EXHIBIT 3.2
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HANOVER EQUIPMENT TRUST 2001A
AMENDED AND RESTATED TRUST AGREEMENT
Dated as of August 30, 2001
between
GENERAL ELECTRIC CAPITAL CORPORATION,
as Certificate Holders
and
WILMINGTON TRUST COMPANY,
as Trustee
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TABLE OF CONTENTS
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Page
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SECTION 1. DEFINITIONS..................................................................................... 1
1.1 Definitions.............................................................................. 1
SECTION 2. AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENTS; DECLARATION OF TRUST BY TRUST COMPANY....... 2
2.1 Authority to Execute and Perform Various Documents....................................... 2
2.2 Declaration of Trust by the Trust Company................................................ 2
SECTION 3. PAYMENTS; YIELD;................................................................................ 2
3.1 Priority of Payments..................................................................... 2
3.2 Event of Default......................................................................... 3
3.3 Excepted Payments........................................................................ 3
3.4 Return of Certificate Holder Contribution Upon Sale of the Equipment..................... 4
3.5 Expiration Date.......................................................................... 4
3.6 Certificate Holder Yield................................................................. 4
3.7 Computation of Certificate Holder Yield on any Certificate Holder Contribution........... 4
3.8 Inability to Determine Interest Rate..................................................... 5
3.9 Illegality............................................................................... 5
3.10 Requirements of Law...................................................................... 5
3.11 Indemnity................................................................................ 6
3.12 Taxes.................................................................................... 7
SECTION 4. DUTIES OF THE TRUSTEE........................................................................... 8
4.1 Notice of Certain Events................................................................. 8
4.2 Action upon Instructions................................................................. 8
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4.3 Indemnification.......................................................................... 9
4.4 No Duties Except as Specified in Trust Agreement or Instructions........................ 9
4.5 No Action Except Under Specified Documents or Instructions.............................. 9
4.6 Absence of Duties....................................................................... 10
SECTION 5. THE TRUSTEE.................................................................................... 10
5.1 Acceptance of Trust and Duties.......................................................... 10
5.2 Furnishing of Documents................................................................. 11
5.3 No Representations or Warranties as to any Equipment or Operative Agreements............ 11
5.4 Segregation of Moneys................................................................... 11
5.5 Reliance: Advice of Counsel............................................................. 11
5.6 Liability with Respect to Documents..................................................... 12
5.7 Not Acting in Individual Capacity....................................................... 12
5.8 Books and Records; Tax Returns.......................................................... 12
5.9 Tax Treatment........................................................................... 13
SECTION 6. INDEMNIFICATION OF THE TRUST COMPANY BY THE CERTIFICATE HOLDERS................................ 13
6.1 The Certificate Holders to Indemnify the Trust Company.................................. 13
6.2 Compensation and Expenses............................................................... 14
6.3 Limitation.............................................................................. 14
SECTION 7. TERMINATION OF TRUST AGREEMENT................................................................. 14
7.1 Termination of Trust Agreement.......................................................... 14
7.2 Termination at Option of the Certificate Holders........................................ 14
7.3 Termination at Option of the Trustee.................................................... 15
7.4 Actions by the Trustee upon Termination................................................. 15
7.5 Bankruptcy of Certificate Holders....................................................... 15
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SECTION 8. SUCCESSOR TRUSTEES, CO-TRUSTEES AND SEPARATE TRUSTEES.......................................... 16
8.1 Resignation of the Trustee; Appointment of Successor.................................... 16
8.2 Co-Trustees and Separate Trustees....................................................... 17
8.3 Notice.................................................................................. 17
8.4 Required Consents....................................................................... 17
SECTION 9. SUPPLEMENTS AND AMENDMENTS..................................................................... 17
9.1 Supplements and Amendments.............................................................. 17
9.2 Limitation on Amendments................................................................ 18
SECTION 10. THE CERTIFICATES.............................................................................. 18
10.1 Form of Certificates.................................................................... 18
10.2 Terms of Certificates................................................................... 18
10.3 Payment from Proceeds of Trust Estate Only.............................................. 18
10.4 Place and Manner of Payment............................................................. 19
10.5 Ownership of Certificates............................................................... 19
10.6 Registrations of Transfers; Exchanges................................................... 19
10.7 Mutilated, Lost or Stolen Certificates.................................................. 20
10.8 Payment of Taxes, Etc., on Issuance of New Certificates................................. 20
SECTION 11. MISCELLANEOUS................................................................................. 21
11.1 No Legal Title to Trust Estate in the Certificate Holders............................... 21
11.2 Sale of Equipment by the Trustee is Binding............................................. 21
11.3 Limitations on Rights of Others......................................................... 21
11.4 Notices................................................................................. 21
11.5 Severability............................................................................ 21
11.6 Limitation on the Certificate Holders' Liability........................................ 21
11.7 Separate Counterparts................................................................... 21
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11.8 Successors and Assigns.................................................................. 22
11.9 Headings and Table of Contents.......................................................... 22
11.10 GOVERNING LAW........................................................................... 22
11.11 Performance by the Certificate Holders.................................................. 22
11.12 No Implied Waiver....................................................................... 22
11.13 Termination of Lessee's Rights.......................................................... 22
11.14 Name.................................................................................... 22
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AMENDED AND RESTATED TRUST AGREEMENT
This AMENDED AND RESTATED TRUST AGREEMENT (this "Trust
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Agreement") dated as of August 30, 2001 between GENERAL ELECTRIC CAPITAL
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CORPORATION, a Delaware corporation (together, with their respective permitted
successors and assigns hereunder, the "Certificate Holders") and WILMINGTON
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TRUST COMPANY, a Delaware banking corporation (in its individual capacity, the
"Trust Company"; and in its capacity as trustee hereunder, together with its
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permitted successors and assigns hereunder, the "Trustee").
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Preliminary Statement
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On August 2, 2001, (i) J.P. Morgan Leasing Inc. (the "Original
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Certificate Holder") and the Trust Company formed Hanover Equipment Trust 2001A,
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a Delaware business trust (the "Trust"), pursuant to the Delaware Business Trust
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Act, 12 Del.C. c.38 (the "Delaware Act"), (ii) Trustee executed and filed in the
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office of the Secretary of State of the State of Delaware a Certificate of Trust
in the form attached hereto as Exhibit A (the "Certificate of Trust"), and (iii)
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Original Certificate Holder and the Trust Company entered into that certain
Trust Agreement dated as of August 2, 2001 (the "Original Trust Agreement").
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The Original Certificate Holder has conveyed all of its
interest in the Trust to the Certificate Holders pursuant to that certain
Assignment of Beneficial Interest in Trust dated as of the date hereof. The
Certificate Holders and Trustee desire to amend and restate the Original Trust
Agreement in its entirety to read as set forth herein.
This Trust Agreement is being entered into for the purpose of
vesting in the Trust title to the Trust Estate, as hereafter defined, and
responsibility for the protection and conservation of the Trust Estate.
The Trust Company is willing to act as trustee hereunder and
to accept the trust created hereby, subject to the terms and conditions of this
Trust Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree to amend and restate the Original Trust Agreement in its entirety as
follows:
SECTION 1. DEFINITIONS
1.1 Definitions. For purposes of this Trust Agreement,
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capitalized terms used in this Trust Agreement and not otherwise defined herein
shall have the meanings assigned to them in Annex A attached hereto.
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SECTION 2. AUTHORITY TO EXECUTE AND PERFORM
VARIOUS DOCUMENTS; DECLARATION
OF TRUST BY TRUST COMPANY
2.1 Authority to Execute and Perform Various Documents. The Certificate
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Holders hereby authorize and direct the Trustee: (i) on the Closing Date or the
Release Date, as applicable, to execute and deliver, in the name and on behalf
of the Trust (in the form provided to it by the Certificate Holders), each
Operative Agreement to which the Trust is a party and any other agreements,
instruments, certificates, documents or other writings or records related to the
transactions contemplated thereby to which the Trust is a party, (ii) to take
whatever action shall be required to be taken by the Trustee or the Trust by the
terms of, and exercise the rights and perform the duties under, each of the
documents, agreements, instruments and certificates referred to in clause (i)
above as set forth in such documents, agreements and certificates, (iii) subject
to the terms of this Trust Agreement and the Operative Agreements, to take such
other action in connection with the foregoing as the Certificate Holders may
from time to time direct in writing, and (iv) to execute and file in the office
of the Secretary of State of the State of Delaware (a) such amendments,
restatements or corrections to the Certificate of Trust as may, from time to
time, be required under Sections 3810(b), (c) or (e) of the Delaware Act and (b)
a Certificate of Cancellation in the form required by Section 3810(d) of the
Delaware Act upon termination of the Trust pursuant to Section 7 of this Trust
Agreement and the winding up of the Trust's affairs.
2.2 Declaration of Trust by the Trust Company. The Trust Company hereby
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declares that it will hold all estate, right, title and interest of the Trust in
and to the Equipment, the Certificate Holder Contributions, the Note Proceeds,
the Operative Agreements and any other property contributed by the Certificate
Holders, including, without limitation, all amounts on account of Rent,
insurance proceeds, indemnity or other payments of any kind (collectively, the
"Trust Estate"), as Trustee upon the trusts set forth herein and for the use and
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benefit of the Certificate Holders, subject, however, to the provisions of the
Participation Agreement, the Lease, the Indenture and the other Operative
Agreements.
SECTION 3. PAYMENTS; YIELD;
3.1 Priority of Payments. (a) Subject to the terms and requirements of the
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Operative Agreements, all payments and amounts received by the Trust, on its
behalf, shall be distributed forthwith upon receipt in the following order of
priority: first, so much of such payment or amounts as shall be required to pay
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or reimburse the Trust Company for any fees, compensation, indemnification or
expenses (including reasonable attorneys' fees and expenses) not otherwise paid
or reimbursed to the Trust Company and as to which the Trust Company is entitled
to be paid or reimbursed hereunder or under any other Operative Agreement shall
be retained by the Trustee and forthwith remitted to the Trust Company; and
second, promptly following receipt by the Trust, ratably to the Certificate
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Holders. Notwithstanding the foregoing, in the event that, upon the termination
or expiration of the Lease, the Trust has any amounts remaining after (i)
payment to the Certificate Holders of the Certificate Holder Contribution,
together with all accrued and unpaid Certificate Holder Yield and all other
amounts owed to the Certificate Holders hereunder (including, without
limitation, premium), and (ii) payment and
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performance by the Lessor of all of its obligations under the Operative
Agreements, the Trust shall pay any such remaining amounts to Lessee.
(b) Subject to the terms and requirements of the Operative
Agreements, on each Certificate Holder Yield Payment Date, the Certificates will
be entitled to payments on the unpaid amount thereof in an amount equal to the
Certificate Holder Yield with respect thereto.
(c) Subject to the terms and requirements of the Operative
Agreements, the Certificate Holder Contribution shall be repaid to the
Certificate Holders as provided in this Section 3.
(d) The Trust may not prepay the Certificate Holder
Contributions, in whole or in part, except (i) in accordance with Section 2.2 of
the Participation Agreement and (ii) as otherwise provided in this Section 3
(including without limitation, clause (e) below). Upon any such prepayment, the
Certificate Holders shall be entitled to a prepayment premium, but only to the
extent that the Securityholders are entitled to prepayment premium under the
Indenture with respect to the related prepayment of the Securities. The
prepayment premium shall be a percentage equal to the percentage premium paid to
the Securityholders for the related prepayment of the Securities.
Notwithstanding the foregoing, the Trust shall retain all such prepayment
premiums in an interest bearing account, and shall not distribute any portion of
such prepayment premium to the Certificate Holders, until such time as (A) the
Certificate Holders shall have been paid the Certificate Holder Contribution,
together with all accrued and unpaid Certificate Holder Yield and all other
amounts owed to the Certificate Holders hereunder or (B) if earlier, the
termination of the Lease.
(e) In the event a Special Redemption shall occur with respect
to the Securities, on the date the Securities are so redeemed the Trust shall
pay to the Certificate Holders an amount equal to the sum of (i) the Certificate
Holder Contribution, (ii) all accrued and unpaid Certificate Holder Yield
through such date and (iii) a premium of one percent (1%) of the Certificate
Holder Contribution being repaid on such date.
(f) If all or a portion of the Certificate Holder Contribution
or Certificate Holder Yield on the Certificates is not paid when due (whether at
the stated maturity, by acceleration or otherwise), such overdue amount, without
limiting the rights of the Certificate Holders under any Operative Agreement,
will bear interest at a rate per annum equal to the Overdue Rate.
3.2 Event of Default. Upon the occurrence of an Event of
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Default and the Securities becoming due and payable, whether automatically or
with the consent, or at the request of, the Indenture Trustee, the Certificate
Holder Contributions evidenced by the Certificates (with accrued Certificate
Holder Yield thereon) and all other amounts owing to the Certificate Holders
under this Trust Agreement and the other Operative Agreements will immediately
become due and payable.
3.3 Excepted Payments Notwithstanding anything in this
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Section 3 or elsewhere in this Trust Agreement to the contrary, any Excepted
Payment received at any time by the Trust shall be distributed promptly to the
Person entitled to receive such Excepted
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Payment and shall not constitute a part of the Collateral pursuant to the
Security Documents and shall not be paid to the Account.
3.4 Return of Certificate Holder Contribution Upon Sale of the
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Equipment. Upon the date of any purchase by Lessee of all of the Equipment, then
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subject to the Lease, the Participation Agreement and the other Operative
Agreements, and upon the payment in full of the Securities, the Trust shall,
from the Trust Estate, (a) return to each Certificate Holder its outstanding
Certificate Holder Contribution evidenced by its Certificate, in full, (b)
return to each Certificate Holder all Certificate Holder Yield accrued and
unpaid on the Certificate Holder Contribution represented by its Certificate to
the date of such return and (c) return to each Certificate Holder all other
amounts then due and payable by the Trust hereunder or under the other Operative
Agreements to Certificate Holders. Upon the date of a purchase by Lessee of a
portion of the Equipment, then subject to the Lease, the Participation Agreement
and the other Operative Agreements, and upon the payment in full of the amounts
required to be paid to the Securityholders with respect to such purchase, the
Trust shall, from the Trust Estate, return to each Certificate Holder a pro rata
portion of its Certificate Holder Contribution based on the purchase price of
the sold Equipment as it relates to the original Equipment Cost of all of the
Equipment, together with all Certificate Holder Yield accrued and unpaid on such
portion of the Certificate Holder Contribution to the date of such purchase.
3.5 Expiration Date. On the Expiration Date or earlier
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termination of the Lease, unless the Trust shall have retained ownership of the
Equipment after the termination of the Lease, the Trustee shall pay to each
Certificate Holder, from the Trust Estate, all unpaid Certificate Holder
Contribution for such Certificate Holder as of such date together with all
accrued but unpaid Certificate Holder Yield thereon and all other amounts then
due and payable by the Trust hereunder or under the other Operative Agreements
to the Certificate Holders. If any amount remains in the Trust Estate after the
payment set forth in the previous sentence and after the payment and performance
of all other obligations of the Lessor under the Operative Agreements, Trustee
shall deliver such amounts to Lessee. If, after the Expiration Date or earlier
termination of the Lease, the Trust retains ownership of the Equipment, the
Trustee shall distribute all amounts received by the Trust on or after such date
in accordance with Section 3.1.
3.6 Certificate Holder Yield. The aggregate outstanding
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Certificate Holder Contributions of all Certificate Holders shall accrue
Certificate Holder Yield on the unpaid amount thereof at a rate per annum equal
to the Yield Rate (subject to Section 3.1(e) hereof). Certificate Holder Yield
shall be payable on each Certificate Holder Yield Payment Date in respect of the
Certificate Holder Contributions. The Yield Rate shall be based on the
Eurodollar Rate unless another provision of this Article 3 provides that the
Yield Rate shall be based on the ABR.
3.7 Computation of Certificate Holder Yield on any Certificate
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Holder Contribution. Certificate Holder Yield in respect of any Certificate
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Holder Contribution shall be calculated by the Trust on the basis of a 360-day
year for the actual days elapsed (including the first day and excluding the last
day), or, in the case of Certificate Holder Yield accruing by reference to the
ABR, on the basis of a 365-day or 366-day year for the actual days elapsed.
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3.8 Inability to Determine Interest Rate. If prior to the
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first day of any Interest Period:
(a) the Required Certificate Holders shall have determined
(which determination shall be conclusive and binding upon the Trust absent
manifest error) that, by reason of circumstances affecting the eurodollar
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period, or
(b) the Trust shall have received notice from the Required
Certificate Holders that the Eurodollar Rate determined or to be determined for
such Interest Period will not adequately and fairly reflect the cost to such
Certificate Holders (as conclusively certified by such Certificate Holders) of
making or maintaining their affected Certificate Holder Contributions during
such Interest Period, such Certificate Holders shall give telecopy or telephonic
notice thereof to the Trust and the other Certificate Holders as soon as
practicable thereafter. If such notice is given, the Yield Rate as of the first
day of such Interest Period shall be based on the ABR until such notice has been
withdrawn by the Required Certificate Holders.
3.9 Illegality. Notwithstanding any other provision herein,
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if, after the date hereof, any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Certificate
Holder to receive Certificate Holder Yield based on the Eurodollar Rate, the
Yield Rate shall be based on the ABR commencing on the last day of the then
current Interest Period or within such earlier period as required by law. If any
such conversion from a Yield Rate based on the Eurodollar Rate to a Yield Rate
based on the ABR occurs on a day which is not the last day of the then current
Interest Period, the Trust shall pay to such Certificate Holder such amounts, if
any, as may be required pursuant to Section 3.11.
3.10 Requirements of Law. (a) In the event of a change, after
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the date hereof, in any Requirement of Law as in existence on the date hereof or
in the interpretation or application thereof or compliance by any Certificate
Holder with any request or directive (whether or not having the force of law)
from any central bank or other Governmental Authority made subsequent to the
date hereof:
(i) shall subject any Certificate Holder to any tax of any
kind whatsoever with respect to this Agreement, any Certificate or the
Certificate Holder Contribution made by it, or change the basis of
taxation of payments to such Certificate Holder in respect thereof
(except for Non-Excluded Taxes and changes in the rate of tax on the
overall net income of such Certificate Holder or tax imposed in lieu of
net income taxes);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Certificate Holder which
is not otherwise included in the determination of the Eurodollar Rate;
or
(iii) shall impose on such Certificate Holder any other
condition;
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and the result of any of the foregoing is to increase the cost to such
Certificate Holder, by an amount which such Certificate Holder deems to be
material, of making or continuing or maintaining the Certificate Holder
Contribution with the Yield Rate based on the Eurodollar Rate or to reduce any
amount receivable hereunder in respect thereof, then, in any such case, the
Trust shall promptly pay such Certificate Holder, upon its demand, any
additional amounts necessary to compensate such Certificate Holder for such
increased cost or reduced amount receivable. If any Certificate Holder becomes
entitled to claim any additional amounts pursuant to this subsection, it shall
promptly notify the Trust by delivery of a certificate setting forth the amounts
due and a description of the event by reason of which it has become so entitled.
A certificate as to any additional amounts payable pursuant to this subsection
submitted by such Certificate Holder to the Trust shall be conclusive in the
absence of manifest error. This covenant shall survive the termination of this
Agreement and the payment of the Certificates and all other amounts payable
hereunder.
(b) In the event that any Certificate Holder shall have determined
that any change in any Requirement of Law as in existence on the date hereof
regarding capital adequacy, reserve requirements or similar requirements or in
the interpretation or application thereof or compliance by such Certificate
Holder or any corporation controlling such Certificate Holder with any request
or directive regarding capital adequacy, reserve requirements or similar
requirements (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof does or shall have the effect of
reducing the rate of return on such Certificate Holder's or such corporation's
capital as a consequence of its obligations hereunder to a level below that
which such Certificate Holder or such corporation could have achieved but for
such change or compliance (taking into consideration such Certificate Holder's
or such corporation's policies with respect to capital adequacy) by an amount
deemed by such Certificate Holder to be material, then from time to time, after
submission by such Certificate Holder to the Trust of a written request
therefore, the Trust shall pay to such Certificate Holder such additional amount
or amounts as will compensate such Certificate Holder for such reduction. A
certificate as to any additional amounts payable pursuant to this subsection
submitted by such Certificate Holder to the Trust shall be conclusive in the
absence of manifest error. This covenant shall survive the termination of this
Agreement and the payment of the Certificates and all other amounts payable
hereunder.
3.11 Indemnity. The Trust agrees to indemnify each Certificate Holder
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and to hold each Certificate Holder harmless from any reasonable loss or
expenses which such Certificate Holder may sustain or incur as a consequence of
(a) default by the Trust in payment when due of the any Certificate Holder
Contribution or Certificate Holder Yield, (b) default by the Trust in making a
borrowing of, conversion into or continuation of Certificate Holder
Contributions after the Trust has given a notice requesting the same in
accordance with the provisions of this Agreement, (c) default by the Trust in
making any prepayment after the Trust has given a notice thereof in accordance
with the provisions of this Agreement or (d) the making of a repayment of
Certificate Holder Contributions on a day which is not the last day of an
Interest Period with respect thereto, including, without limitation, in each
case, any such loss or expense arising from the reemployment of funds obtained
by it or from fees payable to terminate the deposits from which such funds were
obtained. This covenant shall survive the termination
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of this Agreement and the payment of the Certificates and all other amounts
payable hereunder. A certificate as to any additional amounts payable pursuant
to this Section submitted by such Certificate Holder to the Trust shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Certificates and all other
amounts payable hereunder.
3.12 Taxes. (a) Provided that a Certificate Holder has complied with
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Section 3.13(b), all payments made by the Trust under this Agreement and the
Certificates shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on any Certificate Holder as a result of a
present or former connection between the jurisdiction of the government or
taxing authority imposing such tax and such Certificate Holder (excluding a
connection arising solely from such Certificate Holder having executed,
delivered, performed its obligations or received a payment under, or enforced,
this Agreement or the Certificates) or any political subdivision or taxing
authority thereof or therein (all such non-excluded taxes, levies, imposts,
duties, charges, fees, deductions and withholdings being hereinafter called
"Non-Excluded Taxes"). If any Non-Excluded Taxes are required to be withheld
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from any amounts payable to a Certificate Holder hereunder or under the
Certificates, the amounts so payable to such Certificate Holder shall be
increased to the extent necessary to yield to such Certificate Holder (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement and the
Certificates. Whenever any Non-Excluded Taxes are payable by the Trust, as
promptly as possible thereafter the Trust shall send to such Certificate Holder
a certified copy of an original official receipt received by the Trust showing
payment thereof. If the Trust fails to pay any Non-Excluded Taxes when due to
the appropriate taxing authority or fails to remit the required receipts or
other required documentary evidence, the Trust shall indemnify the Certificate
Holders for any incremental taxes, interest or penalties that may become payable
by Certificate Holder as a result of any such failure. The agreements in this
subsection shall survive the termination of this Agreement and the payment of
the Certificates and all other amounts payable hereunder. Notwithstanding the
foregoing, before making any demand for payment under this Section 3.12(a) each
Certificate Holder agrees to use commercially reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to designate a
different Certificate Holder office if the making of such a designation would
avoid the need for, or reduce the amount of, such payments required under this
Section 3.12(a).
(b) Each Certificate Holder that is not incorporated under the laws
of the United States of America or a state thereof agrees that prior to the
first Certificate Holder Yield Payment Date it will deliver to the Trust (i) two
duly completed copies of United States Internal Revenue Service Form W-8BEN or
W-8ECI or successor applicable form, as the case may be, and (ii) an Internal
Revenue Service Form W-9 or successor applicable form. Each such Certificate
Holder also agrees to deliver to the Trust two further copies of the said Form
W-8BEN or W-8ECI and Form W-9, or successor applicable forms or other manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the Trust and such
extensions or renewals thereof as may reasonably be requested by the
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Trust, unless in any such case an event (including, without limitation, any
change in treaty, law or regulation) has occurred prior to the date on which any
such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Certificate Holder from duly completing
and delivering any such form with respect to it and such Certificate Holder so
advises the Trust. Such Certificate Holder shall certify (i) in the case of a
Form W-8BEN or W-8ECI, that it is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes and (ii) in the case of a Form W-9, that it is entitled to an exemption
from United States backup withholding tax. Each Certificate Holder which fails
to provide to the Trust in a timely manner such forms shall reimburse the Trust
upon demand for any penalties paid by the Trust as a result of any failure of
the Trust to withhold the required amounts, that are caused by such Certificate
Holder's failure to provide the required forms in a timely manner.
SECTION 4. DUTIES OF THE TRUSTEE
4.1 Notice of Certain Events. In the event the Trustee shall have
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knowledge of any Lease Default, Lease Event of Default, Indenture Default or
Indenture Event of Default, the Trustee shall give prompt telephonic notice
thereof followed by written confirmation to the Certificate Holders, the Lessee,
the Indenture Trustee and any other Person identified in writing by the
Certificate Holders to the Trustee unless such Default or Event of Default no
longer exists before the giving of such notice. Subject to the provisions of
Section 4.3, the Trustee shall take or refrain from taking such action, not
inconsistent with the provisions of the Operative Agreements, with respect
thereto as the Required Certificate Holders shall direct by written instructions
to the Trustee. If the Trustee shall have given the Certificate Holders notice
of any event and shall not have received written instructions as above provided
within thirty (30) days after giving notice in accordance with Section 11.4 of
such event to the Certificate Holders, the Trustee may, but shall be under no
duty to, and shall have no liability for its failure or refusal to, take or
refrain from taking any action with respect thereto, not inconsistent with the
provisions of the Operative Agreements, as the Trustee shall deem advisable and
in the best interests of the Certificate Holders. For all purposes of this Trust
Agreement, in the absence of actual knowledge of an officer in the Corporate
Trust Administration Department of the Trust Company, the Trustee shall be
deemed not to have knowledge of any Default or Event of Default unless the
Trustee receives written notice thereof.
4.2 Action upon Instructions. Subject to the provisions of Section
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4.3, upon the written instructions of the Required Certificate Holders, or the
Lessee given in accordance with Section 11.1 of the Participation Agreement, the
Trustee will take or refrain from taking such action or actions, not
inconsistent with the provisions of the Operative Agreements, as may be
specified in such instructions. If the Trustee is unable to determine whether
any such action or actions that it has been instructed to take by the
Certificate Holders or the Lessee are inconsistent with the provisions of the
Operative Agreements, the Trustee shall give notice in accordance with Section
11.4 of such proposed action or actions to the Certificate Holders and the
Lessee and unless, within ten (10) Business Days, any of such parties advises
the Trustee in writing that the proposed action or actions are inconsistent with
the provisions of the Operative
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Agreements (including specific reference to the particular provisions in
question), the Trustee shall be entitled to presume that the proposed action or
actions are not inconsistent with the provisions of the Operative Agreements and
the Trustee shall proceed in accordance with such instructions. The Trustee and
the Certificate Holders acknowledge that the Trustee is required to take action
and to refrain from taking action with regard to the Indenture as instructed by
the Lessee in accordance with Section 11.1(a) of the Participation Agreement,
other than any exercise of the Excepted Rights as provided therein.
4.3 Indemnification. The Trustee shall not be required to take or
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refrain from taking any action under this Trust Agreement or any other Operative
Agreement unless the Trust Company shall have been indemnified by the Lessee or,
if the Trust Company reasonably believes such indemnity to be inadequate, by the
Certificate Holders, in manner and form reasonably satisfactory to the Trust
Company, against any liability, fee, cost or expense (including reasonable
attorneys' fees and expenses) that may be incurred or charged in connection
therewith, other than such as may result from the willful misconduct or gross
negligence of the Trust Company or the Trustee or from the failure of the Trust
Company or the Trustee to use ordinary care in the receiving, handling and
disbursing of funds actually received by it in accordance with the terms of the
Trust Agreement; and, if the Certificate Holders or the Lessee shall have
directed the Trustee to take or refrain from taking any action under any
Operative Agreement, the Certificate Holders or the Lessee, as applicable,
agrees to furnish such indemnity by a written undertaking of indemnification
and, in addition, to pay the reasonable compensation of the Trust Company
(including the advancement and payment of reasonable attorneys' fees and
expenses) for the services performed or to be performed by the Trustee pursuant
to such direction. The Trustee shall not be required to take any action under
any Operative Agreement if the Trust Company shall reasonably determine, or
shall have been advised by counsel, that such action is likely to result in
personal liability for which the Trust Company has not been and will not be
adequately indemnified or is contrary to the terms hereof or of any Operative
Agreement to which the Trustee is a party or is otherwise contrary to law. The
Trustee shall be under no liability with respect to any action taken or omitted
to be taken by the Trustee in accordance with instructions of the Certificate
Holders or the Lessee pursuant to Section 4.2.
4.4 No Duties Except as Specified in Trust Agreement or Instructions.
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The Trustee shall not have any duty or obligation to manage, control, use, make
any payment in respect of, register, record, insure, inspect, sell, dispose of
or otherwise deal with the Equipment, or any other part of the Trust Estate, or
to otherwise take or refrain from taking any action under or in connection with
any Operative Agreement to which the Trust is a party, except as expressly
provided by the terms of this Trust Agreement or in written instructions from
all Certificate Holders or the Lessee received pursuant to this Agreement; and
no implied duties or obligations shall be read into this Trust Agreement against
the Trustee. The Trust Company nevertheless agrees that it will, at its own cost
and expense, promptly take all action as may be necessary to discharge any
Lessor's Liens arising by through or under the Trust Company on any part of the
Trust Estate.
4.5 No Action Except Under Specified Documents or Instructions. The
----------------------------------------------------------
Trustee agrees that it will not manage, control, use, sell, dispose of or
otherwise deal with the Equipment, or any other part of the Trust Estate, except
(i) as required by the terms of the
10
Operative Agreements, (ii) in accordance with the powers granted to, or the
authority conferred upon, it pursuant to this Trust Agreement or (iii) in
accordance with the express terms hereof or with written instructions from all
Certificate Holders or the Lessee pursuant to this Agreement.
4.6 Absence of Duties. (a) The Trustee shall not have any duty to (i)
-----------------
file, record or deposit any Operative Agreement or any other document, or to
maintain any such filing, recording or deposit or to refile, rerecord or
redeposit any such document, (ii) obtain insurance on any Equipment or effect or
maintain any such insurance, other than to receive and forward to the
Certificate Holders any notices, policies, certificates or binders furnished to
the Trustee pursuant to the Lease, (iii) maintain any Equipment, (iv) pay or
discharge any Tax or any Lien owing with respect to or assessed or levied
against any part of the Trust Estate, except as provided in the last sentence of
Section 4.4, other than to forward notice of such Tax or Lien received by the
Trustee to the Certificate Holders, (v) confirm, verify, investigate or inquire
into the failure to receive any reports or financial statements of the Lessee,
(vi) inspect any Equipment at any time or ascertain or inquire as to the
performance or observance of any of the covenants of the Lessee or any other
Person under any Operative Agreement with respect to any Equipment, or (vii)
manage, control, use, sell, dispose of or otherwise deal with any Equipment or
any part thereof or any other part of the Trust Estate, except as provided in
Section 4.5.
(b) Notwithstanding anything contained herein to the contrary, the
Trustee shall not be required to take any action in any jurisdiction other than
the State of Delaware if the taking of such action will: (i) require the consent
or approval or authorization or order of or the giving of notice to, or the
registration with or the taking of any action in respect of, any state or other
governmental authority or agency of any jurisdiction other than the State of
Delaware; (ii) result in any fee, tax or other governmental charge under the
laws of any jurisdiction or any political subdivisions thereof in existence on
the date hereof other than the State of Delaware becoming payable by the
Trustee; or (iii) subject the Trustee to personal jurisdiction in any
jurisdiction other than the State of Delaware for causes of action arising from
acts unrelated to the consummation of the transactions by the Trustee
contemplated hereby.
(c) The Trustee, in the exercise or administration of the trusts and
powers hereunder, including its obligations under Section 4.2 hereof, may, at
the reasonable expense of the Lessee, employ agents, attorneys, accountants and
auditors and enter into agreements with any of them and the Trust Company shall
not be liable, either in its individual capacity or in its capacity as Trustee,
for the default or misconduct of any such agents, attorneys, accountants or
auditors if such agents, attorneys, accountants or auditors shall have been
selected by it in good faith and after due inquiry. Notwithstanding the
foregoing, as long as there does not exist any Lease Event of Default, no such
agents, attorneys, accountants or auditors shall be employed without the prior
written consent of the Lessee, which consent may not be unreasonably withheld or
delayed; provided that such consent shall not be required with respect to the
--------
Trustee's exercise or administration of the trusts and powers hereunder.
SECTION 5. THE TRUSTEE
5.1 Acceptance of Trust and Duties. The Trust Company accepts the
------------------------------
trust hereby created and agrees to perform the same, but only upon the terms of
this Trust Agreement. The Trustee agrees to receive, manage and disburse any
moneys constituting part of the Trust
11
Estate actually received by it as Trustee in accordance with the terms of this
Trust Agreement. The Trust Company shall not be answerable or accountable under
any circumstances, except for (i) its own willful misconduct or gross
negligence, (ii) the inaccuracy of any of its representations or warranties
contained in this Trust Agreement or the Participation Agreement or (iii) its
failure to perform obligations expressly undertaken by it in this Agreement and
the Operative Agreements and (iv) Taxes based on or measured by any fees,
commissions or compensation received by it for acting as Trustee in connection
with any of the transactions contemplated by the Operative Agreements.
5.2 Furnishing of Documents. The Trustee will furnish to the
-----------------------
Certificate Holders, and to such other Persons as the Certificate Holders shall
direct in writing, promptly upon receipt thereof, duplicates or copies of all
reports, notices, requests, demands, opinions, certificates, financial
statements and any other instruments or writings furnished to the Trustee
hereunder or to the Trust under the Operative Agreements, unless by the express
terms of any Operative Agreement a copy of the same is required to be furnished
by some other Person directly to the Certificate Holders, or the Trustee shall
have determined that the same has already been furnished to the Certificate
Holders.
5.3 No Representations or Warranties as to any Equipment or Operative
-----------------------------------------------------------------
Agreements. The Trust Company makes (i) NO REPRESENTATION OR WARRANTY, EITHER
- ----------
EXPRESS OR IMPLIED, AS TO THE TITLE, VALUE, CONDITION, DESIGN, OPERATION,
MERCHANTABILITY OR FITNESS FOR USE OR PARTICULAR PURPOSE OF ANY EQUIPMENT OR ANY
OTHER REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO ANY EQUIPMENT OR ANY
OTHER PART OF THE TRUST ESTATE WHATSOEVER, except that the Trust Company hereby
represents, warrants and covenants to the Certificate Holders that it will
comply with the last sentence of Section 4.4, and (ii) no representation or
warranty as to the validity or enforceability of any Operative Agreement or as
to the correctness of any statement made by a Person other than the Trust
Company contained in any thereof, except that the Trust Company represents,
warrants and covenants to the Certificate Holders that this Trust Agreement has
been, and each of the other Operative Agreements which contemplates execution
thereof by the Trustee on behalf of the Trust has been or will be, executed and
delivered by its officers who are, or will be, duly authorized to execute and
deliver documents on its behalf and is enforceable against it or the Trust, as
the case may be, in accordance with its terms except to the extent such
enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
5.4 Segregation of Moneys. Except as otherwise provided herein or in
---------------------
any of the Operative Agreements, any moneys received by the Trustee hereunder
need not be segregated in any manner, except as may be required by law.
5.5 Reliance: Advice of Counsel. The Trust Company shall not incur
---------------------------
any liability to any Person in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper believed by it in good faith to be genuine and to be signed by
the proper party or parties. The Trust Company and the Trustee may accept and
rely upon a certified copy of a resolution of the board of directors or
12
other governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the manner of ascertainment of which is not
specifically prescribed herein, the Trust Company and the Trustee may for all
purposes hereof rely on an officers' certificate of the relevant party, as to
such fact or matter, and such certificate shall constitute full protection to
the Trust Company and the Trustee for any action taken or omitted to be taken by
it in good faith in reliance thereon, except as provided in Section 5.1 hereof.
In the administration of the Trust, the Trustee may execute any of the trusts or
powers hereof and perform its powers and duties hereunder directly or through
agents or attorneys and may consult with counsel, accountants and other skilled
Persons to be selected and employed by it, and neither the Trust Company nor the
Trustee shall be liable for anything done, suffered or omitted in good faith by
it in accordance with the advice or opinion of any such counsel, accountants or
other skilled Persons.
5.6 Liability with Respect to Documents. Neither the Trust Company
-----------------------------------
nor the Trustee shall incur any liability to any Person for the due execution
hereof by the Certificate Holders or for the form, character, genuineness,
sufficiency, value or validity of any Equipment or any other part of the Trust
Estate or for or in respect of the validity or sufficiency of any of the
Operative Agreements (other than with respect to due execution by the Trust
Company or the Trustee) and neither the Trust Company nor the Trustee shall
assume or incur any liability, duty or obligation to any Person or to the
Certificate Holders, other than as expressly provided for herein or in any of
the other Operative Agreements.
5.7 Not Acting in Individual Capacity. All Persons (other than the
---------------------------------
Certificate Holders to the extent provided herein) having any claim against the
Trust Company or the Trustee by reason of the transactions contemplated by the
Operative Agreements shall look only to the Trust Estate (or a part thereof, as
the case may be) for payment or satisfaction thereof, except as specifically
provided in this Section 5.
5.8 Books and Records; Tax Returns. (a) The Trustee and the
------------------------------
Certificate Holders shall treat the trust created hereby as a grantor trust for
all federal and state income tax filing purposes.
(b) The Trustee shall file, or cause to be filed, an application with
the Internal Revenue Service for a taxpayer identification number with respect
to the Trust. The Certificate Holders shall prepare and file, or cause to be
prepared and filed, the Federal tax return, reports, state tax returns and other
forms with respect to the Taxes due and payable by the Trust in connection with
the transactions contemplated hereby or by the other Operative Agreements. In
the event that the Certificate Holders shall request the Trustee to prepare (or
cause to be prepared) such tax returns, at the expense of the Trust, the
Certificate Holders shall furnish to Trustee all such information as may be
required from the Certificate Holders in connection with the preparation of such
tax returns. The Trustee shall keep copies of all returns delivered to or filed
by it relating to the Trust.
(c) The Certificate Holders shall sign on behalf of the Trust any and
all tax returns of the Trust.
13
(d) Neither the Trustee nor the Trust Company shall be under any
obligation to appear in, prosecute or defend any action, which in its opinion
may require it to incur any out-of-pocket expense or any liability unless it
shall be furnished with such reasonable security and indemnity against such
expense or liability as it may reasonably require. The Trustee may, but shall be
under no duty to, undertake such action as it may deem necessary at any and all
times, without any further action by the Certificate Holders to protect the
Equipment or any other part of the Trust Estate and the rights and interests of
the Certificate Holders pursuant to the terms of this Trust Agreement; provided
--------
that the Trust Company may obtain reimbursement for the reasonable out-of-pocket
expenses and costs (including reasonable attorneys fees and expenses) of such
actions, undertakings or proceedings from the Lessee. Each of the Certificate
Holders and the Trustee, by entering into this Trust Agreement, agrees that it
will file its own Federal, state and local income, franchise and other tax
returns in a manner that is consistent with the treatment of the Trust as a
grantor trust. The parties agree that, unless otherwise required by final
decision (i.e., one from which no appeal can be taken or with respect to which
the time for appeal has expired) of the appropriate taxing authorities or court
of competent jurisdiction, the Certificate Holders shall file, or cause to be
filed, annual or other necessary returns, reports and other forms consistent
with the characterization of the Trust as a grantor trust for such tax purposes.
5.9 Tax Treatment. It is the intention of the parties for the Trust
-------------
to be disregarded for federal income tax purposes and be treated as a mere
financing vehicle. This Trust is not a business trust for tax purposes. It is
the intention of the parties hereto that, to the extent the Trust is not
considered a mere financing vehicle, then solely for income and franchise tax
purposes, the Trust will be treated as a grantor trust. The Certificate Holders
and the Trustee, by entering into this Trust Agreement, agree that they will
file their own Federal, state and local income, franchise and other tax returns
in a manner that is consistent with the treatment of the Trust as a grantor
trust.
SECTION 6. INDEMNIFICATION OF THE TRUST COMPANY BY THE CERTIFICATE HOLDERS
6.1 The Certificate Holders to Indemnify the Trust Company. The
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Certificate Holders agree to assume liability for, and to defend, indemnify and
hold harmless the Trust Company from and against, any and all obligations,
liabilities, losses, actions, suits, penalties, taxes (other than any taxes on,
based on or measured by the compensation received by the Trust Company for
acting as Trustee hereunder), claims, demands, costs and expenses (including
reasonable attorneys fees and expenses) of any nature whatsoever (collectively,
"Claims") which may be imposed on, incurred by or asserted at any time against
------
the Trust Company or the Trustee (but only if and to the extent that the Trust
Company has not actually received payment with respect to such claims from
Lessee or any other party) in any way relating to or arising out of the Trust
Estate, any of the Equipment included therein, the administration of the Trust
Estate or any action or inaction of the Trustee hereunder, under the Operative
Agreements or any transaction contemplated thereby, or in any way relating to or
arising or alleged to arise out of (a) the financing, refinancing, purchase,
acceptance, rejection, ownership, design, construction, delivery, nondelivery,
leasing, subleasing, possession, use, operation, repair, modification,
14
transportation, condition, sale, return, repossession (whether by summary
proceedings or otherwise), or any other disposition of any of the Equipment or
any part thereof; (b) any latent or other defects whether or not discoverable;
(c) a violation of Environmental Laws, Environmental Claims or other loss of or
damage to any of the Equipment or the environment relating to any of the
Equipment, the Lessee or the Certificate Holders; (d) any breach by each of the
Certificate Holders of any of its representations or warranties under the
Operative Agreements or failure by each of the Certificate Holders to perform or
observe any covenant or agreement to be performed by it under any of the
Operative Agreements; and (e) personal injury, death or property damage,
including Claims based on strict liability in tort except only that the
Certificate Holders shall not be required to indemnify the Trust Company for
expenses arising or resulting from any of the matters described in the last
sentences of Sections 4.4 and 5.1 and to the extent the matters arise from the
gross negligence or willful misconduct of the Trust Company. The indemnities
contained in this Section 6.1 shall survive the resignation or removal of the
Trustee and the termination of this Trust Agreement.
6.2 Compensation and Expenses. The Trust Company shall receive from
-------------------------
the Lessee as compensation for its services hereunder the fees set forth on
Exhibit B hereto. The Trust Company shall also be entitled to be reimbursed by
- ---------
the Lessee for its reasonable expenses (including reasonable attorneys' fees and
expenses) incurred in the performance of its duties as Trustee hereunder and to
be compensated reasonably for any extraordinary services rendered hereunder at
the request of the Certificate Holders, provided, that such extraordinary
services shall be subject to the prior written approval (not to be unreasonably
withheld or delayed) of Lessee unless Lessee is directly or indirectly
responsible for the need for such services.
6.3 Limitation. The Trust Company and the Trustee shall not be
----------
required to exhaust their remedies against the Lessee (or any other liable
Person) under the Operative Agreements before seeking to enforce their rights
against the Certificate Holders under this Section 6; provided that with respect
to claims for indemnification under the Operative Agreements, the Trust Company
and the Trustee shall seek such indemnification from Lessee before seeking such
indemnification from the Certificate Holders.
SECTION 7. TERMINATION OF TRUST AGREEMENT
7.1 Termination of Trust Agreement. This Trust Agreement and the
------------------------------
Trust shall terminate and the Trust Estate shall, subject to the provisions of
the other Operative Agreements and Section 4 hereof, be distributed to the
Certificate Holders, and this Trust Agreement shall be of no further force or
effect (subject to the last sentence of Section 6.1), upon the earlier of (i)
the written request of the Certificate Holders following the sale or other final
disposition by the Trustee or its agent of all property constituting part of the
Trust Estate and the final distribution by the Trustee or its agent of all
moneys or other property or proceeds constituting part of the Trust Estate in
accordance with the terms of Section 4 and (ii) the date that is thirty (30)
years after the date hereof. Notwithstanding the foregoing, this Trust Agreement
shall not terminate until all obligations of the Trust under the Operative
Agreements shall have been discharged.
7.2 Termination at Option of the Certificate Holders. Notwithstanding
------------------------------------------------
Section 7.1 (subject to the last sentence of Section 6.1), this Trust Agreement
and the Trust shall
15
terminate and the Trust Estate shall be distributed to the Certificate Holders,
and this Trust Agreement shall be of no further force and effect, upon the prior
consent of the Lessee and upon the election of the Required Certificate Holders
by notice to the Trustee, if such notice shall be accompanied by the written
agreement of the Required Certificate Holders assuming all the obligations of
the Trustee and the Trust under or contemplated by the Operative Agreements and
all other obligations of the Trustee incurred by it as trustee hereunder;
provided, that the Certificate Holders agree for the express benefit of the
- --------
Lessee, the Indenture Trustee and the Security Holders that without the consent
of the Indenture Trustee, no such election shall be effective until the Liens
and security interests of the Security Documents shall have been released. Such
written agreement shall be reasonably satisfactory in form and substance to the
Trustee and the Trust Company and shall release the Trustee and the Trust
Company from all further obligations of the Trustee and the Trust Company
hereunder and under the Operative Agreements including, without limitation, the
agreements and other instruments mentioned in the preceding sentence.
7.3 Termination at Option of the Trustee. Notwithstanding any other
------------------------------------
section hereof (subject to the last sentence of Section 6.1), at any time six
months after the date the Lease shall no longer be in full force and effect and
all obligations of the Trust under the Operative Agreements shall have been
discharged, the Trustee shall have the option, but shall have no obligation, to:
(a) terminate this Trust Agreement and the Trust and (b) distribute and convey,
or cause to be distributed and conveyed, the Trust Estate to the Certificate
Holders; provided, that the Trustee agrees for the express benefit of the
Lessee, the Indenture Trustee and the Security Holders that without the consent
of the Indenture Trustee, the exercise of such option shall not be effective
until the Liens and security interests of the Security Documents shall have been
released. The exercise of such option by the Trustee and the Trust Company shall
cause this Trust Agreement to be of no further force and effect and shall
release the Trustee and the Trust Company from all further obligations of the
Trustee and the Trust Company hereunder and under the Operative Agreements
including, without limitation, the agreements and other instruments mentioned in
the preceding sentence.
7.4 Actions by the Trustee upon Termination. Upon termination of this
---------------------------------------
Trust Agreement and the Trust pursuant to Section 7.1, 7.2 or 7.3, the Trustee
shall take such action as may be necessary or as may be requested in writing by
all Certificate Holders to (i) transfer the Trust Estate to the Certificate
Holders, including, without limitation, the execution, without representation or
recourse, of instruments of transfer or assignment with respect to any of the
Operative Agreements to which the Trust is a party and, upon the completion of
the winding up of the Trust's affairs, and (ii) execute and cause to be filed in
the Office of the Secretary of State of the State of Delaware a Certificate of
Cancellation in the form required by Section 3810(d) of the Delaware Act.
7.5 Bankruptcy of Certificate Holders. In the event of the
---------------------------------
bankruptcy, insolvency or other similar incapacity of the Certificate Holders,
this Trust Agreement and the Trust hereby created shall not terminate. Without
the prior written consent of the Indenture Trustee, the Certificate Holders may
not withdraw from the Trust or obtain possession of, or otherwise exercise
remedies with respect to, the Trust Estate or any portion thereof prior to the
satisfaction and discharge of the Liens of the Security Documents; provided,
--------
however, nothing in this Section 7.5 shall prevent (a) the distribution of any
funds to the Certificate Holders in
16
accordance with Section 8 of the Indenture or the taking of any action to
enforce the provisions of Section 8 of the Indenture, or (b) the exercise by the
Certificate Holders of any remedies with respect to the Excepted Rights.
SECTION 8. SUCCESSOR TRUSTEES, CO-TRUSTEES AND SEPARATE TRUSTEES
8.1 Resignation of the Trustee; Appointment of Successor. (a) The
----------------------------------------------------
Trustee may resign at any time without cause by giving at least 30 days' prior
written notice to the Certificate Holders, the Indenture Trustee and the Lessee,
such resignation to be effective on the acceptance of appointment by a successor
Trustee under Section 8.1(b). The Trustee may be removed with or without cause
at any time by all Certificate Holders with 60 days' prior written notice and a
copy of which notice shall be concurrently delivered to the Indenture Trustee
and the Lessee. Any such removal shall be effective upon the acceptance of
appointment by a successor Trustee under Section 8.1(b). In case of the
resignation or removal of the Trustee, the Certificate Holders may appoint a
successor Trustee by an instrument signed by all Certificate Holders, which
appointment shall be subject to Lessee's approval, not to be unreasonably
withheld or delayed, unless a Lease Event of Default shall have occurred and be
continuing. If a successor Trustee shall not have been appointed within 30 days
after the giving of written notice of such resignation or the delivery of the
written instrument with respect to such removal, the Trustee or the Certificate
Holders may apply to any court of competent jurisdiction to appoint a successor
Trustee to act until such time, if any, as a successor shall have been appointed
and shall have accepted its appointment as above provided. Any successor Trustee
so appointed by such court shall immediately and without further act be
superseded by any successor Trustee appointed as above provided within one year
from the date of the appointment by such court.
(b) Any successor Trustee, however appointed, shall execute and deliver
to the predecessor Trustee an instrument accepting such appointment, and
thereupon such successor Trustee, without further act shall become vested with
all the estates, properties, rights, powers, duties and trusts of the
predecessor Trustee in the trusts hereunder with like effect as if originally
named an Trustee herein; but nevertheless, upon the written request of such
successor Trustee such predecessor Trustee shall execute and deliver an
instrument transferring to such successor Trustee, upon the trusts herein
expressed, all the estates, properties, rights, powers, duties and trusts of
such predecessor Trustee, and such predecessor Trustee shall duly assign,
transfer, deliver and pay over to successor Trustee all moneys or other property
then held by such predecessor Trustee upon the trusts herein expressed.
(c) Any successor Trustee, however appointed, shall be a bank or trust
company incorporated and doing business within the United States of America
(provided that at all times there is at least one trustee hereunder that
-------- ----
satisfies the requirements of Section 3807 of the Delaware Act) and having a
combined capital and surplus of at least $100,000,000, if there be such an
institution willing, able and legally qualified to perform the duties of Trustee
hereunder upon reasonable or customary terms. No such successor trustee shall
(i) be located in a jurisdiction which creates adverse consequences for Lessee
(unless such circumstances would be created by substantially all jurisdictions
where major banking or trust institutions are located) or (ii) charge fees for
its services as Trustee in excess of the then prevailing market rates for such
services (unless the Certificate Holders agree that they and not Lessee shall be
liable for such excess).
17
(d) Any Person into which the Trust Company may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trust Company shall be a party, or any
Person to which substantially all of the corporate trust business of the Trustee
may be transferred, shall, subject to the terms of Section 8.1(c), be the
Trustee under this Trust Agreement without further act.
8.2 Co-Trustees and Separate Trustees. Whenever the Trustee or all
---------------------------------
Certificate Holders shall deem it necessary or prudent in order either to
conform to any law of any jurisdiction in which all or any part of the Trust
Estate shall be situated or to make any claim or bring any suit with respect to
the Trust Estate, the Securities or any Operative Agreement, or the Trustee or
each of the Certificate Holders shall be advised by counsel satisfactory to it
that it is so necessary or prudent, the Trustee and each of the Certificate
Holders shall execute and deliver an agreement supplemental hereto and all other
instruments and agreements, and shall take all other action, necessary or proper
to appoint one or more Persons (and the Trustee may appoint one or more of its
officers) either as co-trustee or co-trustees jointly with the Trustee of all or
any part of the Trust Estate, or as separate trustee or separate trustees of all
or any part of the Trust Estate, and to vest in such Persons, in such capacity,
such title to the Trust Estate or any part thereof and such rights or duties as
may be necessary or desirable, all for such period and under such terms and
conditions as are satisfactory to the Trustee and the Certificate Holders. In
case any co-trustee or separate trustee shall die, become incapable of acting,
resign or be removed, the title to the Trust Estate and all rights and duties of
such co-trustee or separate trustee shall, so far as permitted by law, vest in
and be exercised by the Trustee, without the appointment of a successor to such
co-trustee or separate trustee.
8.3 Notice. At all times that a successor Trustee is appointed pursuant
------
to Section 8.1, the Trustee resigns pursuant to Section 8.1 or a co-trustee or
separate trustee is appointed pursuant to Section 8.2, the Certificate Holders
shall give notice of such fact within 10 days of its occurrence to the Lessee
and the Indenture Trustee.
8.4 Required Consents. Notwithstanding the provisions of Sections 8.1
-----------------
and 8.2 above, the Trustee shall not be removed and no successor Trustee,
co-trustee or separate trustee shall be appointed without the consent of the
Indenture Trustee and the Lessee (which consent shall not reasonably be
withheld) as long as the liens and security interests of the Security Documents
remain in full force and effect.
SECTION 9. SUPPLEMENTS AND AMENDMENTS
9.1 Supplements and Amendments. (a) Subject to Section 9.2 hereof, at
--------------------------
the written request of the Required Certificate Holders, this Trust Agreement
shall be amended by a written instrument signed by the Trust Company and the
Required Certificate Holders, but if in the opinion of the Trust Company any
instrument required to be so executed adversely affects any right, duty or
liability of, or immunity or indemnity in favor of, it or the Trustee under this
Trust Agreement, any of the Operative Agreements to which it or the Trustee is a
party, or would cause or result in any conflict with or breach of any terms,
conditions or provisions of, or default under, its charter documents or by-laws
or any document contemplated hereby to which it or the Trustee is a party, the
Trust Company may in its sole discretion decline to execute such instrument,
unless it shall have been provided an indemnity satisfactory to it by the
Certificate
18
Holders. In addition, if in the opinion of any Certificate Holder not included
in the Required Certificate Holders requesting such instrument, any instrument
required to be so executed adversely affects any right, duty or liability of, or
immunity or indemnity in favor of such Certificate Holder, or would cause or
result in any conflict with or breach of any terms, conditions or provisions of,
or default under, its charter documents or by-laws or any document contemplated
hereby to which it is a party, such Certificate Holder may in its sole
discretion cause the Trust Company to decline to execute such instrument, unless
such Certificate Holder shall have been provided an indemnity satisfactory to it
by the Required Certificate Holders
(b) Without prejudice to any right under this Trust Agreement of the
Trust Company to resign, or the Certificate Holders' right under this Trust
Agreement to remove the institution acting as trustee, each of the Certificate
Holders and the Trust Company hereby agrees with the Lessee and the Indenture
Trustee (i) not to terminate or revoke the trust created by this Trust Agreement
except as permitted by this Trust Agreement, (ii) not to amend, supplement,
terminate or revoke or otherwise modify any provision of this Trust Agreement
without the prior written consent of any Person adversely affected by such
amendment and without notice to Lessee and (iii) to comply with all of the terms
of this Trust Agreement, the nonperformance of which would adversely affect such
Person.
9.2 Limitation on Amendments. The Trust Company shall not, without the
------------------------
consent of the Indenture Trustee, execute any amendment that might reasonably
result in the trusts created hereunder being terminated prior to the
satisfaction and discharge of the Liens and security interest of the Security
Documents and other than in accordance with the terms of the Operative
Agreements. The provisions of Section 7.5, 9.2 and 10.6(a) may not be amended.
SECTION 10. THE CERTIFICATES
10.1 Form of Certificates. The investment by the Certificate Holders in
--------------------
the beneficial ownership of the Trust shall be evidenced by one or more
Certificates. Each Certificate shall be substantially in the form set forth in
Exhibit C attached hereto.
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10.2 Terms of Certificates. Each Certificate issued to the Certificate
---------------------
Holders shall be dated the date of its issuance and shall contain a statement by
the Trustee that the holder of such Certificate has an undivided beneficial
interest in the Trust Estate equal to the percentage interest set forth therein
and is entitled to receive the Certificate Holder Yield, the Certificate Holder
Contributions, any portion of Transactional Expenses payable to the Lessor and
the Certificate Holders, and such other amounts as are described under the
Operative Agreements as being paid on account of or in connection with the
Certificate Holder Contributions.
10.3 Payment from Proceeds of Trust Estate Only. All amounts payable by
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the Trustee under the Certificates and under this Trust Agreement shall be paid
only from the income and the proceeds from the Trust Estate and only to the
extent that the Trust shall have received sufficient income or proceeds from the
Trust Estate to make such payments in accordance with the terms hereof. Each
holder of a Certificate, by its acceptance of such Certificate, agrees that it
will look solely to the income and proceeds from the Trust Estate to the extent
available for distribution to such holder as herein provided and that none of
the Certificate Holders, any other holders of any Certificates, nor the Trustee
(in its individual capacity or as
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Trustee) shall be personally liable to any Person for any amounts payable under
the Certificates or this Trust Agreement or, except as expressly provided in
this Trust Agreement, for any liability under this Trust Agreement.
10.4 Place and Manner of Payment. The amounts payable to the holders of
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the Certificates pursuant to this Trust Agreement will be payable at the office
of the Trustee at Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890-0001, Attention: Corporate Trust Administration, or at the office
of any successor Trustee hereunder, in funds of the type received by the
Trustee. Notwithstanding the foregoing or any provision in any Certificate to
the contrary, the Trust will pay, if so requested by the holder of a Certificate
by written notice to the Trust, all amounts payable by the Trust to such holder
or a nominee therefor by wire transfer to such holder at such account as such
holder shall have specified by notice, in any case without any presentment or
surrender of any Certificate.
10.5 Ownership of Certificates. The Trust may deem and treat the Person
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in whose name any Certificate shall have been registered by the Trust as the
absolute owner and holder of such Certificate for the purpose of receiving
payment of all amounts payable by the Trust with respect to such Certificate and
for all other purposes, and the Trust shall not be affected by any notice to the
contrary.
10.6 Registrations of Transfers; Exchanges. (a) The Certificate Holders
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acknowledge and agree that Certificates may not be sold, assigned or otherwise
transferred except in accordance with the terms of Section 12.1 of the
Participation Agreement and applicable securities laws.
(b) The Trust shall maintain at its office a register for the purpose
of registering transfers and exchanges of Certificates. A holder of a
Certificate intending to transfer any or all of the Certificates held by such
holder to a new holder, or to exchange any or all of the Certificates held by it
for Certificates of different denominations, shall surrender such Certificate or
Certificates to the Trust at its office in care of the Trustee at c/o Wilmington
Trust Company, Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890-0001, Attention: Corporate Trust Administration, together with a
written request from the holder surrendering such Certificate or Certificates
for the issuance of a new Certificate or Certificates, specifying the
denomination or denominations of the same and, in the case of a surrender for
transfer, the name and address of the prospective holder or holders. Promptly
upon receipt of such documents by the Trust, it will issue a new Certificate or
Certificates, in the same aggregate original face amount and dated the same date
or dates as the Certificate or Certificates surrendered, and in such
denomination or denominations and registered in such name or names as shall be
specified in such written request; provided, however, the Trust and the Trustee
-------- -------
will not issue any new Certificates or register or record any transfer or
exchange of Certificates unless, and until such time as, all of the requirements
set forth in Section 10.7 below have been satisfied. The Trust shall notify the
Indenture Trustee and the Lessee whenever it registers the transfer of a
Certificate or Certificates, specifying the name and address of the new holder
or holders. The Trust shall not be required to register transfers or exchange
any surrendered Certificate as above provided during the ten-day period
preceding the due date of any payment of Basic Rent under the Lease. Nothing
contained in this Section 10.6 shall be deemed to permit
20
the holder of a Certificate to transfer such Certificate except in accordance
with the terms of Section 10 hereof and Section 12.1 of the Participation
Agreement.
(c) Upon the transfer, exchange or replacement of Securities not
bearing a Restricted Securities Legend, the Trust shall deliver Certificates
that do not bear a Restricted Securities Legend. Upon the transfer, exchange or
replacement of Certificates bearing a Restricted Securities Legend prior to the
Resale Restriction Termination Date, the Trust shall deliver only Certificates
that bear a Restricted Securities Legend unless there is delivered to the Trust
an Opinion of Counsel to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act.
(d) The Company shall deliver to the Trustee an Officer's Certificate
setting forth the Resale Restriction Termination Date and the Restricted Period.
(e) The Trust shall retain copies of all letters, notices and other
written communications received pursuant to this Section 10.6. The Lessee shall
have the right to inspect and make copies of all such letters, notices or other
written communications at any reasonable time upon the giving of reasonable
written notice to the Trust.
10.7 Mutilated, Lost or Stolen Certificates. If any Certificate shall
--------------------------------------
become mutilated, destroyed, lost or stolen, the Trust shall, upon the written
request of the holder of such Certificate, execute and deliver in replacement
thereof a new Certificate, dated the same date as the Certificate so mutilated,
destroyed, lost or stolen. If the Certificate being replaced has become
mutilated, such Certificate shall be surrendered to the Trust and cancelled. If
the Certificate being replaced has been destroyed, lost or stolen, the holder of
such Certificate shall furnish to the Trust (a) such security or indemnity as
may be required by the Trust or the Trustee to save the Trustee and the Trust
Company harmless and (b) evidence satisfactory to the Trustee of the
destruction, loss or theft of such Certificate and of the ownership thereof.
10.8 Payment of Taxes, Etc., on Issuance of New Certificates. Upon the
-------------------------------------------------------
issuance of a new Certificate or Certificates pursuant to Section 10.6 or 10.7
hereof, the Trust may require from the party requesting such new Certificate or
Certificates payment of a sum to reimburse the Trust for, or to provide funds
for, the payment of any tax or other governmental charge in connection therewith
or any charges and expenses connected with such tax or other governmental charge
paid or payable by the Trust and the Trustee.
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SECTION 11. MISCELLANEOUS
11.1 No Legal Title to Trust Estate in the Certificate Holders. The
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Certificate Holders shall not have legal title to any part of the Trust Estate;
provided, that the Certificate Holders have a beneficial interest in the Trust
- --------
Estate. No transfer, by operation of law or otherwise, of any right, title or
interest of the Certificate Holders in and to the Trust Estate or hereunder
shall operate to terminate this Trust Agreement or the trusts created hereby or
entitle any successor or transferee to an accounting or to the transfer to it of
legal title to any part of the Trust Estate.
11.2 Sale of Equipment by the Trustee is Binding. Any sale, transfer,
-------------------------------------------
or other conveyance of any of the Equipment or any part thereof by the Trust
made pursuant to the terms of this Trust Agreement or any other Operative
Agreement shall bind the Certificate Holders and shall be effective to sell,
transfer and convey all right, title and interest of the Trust and the
Certificate Holders in and to the Equipment or any part thereof. No purchaser or
other grantee shall be required to inquire as to the authorization, necessity,
expediency or regularity of such sale or conveyance or as to the application of
any sale or other proceeds with respect thereto by the Trust. Nothing herein
shall be deemed to permit any sale, transfer or other conveyance of the
Equipment or any part thereof by the Trust other than in accordance with the
terms of the Operative Agreements.
11.3 Limitations on Rights of Others. Nothing in this Trust Agreement,
-------------------------------
whether express or implied, shall be construed to give to any Person, other than
the Trust Company, the Trustee, the Certificate Holders, the Security Holders,
the Guarantors, the Lessee, the Collateral Agent and the Indenture Trustee, any
legal or equitable right, remedy or claim under or in respect of this Trust
Agreement, any covenants, conditions or provisions contained herein or in the
Trust Estate. Without limiting the generality of the foregoing, as provided in
Section 3805 of the Delaware Act, no creditor of any of the Certificate Holders
shall have any right to obtain possession of, or otherwise exercise legal or
equitable remedies with respect to, the Trust Estate.
11.4 Notices. Unless otherwise expressly specified or permitted by the
-------
terms hereof, all notices hereunder shall be given as provided in the
Participation Agreement.
11.5 Severability. Any provision of this Trust Agreement that may be
------------
determined by competent authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
11.6 Limitation on the Certificate Holders' Liability. None of the
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Certificate Holders shall have any liability for the performance of this Trust
Agreement except as expressly set forth herein.
11.7 Separate Counterparts. This Trust Agreement may be executed by
---------------------
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
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11.8 Successors and Assigns. All covenants and agreements contained
----------------------
herein shall be binding upon, and inure to the benefit of, the Trust Company,
the Trustee and its successors and assigns and the Certificate Holders and their
permitted successors and assigns, the Indenture Trustee, the Security Holders,
the Guarantors, the Collateral Agent and the Lessee all as herein provided. Any
request, notice, direction, consent, waiver or other instrument or action by any
of the Certificate Holders shall bind the successors and assigns of either of
the Certificate Holders. It is the intention of the parties hereto that the
trust created hereby constitute a business trust formed pursuant to the Delaware
Act with the purpose of facilitating the transactions contemplated by the
Operative Agreements.
11.9 Headings and Table of Contents. The headings and table of
------------------------------
contents of the various articles and sections herein are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
11.10 GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF DELAWARE. THE TRUST
CREATED HEREBY SHALL BE DEEMED A DELAWARE BUSINESS TRUST FOR ALL PURPOSES OF THE
DELAWARE ACT AND THIS TRUST AGREEMENT SHALL CONSTITUTE THE GOVERNING INSTRUMENT
OF THE TRUST.
11.11 Performance by the Certificate Holders. Any obligation of the
--------------------------------------
Trustee hereunder or under any Operative Agreement or other document
contemplated herein may be performed by the Certificate Holders and any such
performance shall not be construed as a revocation of the trusts created hereby.
11.12 No Implied Waiver. No term or provision of this Trust Agreement
-----------------
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing entered into as provided in Section 9.1; and any such
waiver of the terms hereof shall be effective only in the specific instance and
for the specific purpose given.
11.13 Termination of Lessee's Rights. Notwithstanding anything in this
------------------------------
Agreement to the contrary, six months after the date the Lease shall no longer
be in full force and effect, the Lessee shall have no further rights hereunder
and, from and after such date, all references to rights of the Lessee under this
Agreement shall be deemed to be deleted.
11.14 Name. The name of the trust created by this Trust Agreement is
----
the "HANOVER EQUIPMENT TRUST 2001A".
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the date and year first above written.
GENERAL ELECTRIC CAPITAL CORPORATION,
a Certificate Holder
By: ________________________________
Name:
Title:
WILMINGTON TRUST COMPANY, Trustee
By: ________________________________
Name:
Title:
The addresses of the Certificate Holders are:
401 Merritt Seven, Suite 23
Norwalk, Connecticut 06851-1177
Attention: Peter DiBiasi
The address of the Trustee is:
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration