 Indenture to cause the securities outstanding under any such
Indenture to be equally and ratably secured by such Restricted Collateral.
"Restricted Collateral Sub-Account" shall have the meaning assigned in
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Section 3.1 of this Trust Agreement.
"Secured Hedge Agreements" shall mean, collectively, (i) the Specified
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Hedge Agreements and (ii) any Hedge Agreement outstanding on the date
hereof and described in Schedule X to the Credit Agreement.
"Secured Instruments" shall mean, at any time, (i) the Surety Bond
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Documents, (ii) the Credit Agreement, the Notes and the Subsidiary
Guarantees and (iii) any agreements or other instruments governing or
evidencing any Secured Hedge Agreement or Cash Management Obligations.
"Secured Obligations" shall mean, collectively (i) the Surety Bond
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Obligations, (ii) the Credit Agreement Obligations and (iii) all sums
payable by the Obligors under this Trust Agreement or any Trust Security
Document (including, without limitation, Trustee Fees).
"Secured Parties" shall mean, collectively (i) the Surety Parties,
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(ii) the Lenders (including Lender Affiliates, to the extent such Lender
Affiliates hold Secured Obligations) and the Administrative Agent and (iii)
the Trustee.
"Specified Hedge Agreement" shall mean any Hedge Agreement that (i) is
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entered into after the Trust Effective Date by any Obligor with any Lender
or any Lender Affiliate and (ii) is designated as a Specified Hedge
Agreement in the manner provided in Section 15.19 of the Credit Agreement.
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"Surety Bond" shall mean each of the Surety Bonds described on
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Schedule IX to the Credit Agreement and any amendment or replacement of any
thereof that does not increase the amount, or shorten the maturity, of any
thereof.
"Surety Bond Account Party" shall mean, in respect of each Surety
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Bond, the Company or its Subsidiary or Subsidiaries for the account of
which such Surety Bond was issued, as specified on Schedule IX to the
Credit Agreement.
"Surety Bond Documents" shall mean, in respect of each Surety Bond,
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(i) such Surety Bond and the related Contract of Indemnity, as any of the
foregoing may be amended or replaced, provided, that such amendment or
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replacement does not increase the amount of any Surety Bond or shorten the
maturity thereof and (ii) any Surety Bond Guarantee related to such Surety
Bond.
"Surety Bond Guarantee" shall mean any guarantee or contract of
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indemnity executed and delivered by any Obligor to any Surety Party with
respect to obligations owing by the Company or any Subsidiary in respect of
any Surety Bond, including, without limitation, the Contracts of Indemnity
dated December 29, 2000, as the same may from time to time be amended,
modified, supplemented, extended or renewed.
"Surety Bond Obligations" shall mean, in respect of any Surety Bond,
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(i) the obligation of the Surety Bond Account Party for the account of
which such Surety Bond was issued to reimburse the Surety Party which
issued such Surety Bond for any payments made by such Surety Party from
time to time under such Surety Bond, together with any interest, fees,
indemnities or other amounts payable by such Surety Bond Account Party
pursuant to the terms of the Surety Bond Documents relating to such Surety
Bond (including, without limitation, to the extent provided by such Surety
Bond Documents, interest accruing at the then applicable rate provided in
such Surety Bond Documents after the maturity of such reimbursement
obligations and interest accruing at the then applicable rate provided in
such instruments after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating
to such Surety Bond Account Party, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding) and (ii) any
Guarantor Surety Bond Obligations with respect to such Surety Bond.
"Surety Party" shall mean, in respect of each Surety Bond, the entity
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which issued such Surety Bond, as specified on Schedule IX to the Credit
Agreement, and any Person issuing any replacement of such Surety Bond that
does not increase the amount, or shorten the maturity, thereof, provided
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that the Company shall have delivered to the Trustee the name of such
Person and any other relevant information with respect thereto requested by
the Trustee.
"Trust Agreement" shall mean this Trust Agreement as the same may from
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time to time be amended, modified, supplemented, extended or renewed.
"Trust Effective Date" shall mean December 29, 2000.
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"Trust Estate" shall have the meaning assigned in the Declaration of
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Trust in this Trust Agreement.
"Trust Security Documents" shall mean each of the instruments
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described in Annex I to this Trust Agreement and each agreement entered
into pursuant to clause (ii) of Section 6.3(b) of this Trust Agreement.
"Trustee" shall mean Wilmington Trust Company, in its capacity as
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trustee under the Trust Agreement, and any successor trustee appointed
thereunder.
"Trustee Fees" shall mean all fees, costs and expenses of the Trustee
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of the types described in Sections 4.3, 4.4, 4.5 and 4.6.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Trust Agreement shall refer to this Trust Agreement as
a whole and not to any particular provision of this Trust Agreement, and section
references are to this Trust Agreement unless otherwise specified.
SECTION 2.
ACCELERATION OF SECURED OBLIGATIONS
2.1 Notices of Acceleration. (a) Upon receipt by the Trustee of a
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Notice of Acceleration, the Trustee shall promptly notify the Company, the
Administrative Agent and each Surety Party of the receipt thereof and provide a
copy thereof to such Persons. So long as such Notice of Acceleration is in
effect, the Trustee shall exercise the rights and remedies provided in this
Trust Agreement and in the Trust Security Documents subject to the direction of
the Required Secured Parties as provided herein. Except as otherwise provided in
the last two sentences of Section 2.2, the Trustee is not empowered to exercise
any remedy hereunder or thereunder unless a Notice of Acceleration is in effect.
(b) A Notice of Acceleration delivered by the Administrative Agent or
any Surety Party shall become effective upon receipt thereof by the Trustee. A
Notice of Acceleration, once effective, shall remain in effect unless and until
it is cancelled as provided in Section 2.1(c).
(c) The Administrative Agent or any Surety Party shall be entitled to
cancel its own Notice of Acceleration by delivering a written notice of
cancellation to the Trustee (i) before the Trustee takes any action to exercise
any remedy with respect to the Collateral or (ii) thereafter, if the Trustee
believes that all actions it has taken to exercise any remedy or remedies with
respect to the Collateral can be reversed without undue difficulty; provided
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that no Notice of Acceleration shall be cancelled more than 60 days after it is
received by the Trustee. The Trustee shall immediately notify the Company, the
Administrative Agent and each Surety Party as to the receipt and contents of any
such notice of cancellation.
2.2 General Authority of the Trustee over the Collateral. Each
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Obligor hereby irrevocably constitutes and appoints the Trustee and any officer
or agent thereof, with full power
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of substitution, as its true and lawful attorney-in-fact with full power and
authority in its or his own name, from time to time in the Trustee's discretion,
subject to Section 2.1, so long as any Notice of Acceleration is in effect, to
take any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to carry out the terms of this
Trust Agreement and the Trust Security Documents and accomplish the purposes
hereof and thereof and, without limiting the generality of the foregoing, each
Obligor hereby acknowledges that the Trustee shall have all powers and remedies
set forth in the Trust Security Documents, subject to Section 2.1.
Notwithstanding the foregoing, so long as no Notice of Acceleration is in
effect, the Trustee shall take such actions and exercise such remedies as are
permitted by the Trust Security Documents in accordance with the instructions of
the Administrative Agent delivered to the Trustee. In the event that, pursuant
to the terms of the relevant Trust Security Document or Secured Instrument, the
Administrative Agent shall only be entitled to direct the Trustee after the
occurrence of an Event of Default, the Administrative Agent shall certify in
such direction that an Event of Default has occurred and is continuing.
2.3 Right to Initiate Judicial Proceedings. If a Notice of
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Acceleration is in effect, the Trustee, subject to the provisions of Section
2.5(b) and Section 5, (i) shall have the right and power to institute and
maintain such suits and proceedings as it may deem appropriate to protect and
enforce the rights vested in it by this Trust Agreement and each Trust Security
Document and (ii) may, either after entry, or without entry, proceed by suit or
suits at law or in equity to enforce such rights and to foreclose upon the
Collateral and to sell all or, from time to time, any of the Collateral under
the judgment or decree of a court of competent jurisdiction.
2.4 Right to Appoint a Receiver. If a Notice of Acceleration is in
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effect, upon the filing of a bill in equity or other commencement of judicial
proceedings to enforce the rights of the Trustee under this Trust Agreement or
any Trust Security Document, the Trustee shall, to the extent permitted by law,
with notice to the Company but without notice to any party claiming through the
Obligors, without regard to the solvency or insolvency at the time of any Person
then liable for the payment of any of the Secured Obligations, without regard to
the then value of the Trust Estate, and without requiring any bond from any
complainant in such proceedings, be entitled as a matter of right to the
appointment of a receiver or receivers of the Trust Estate, or any part thereof,
and of the rents, issues, tolls, profits, royalties, revenues and other income
thereof, pending such proceedings, with such powers as the court making such
appointment shall confer, and to the entry of an order directing that the rents,
issues, tolls, profits, royalties, revenues and other income of the property
constituting the whole or any part of the Trust Estate be segregated,
sequestered and impounded for the benefit of the Trustee and the Secured
Parties, and each Obligor irrevocably consents to the appointments of such
receiver or receivers and to the entry of such order; provided that,
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notwithstanding the appointment of any receiver, the Trustee shall be entitled
to retain possession and control of all cash and Cash Equivalents held by or
deposited with it pursuant to this Trust Agreement or any Trust Security
Document.
2.5 Exercise of Powers; Instructions of Required Secured Parties. (a)
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All of the powers, remedies and rights of the Trustee as set forth in this Trust
Agreement may be exercised by the Trustee in respect of any Trust Security
Document as though set forth in full therein and all of the powers, remedies and
rights of the Trustee, the Administrative Agent and each Surety Party as set
forth in any Trust Security Document may be exercised from time to time as
herein and therein provided.
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(b) While a Notice of Acceleration is in effect, the Required Secured
Parties shall have the right, by one or more instruments in writing executed and
delivered to the Trustee, to direct the time, method and place of conducting any
proceeding for any right or remedy available to the Trustee, or of exercising
any trust or power conferred on the Trustee, or for the appointment of a
receiver, or to direct the taking or the refraining from taking of any action
authorized by this Trust Agreement or any Trust Security Document; provided that
--------
(i) such direction shall not conflict with any provision of law or of this Trust
Agreement or of any Trust Security Document and (ii) the Trustee shall be
adequately secured and indemnified as provided in Section 5.4(d). Nothing in
this Section 2.5(b) shall impair the right of the Trustee in its discretion to
take any action which it deems proper and which is not inconsistent with such
direction by the Required Secured Parties. In the absence of such direction, the
Trustee shall have no duty to take or refrain from taking any action unless
explicitly required herein.
(c) If, within 45 days after the Trustee receives a Notice of
Acceleration which has not been cancelled, the Trustee shall not have received
written directions from the Required Secured Parties pursuant to Section 2.5(b)
for the exercise of rights or remedies by the Trustee, the Trustee shall, until
the Trustee receives written directions from the Required Secured Parties,
follow written directions from the Administrative Agent.
2.6 Remedies Not Exclusive. (a) No remedy conferred upon or reserved
--------------------------
to the Trustee herein or in the Trust Security Documents is intended to be
exclusive of any other remedy or remedies, but every such remedy shall be
cumulative and shall be in addition to every other remedy conferred herein or in
any Trust Security Document or now or hereafter existing at law or in equity or
by statute.
(b) No delay or omission by the Trustee to exercise any right, remedy
or power hereunder or under any Trust Security Document shall impair any such
right, remedy or power or shall be construed to be a waiver thereof, and every
right, power and remedy given by this Trust Agreement or any Trust Security
Document to the Trustee may be exercised from time to time and as often as may
be deemed expedient by the Trustee.
(c) If the Trustee shall have proceeded to enforce any right, remedy
or power under this Trust Agreement or any Trust Security Document and the
proceeding for the enforcement thereof shall have been discontinued or abandoned
for any reason or shall have been determined adversely to the Trustee, then the
Obligors, the Trustee and the Secured Parties shall, subject to any
determination in such proceeding, severally and respectively be restored to
their former positions and rights hereunder or thereunder with respect to the
Trust Estate and in all other respects, and thereafter all rights, remedies and
powers of the Trustee shall continue as though no such proceeding had been
taken.
(d) All rights of action and of asserting claims upon or under this
Trust Agreement and the Trust Security Documents may be enforced by the Trustee
without the possession of any Secured Instrument or instrument evidencing any
Secured Obligation or the production thereof at any trial or other proceeding
relative thereto, and any suit or proceeding instituted by the Trustee shall be,
subject to Sections 5.5(c) and 5.10(b)(ii), brought in its name as Trustee and
any recovery of judgment shall be held as part of the Trust Estate.
-12-
2.7 Waiver and Estoppel. (a) Each Obligor agrees, to the extent it
------------------------
may lawfully do so, that it will not at any time in any manner whatsoever claim,
or take the benefit or advantage of, any appraisement, valuation, stay,
extension, moratorium, turnover or redemption law, or any law permitting it to
direct the order in which the Collateral shall be sold, now or at any time
hereafter in force, which may delay, prevent or otherwise affect the performance
or enforcement of this Trust Agreement or any Trust Security Document and hereby
waives all benefit or advantage of all such laws and covenants that it will not
hinder, delay or impede the execution of any power granted to the Trustee in
this Trust Agreement or any Trust Security Document but will suffer and permit
the execution of every such power as though no such law were in force; provided
--------
that nothing contained in this Section 2.7(a) shall be construed as a waiver of
any rights of the Obligors under any applicable federal bankruptcy law or state
insolvency law.
(b) Each Obligor, to the extent it may lawfully do so, on behalf of
itself and all who may claim through or under it, including without limitation
any and all subsequent creditors, vendees, assignees and lienors, waives and
releases all rights to demand or to have any marshalling of the Collateral upon
any sale, whether made under any power of sale granted herein or in any Trust
Security Document or pursuant to judicial proceedings or upon any foreclosure or
any enforcement of this Trust Agreement or any Trust Security Document and
consents and agrees that all the Collateral may at any such sale be offered and
sold as an entirety.
(c) Each Obligor waives, to the extent permitted by applicable law,
presentment, demand, protest and any notice of any kind (except notices
explicitly required hereunder or under any Trust Security Document) in
connection with this Trust Agreement and the Trust Security Documents and any
action taken by the Trustee with respect to the Collateral.
2.8 Limitation on Trustee's Duty in Respect of Collateral. Beyond its
----------------------------------------------------------
duties as to the custody thereof expressly provided herein or in any Trust
Security Document and to account to the Secured Parties and the Obligors for
moneys and other property received by it hereunder or under any Trust Security
Document, the Trustee shall not have any duty to the Obligors or to the Secured
Parties as to any Collateral in its possession or control or in the possession
or control of any of its agents or nominees, or any income thereon or as to the
preservation of rights against prior parties or any other rights pertaining
thereto.
2.9 Limitation by Law. All rights, remedies and powers provided in
----------------------
this Trust Agreement or any Trust Security Document may be exercised only to the
extent that the exercise thereof does not violate any applicable provision of
law, and all the provisions hereof are intended to be subject to all applicable
mandatory provisions of law which may be controlling and to be limited to the
extent necessary so that they will not render this Trust Agreement invalid,
unenforceable in whole or in part or not entitled to be recorded, registered or
filed under the provisions of any applicable law.
2.10 Rights of Secured Parties under Secured Instruments.
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Notwithstanding any other provision of this Trust Agreement or any Trust
Security Document, the right of each Secured Party to receive payment of the
Secured Obligations held by such Secured Party when due (whether at the stated
maturity thereof, by acceleration or otherwise) as expressed in the related
Secured Instrument or other instrument evidencing or agreement governing a
Secured Obligation or to institute suit for the enforcement of such payment on
or after such due date, and
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the obligation of the Obligors to pay such Secured Obligation when due, shall
not be impaired or affected without the consent of such Secured Party given in
the manner prescribed by the Secured Instrument under which such Secured
Obligation is outstanding.
SECTION 3.
COLLATERAL ACCOUNT; DISTRIBUTIONS
3.1 The Collateral Account. On the Trust Effective Date there shall
---------------------------
be established and, at all times thereafter until the trusts created by this
Trust Agreement shall have terminated, there shall be maintained with the
Trustee at the office of the Trustee's corporate trust division, an account
which shall be entitled the "Federal-Mogul Collateral Account" (the "Collateral
----------
Account") and which shall be comprised of two sub-accounts entitled the
- - -------
"Federal-Mogul Restricted Collateral Sub-Account" (the "Restricted Collateral
---------------------
Sub-Account") and the "Federal-Mogul Other Collateral Sub-Account" (the "Other
- - ----------- -----
Collateral Sub-Account"), respectively. All moneys which are required by this
- - ----------------------
Trust Agreement or any Trust Security Document to be delivered to the Trustee
while a Notice of Acceleration is in effect or which are received by the Trustee
or any agent or nominee of the Trustee in respect of the Collateral, whether in
connection with the exercise of the remedies provided in this Trust Agreement or
any Trust Security Document or otherwise, while a Notice of Acceleration is in
effect shall be deposited (i) in the Restricted Collateral Sub-Account if such
moneys are in respect of Restricted Collateral or (ii) in the Other Collateral
Sub-Account if such moneys are in respect of Other Collateral and, in each case,
held by the Trustee as part of the Trust Estate and applied in accordance with
the terms of this Trust Agreement. The Trustee shall be entitled to receive a
certification from the Company or the Administrative Agent as to whether moneys
received by the Trustee are in respect of the Restricted Collateral or the Other
Collateral, and in the absence of such certification shall hold such moneys in
the Restricted Collateral Sub-Account. Upon the cancellation of any Notice of
Acceleration pursuant to Section 2.1(c), the Trustee shall (subject to the first
sentence of Section 3.4(a)) cause all funds on deposit in the Collateral Account
to be paid over to the Obligors in accordance with their respective interests.
3.2 Control of Collateral Account. All right, title and interest in
----------------------------------
and to the Collateral Account shall vest in the Trustee, and funds on deposit in
the Collateral Account shall constitute part of the Trust Estate. The Collateral
Account shall be subject to the exclusive dominion and control of the Trustee.
3.3 Investment of Funds Deposited in Collateral Account. The Trustee
--------------------------------------------------------
shall, at the direction of the Administrative Agent, invest and reinvest moneys
on deposit in the Collateral Account at any time in Cash Equivalents. All such
investments and the interest and income received thereon and the net proceeds
realized on the sale or redemption thereof shall be held in the Collateral
Account as part of the Trust Estate. The Trustee shall not be responsible for
any diminution in funds resulting from such investments or any liquidation prior
to maturity. In the absence of such directions, the Trustee shall have no
obligation to invest or reinvest moneys.
3.4 Application of Moneys. (a) The Trustee shall have the right
--------------------------
(pursuant to Section 4.8) at any time to apply moneys held by it in the
Restricted Collateral Sub-Account and
-14-
the Other Collateral Sub-Account to the payment of due and unpaid Trustee Fees
without any requirement that such applications be made ratably from such
accounts. Furthermore, notwithstanding any other provision of this Trust
Agreement or the Trust Security Documents, when taking actions with respect to
the Collateral, the Trustee shall not be obligated to maximize the realization
by the Secured Parties from the Other Collateral before the Secured Parties
realize benefits from the Restricted Collateral.
(b) All remaining moneys held by the Trustee in the Restricted
Collateral Sub-Account or received by the Trustee with respect to the Restricted
Collateral while a Notice of Acceleration is in effect shall, to the extent
available for distribution (it being understood that the Trustee may liquidate
investments prior to maturity in order to make a distribution pursuant to this
Section 3.4), be distributed (subject to the provisions of Sections 3.5 and 3.6)
by the Trustee on each Distribution Date in the following order of priority:
First: to the Trustee for any unpaid Trustee Fees and then to any
-----
Secured Party which has theretofore advanced or paid any Trustee Fees
constituting administrative expenses allowable under Section 503(b) of the
Bankruptcy Code, an amount equal to the amount thereof so advanced or paid
by such Secured Party and for which such Secured Party has not been
reimbursed prior to such Distribution Date, and, if such moneys shall be
insufficient to pay such amounts in full, then ratably (without priority of
any one over any other) to such Secured Parties in proportion to the
amounts of such Trustee Fees advanced by the respective Secured Parties and
remaining unpaid on such Distribution Date;
Second: to any Secured Party which has theretofore advanced or paid
------
any Trustee Fees other than such administrative expenses, an amount equal
to the amount thereof so advanced or paid by such Secured Party and for
which such Secured Party has not been reimbursed prior to such Distribution
Date, and, if such moneys shall be insufficient to pay such amounts in
full, then ratably (without priority of any one over any other) to such
Secured Parties in proportion to the amounts of such Trustee Fees advanced
by the respective Secured Parties and remaining unpaid on such Distribution
Date;
Third: to the Secured Parties in an amount equal to the unpaid
-----
principal of and unpaid interest on and other charges, if any, in respect
of any First Priority Secured Obligations then outstanding whether or not
then due and payable (but only to the extent such First Priority Secured
Obligations constitute Restricted Collateral Secured Obligations), and, if
such moneys shall be insufficient to pay such amounts in full, then ratably
(without priority of any one over any other) to the Secured Parties in
proportion to the unpaid amounts thereof on such Distribution Date;
Fourth: to the Secured Parties in an amount equal to the unpaid
------
principal of and unpaid interest on and other charges, if any, in respect
of any Other Secured Obligations then outstanding whether or not then due
and payable (but only to the extent such Other Secured Obligations
constitute Restricted Collateral Secured Obligations), and, if such moneys
shall be insufficient to pay such amounts in full, then ratably (without
priority of any one over any other) to the Secured Parties in proportion to
the unpaid amounts thereof on such Distribution Date;
-15-
Fifth: to the Secured Parties, amounts equal to all other sums which
-----
constitute Other Secured Obligations, including without limitation the
costs and expenses of the Secured Parties and their representatives which
are due and payable under the relevant Secured Instruments and which
constitute Other Secured Obligations as of such Distribution Date (but only
to the extent such Other Secured Obligations constitute Restricted
Collateral Secured Obligations), and, if such moneys shall be insufficient
to pay such amounts in full, then ratably to the Secured Parties in
proportion to the unpaid amounts thereof on such Distribution Date; and
Sixth: any surplus then remaining shall be paid to the Obligors or
-----
their successors or assigns or to whomsoever may be lawfully entitled to
receive the same or as a court of competent jurisdiction may direct.
(c) All remaining moneys held by the Trustee in the Other Collateral
Sub-Account or received by the Trustee with respect to the Other Collateral
while a Notice of Acceleration is in effect shall, to the extent available for
distribution (it being understood that the Trustee may liquidate investments
prior to maturity in order to make a distribution pursuant to this Section 3.4),
be distributed (subject to the provisions of Sections 3.5 and 3.6) by the
Trustee on each Distribution Date in the following order of priority:
First: to the Trustee for any unpaid Trustee Fees and then to any
-----
Lender or the Administrative Agent which has theretofore advanced or paid
any Trustee Fees constituting administrative expenses allowable under
Section 503(b) of the Bankruptcy Code, an amount equal to the amount
thereof so advanced or paid by such Lender or the Administrative Agent and
for which such Lender or the Administrative Agent has not been reimbursed
prior to such Distribution Date, and, if such moneys shall be insufficient
to pay such amounts in full, then ratably (without priority of any one over
any other) to such Lenders and the Administrative Agent in proportion to
the unpaid amounts thereof on such Distribution Date;
Second: to any Secured Party which has theretofore advanced or paid
------
any Trustee Fees other than such administrative expenses, an amount equal
to the amount thereof so advanced or paid by such Secured Party and for
which such Secured Party has not been reimbursed prior to such Distribution
Date, and, if such moneys shall be insufficient to pay such amounts in
full, then ratably (without priority of any one over any other) to such
Secured Parties in proportion to the amounts of such Trustee Fees advanced
by the respective Secured Parties and remaining unpaid on such Distribution
Date;
Third: to the Secured Parties in an amount equal to the unpaid
-----
principal of and unpaid interest on and other charges, if any, in respect
of any First Priority Secured Obligations then outstanding whether or not
then due and payable, and, if such moneys shall be insufficient to pay such
amounts in full, then ratably (without priority of any one over any other)
to the Secured Parties in proportion to the unpaid amounts thereof on such
Distribution Date;
Fourth: to the Secured Parties in an amount equal to the unpaid
------
principal of and unpaid interest on and other charges, if any, in respect
of any Other Secured Obligations then outstanding whether or not then due
and payable, and, if such moneys shall be
-16-
insufficient to pay such amounts in full, then ratably (without priority of
any one over any other) to the Secured Parties in proportion to the unpaid
amounts thereof on such Distribution Date;
Fifth: to the Secured Parties, amounts equal to all other sums which
-----
constitute Other Secured Obligations, including without limitation the
costs and expenses of the Secured Parties and their representatives which
are due and payable under the relevant Secured Instruments and which
constitute Other Secured Obligations as of such Distribution Date, and, if
such moneys shall be insufficient to pay such amounts in full, then ratably
to the Secured Parties in proportion to the unpaid amounts thereof on such
Distribution Date; and
Sixth: any surplus then remaining shall be paid to the Obligors or
-----
their successors or assigns or to whomsoever may be lawfully entitled to
receive the same or as a court of competent jurisdiction may direct.
(d) The term "unpaid" as used in clauses Third and Fourth of Sections
----- ------
3.4(b) and 3.4(c) refers:
(i) in the absence of a bankruptcy proceeding with respect to the
relevant Obligor(s), to all amounts of Surety Bond Obligations or Credit
Agreement Obligations, as the case may be, outstanding as of a Distribution
Date (and for the purpose of this provision, the amount of the Credit
Agreement Obligations then outstanding shall include the undrawn face
amount of, and any unreimbursed drawings under, any Letter of Credit issued
under the Credit Agreement, the Hedge Agreement Cap Amount with respect to
any Specified Hedge Agreement and the aggregate amount of Cash Management
Obligations then due and owing, and the amount of Surety Bond Obligations
then outstanding shall include the undrawn face amount of, and any
unreimbursed drawings under, any Surety Bond), and
(ii) during the pendency of a bankruptcy proceeding with respect to
the relevant Obligor(s), to all amounts allowed by the bankruptcy court in
respect of Surety Bond Obligations or Credit Agreement Obligations, as the
case may be, as a basis for distribution (including estimated amounts, if
any, allowed in respect of contingent claims),
to the extent that prior distributions (whether actually distributed or set
aside pursuant to Section 3.5) have not been made in respect thereof.
(e) The Trustee shall make all payments and distributions under this
Section 3.4: (i) on account of Credit Agreement Obligations to the
Administrative Agent, pursuant to directions of the Administrative Agent, for
re-distribution in accordance with the provisions of the Credit Agreement; and
(ii) on account of Surety Bond Obligations (subject to Section 3.5) to the
relevant Surety Party.
3.5 Application of Moneys Distributable to Surety Party. If at any
--------------------------------------------------------
time any moneys collected or received by the Trustee pursuant to this Trust
Agreement are distributable pursuant to Section 3.4 to a Surety Party, and if
such Surety Party shall notify the Trustee in
-17-
writing that no provision is made under the relevant Surety Bond Documents for
the application by such Surety Party of such moneys (whether because the Secured
Obligations under such Surety Bond Documents have not become due and payable or
otherwise) and that such Surety Bond Documents do not effectively provide for
the receipt and the holding by such Surety Party of such moneys pending the
application thereof, then the Trustee, after receipt of such notification,
shall, at the direction of such Surety Party, invest such amounts in Cash
Equivalents maturing within 90 days after they are acquired by the Trustee or,
in the absence of such direction, hold such moneys uninvested and shall hold all
such amounts so distributable and all such investments and the net proceeds
thereof in trust solely for such Surety Party (in its capacity as trustee) and
for no other purpose until such time as such Surety Party shall request in
writing the delivery thereof by the Trustee for application pursuant to such
Surety Bond Documents.
3.6 Trustee's Calculations. In making the determinations and
---------------------------
allocations required by Section 3.4, the Trustee may conclusively rely upon (a)
information supplied by a Surety Party as to the amount of Surety Bond
Obligations owing to such Surety Party, and (b) information supplied by the
Administrative Agent as to the amounts of unpaid principal and interest and
other amounts outstanding with respect to the Credit Agreement Obligations, and
the Trustee shall have no liability to any of the Secured Parties for actions
taken in reliance on such information, provided that nothing in this sentence
shall prevent any Obligor from contesting any amounts claimed by any Secured
Party in any information so supplied. All distributions made by the Trustee
pursuant to Section 3.4 shall be (subject to any decree of any court of
competent jurisdiction) final (absent manifest error), and the Trustee shall
have no duty to inquire as to the application by the Administrative Agent or a
Surety Party of any amounts distributed to them.
3.7 Pro Rata Sharing. If, through the operation of any bankruptcy,
---------------------
reorganization, insolvency or other laws or otherwise, the Trustee's security
interest hereunder and under the Trust Security Documents is enforced with
respect to some, but not all, of the Secured Obligations then outstanding, the
Trustee shall nonetheless apply the proceeds of the Collateral for the benefit
of the holders of all Secured Obligations in the proportions and subject to the
priorities specified herein. To the extent that the Trustee distributes Proceeds
collected with respect to Secured Obligations held by one holder to or on behalf
of Secured Obligations held by a second holder, the first holder shall be deemed
to have purchased a participation in the Secured Obligations held by the second
holder, or shall be subrogated to the rights of the second holder to receive any
subsequent payments and distributions made with respect to the portion thereof
paid or to be paid by the application of such Proceeds.
SECTION 4.
AGREEMENTS WITH TRUSTEE
4.1 Delivery of Secured Instruments. On the Trust Effective Date, the
------------------------------------
Company shall deliver to the Trustee true and complete copies of each Secured
Instrument and each Trust Security Document as in effect on the Trust Effective
Date. The Company shall deliver to the Trustee, promptly upon the execution
thereof, (i) a true and complete copy of all amendments, modifications or
supplements to any Secured Instrument entered into after the
-18-
Trust Effective Date, and (ii) a true and complete copy of any new Trust
Security Document entered into after the Trust Effective Date.
4.2 Information as to Secured Parties, Administrative Agent and
----------------------------------------------------------------
Surety Parties. The Company shall deliver to the Trustee on the Trust Effective
- - --------------
Date and on each anniversary of the Trust Effective Date, and from time to time
upon request of the Trustee, a list setting forth as of a date not more than 30
days prior to the date of such delivery, (i) the aggregate unpaid principal
amount of Credit Agreement Obligations outstanding and the name and address of
the Administrative Agent and (ii) the aggregate face amount of Surety Bond
Obligations outstanding and owing to each Surety Party and the name and address
for each Surety Party. In addition, the Company will promptly notify the Trustee
of each change in the identity of the Administrative Agent or any Surety Party.
On or prior to the Trust Effective Date, the Company will request the
Administrative Agent and each Surety Party to deliver to the Trustee the names
of the officers of each thereof authorized to give directions hereunder on
behalf of such parties. The Company will request that the Administrative Agent
and each Surety Party notify the Trustee of any changes of the officers of each
thereof authorized to give directions hereunder on behalf of such parties prior
to the date of any such changes. If the Trustee does not receive the names of
the officers of the Administrative Agent or any Surety Party authorized to give
directions hereunder on behalf of such parties, the Trustee may rely on any
person purporting to be authorized to give directions hereunder on behalf of
such parties. If the Trustee is not informed of changes of the officers of the
Administrative Agent or any Surety Party authorized to give directions hereunder
on behalf of such parties, the Trustee may rely on the information previously
provided to the Trustee.
4.3 Compensation and Expenses. The Company agrees to pay to the
------------------------------
Trustee, from time to time upon demand, (i) reasonable compensation (which shall
not be limited by any provision of law in regard to compensation of fiduciaries
or of a trustee of an express trust) for its services hereunder and under the
Trust Security Documents and for administering the Trust Estate and (ii) all of
the fees, costs and expenses of the Trustee (including, without limitation, the
reasonable fees and disbursements of its counsel, advisors and agents) (A)
arising in connection with the preparation, execution, delivery, modification,
and termination of this Trust Agreement and each Trust Security Document or the
enforcement of any of the provisions hereof or thereof, (B) incurred or required
to be advanced in connection with the administration of the Trust Estate, the
sale or other disposition of Collateral pursuant to any Trust Security Document
and the preservation, protection or defense of the Trustee's rights under this
Trust Agreement and the Trust Security Documents and in and to the Collateral
and the Trust Estate or (C) incurred by the Trustee in connection with the
removal of the Trustee pursuant to Section 5.7(a). Such fees, costs and expenses
are intended to constitute expenses of administration under any bankruptcy law
relating to creditors rights generally. The obligations of the Company under
this Section 4.3 shall survive the termination of the other provisions of this
Trust Agreement and the resignation or removal of the Trustee hereunder.
4.4 Stamp and Other Similar Taxes. The Company agrees to indemnify
----------------------------------
and hold harmless the Trustee, the Administrative Agent, each Surety Party and
each Secured Party from any present or future claim for liability for any stamp
or any other similar tax, and any penalties or interest with respect thereto,
which may be assessed, levied or collected by any jurisdiction in connection
with this Trust Agreement, any Trust Security Document, the Trust
-19-
Estate or any Collateral. The obligations of the Company under this Section 4.4
shall survive the termination of the other provisions of this Trust Agreement
and the resignation or removal of the Trustee hereunder.
4.5 Filing Fees, Excise Taxes, Etc. The Company agrees to pay or to
-----------------------------------
reimburse the Trustee for any and all payments made by the Trustee in respect of
all search, filing, recording and registration fees, taxes, excise taxes and
other similar imposts which may be payable or determined to be payable in
respect of the execution and delivery of this Trust Agreement and each Trust
Security Document. The obligations of the Company under this Section 4.5 shall
survive the termination of the other provisions of this Trust Agreement and the
resignation or removal of the Trustee hereunder.
4.6 Indemnification. The Company agrees to pay, indemnify, and hold
--------------------
the Trustee, the Administrative Agent and each Surety Party (and their
respective directors, officers, agents and employees) harmless from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including, without limitation, the reasonable
fees and expenses of counsel, advisors and agents) or disbursements of any kind
or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Trust Agreement and the Trust Security
Documents, unless arising from the gross negligence or willful misconduct of the
indemnified party, including for taxes in any jurisdiction in which the Trustee
is subject to tax by reason of actions hereunder or under the Trust Security
Documents, unless such taxes are imposed on or measured by compensation paid to
the Trustee under Section 4.3. In any suit, proceeding or action brought by the
Trustee under or with respect to any contract, agreement, interest or obligation
constituting part of the Collateral for any sum owing thereunder, or to enforce
any provisions thereof, the Company will save, indemnify and keep the Trustee,
the Administrative Agent each Surety Party and the Secured Parties harmless from
and against all expense, loss or damage suffered by reason of any defense,
setoff, counterclaim, recoupment or reduction of liability whatsoever of the
obligor thereunder, arising out of a breach by any Obligor of any obligation
thereunder or arising out of any other agreement, indebtedness or liability at
any time owing to or in favor of such obligor or its successors from any
Obligor, and all such obligations of the Company shall be and remain enforceable
against and only against the Company and shall not be enforceable against the
Trustee, the Administrative Agent, any Surety Party or any Secured Party. The
agreements in this Section 4.6 shall survive the termination of the other
provisions of this Trust Agreement and the resignation or removal of the Trustee
hereunder.
4.7 Trustee's Lien. Notwithstanding anything to the contrary in this
-------------------
Trust Agreement, as security for the payment of Trustee Fees (i) the Trustee is
hereby granted a lien upon all Collateral prior to all Secured Parties and (ii)
the Trustee shall have the right to use and apply any of the funds held by the
Trustee in the Collateral Account to cover such Trustee Fees.
4.8 Further Assurances. At any time and from time to time, upon the
-----------------------
written request of the Administrative Agent or the Trustee, and at the expense
of the Company, each Obligor will promptly execute and deliver any and all such
further instruments and documents and take such further action as is necessary
or reasonably requested further to perfect, or to protect the perfection of, the
liens and security interests granted under the Trust Security Documents,
including, without limitation, the filing of any financing or continuation
statements under the Uniform Commercial Code in effect in any jurisdiction. In
addition to the foregoing,
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at any time and from time to time, upon the written request of the Trustee
(which shall be made only upon the written direction of the Administrative
Agent), and at the expense of the Company, each Obligor will promptly execute
and deliver any and all such further instruments and documents and take such
further action as the Trustee has been so directed is necessary or reasonably
requested to obtain the full benefits of this Trust Agreement and the Trust
Security Documents and of the rights and powers herein and therein granted,
including, without limitation, the filing of any financing or continuation
statements under the Uniform Commercial Code in effect in any jurisdiction with
respect to the liens and security interests granted by the Trust Security
Documents. Each Obligor also hereby authorizes the Trustee to sign and the
Administrative Agent or the Trustee to file any such financing or continuation
statements without the signature of such Obligor to the extent permitted by
applicable law. Notwithstanding the foregoing, in no event shall the Trustee
have any obligation in respect of the perfection or continuation of perfection,
the sufficiency or validity of any security interest in or related to the
Collateral or to prepare or file any Uniform Commercial Code financing
statements.
4.9 Obligors. The Obligors agree, jointly and severally, to pay to
-------------
the Trustee any of the amounts payable to it pursuant to this Section 4 to the
extent not paid by the Company.
SECTION 5.
THE TRUSTEE
5.1 Acceptance of Trust. The Trustee, for itself and its successors,
------------------------
hereby accepts the trusts created by this Trust Agreement upon the terms and
conditions hereof.
5.2 Exculpatory Provisions. (a) The Trustee shall not be responsible
---------------------------
in any manner whatsoever for the correctness of any recitals, statements,
representations or warranties herein, all of which are made solely by the
Obligors. The Trustee makes no representations as to the value or condition of
the Trust Estate or any part thereof, or as to the title of the Obligors thereto
or as to the security afforded by this Trust Agreement or any Trust Security
Document, or as to the validity, execution (except its execution),
enforceability, legality or sufficiency of this Trust Agreement, the Trust
Security Documents or the Secured Obligations, and the Trustee shall incur no
liability or responsibility in respect of any such matters.
(b) The Trustee shall not be required to ascertain or inquire as to
the performance by the Obligors of any of the covenants or agreements contained
herein or in any Trust Security Document or Secured Instrument. Whenever it is
necessary, or in the opinion of the Trustee advisable, for the Trustee to
ascertain the amount of Secured Obligations then held by Secured Parties, the
Trustee may rely on a certificate of the relevant Surety Party, in the case of
Surety Bond Obligations, or a certificate of the Administrative Agent, in the
case of Credit Agreement Obligations, and, if the relevant Surety Party or the
Administrative Agent shall not give such information to the Trustee, it shall
not be entitled to receive distributions hereunder (in which case distributions
to those Persons who have supplied such information to the Trustee shall be
calculated by the Trustee using, for those Persons who have not supplied such
information, the list then most recently delivered by the Company pursuant to
Section 4.2), and the amount so
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calculated to be distributed to the Person who fails to give such information
shall be held in trust for such Person until such Person does supply such
information to the Trustee, whereupon on the next Distribution Date the amount
distributable to such Person shall be recalculated using such information and
distributed to it. Nothing in the preceding sentence shall prevent any Obligor
from contesting any amounts claimed by any Secured Party in any certificate so
supplied.
(c) The Trustee shall be under no obligation or duty to take any
action under this Trust Agreement or any Trust Security Document if taking such
action (i) would subject the Trustee to a tax in any jurisdiction where it is
not then subject to a tax or (ii) would require the Trustee to qualify to do
business in any jurisdiction where it is not then so qualified, unless the
Trustee receive security or indemnity satisfactory to it against such tax (or
equivalent liability), or any liability resulting from such qualification, in
each case as results from the taking of such action under this Trust Agreement
or any Trust Security Document.
(d) The Trustee shall have the same rights with respect to any
Secured Obligation held by it as any other Secured Party and may exercise such
rights as though it were not the Trustee hereunder, and may accept deposits
from, lend money to, and generally engage in any kind of banking or trust
business with, any of the Obligors as if it were not the Trustee.
(e) The Trustee shall not be liable for any action taken or omitted
to be taken in accordance with this Trust Agreement or the Trust Security
Documents except for its own gross negligence or willful misconduct.
5.3 Delegation of Duties. The Trustee may execute any of the trusts
-------------------------
or powers hereof and perform any duty hereunder either directly or by or through
agents or attorneys-in-fact. The Trustee shall be entitled to advice of counsel
concerning all matters pertaining to such trusts, powers and duties. The Trustee
shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it without gross negligence or willful misconduct.
5.4 Reliance by Trustee. (a) Whenever in the administration of this
------------------------
Trust Agreement or the Trust Security Documents the Trustee shall deem it
necessary or desirable that a factual matter be proved or established in
connection with the Trustee taking, suffering or omitting any action hereunder
or thereunder, such matter (unless other evidence in respect thereof is herein
specifically prescribed) may be deemed to be conclusively proved or established
by a certificate of a Responsible Officer delivered to the Trustee, and such
certificate shall be full warrant to the Trustee for any action taken, suffered
or omitted in reliance thereon, subject, however, to the provisions of Section
5.5.
(b) The Trustee may consult with counsel, and any Opinion of Counsel
shall be full and complete authorization and protection in respect of any action
taken or suffered by it hereunder or under any Trust Security Document in
accordance therewith. The Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement and the Trust
Security Documents from any court of competent jurisdiction.
(c) The Trustee may rely, and shall be fully protected in acting,
upon any resolution, statement, certificate, instrument, opinion, report,
notice, request, consent, order, bond or other paper or document which it has no
reason to believe to be other than genuine and to have been signed or presented
by the proper party or parties or, in the case of cables,
-22-
telecopies and telexes, to have been sent by the proper party or parties. In the
absence of its own gross negligence or willful misconduct, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Trust Agreement.
(d) The Trustee shall not be under any obligation to exercise any of
the rights or powers vested in the Trustee by this Trust Agreement and the Trust
Security Documents, at the request or direction of the Required Secured Parties
pursuant to this Trust Agreement or otherwise, unless the Trustee shall have
been provided adequate security and indemnity against the costs, expenses and
liabilities which may be incurred by the Trustee in compliance with such request
or direction, including such reasonable advances as may be requested by the
Trustee.
(e) Upon any application or demand by any of the Obligors (except any
such application or demand which is expressly permitted to be made orally) to
the Trustee to take or permit any action under any of the provisions of this
Trust Agreement or any Trust Security Document, the Company shall furnish to the
Trustee a certificate of a Responsible Officer stating that all conditions
precedent, if any, provided for in this Trust Agreement, in any relevant Trust
Security Document or in the Credit Agreement relating to the proposed action
have been complied with, and in the case of any such application or demand as to
which the furnishing of any document is specifically required by any provision
of this Trust Agreement or a Trust Security Document relating to such particular
application or demand, such additional document shall also be furnished.
(f) Any Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate of a Responsible Officer or representations
made by a Responsible Officer in a writing filed with the Trustee.
5.5 Limitations on Duties of Trustee. (a) Unless a Notice of
-------------------------------------
Acceleration is in effect, the Trustee shall be obligated to perform such duties
and only such duties as are specifically set forth in this Trust Agreement and
the Trust Security Documents, and no implied covenants or obligations shall be
read into this Trust Agreement or any Trust Security Document against the
Trustee. If and so long as a Notice of Acceleration is in effect, the Trustee
may, subject to the provisions of Section 2.5(b), exercise the rights and powers
vested in the Trustee by this Trust Agreement and the Trust Security Documents,
and shall not be liable with respect to any action taken, or omitted to be
taken, in accordance with the direction of the Required Secured Parties.
(b) Except as herein otherwise expressly provided, the Trustee shall
not be under any obligation to take any action which is discretionary with the
Trustee under the provisions hereof or of any Trust Security Document except
upon the written request of the Required Secured Parties. The Trustee shall make
available for inspection and copying by the Administrative Agent and each Surety
Party each certificate or other paper furnished to the Trustee by any of the
Obligors under or in respect of this Trust Agreement or any of the Collateral.
(c) No provision of this Trust Agreement or of any Trust Security
Document shall be deemed to impose any duty or obligation on the Trustee to
perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it, in any jurisdiction in
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which it shall be illegal, or in which the Trustee shall be unqualified or
incompetent, to perform any such act or acts or to exercise any such right,
power, duty or obligation or if such performance or exercise would constitute
doing business by the Trustee in such jurisdiction or impose a tax on the
Trustee by reason thereof or to risk its own funds or otherwise incur any
financial liability in the performance of its duties hereunder.
5.6 Moneys to be Held in Trust. All moneys received by the Trustee
------------------------------
under or pursuant to any provision of this Trust Agreement or any Trust Security
Document (except Trustee Fees) shall be held in trust for the purposes for which
they were paid or are held.
5.7 Resignation and Removal of the Trustee. (a) The Trustee may at
--------------------------------------------
any time, by giving written notice to the Company, the Administrative Agent and
each Surety Party, resign and be discharged of the responsibilities hereby
created, such resignation to become effective upon (i) the appointment of a
successor Trustee, (ii) the acceptance of such appointment by such successor
Trustee and (iii) the approval of such successor Trustee evidenced by one or
more instruments signed by the Administrative Agent. If no successor Trustee
shall be appointed and shall have accepted such appointment within 90 days after
the Trustee gives the aforesaid notice of resignation, the Trustee, the Company,
the Administrative Agent, any Surety Party or any Secured Party may apply to any
court of competent jurisdiction to appoint a successor Trustee to act until such
time, if any, as a successor Trustee shall have been appointed as provided in
this Section 5.7. Any successor so appointed by such court shall immediately and
without further act be superseded by any successor Trustee appointed by the
Administrative Agent as provided in Section 5.7(b). The Administrative Agent
may, at any time upon giving 30 days' prior written notice thereof to the
Trustee and each Surety Party, remove the Trustee and appoint a successor
Trustee, such removal to be effective upon the acceptance of such appointment by
the successor. The Trustee shall be entitled to Trustee Fees to the extent
incurred or arising, or relating to events occurring, before such resignation or
removal.
(b) If at any time the Trustee shall resign or be removed or otherwise
become incapable of acting, or if at any time a vacancy shall occur in the
office of the Trustee for any other cause, a successor Trustee may be appointed
by the Administrative Agent with the consent of the Company, which consent shall
not be unreasonably withheld. The powers, duties, authority and title of the
predecessor Trustee shall be terminated and cancelled without procuring the
resignation of such predecessor and without any other formality (except as may
be required by applicable law) than appointment and designation of a successor
in writing duly acknowledged and delivered to the predecessor and the Company.
Such appointment and designation shall be full evidence of the right and
authority to make the same and of all the facts therein recited, and this Trust
Agreement and the Trust Security Agreements shall vest in such successor,
without any further act, deed or conveyance, all the estates, properties,
rights, powers, trusts, duties, authority and title of its predecessor; but such
predecessor shall, nevertheless, on the written request of the Administrative
Agent, the Company, or the successor, execute and deliver an instrument
transferring to such successor all the estates, properties, rights, powers,
trusts, duties, authority and title of such predecessor hereunder and under the
Trust Security Documents and shall deliver all Collateral held by it or its
agents to such successor. Should any deed, conveyance or other instrument in
writing from any Obligor be required by any successor Trustee for more fully and
certainly vesting in such successor the estates, properties, rights, powers,
trusts, duties, authority and title vested or intended to be vested in the
predecessor
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Trustee, any and all such deeds, conveyances and other instruments in writing
shall, on request of such successor, be executed, acknowledged and delivered by
such Obligor. If such Obligor shall not have executed and delivered any such
deed, conveyance or other instrument within 10 days after it received a written
request from the successor Trustee to do so, or if a Notice of Acceleration is
in effect, the predecessor Trustee may execute the same on behalf of such
Obligor. Such Obligor hereby appoints any predecessor Trustee as its agent and
attorney to act for it as provided in the next preceding sentence.
5.8 Status of Successor Trustee. Every successor Trustee appointed
---------------------------------
pursuant to Section 5.7 shall be a bank or trust company in good standing and
having power to act as Trustee hereunder, incorporated under the laws of the
United States of America or any State thereof or the District of Columbia and
having its principal corporate trust office within the 48 contiguous States and
shall also have capital, surplus and undivided profits of not less than
$100,000,000, if there be such an institution with such capital, surplus and
undivided profits willing, qualified and able to accept the trust hereunder upon
reasonable or customary terms.
5.9 Merger of the Trustee. Any corporation into which the Trustee
---------------------------
may be merged, or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the Trustee shall be a
party, shall be Trustee under this Trust Agreement and the Trust Security
Documents without the execution or filing of any paper or any further act on the
part of the parties hereto.
5.10 Co-Trustee; Separate Trustee. (a) If at any time or times it
----------------------------------
shall be necessary or prudent in order to conform to any law of any jurisdiction
in which any of the Collateral shall be located, or to avoid any violation of
law or imposition on the Trustee of taxes by such jurisdiction not otherwise
imposed on the Trustee, or the Trustee shall be advised by counsel, satisfactory
to it, that it is necessary or prudent in the interest of the Secured Parties,
or the Administrative Agent or any Surety Party shall in writing so request the
Trustee and the Obligors, or the Trustee shall deem it desirable for its own
protection in the performance of its duties hereunder or under any Trust
Security Document, the Trustee and each of the Obligors shall execute and
deliver all instruments and agreements necessary or proper to constitute another
bank or trust company, or one or more persons approved by the Trustee and the
Obligors, either to act as co-trustee or co-trustees of all or any of the
Collateral under this Trust Agreement or under any of the Trust Security
Documents, jointly with the Trustee originally named herein or therein or any
successor Trustee, or to act as separate trustee or trustees of any of the
Collateral. If any of the Obligors shall not have joined in the execution of
such instruments and agreements within 10 days after it receives a written
request from the Trustee to do so, or if a Notice of Acceleration is in effect,
the Trustee may act under the foregoing provisions of this Section 5.10(a)
without the concurrence of such Obligors and execute and deliver such
instruments and agreements on behalf of such Obligors. Each of the Obligors
hereby appoints the Trustee as its agent and attorney to act for it under the
foregoing provisions of this Section 5.10(a) in either of such contingencies.
(b) Every separate trustee and every co-trustee, other than any
successor Trustee appointed pursuant to Section 5.7, shall, to the extent
permitted by law, be appointed and act and be such, subject to the following
provisions and conditions:
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(i) all rights, powers, duties and obligations conferred upon the
Trustee in respect of the custody, control and management of moneys, papers
or securities shall be exercised solely by the Trustee or any agent
appointed by the Trustee;
(ii) all rights, powers, duties and obligations conferred or imposed
upon the Trustee hereunder and under the relevant Trust Security Document
or Documents shall be conferred or imposed and exercised or performed by
the Trustee and such separate trustee or separate trustees or co-trustee or
co-trustees, jointly, as shall be provided in the instrument appointing
such separate trustee or separate trustees or co-trustee or co-trustees,
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed the Trustee shall be incompetent
or unqualified to perform such act or acts, or unless the performance of
such act or acts would result in the imposition of any tax on the Trustee
which would not be imposed absent such joint act or acts, in which event
such rights, powers, duties and obligations shall be exercised and
performed by such separate trustee or separate trustees or co-trustee or
co-trustees;
(iii) no power given hereby or by the relevant Trust Security
Documents to, or which it is provided herein or therein may be exercised
by, any such co-trustee or co-trustees or separate trustee or separate
trustees shall be exercised hereunder or thereunder by such co-trustee or
co-trustees or separate trustee or separate trustees except jointly with,
or with the consent in writing of, the Trustee, anything contained herein
to the contrary notwithstanding;
(iv) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder; and
(v) the Company and the Trustee, at any time by an instrument in
writing executed by them jointly, may accept the resignation of or remove
any such separate trustee or co-trustee and, in that case by an instrument
in writing executed by them jointly, may appoint a successor to such
separate trustee or co-trustee, as the case may be, anything contained
herein to the contrary notwithstanding. If the Company shall not have
joined in the execution of any such instrument within 10 days after it
receives a written request from the Trustee to do so, or if a Notice of
Acceleration is in effect, the Trustee shall have the power to accept the
resignation of or remove any such separate trustee or co-trustee and to
appoint a successor without the concurrence of the Company, the Company
hereby appointing the Trustee its agent and attorney to act for it in such
connection in such contingency. If the Trustee shall have appointed a
separate trustee or separate trustees or co-trustee or co-trustees as above
provided, the Trustee may at any time, by an instrument in writing, accept
the resignation of or remove any such separate trustee or co-trustee and
the successor to any such separate trustee or co-trustee shall be appointed
by the Company and the Trustee, or by the Trustee alone pursuant to this
Section 5.10(b).
5.11 Treatment of Payee or Indorsee by Trustee; Representatives of
-------------------------------------------------------------------
Secured Parties. (a) The Trustee may treat the registered holder or, if none,
- - ---------------
the payee or indorsee of any promissory note or debenture evidencing a Secured
Obligation as the absolute owner thereof for all purposes and shall not be
affected by any notice to the contrary, whether such promissory note or
debenture shall be past due or not.
-26-
(b) Any Person (other than the Administrative Agent and any Surety
Party) which shall be designated as the duly authorized representative of one or
more Secured Parties to act as such in connection with any matters pertaining to
this Trust Agreement or the Collateral shall present to the Trustee such
documents, including, without limitation, Opinions of Counsel, as the Trustee
may reasonably require, in order to demonstrate to the Trustee the authority of
such Person to act as the representative of such Secured Parties (it being
understood that (i) the holders of Credit Agreement Obligations are represented
hereunder by the Administrative Agent and the holders of the Surety Bond
Obligations are represented hereunder by the relevant Surety Party and (ii) such
holders shall have no other rights pursuant to this Section 5.11(b)). The
authority of the Administrative Agent and each Surety Party shall be
demonstrated by their inclusion as such in the lists from time to time delivered
pursuant to Section 4.2.
SECTION 6.
MISCELLANEOUS
6.1 Notices. Unless otherwise specified herein, all notices,
------------
requests, demands or other communications given to any of the Obligors, the
Trustee, the Administrative Agent or any Surety Party shall be given in writing
or by facsimile transmission and shall be deemed to have been duly given when
personally delivered or when duly deposited in the mails, registered or
certified mail postage prepaid, or when transmitted by facsimile transmission,
addressed (i) if to any Obligor or the Trustee, to such party at its address
specified on the signature pages hereof or any other address which such party
shall have specified as its address for the purpose of communications hereunder,
by notice given in accordance with this Section 6.1 to the party sending such
communication or (ii) if to the Administrative Agent or any Surety Party, to it
at its address specified from time to time in the list provided by the Company
to the Trustee pursuant to Section 4.2; provided that any notice, request or
--------
demand to the Trustee shall not be effective until received by the Trustee in
writing or by facsimile transmission in the corporate trust division at the
office designated by it pursuant to this Section 6.1.
6.2 No Waivers. No failure on the part of the Trustee, any co-
---------------
trustee, any separate trustee, the Administrative Agent, any Surety Party or any
Secured Party to exercise, no course of dealing with respect to, and no delay in
exercising, any right, power or privilege under this Trust Agreement or any
Trust Security Document shall operate as a waiver thereof nor shall any single
or partial exercise of any such right, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
6.3 Amendments, Supplements and Waivers. (a) With the written
----------------------------------------
consent of the Administrative Agent, the Trustee and the Obligors may, from time
to time, enter into written agreements supplemental hereto or to any Trust
Security Document for the purpose of adding to, or waiving any provisions of,
this Trust Agreement or any Trust Security Document or changing in any manner
the rights of the Trustee, the Secured Parties or the Obligors hereunder or
thereunder; provided that no such supplemental agreement shall (i) amend, modify
--------
modify or waive any provision of this Section 6.3 without the written consent of
the Administrative Agent and each Surety Party, (ii) except as provided in the
next succeeding sentence, reduce the percentages or change the numbers specified
in the definition of Required Secured Parties or amend, modify or
-27-
waive any provision of Sections 2.10, 3.4, 3.5, 4.6 or 6.10 or the definition of
First Priority Secured Obligations, Surety Bond or Secured Obligations without
the written consent of each Secured Party whose rights would be adversely
affected thereby or (iii) amend, modify or waive any provision of Section 4 or 5
or alter the duties, rights or obligations of the Trustee hereunder or under the
Trust Security Documents without the written consent of the Trustee. In
addition, if the Administrative Agent shall advise the Trustee in writing that
the Required Lenders (as defined in the Credit Agreement) have agreed with the
Company that additional indebtedness of the Company shall be secured equally and
ratably by all or any portion of the Collateral, the Trustee shall enter into
such supplemental agreements satisfactory to the Trustee with the Obligors as
shall be reasonably requested by the Administrative Agent to effect such
agreement (which supplemental agreement may be in the form of an amendment and
restatement of this Trust Agreement). Any such supplemental agreement shall be
binding upon the Obligors, the Administrative Agent, the Surety Parties, the
Secured Parties and the Trustee and their respective successors.
(b) Without the consent of the Administrative Agent, the Surety
Parties or any Secured Party, the Trustee and any of the Obligors, at any time
and from time to time, may enter into one or more agreements supplemental hereto
or to any Trust Security Document, in form satisfactory to the Trustee, (i) to
add to the covenants of such Obligor for the benefit of the Secured Parties or
to surrender any right or power herein conferred upon such Obligor; (ii) to
mortgage or pledge to the Trustee, or grant a security interest in favor of the
Trustee in, any property or assets as additional security for the Secured
Obligations; or (iii) to cure any ambiguity, to correct or supplement any
provision herein or in any Trust Security Document which may be defective or
inconsistent with any other provision herein or therein, or to make any other
provision with respect to matters or questions arising hereunder which shall not
be inconsistent with any provision hereof; provided that any such action
--------
contemplated by this clause (iii) shall not adversely affect the interests of
the Secured Parties.
(c) The Trustee may, but shall not be obligated to, enter into any
supplemental agreement pursuant to this Section 6.3 which would adversely affect
its interests hereunder.
6.4 Headings. The table of contents and the headings of sections
-------------
have been included herein and in the Trust Security Documents for convenience
only and should not be considered in interpreting this Trust Agreement or the
Trust Security Documents.
6.5 Severability. Any provision of this Trust Agreement which is
-----------------
prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
6.6 Successors and Assigns. This Trust Agreement shall be binding
---------------------------
upon and inure to the benefit of each of the parties hereto and their respective
successors and assigns and shall inure to the benefit of each of the Secured
Parties and their respective successors and assigns, and nothing herein is
intended or shall be construed to give any other Person any right, remedy or
claim under, to or in respect of this Trust Agreement or any Collateral.
6.7 Currency Conversions. In calculating the amount of Secured
-------------------------
Obligations or Collateral proceeds for any purpose hereunder, including, without
limitation, voting or
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distribution purposes, the amount of any Secured Obligation which is denominated
in a currency other than Dollars shall be converted by the Administrative Agent
into Dollars at the spot rate for purchasing Dollars with such currency as set
forth in The Wall Street Journal on the business day prior to the date on which
-----------------------
such calculation is to be made.
6.8 Governing Law. This Trust Agreement shall be governed by, and
------------------
construed and interpreted in accordance with, the laws of the State of New York.
6.9 Counterparts. This Trust Agreement may be signed in any number
-----------------
of counterparts with the same effect as if the signatures thereto and hereto
were upon the same instrument.
6.10 Termination. (a) Upon (i) receipt by the Trustee from the
----------------
Administrative Agent and each of the Surety Parties of a written direction to
cause the liens created by Section 4.7 and by the Trust Security Documents to be
released and discharged and (ii) payment in full of all Trustee Fees, the
security interests created by Section 4.7 and by the Trust Security Documents
shall terminate forthwith and all right, title and interest of the Trustee in
and to the Collateral shall revert to the Obligors, their successors and
assigns.
(b) Upon the termination of the Trustee's security interest and the
release of the Collateral in accordance with Section 6.10(a), the Trustee will
promptly, at the Company's written request and expense, (i) execute and deliver
to the Company such documents as the Company shall reasonably request to
evidence the termination of such security interest or the release of the
Collateral and (ii) deliver or cause to be delivered to the Obligors all
property of the Obligors then held by the Trustee or any agent thereof.
(c) Upon receipt by the Trustee from the Company of a certificate of
the Company that all the Capital Stock of an Obligor has been sold to a third
party (which certificate shall be accompanied by a written statement from the
Administrative Agent that such sale is or will be in accordance with the Credit
Agreement), (i) such Obligor and each Subsidiary of such Obligor which is
included in such sale (such Obligor and each such Subsidiary being referred to
herein as "Included Obligors") shall cease to be an Obligor hereunder or a party
-----------------
to any Trust Security Document and shall be released from its obligations
pursuant hereto and thereto, (ii) the security interests created by the Trust
Security Documents entered into by such Included Obligors in all right, title
and interest of such Included Obligors in the Collateral shall terminate, in
each case only with respect to such Included Obligors, (iii) all right, title
and interest of the Trustees in and to the Collateral subject to such security
interests shall revert to such Included Obligors, their successors and assigns
and (iv) any obligations of such Included Obligors shall, unless otherwise
expressly notified by the Company to the Trustee and the Administrative Agent in
writing, cease to be Secured Obligations. Upon any such termination, the Trustee
will promptly, at the Company's written request and at the Company's expense,
(x) execute and deliver to such Included Obligors such documents as the Company
shall reasonably request to evidence the termination of such security interest
or the release of such Collateral and (y) deliver or cause to be delivered to
such Included Obligors all property of such Included Obligors then held by the
Trustees or any agent thereof.
(d) If any of the Collateral shall be sold, transferred or otherwise
disposed of by any Obligor in a transaction permitted by the Credit Agreement,
then the Trustee, at the request
-29-
and sole expense of such Obligor, shall execute and deliver to such Obligor all
releases or other documents reasonably necessary or desirable for the release of
the Liens created by the Trust Security Documents on such Collateral; provided
--------
that the Company shall have delivered to the Trustee, at least ten Business Days
prior to the date of the proposed release, a written request for release
identifying the relevant Obligor, together with (i) a certification by the
Company stating that such transaction is in compliance with the Credit Agreement
and the other Loan Documents and (ii) a written confirmation by the
Administrative Agent that such release is permitted by the Credit Agreement.
(e) This Trust Agreement shall terminate when the security interest
granted under the Trust Security Documents has terminated and the Collateral has
been released; provided that the provisions of Sections 4.3, 4.4, 4.5 and 4.6
--------
shall not be affected by any such termination.
(f) The Trustee will, at any time, upon the written instruction of
the Administrative Agent, at the sole expense of the relevant Obligor, execute
and deliver to the relevant Obligor all releases or other documents reasonably
necessary or desirable for any release contemplated above in this Section 6.10
of the Liens created by the Trust Security Documents on the Collateral specified
by the Administrative Agent in such instruction.
(g) Except as permitted by the foregoing provisions of this Section
6.10, no Collateral shall be released from the Trust Estate without the consent
of the Administrative Agent and the Surety Parties.
6.11 New Obligors. During the term of this Trust Agreement, one or
-----------------
more additional Subsidiaries may become a party to this Trust Agreement by
executing an assumption agreement, substantially in the form of Exhibit B,
whereupon such Subsidiary shall become an Obligor for all purposes and to the
same extent as if originally a party hereto and shall be bound by and entitled
to the benefits of this Trust Agreement.
6.12 Inspection by Regulatory Agencies. The Trustee shall make
--------------------------------------
available, and shall cause each custodian and agent acting on its behalf in
connection with this Trust Agreement to make available, all Collateral in such
Person's possession at all times for inspection by any regulatory agency having
jurisdiction over an Obligor to the extent required by such regulatory agency in
its discretion at the expense of such Obligor.
6.13 Confidentiality. The Trustee agrees to keep confidential any
--------------------
written information (a) provided to it by or on behalf of the Company or any of
its Subsidiaries pursuant to or in connection with the Trust Agreement or any
Trust Security Document or (b) obtained by the Trustee based on a review of the
books and records of the Company or any of its Subsidiaries; provided that
nothing herein shall prevent the Trustee from disclosing any such information
(i) to the Administrative Agent or any other Lender, (ii) to its employees,
directors, agents, attorneys, accountants and other professional advisors, (iii)
upon the request or demand of any Governmental Authority having jurisdiction
over the Trustee or as shall be required pursuant to any Requirement of Law,
(iv) in response to any order of any court or other Governmental Authority or as
may otherwise be required pursuant to any Requirement of Law, (v) in connection
with any litigation to which the Trustee is a party, (vii) which has been
publicly disclosed other than in breach of the Trust Agreement, or (viii) to the
extent reasonably necessary, in connection with the exercise of any remedy
hereunder.
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6.14 Submission to Jurisdiction; Waivers. Each Obligor hereby
----------------------------------------
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Trust Agreement and the other Trust Security
Documents to which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction of
the Courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from
any thereof;
(b) to the extent permitted by applicable law, consents that any such
action or proceeding may be brought in such courts and waives any objection
that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought
in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to such
Obligor at its address set forth in Section 6.1 or at such other address of
which the Trustee shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this section any special, exemplary, punitive or consequential damages.
6.15 WAIVERS OF JURY TRIAL. THE TRUSTEE AND EACH OF THE OBLIGORS
--------------------------
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS TRUST AGREEMENT OR ANY OTHER TRUST SECURITY
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
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ANNEX I
Trust Security Documents
------------------------
1. Security Agreement, dated as of December 29, 2000, made among the Grantors
named therein and Wilmington Trust Company, as Trustee.
2. All Mortgages to be executed and delivered in connection with the Fourth
Amended and Restated Credit Agreement, dated as of December 29, 2000.
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EXHIBIT A
FORM OF NOTICE OF ACCELERATION
[Date]
To: Wilmington Trust Company, as Trustee
Re: Trust Agreement, dated as of December 29, 2000, among Federal-Mogul
Corporation (the "Company"), the subsidiaries of the Company parties
-------
thereto (together with the Company, the "Obligors") and Wilmington Trust
--------
Company, as Trustee (the "Trust Agreement").
---------------
[The [Credit Agreement Obligations] [Surety Bond Obligations owing to the
undersigned Surety Party] have not been paid in full at the stated final
maturity and any applicable grace period has expired.] [A default has occurred
under the provisions of the [Credit Agreement] [Surety Bond Document] and, as a
result thereof, the [Credit Agreement Obligations] [Surety Bond Obligations
outstanding under such Surety Bond Documents] have become due and payable prior
to the stated maturity thereof.]
Terms defined in the Trust Agreement and used herein shall have the
meanings given to them in the Trust Agreement.
[THE CHASE MANHATTAN BANK,
as Administrative Agent]
[_________________],
as Surety Party]
[____________________], as
Surety Party]
By:___________________________
Name:
Title:
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EXHIBIT B
FORM OF ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT, dated as of ________ __, __, made by
_________________, a _________________ corporation (the "New Obligor") in favor
-----------
of [__________________], a national banking association, as Trustee under the
Trust Agreement referred to below (in such capacity, the "Trustee"). All
-------
capitalized terms not defined herein shall have the meanings ascribed to them in
the Trust Agreement.
W I T N E S S E T H:
-------------------
WHEREAS, Federal-Mogul Corporation, a Michigan corporation (the
"Company"), certain subsidiaries of the Company (together with the Company, the
-------
"Obligors") and the Trustee have entered into the Trust Agreement, dated as of
--------
December 29, 2000 (as amended, supplemented or otherwise modified from time to
time, the "Trust Agreement"); and
---------------
WHEREAS, the New Obligor desires to become a party to the Trust
Agreement in accordance with Section 6.11 of the Trust Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Trust Agreement. By executing and delivering this Assumption
---------------
Agreement, the New Obligor hereby becomes a party to the Trust Agreement as an
"Obligor" thereunder and, without limiting the foregoing, hereby expressly
assumes all obligations and liabilities of an "Obligor" thereunder.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[NEW OBLIGOR]
By: _______________________________
Name:
Title:
Address for Notices:
Fax:
IN WITNESS WHEREOF, the parties hereto have caused this Trust to be
duly executed by their respective authorized officers as of the day and year
first above.
FEDERAL-MOGUL CORPORATION
CARTER AUTOMOTIVE COMPANY, INC.
FEDERAL-MOGUL AVIATION, INC.
FEDERAL-MOGUL DUTCH HOLDINGS INC.
FEDERAL-MOGUL GLOBAL INC.
FEDERAL-MOGUL IGNITION COMPANY
FEDERAL-MOGUL PRODUCTS, INC.
FEDERAL-MOGUL U.K. HOLDINGS INC.
FEDERAL-MOGUL VENTURE CORPORATION
FEDERAL-MOGUL WORLD WIDE, INC.
FEDERAL-MOGUL GLOBAL PROPERTIES, INC.
FELT PRODUCTS MFG. CO.
AE GOETZE FB INC.
BRAKE ACQUISITION INC.
FEDERAL-MOGUL AFTERMARKET OF CANADA INC.
FEDERAL-MOGUL CAMSHAFTS, INC.
FEDERAL-MOGUL CAROLINA, INC.
FEDERAL-MOGUL ENGINEERED BEARINGS, INC.
FEDERAL-MOGUL FLOWERY BRANCH, L.L.C.
FEDERAL-MOGUL LAGRANGE, INC.
FEDERAL-MOGUL PISTON RINGS, INC.
FEDERAL-MOGUL POWERTRAIN, INC.
FEDERAL-MOGUL RPB, INC.
FEDERAL-MOGUL SEALING SYSTEMS, INC.
FEDERAL-MOGUL SINTERED PRODUCTS-WAUPUN, INC.
FEDERAL-MOGUL SINTERED PRODUCTS, INC.
FEDERAL-MOGUL SOUTH BEND, INC.
FEDERAL-MOGUL SYSTEMS PROTECTION GROUP, INC.
FEDERAL-MOGUL TECHNOLOGY, INC.
FERODO AMERICA, INC.
FERODO TECHNICAL CENTER INC.
MCCORD SEALING, INC.
T&N INDUSTRIES INC.
WEYBURN ACQUISITION CORPORATION
By: /s/ Scott Argersinger
-----------------------------
Name: Scott Argersinger
Title: Authorized Representative
2
Address for Notices:
Federal-Mogul Corporation
26555 Northwestern Highway
Southfield, MI 48034
Attention: David Sherbin
Fax: 248-354-8103
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Bruce L. Bisson
-----------------------------------
Name: BRUCE L. BISSON
Title: VICE PRESIDENT
Address for Notices:
Rodney Square North
1100 North Market Street
Wilmington DE 19890
Attention: Corporate Trust Division