EXHIBIT 4.46
EXECUTION COPY
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TRUST AGREEMENT
Dated as of August 30, 2001
among
ANC RENTAL CORPORATION,
THE SUBSIDIARIES OF ANC RENTAL 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............................................................................................. 1
SECTION 1. DEFINED TERMS......................................................................................... 2
1.1 Definitions...................................................................................... 2
SECTION 2. ACCELERATION OF SECURED OBLIGATIONS................................................................... 12
2.1 Notices of Acceleration.......................................................................... 12
2.2 General Authority of the Trustee over the Collateral............................................. 13
2.3 Right to Initiate Judicial Proceedings........................................................... 13
2.4 Right to Appoint a Receiver...................................................................... 13
2.5 Exercise of Powers; Instructions of Required Instructing Parties................................. 14
2.6 Remedies Not Exclusive........................................................................... 14
2.7 Waiver and Estoppel.............................................................................. 15
2.8 Limitation on Trustee's Duty in Respect of Collateral............................................ 15
2.9 Limitation by Law................................................................................ 15
2.10 Rights of Secured Parties under Secured Instruments.............................................. 16
SECTION 3. COLLATERAL ACCOUNT; DISTRIBUTIONS..................................................................... 16
3.1 The Collateral Account........................................................................... 16
3.2 Control of Collateral Account.................................................................... 16
3.3 Investment of Funds Deposited in Collateral Account.............................................. 16
3.4 Application and Distribution of Moneys........................................................... 17
3.5 Application of Moneys Distributable to Surety Party and Indenture Trustee........................ 19
3.6 Trustee's Calculations........................................................................... 20
SECTION 4. AGREEMENTS WITH TRUSTEE............................................................................... 21
4.1 Delivery of Secured Instruments.................................................................. 21
4.2 Information as to Secured Parties, Administrative Agent, Indenture Trustee and Surety Parties.... 21
4.3 Compensation and Expenses........................................................................ 22
4.4 Stamp and Other Similar Taxes.................................................................... 22
4.5 Filing Fees, Excise Taxes, Etc................................................................... 22
4.6 Indemnification.................................................................................. 22
4.7 Trustee's Lien................................................................................... 23
4.8 Further Assurances............................................................................... 23
4.9 Obligors......................................................................................... 23
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SECTION 5. THE TRUSTEE........................................................................................... 24
5.1 Acceptance of Trust.............................................................................. 24
5.2 Exculpatory Provisions........................................................................... 24
5.3 Delegation of Duties............................................................................. 25
5.4 Reliance by Trustee.............................................................................. 25
5.5 Limitations on Duties of Trustee................................................................. 26
5.6 Moneys to be Held in Trust....................................................................... 26
5.7 Resignation and Removal of the Trustee........................................................... 26
5.8 Status of Successor Trustee...................................................................... 27
5.9 Merger of the Trustee............................................................................ 27
5.10 Co-Trustee; Separate Trustee..................................................................... 28
5.11 Treatment of Payee or Indorsee by Trustee; Representatives of Secured Parties.................... 29
SECTION 6. MISCELLANEOUS......................................................................................... 29
6.1 Notices.......................................................................................... 29
6.2 No Waivers....................................................................................... 30
6.3 Amendments, Supplements and Waivers.............................................................. 30
6.4 Headings......................................................................................... 31
6.5 Severability..................................................................................... 31
6.6 Successors and Assigns........................................................................... 31
6.7 Currency Conversions............................................................................. 31
6.8 Governing Law.................................................................................... 31
6.9 Counterparts..................................................................................... 31
6.10 Termination...................................................................................... 31
6.11 New Obligors..................................................................................... 33
6.12 Inspection by Regulatory Agencies................................................................ 33
6.13 Confidentiality.................................................................................. 33
6.14 Submission to Jurisdiction; Waivers.............................................................. 33
6.15 The Indenture Trustee, the Holders and the Indenture Securities.................................. 34
6.16 Intercreditor Agreements; Authorization to Trustee in Respect of Certain Agreements.............. 34
6.17 Further Assurances; Absolute Obligations to Grant Lien on Vehicle Collateral..................... 35
6.18 WAIVERS OF JURY TRIAL............................................................................ 35
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EXHIBITS
A Form of Notice of Acceleration
B Form of Assumption Agreement
ANNEXES
I Trust Security Documents
SCHEDULES
I Existing Surety Bonds
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TRUST AGREEMENT, dated as of August 30, 2001, among ANC RENTAL
CORPORATION, a Delaware corporation (the "Company"), the subsidiaries of the
Company from time to time parties hereto (together with the Company,
collectively, the "Obligors") and WILMINGTON TRUST COMPANY, a Delaware banking
corporation, as trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company is a party to the Senior Loan 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 Senior Loan
Agreement, the Company has agreed to cause its obligations with respect to the
Senior Loan Agreement, the Indenture and the Exchange Notes to be secured by
security interests in the Collateral; and
WHEREAS, to induce the Surety Parties, subject to certain terms and
conditions, to issue, extend, renew, continue, increase and/or to permit to
remain outstanding the Surety Bonds for the benefit of, at the request of or on
behalf of the Company and/or one or more Subsidiaries of the Company, the
Company has agreed to cause the Surety Bonds Obligations 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
Estate") unto the Trustee and its successors in trust under this Trust Agreement
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.
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.
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SECTION 1.
DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein, terms defined
in the Collateral Agreement and used herein shall have the meanings given to
them in the Collateral Agreement. So long as Liberty continues to be a Secured
Party, to the extent capitalized terms herein are defined in documents (i) to
which Liberty is not a party, or (ii) which can be amended or changed without
Liberty's consent, such capitalized terms shall have the meanings specified in
such documents as of the date hereof, notwithstanding subsequent amendments or
changes, unless Liberty agrees otherwise in writing.
(b) The following terms shall have the respective meanings set forth
below:
"Administrative Agent" shall mean Lehman Commercial Paper Inc., in
its capacity as Administrative Agent under the Senior Loan Agreement, and
any successor Administrative Agent appointed thereunder.
"Ambac Consent" shall mean the Consent Agreement, dated as of the
date hereof, by Ambac Assurance Corporation and acknowledged by the
Company, certain other Obligors, the Finance Company Issuers, the Trustee
and certain Lenders party thereto, in respect of the grant of the Liens on
the Finance Company Equity Interests, as the same may be amended,
supplemented or otherwise modified from time to time.
"ANC Liberty Agreement" shall mean the Agreement, dated as of the
date hereof, between the Company and Liberty, as the same may be amended,
supplemented or otherwise modified from time to time.
"Burlingame Mortgage" shall mean the Deed of Trust, Assignment of
Leases and Rents and Security Agreement, dated as of August 30, 2001, made
by Alamo Rent-A-Car LLC to the Chicago Title Company, as trustee, for the
benefit of the Secured Parties, as the same may be amended, supplemented
or otherwise modified from time to time.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a day on which commercial banks in Wilmington, Delaware or New York, New
York are required or authorized to close.
"Cash Equivalents" shall mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or
registered form having original or remaining maturities of 30 days or
less, but in no event occurring later than the Distribution Date next
succeeding the Trustee's acquisition thereof, which evidence:
(a) direct obligations of, and obligations fully guaranteed as to
timely payment by, the United States;
(b) demand deposits, time deposits or certificates of deposit of any
depository institution or trust company incorporated under the laws of the
United States or any state thereof (or any domestic branch of a foreign
bank) and subject to supervision and examination by Federal or state
banking or depository institution authorities; provided, however, that at
the time of the Trust's investment or contractual commitment to invest
therein, the commercial paper or other short-term unsecured debt
obligations (other than such
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obligations the rating of which is based on the credit of a Person other
than such depository institution or trust company) thereof shall have a
credit rating from each of Standard and Poor's and Moody's in the highest
investment category granted thereby;
(c) commercial paper having, at the time of the Trust's investment
or contractual commitment to invest therein, a rating from each of
Standard and Poor's and Moody's in the highest investment category granted
thereby;
(d) investments in money market funds having a rating from each of
Standard and Poor's and Moody's in the highest investment category granted
thereby or otherwise approved in writing thereby;
(e) demand deposits, time deposits and certificates of deposit which
are fully insured by the Federal Deposit Insurance Corporation ("FDIC");
(f) bankers' acceptances issued by any depository institution or
trust company referred to in clause (b) above; and
(g) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States or any
agency or instrumentality thereof the obligations of which are backed by
the full faith and credit of the United States, in either case entered
into with (i) a depository institution or trust company (acting as
principal) described in clause (b) or (ii) a depository institution or
trust company the deposits of which are insured by FDIC.
"Collateral" shall mean, collectively, all collateral in which the
Trustee is granted a security interest pursuant to any Trust Security
Document, including, without limitation, the Shared Collateral and the
Other Collateral.
"Collateral Agreement" shall mean the Collateral Agreement, dated as
of the date hereof, among the Company, the subsidiaries of the Company
from time to time parties thereto, the Trustee, Liberty and the
Administrative Agent.
"Collateral and Control Agreement" shall mean the Collateral and
Control Agreement, dated as of March 29, 2001, among the Company, ANC
Financial, LP, Lehman Commercial Paper Inc. and Lehman Brothers Bank, FSB,
as securities intermediary, as the same may be further amended, amended
and restated, supplemented or otherwise modified from time to time.
"Collateral Account" shall have the meaning given to such term in
Section 3.1.
"Collateral Documents" shall have the meaning given to such term in
the Senior Loan Agreement.
"Contract of Indemnity" shall mean the General Agreements of
Indemnity and Commercial Surety, issued by the Company, as "Indemnitor",
in favor of Liberty, on each of August 4, 2000 and October 1, 2000.
"Distribution Date" shall mean each date fixed by the Trustee for a
distribution to the Secured Parties of funds held in the Collateral
Account, the first of which shall be within 50 days after the Trustee
receives a Notice of Acceleration and the remainder of which shall be
monthly thereafter on the day of the month corresponding to the first
Distribution Date (or, if
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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 succeeding Business Day.
"Dollar" shall mean dollars in lawful currency of the United States
of America.
"Exchange Notes" shall be the collective reference for any note
exchanged for the Rollover Term Loans or for the Initial Loans, as the
case may be, pursuant to the Senior Loan Agreement.
"Existing Surety Bonds" shall mean the Surety Bonds described in
Schedule I to this Trust Agreement.
"First Priority Secured Obligations" shall mean all Surety Bond
Obligations in respect of the New Surety Bonds, the Increased Surety Bonds
and the Renewed Surety Bonds.
"First Priority Secured Parties" shall mean Secured Parties that are
obligees in respect of the First Priority Secured Obligations.
"Fleet Intercreditor Agreement" shall mean the Intercreditor and
Subordination Agreement, in form and substance satisfactory to the
Administrative Agent and Liberty, to be entered into by and among certain
Obligors listed therein, ANC Rental Corporation and certain direct and
indirect lenders to ANC and/or the certain Obligors listed therein, as
listed on a schedule thereto, as the same may be amended, supplemented or
otherwise modified from time to time.
"Governmental Authority" shall mean any nation or government, any
state, province or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantor Indenture Obligations" shall mean, with respect to any
Obligor other than the Company, all obligations and liabilities of such
Obligor, 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 Indenture Guarantee of such Obligor or
any Trust Security 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 Indenture Trustee
or the Holders that are required to be paid by such Obligor pursuant to
the terms of any Trust Security Document).
"Guarantor Senior Loan Agreement Obligations" shall mean, with
respect to any Obligor other than the Company, all obligations and
liabilities of such Obligor, 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 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).
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"Guarantor Surety Bond Obligations" shall mean with respect to any
Obligor, all obligations and liabilities of such Obligor, 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 Surety Bond Guarantee to which such Obligor is a party, in each
case whether on account of guarantee obligations or obligations to
exonerate, indemnify, hold harmless, secure, collateralize and/or
reimburse, together with any interest, fees, costs, expenses (including
the costs and expense of enforcing any indemnities or guarantees) or other
amounts required to be paid by such Obligor pursuant to the terms of such
Surety Bond Guarantee (including without limitation, interest accruing at
the then applicable rate after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or like proceeding,
relating to such Obligor, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding).
"Holder" shall mean any holder of Indenture Securities.
"Increased Surety Bond" shall mean the amount by which the penal sum
or amount of obligation of any Surety Bond is increased other than as part
of the issuance of a Renewed Surety Bond.
"Indenture" shall mean the Indenture, in the form attached as
Exhibit B to the Senior Loan Agreement, between the Company and the
Indenture Trustee, as the same may be amended, supplemented or otherwise
modified from time to time.
"Indenture Guarantee" shall mean, with respect to each Obligor other
than the Company, the guarantee of such Obligor of the Indenture
Obligations of the Company, as set forth in the Indenture or any related
guarantee instrument and/or in any Indenture Security.
"Indenture Obligations" shall mean, collectively, (a) the unpaid
principal of, and interest and premium on, the Indenture Securities, and
all other obligations and liabilities of the Company to the Indenture
Trustee or any Holder (including, without limitation, interest accruing at
the then applicable rate provided in the Indenture and the Indenture
Securities after the maturity of the Indenture Securities and interest
accruing at the then applicable rate provided in the Indenture and the
Indenture Securities after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding,
relating to the Company, 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 Indenture, this Trust Agreement, the Indenture Securities or any other
document made, delivered or given in connection therewith and (b) the
Guarantor Indenture Obligations of all Obligors other than the Company.
"Indenture Securities" shall mean the securities to be issued under
and in accordance with the Indenture.
"Indenture Trustee" shall mean The Bank of New York, in its capacity
as Trustee under the Indenture, and any successor Trustee appointed
thereunder.
"Initial Loan" shall mean the initial loans made by the Lenders to
the Company under the Senior Loan Agreement in the original aggregate
principal amount equal to $225,000,000.
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"Intercreditor Agreement" shall mean the Amended and Restated
Intercreditor Agreement, dated as of the date hereof, among the Company,
the Subsidiary Guarantors, the Collateral Trustee, Liberty, the
Administrative Agent and the administrative agents under the New Credit
Facility, in form and substance reasonably satisfactory to the
Administrative Agent, the Collateral Trustee and the Surety Parties, as
the same may be amended, supplemented or otherwise modified from time to
time.
"Lender" shall mean the several banks and other financial
institutions or entities from time to time parties to the Senior Loan
Agreement.
"Letter Agreement" shall mean the Letter Agreement, dated as of the
date hereof, addressed to The Bank of New York, as Indenture Trustee,
required by Moody's Investors Services, Inc. and executed by the Trustee,
the Indenture Trustee, the Company, certain other Obligors, certain
Finance Company Issuers, and acknowledged and consented to by Liberty and
the Administrative Agent, in respect of the grant of Liens of the Finance
Company Equity Interests, as the same may be amended, supplemented or
modified from time to time.
"Liberty" shall mean Liberty Mutual Insurance Company, solely in its
capacity as a Surety Party under the Surety Bond Documents.
"Lien" shall mean, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset, whether or not filed, recorded or otherwise perfected under
applicable law (including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement
to sell or give a security interest in any asset and any filing of or
agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction).
"Loan Documents" shall mean the Senior Loan Agreement, the Loan
Notes, the Subsidiary Guarantees and the Collateral Documents.
"Loan Notes" shall be the collective reference to the promissory
notes issued pursuant to the Senior Loan Agreement evidencing the Loans.
"Loans" shall mean, collectively, the Initial Loans and the Rollover
Term Loans.
"Master Collateral Agency Agreement" shall mean the Fourth Amended
and Restated Master Collateral Agency Agreement, dated as of June 30,
2000, among the Company, National Car Rental Financing Limited
Partnership, Alamo Financing, L.P., Alamo Rent-A-Car LLC, National Car
Rental System, Inc., Spirit Rent-A-Car, Inc. d/b/a Cartemps USA, Citibank,
N.A., as master collateral agent, various financing sources parties hereto
and various beneficiaries parties thereto, as the same may be amended,
supplemented or otherwise modified from time to time.
"Master Collateral Agency Agreement Supplement": the Financing
Source and Beneficiary Supplement to the Master Collateral Agency
Agreement, in form and substance acceptable to each of the Secured
Parties, to be executed by the Trustee, for the benefit of the Secured
Parties, the Company, certain of the other Obligors and Citibank, N.A., as
master collateral agent, as the same may be amended, supplemented or
otherwise modified from time to time.
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"MBIA Consent" shall mean the Consent Agreement, dated as of the
date hereof, by MBIA Insurance Corporation and acknowledged by the
Company, certain other Obligors, the Finance Company Issuers, the Trustee
and certain Lenders party thereto, in respect of the grant of the Liens on
the Finance Company Equity Interests, as the same may be amended,
supplemented or otherwise modified from time to time.
"Moody's" shall mean Moody's Investors Service, Inc., and its
successors.
"New Credit Facility" shall mean (a) the $175 million secured credit
facility pursuant to the Amended and Restated Credit Agreement, dated as
of June 30, 2000, among the Company, the lenders parties thereto, Congress
Financial Corporation (Florida), as administrative agent, and others,
including any related notes, guarantees, collateral documents, instruments
and agreements executed in connection therewith, and in each case as
amended, amended and restated, modified, refunded, replaced or refinanced
from time to time and (b) the $40 million secured credit facility pursuant
to the Amended and Restated Credit Agreement, dated as of June 30, 2000,
among the Company, the lenders parties thereto, Lehman Commercial Paper
Inc., as administrative agent, and others, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, amended and restated,
modified, refunded, replaced or refinanced from time to time.
"New Surety Bond" shall mean each Surety Bond issued after the Trust
Effective Date by Liberty or any affiliate thereof or any other Person.
"Notice of Acceleration" shall mean a notice delivered to the
Trustee by the Administrative Agent with respect to Senior Loan Agreement
Obligations, by the Indenture Trustee in respect of Indenture Obligations
or by the relevant Surety Party with respect to Surety Bond Obligations,
stating that (a) the Senior Loan Agreement Obligations, the Indenture
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, (b) an "Event of Default" has occurred under the
provisions of the ANC Liberty Agreement in consequence of which (i)
Liberty issues a demand to be placed in funds or to be discharged pursuant
to paragraph 5 of any Contract of Indemnity, which demand is not satisfied
when due, or (ii) any prior deferral by Liberty of a demand to be placed
in funds or to be discharged pursuant to paragraph 5 of any Contract of
Indemnity is withdrawn or (c) a default has occurred under the provisions
of the relevant Secured Instrument and, as a result thereof, all Senior
Loan Agreement Obligations, all Indenture Obligations 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.
"Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel satisfactory to the Trustee, who may be counsel regularly
retained by the Trustee, which shall be in form and substance satisfactory
to the Trustee.
"Other Collateral" shall have the meaning assigned to such term in
Section 3.1.
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"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof or
any other entity.
"Proceeds" shall mean all "proceeds" as such term is defined in
Section 9-306(1) of the Uniform Commercial Code in effect in the State of
New York on the date hereof.
"Renewed Surety Bonds" shall mean, collectively, any renewals,
continuations and replacements of Existing Surety Bonds and any increases
in the penal sums or amounts of obligations thereof, upon, or in
anticipation of, the expiration, cancellation or renewal of such Existing
Surety Bonds.
"Required Instructing Parties" shall mean, as of a particular date,
(a) if any First Priority Secured Obligations remain unsatisfied or are
outstanding on such date, First Priority Secured Parties that are obligees
(or representatives thereof) in respect of more than 50% of the aggregate
principal amount of such First Priority Secured Obligations, (b) if no
First Priority Secured Obligations are outstanding on such date but any
Second Priority Secured Obligations remain unsatisfied or are outstanding
on such date, Second Priority Secured Parties that are obligees (or
representatives thereof) in respect of more than 50% of the aggregate
principal amount of such Second Priority Secured Obligations, and (c) if
no First Priority Secured Obligations or Second Priority Secured
Obligations remain unsatisfied or are outstanding on such date, but any
Third Priority Secured Obligations remain unsatisfied or are outstanding
on such date, (i) the Third Priority Secured Parties that are obligees (or
representatives thereof) in respect of more than 50% of the aggregate
principal amount of the Third Priority Secured Debt Obligations and (ii)
the Third Priority Secured Parties that are obligees (or representatives
of obligees) in respect of more than 50% of the aggregate principal amount
of the Third Priority Secured Surety Bond Obligations, provided, that the
Third Priority Secured Parties identified in the foregoing clauses (c)(i)
and (ii) must act jointly to constitute "Required Instructing Parties".
For the purpose of this definition, (a) 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 Senior Loan Agreement
Obligations, (b) the Indenture Trustee shall be deemed to hold or
represent, and shall be entitled to vote and give notices and directions
with respect to, the Indenture Obligations and (c) the aggregate principal
amount of Surety Bond Obligations as of a particular date shall be
calculated by adding together (1) the relevant Surety Party's unreimbursed
loss, costs, fees and expenses, together with accrued interest, with
respect to all Surety Bonds issued by such Surety Party, and (2) the penal
sums and/or maximum amounts of such Surety Bond Obligations of all Surety
Bonds then outstanding and upon which the relevant Surety Party remains at
risk.
"Required Secured Debt Parties" shall mean, as of a particular date,
Secured Parties holding (or representing) more than 50% of the aggregate
principal amount of the Secured Obligations outstanding under (a) the
Senior Loan Agreement, the Loan Notes, the Subsidiary Guarantees and any
other Loan Documents and (b) the Indenture and any Indenture Securities
outstanding thereunder. For the purpose of this definition, (a) 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
Senior Loan Agreement Obligations and (b) the Indenture Trustee shall be
deemed to hold or represent, and shall be entitled to vote and give
notices and direction with respect to, the Indenture Obligations.
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"Required Surety Parties" shall mean, as of a particular date,
Secured Parties that are obligees (or representatives thereof) in respect
of more than 50% of the aggregate principal amount of the Surety Bond
Obligations.
"Requirement of Law" shall mean, as to any Person, the certificate
of incorporation and by-laws or other organizational or governing
documents of such Person, and any present or future law, treaty, statute,
rule, regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its
property is subject.
"Responsible Officer" shall mean the chief executive officer, the
president, or any vice president of the Company or any Obligor as
applicable and, with respect to financial matters, the chief financial
officer, the senior vice president - finance, the treasurer or the
controller of the Company or any Obligor as applicable.
"Rollover Term Loans" shall mean the loans into which all Initial
Loans shall be converted pursuant to the Senior Loan Agreement.
"Second Priority Secured Obligations" shall mean all Senior Loan
Agreement Obligations in respect of the Tranche A Senior Loans and all
Indenture Obligations in respect of the Series A Indenture Securities.
"Second Priority Secured Parties" shall mean Secured Parties holding
Second Priority Secured Obligations.
"Secured Instruments" shall mean, at any time, (a) the Surety Bond
Documents, (b) the Senior Loan Agreement, the Loan Notes, the Subsidiary
Guarantees and any other Loan Documents and (c) the Indenture, any
Indenture Securities outstanding thereunder and any other Indenture
Documentation.
"Secured Obligations" shall mean, collectively (a) the Surety Bond
Obligations, (b) the Senior Loan Agreement Obligations, (c) the Indenture
Obligations and (d) 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 (a) the Surety Parties,
(b) the Lenders and the Administrative Agent, (c) the Indenture Trustee
and the Holders and (d) the Trustee.
"Secured Party Credit Support" shall have the meaning set forth in
6.16(b).
"Senior Loan Agreement" shall mean the Amended and Restated Senior
Loan Agreement, dated as of June 30, 2000, among the Company, the Lenders
parties thereto and Lehman Commercial Paper Inc., as Administrative Agent,
as amended, amended and restated, supplemented or otherwise modified from
time to time.
"Senior Loan Agreement/Indenture Secured Party" shall mean,
collectively, (a) the Lenders and the Administrative Agent and (b) the
Indenture Trustee and the Holders.
"Senior Loan Agreement/Indenture Sub-Account" shall have the meaning
assigned to such term in Section 3.1.
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"Senior Loan Agreement Obligations" shall mean, collectively, (a)
the unpaid principal of and interest on the Loans, and all other
obligations and liabilities of the Company to the Administrative Agent or
any Lender (including, without limitation, interest accruing at the then
applicable rate provided in the Senior Loan Agreement after the maturity
of the Loans outstanding thereunder and interest accruing at the then
applicable rate provided in the Senior Loan Agreement after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Company, 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 Senior Loan Agreement, this Trust
Agreement, any Loan Notes or any other Loan Document or any other document
made, delivered or given in connection therewith and (b) the Guarantor
Senior Loan Agreement Obligations of all Obligors other than the Company.
"Series A Indenture Securities" shall mean, at any time,
collectively, the Tranche A Exchange Notes outstanding under the Indenture
at such time.
"Shared Collateral" shall have the meaning assigned to such term in
Section 3.1.
"Shared Collateral Sub-Account" shall have the meaning assigned to
such term in Section 3.1.
"Standard &Poor's" shall mean Standard & Poor's Ratings Service and
its successors.
"Subsidiary" shall mean with respect to any Person, (i) any
corporation, association or other business entity of which more than 50%
of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person and (ii) any
partnership (a) the sole general partner or the managing general partner
of which is such Person or an entity described in clause (i) and related
to such Person or (b) the only general partners of which are such Person
or of one or more entities described in clause (i) and related to such
Person (or any combination thereof).
"Subsidiary Guarantee" shall mean any Guarantee, substantially in
the form of Exhibit A to the Senior Loan Agreement, to be executed by the
Subsidiary Guarantors.
"Subsidiary Guarantor" shall mean any Subsidiary that signs a
Subsidiary Guarantee.
"Surety Bond" shall mean, collectively, (a) the New Surety Bonds,
(b) the Existing Surety Bonds, (c) the Increased Surety Bonds and (d) the
Renewed Surety Bonds.
"Surety Bond Account Party" shall mean, in respect of each Surety
Bond, the Company and/or one or more of its Subsidiaries on whose behalf
and/or at whose request such Surety Bond was issued.
"Surety Bond Documents" shall mean, in respect of each Surety Bond,
(a) such Surety Bond, (b) any underlying contracts, agreements,
undertakings and obligations to which such Surety Bond relates and those
statutes compliance with which are expressly secured by such Surety Bond,
(c) any Contract of Indemnity and Surety Bond Guarantee relating to such
Surety Bond and (d) the ANC Liberty Agreement.
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"Surety Bond Guarantee" shall mean any guarantee, indemnity or other
agreement executed and delivered by any Obligor to and for the benefit of
any Surety Party (or any affiliate thereof) with respect to, or in
consideration of, or to induce, secure, guarantee, indemnify against or
otherwise provide any benefit or thing of value to, such Surety Party in
connection with, the issuance, renewal, continuation, increase, extension
or agreement to permit to remain outstanding any Surety Bond, as any of
the above may from time to time be amended, modified, supplemented,
extended or renewed.
"Surety Bond Obligations" shall mean, in respect of any Surety Bond,
(a) the obligations of the Surety Bond Account Party with respect to such
Surety Bond to the relevant Surety Party under the Contract of Indemnity
or under any Surety Bond Guarantee, including but not limited to the
obligations to exonerate, indemnify, hold harmless, secure, collateralize
and/or reimburse the Surety Party which issued such Surety Bond, together
with any interest, fees, costs, expenses (including the costs and expenses
of enforcing any indemnities) or other amounts as may be provided under
the terms of such Contract of Indemnity or Surety Bond Guarantee
(including, without limitation, interest accruing at the then applicable
rate 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), whether direct or
indirect, absolute or contingent, due or to become due or now existing or
hereafter incurred, and (b) any Guarantor Surety Bond Obligations with
respect to such Surety Bond; provided that the Surety Bond Obligations
shall be reduced by the amount of proceeds actually received by or on
behalf of any Surety Party in respect of any Secured Party Credit Support
to the extent application of such proceeds permanently reduces the
remaining contingent liability of such Surety Party in respect of such
Surety Bond Obligation.
"Surety Party" shall mean, in respect of each Surety Bond, the
entity which issued such Surety Bond, as specified on Schedule I to this
Trust Agreement (in the case of Existing Surety Bonds) and in the
information provided to the Trustee pursuant to Sections 4.1 and 4.2 (in
the case of any New Surety Bond), and any Person issuing any replacement
of such Surety Bond, provided 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.
"Third Priority Secured Debt Obligations" shall mean, collectively,
(a) all Senior Loan Agreement Obligations other than the Second Priority
Secured Obligations and (b) all Indenture Obligations other than the
Second Priority Secured Obligations.
"Third Priority Secured Surety Bond Obligations" shall mean all
Surety Bond Obligations other than the First Priority Secured Obligations.
"Third Priority Secured Obligations" shall mean, collectively, (a)
the Third Priority Secured Debt Obligations and (b) the Third Priority
Secured Surety Bond Obligations.
"Third Priority Secured Parties" shall mean Secured Parties holding
Third Priority Secured Obligations.
"Tranche A Exchange Notes" shall mean Exchange Notes issued in
respect of the Tranche A Initial Loans or the Tranche A Rollover Term
Loans, as applicable.
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"Tranche A Initial Loans" shall mean the loans deemed to be made
pursuant to Section 2.1(a) of the Senior Loan Agreement.
"Tranche A Rollover Term Loans" shall mean the loans into which the
Tranche A Initial Loans are converted pursuant to Section 2.1(b) of the
Senior Loan Agreement.
"Tranche A Senior Loans" shall mean, at any time, the collective
reference to the Tranche A Initial Loans and the Tranche A Rollover Term
Loans, as applicable, outstanding under the Senior Loan Agreement at such
time.
"Trust Agreement" shall mean this Trust Agreement, as the same may
from time to time be amended, modified, supplemented, extended or renewed.
"Trust Effective Date" shall mean August 30, 2001.
"Trust Estate" shall have the meaning assigned in the Declaration of
Trust in this Trust Agreement.
"Trust Security Documents" shall mean each of the instruments
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
trustee under this Trust Agreement, and any successor trustee appointed
hereunder.
"Trustee Fees" shall mean all fees, costs and expenses of the
Trustee 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
Notice of Acceleration, the Trustee shall promptly notify the Company, the
Administrative Agent, the Indenture Trustee and each Surety Party of the receipt
thereof and provide a copy thereof to such Persons and to the administrative
agents under the New Credit Facilities. 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 Instructing Parties (in the case of any actions
relating to the Shared Collateral) and the Required Secured Debt Parties (in the
case of any actions relating to the Other Collateral). Except as otherwise
provided in the last two sentences of Section 2.2, the Trustee is not empowered
to exercise any remedy hereunder or under any Trust Security Document unless a
Notice of Acceleration is in effect.
(b) A Notice of Acceleration delivered by the Administrative Agent,
the Indenture Trustee or any Surety Party shall become effective upon receipt
thereof by the Trustee. A Notice of
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Acceleration, once effective, shall remain in effect unless and until it is
cancelled as provided in Section 2.1(c).
(c) The Administrative Agent, the Indenture Trustee 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. The Trustee shall immediately notify the Company, the Administrative
Agent, the Indenture Trustee, the administrative agents under the New Credit
Facilities 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
Obligor hereby irrevocably constitutes and appoints the Trustee and any officer
or agent thereof, with full power 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 as are
permitted by the Trust Security Documents in accordance with the instructions of
the Required Instructing Parties, or the Required Secured Debt Parties (with
respect to the Other Collateral and the Senior Loan/Indenture Sub-Account only),
as applicable, delivered to the Trustee. In the event that, pursuant to the
terms of the relevant Trust Security Document or Secured Instrument, the
Required Instructing Parties, or the Required Secured Debt Parties (with respect
to the Other Collateral and the Senior Loan/Indenture Sub-Account only), as
applicable, shall only be entitled to direct the Trustee after the occurrence of
an event of default or similar event, the Required Instructing Parties, or the
Required Secured Debt Parties (with respect to the Other Collateral and the
Senior Loan/Indenture Sub-Account only), as applicable, shall certify in such
direction that such event of default or similar event has occurred and is
continuing.
2.3 Right to Initiate Judicial Proceedings. If a Notice of
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
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
14
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,
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 Instructing
Parties. (a) 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, the Indenture
Trustee and each Surety Party as set forth in any Trust Security Document may be
exercised from time to time as herein and therein provided. Each party to this
Trust Agreement agrees and acknowledges that the Secured Parties are the direct
beneficiaries of the Trust Estate and this Trust Agreement, with the right to
enforce this Trust Agreement. The rights of the Trustee and/or the Secured
Parties to enforce the terms and provisions of this Trust Agreement shall not be
delayed, conditioned, limited or eliminated as a result of any failure by the
Trustee to provide to the Company or the administrative agents under the New
Credit Facilities any notice required to be delivered under this Trust
Agreement.
(b) While a Notice of Acceleration is in effect, the Required
Instructing Parties (in respect of the Shared Collateral) or the Required
Secured Debt Parties (in respect of the Other Collateral) 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 Instructing
Parties or the Required Secured Debt Parties, as the case may be. In the absence
of such direction, the Trustee shall have no duty to take or refrain from taking
any action unless explicitly required herein.
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
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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.
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
16
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.
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 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 "ANC Rental Corporation Collateral Account" (the
"Collateral Account") and which shall be comprised of two segregated
sub-accounts entitled the "ANC Rental Corporation Shared Collateral Sub-Account"
(the "Shared Collateral Sub-Account") and the "Senior Loan Agreement/Indenture
Collateral Sub-Account" (the "Senior Loan Agreement/Indenture 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 Senior Loan Agreement/Indenture Sub-Account, to the extent such moneys are
in respect of any Collateral in which a security interest is created pursuant to
the Collateral and Control Agreement (such Collateral, the "Other Collateral")
and (ii) in the Shared Collateral Sub-Account, to the extent such moneys are in
respect of any Collateral other than Other Collateral (such Collateral, the
"Shared 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.
In making any such deposit, the Trustee may rely, and shall be fully protected
in relying on a certificate of the Company as to the source of such deposit.
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 invest and reinvest moneys on deposit in the Collateral Account at any
time in Cash Equivalents; provided that so long as no Notice of Acceleration is
in effect, such investments and re-investments in Cash Equivalents shall be made
in such Cash Equivalents as shall be directed by the Company. All such
17
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 and Distribution 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 Collateral Account (ratably based upon the amounts on deposit in the
Shared Collateral Sub-Account and the Senior Loan Agreement/Indenture
Sub-Account) to the payment of due and unpaid Trustee Fees.
(b) All remaining moneys held by the Trustee in the Shared
Collateral Sub-Account or received by the Trustee with respect to the Shared
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 or paid by the respective Secured
Parties and remaining unreimbursed on such Distribution Date;
Second: to any Secured Party which has theretofore advanced or paid
any Trustee Fees, other than administrative expenses described in clause
First above, 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 or paid by the respective Secured
Parties and remaining unreimbursed on such Distribution Date;
Third: to the First Priority 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 First Priority Secured Parties in
proportion to the unpaid amounts of the First Priority Secured Obligations
on such Distribution Date;
Fourth: to the Second Priority Secured Parties in an amount equal to
the unpaid principal of and unpaid interest on and other charges, if any,
in respect of any Second 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 Second Priority Secured Parties in
proportion to the unpaid amounts of the Second Priority Secured
Obligations on such Distribution Date;
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Fifth: to the Third Priority Secured Parties in an amount equal to
the unpaid principal of and unpaid interest on and other charges, if any,
in respect of any Third 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 Third Priority Secured Parties in
proportion to the unpaid amounts of the Third Priority Secured Obligations
on such Distribution Date;
Sixth: to the Secured Parties, amounts equal to all other sums which
constitute 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
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
Seventh: 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 Senior Loan
Agreement/Indenture 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
Senior Loan Agreement/Indenture 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 such respective Secured Parties and remaining unpaid on such
Distribution Date;
Second: to any Senior Loan Agreement/Indenture Secured Party which
has theretofore advanced or paid any Trustee Fees, other than
administrative expenses described in clause First above, 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 such respective Secured Parties and remaining unpaid on such
Distribution Date;
Third: to the Senior Loan Agreement/Indenture Secured Parties in an
amount equal to the unpaid principal of and unpaid interest on and other
charges, if any, in respect of any Indenture Obligations and Senior Loan
Agreement 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 such
Secured Parties in proportion to the unpaid amounts thereof on such
Distribution Date;
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Fourth: to the Senior Loan Agreement/Indenture Secured Parties,
amounts equal to all other sums which constitute Senior Loan Agreement
Obligations or Indenture Obligations, including without limitation the
costs and expenses of the Senior Loan Agreement/Indenture Secured Parties
and their representatives which are due and payable under the relevant
Secured Instruments and which constitute Secured Obligations as of such
Distribution Date, and, if such moneys shall be insufficient to pay such
amounts in full, then ratably to such Secured Parties in proportion to the
unpaid amounts thereof on such Distribution Date; and
Fifth: 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, Fourth, Fifth and
Sixth of Section 3.4(b) and clauses Third and Fourth of Section 3.4(c) and
Section 3.6 refers to all amounts of Surety Bond Obligations, Indenture
Obligations or Senior Loan Agreement Obligations, as the case may be,
outstanding as of a Distribution Date (and for the purpose of this provision,
the amount of Surety Bond Obligations then outstanding shall be calculated by
adding together (1) the relevant Surety Party's unreimbursed loss, costs, fees
and expenses, together with accrued interest, with respect to all Surety Bonds
issued by such Surety Party, and (2) the penal sums and/or maximum amounts of
obligation of all Surety Bonds then outstanding and upon which the relevant
Surety Party remains at risk), to the extent that prior distributions (whether
actually distributed or set aside pursuant to Section 3.5) have not been made in
respect thereof, provided that if (x) any distributions are made in respect of
any Secured Obligations that are contingent at the time of such distribution and
(y)(i) such contingent Secured Obligation becomes liquidated in an amount that
is less than the amounts distributed in respect of such contingent Secured
Obligation or (ii) the Secured Party who is the obligee in respect of such
contingent Secured Obligation becomes discharged and is no longer at risk with
respect to any such contingent Secured Obligation, such Secured Party shall
promptly return to the Trustee for application pursuant to this Agreement any
such distributions made in respect of such contingent Secured Obligation, less
any amounts necessary to satisfy in full the liquidated amount of such
contingent Secured Obligation.
(e) The Trustee shall make all payments and distributions under this
Section 3.4: (i) on account of Senior Loan Agreement Obligations to the
Administrative Agent, pursuant to directions of the Administrative Agent, for
re-distribution in accordance with the provisions of the Senior Loan Agreement;
(ii) on account of Indenture Obligations (subject to Section 3.5) to the
Indenture Trustee, and (iii) 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 and
Indenture Trustee. (a) 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
writing that (i) 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 or (ii) pursuant to Section 6.16(b) such Surety
Party may not yet accept such distribution, then the Trustee, after receipt of
such notification, shall, at the direction of such Surety Party, invest such
amounts in Cash Equivalents maturing within 30 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 and for no other
purpose until such time as such
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Surety Party shall request in writing the delivery thereof by the Trustee for
application pursuant to such Surety Bond Documents; provided that if the Surety
Party Obligations shall have otherwise been satisfied as a result of collections
against the Secured Party Credit Support, such Surety Party shall instruct the
Trustee to apply an amount equal to such collections in accordance with Section
3.4.
(b) 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
the Indenture Trustee, and if the Indenture Trustee shall notify the Trustee in
writing that (i) no provision is made under the Indenture for the application by
the Indenture Trustee of such moneys (whether because the Secured Obligations
under the Indenture have not become due and payable or otherwise) and that the
Indenture does not effectively provide for the receipt and the holding by the
Indenture Trustee of such moneys pending the application thereof or (ii)
pursuant to Section 6.16(b) the Indenture Trustee may not yet accept such
distribution, then the Trustee, after receipt of such notification, shall, at
the direction of the Indenture Trustee, 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 the Indenture Trustee (in its capacity as trustee) and for
no other purpose until such time as the Indenture Trustee shall request in
writing the delivery thereof by the Trustee for application pursuant to the
Indenture; provided that if the Indenture Obligations shall have otherwise been
satisfied as a result of collections against the Secured Party Credit Support,
the Indenture Trustee shall instruct the Trustee to apply an amount equal to
such collections in accordance with Section 3.4.
(c) 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
the Administrative Agent, and if the Administrative Agent shall notify the
Trustee in writing that (i) no provision is made under the Senior Loan Agreement
for the application by the Administrative Agent of such moneys (whether because
the Secured Obligations under the Senior Loan Agreement have not become due and
payable or otherwise) and that the Senior Loan Agreement does not effectively
provide for the receipt and the holding by the Administrative Agent of such
moneys pending the application thereof or (ii) pursuant to Section 6.16(b) the
Administrative Agent may not yet accept such distribution, then the Trustee,
after receipt of such notification, shall, at the direction of the
Administrative Agent, 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 the Administrative Agent (in its capacity as administrative agent)
and for no other purpose until such time as the Administrative Agent shall
request in writing the delivery thereof by the Trustee for application pursuant
to the Senior Loan Agreement; provided that if the Senior Loan Agreement
Obligations shall have otherwise been satisfied as a result of collections
against the Secured Party Credit Support, the Administrative Agent shall
instruct the Trustee to apply an amount equal to such collections in accordance
with Section 3.4.
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 unpaid Surety Bond
Obligations with respect to such Surety Party, (b) information supplied by the
Indenture Trustee as to the amount of the Indenture Obligations owing and (c)
information supplied by the Administrative Agent as to the amounts of unpaid
principal and interest and other amounts outstanding with respect to the Senior
Loan Agreement Obligations, and the Trustee shall have no liability to any of
the Secured Parties for actions taken in reliance on such information (except
for gross negligence and willful misconduct). Each Obligor, on behalf of itself
21
and all of its Subsidiaries, hereby irrevocably waives any right to challenge or
dispute, in a proceeding at law or in equity, prior to any actual distribution,
the allocation or distribution of moneys by the Trustee pursuant to Section 3.4
so long as such allocation and distribution by the Trustee to the Secured
Parties is based on a good faith certification by a relevant Secured Party of
the amounts paid and/or of demands received supported by calculations attached
thereto. Nothing in the preceding sentence shall limit the right of any Obligor
to (i) challenge or dispute any such allocation or distribution after such
distribution has been made by the Trustee, (ii) file a bankruptcy petition or
(iii) contest any claim in a bankruptcy proceeding, in the case of the foregoing
clauses (ii) and (iii) whether before or after such distribution. 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, the Indenture Trustee or a Surety Party of any amounts
distributed to them.
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 Trust Effective
Date, and (ii) a true and complete copy of any new Secured Instrument or Trust
Security Document entered into after the Trust Effective Date.
4.2 Information as to Secured Parties, Administrative Agent,
Indenture Trustee 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 Senior Loan Agreement Obligations outstanding and the
name and address of the Administrative Agent, (ii) the aggregate penal sum of
Surety Bonds issued and outstanding with respect to each Surety Party, the name
and address for each Surety Party and the amount of any Surety Bond Obligations
which the Company admits are then due and owing to any of such Surety Parties
and (iii) the aggregate principal amount of First Priority Secured Obligations,
Second Priority Secured Obligations and Third Priority Secured Obligations, and
the amount of each such category of obligations constituting Surety Bond
Obligations, Senior Loan Agreement Obligations and Indenture Obligations;
provided, that to the extent any amounts under (ii) or (iii) above relate to a
Surety Bond, such amount must be confirmed in writing by the applicable Surety
Party before it may be relied on by the Trustee. In addition, the Company will
promptly notify the Trustee of each change in the identity of the Administrative
Agent or any Surety Party. Any notice from the Company to the Trustee concerning
any new Surety Party simultaneously shall be delivered by such Obligor to the
other Surety Parties. If Indenture Securities are issued under the Indenture,
the Company will notify the Trustee of each such issuance and of the aggregate
principal amount of Indenture Securities so issued; and the Company will request
the Indenture Trustee to deliver to the Trustee the names of the officers of the
Indenture Trustee authorized to give directions hereunder on behalf of the
Indenture Trustee. 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 (and, if any Indenture Securities
have
22
been issued, the Indenture Trustee) 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, the Indenture
Trustee 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 (and, if any Indenture Securities have been issued, the Indenture Trustee)
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 reasonable 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 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, the Indenture Trustee 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 (including the enforcement of this Section 4.6),
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,
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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, the Indenture Trustee, 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, the Indenture
Trustee 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, any Surety Party, the Indenture
Trustee 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, 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 or any Surety
Party), 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, the Required Instructing Parties, any Surety Party 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 promptly paid by the Company.
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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 Senior Loan Agreement Obligations, or a certificate of the Indenture
Trustee, in the case of Indenture Obligations, and, if the relevant Surety
Party, the Indenture Trustee 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 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.
Subject to Section 3.6, 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 shall 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) Without limiting its fiduciary obligations to the Secured
Parties under this Agreement, 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 Wilmington
Trust Company 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 hereunder.
25
(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, accountants and other
experts and any Opinion of Counsel or written advice of any such accountant or
other expert 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, 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 Instructing
Parties or Required Secured Debt Parties, as applicable, 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 any Secured Instrument 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, any Trust Security Document, or
26
Secured Instrument 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 Instructing Parties (in
the case of actions in respect of the Shared Collateral) or the Required Secured
Debt Parties (in the case of actions in respect of the Other Collateral).
(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 Instructing Parties (in the case of
actions in respect of the Shared Collateral) or the Required Secured Debt
Parties (in the case of actions in respect of the Other Collateral). The Trustee
shall make available for inspection and copying by the Administrative Agent, the
Indenture Trustee 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 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. (a) 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.
(b) All certificates representing any Finance Company Equity
Interests received by the Trustee shall be continuously and physically held and
possessed by the Trustee at its offices within the State of Delaware.
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, the
Indenture Trustee 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 Required Instructing Parties
or the Company, as the case may be. If no successor Trustee shall be appointed
and shall have accepted such appointment within 45
27
days after the Trustee gives the aforesaid notice of resignation, the Trustee,
the Company, the Administrative Agent, the Indenture Trustee any Surety Party or
any other 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 Required Instructing
Parties as provided in Section 5.7(b). The Required Instructing Parties may, at
any time upon giving 30 days' prior written notice thereof to the Trustee, the
Administrative Agent, the Indenture 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; provided, that if no default
has occurred and is continuing under any Secured Instrument, any such removal of
the Trustee and appointment of a successor Trustee shall require the consent of
the Company, which consent shall not be unreasonably withheld. 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 Required Instructing Parties 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,
the Company and the Secured Parties. 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 Required Instructing Parties, 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 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. Subject to Section 5.8, any corporation
into which the Trustee may be merged, or with which it may be consolidated, or
any corporation resulting from any
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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, the Indenture Trustee 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:
(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
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;
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(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.
(b) Any Person (other than the Administrative Agent, the Indenture
Trustee 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 Senior Loan
Agreement Obligations are represented hereunder by the Administrative Agent, the
holders of the Indenture Obligations are represented hereunder by the Indenture
Trustee 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,
the Indenture Trustee 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, the Indenture Trustee 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
30
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, the
Indenture Trustee 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, the Indenture
Trustee, 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) The Trustee and the
Obligors may, with the written consent of the Required Secured Debt Parties and
the Required Surety Parties and, to the extent such party holds Secured
Obligations, the Administrative Agent and Liberty, 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 or waive any provision of this
Section 6.3 without the written consent of the Surety Parties, the
Administrative Agent and, if any Indenture Securities are outstanding, the
Indenture Trustee, (ii) except as provided in the next succeeding sentence,
reduce the percentages or change the numbers specified in the definition of
Required Instructing Parties, Required Secured Debt Parties, or Required Surety
Parties or amend, modify or waive any provision of Sections 2.10, 3.4, 3.5, 3.6,
4.6 or 6.10 or the definition of First Priority Secured Obligations, Second
Priority Secured Obligations, Third Priority Secured Obligations, Surety Bond or
Secured Obligations (or the definitions of any defined terms used in such
definitions) 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 Secured Debt Parties have agreed with
the Company that additional indebtedness of the Company shall be secured by all
or any portion of the Collateral, and each Surety Party shall have given its
written consent thereto, the Trustee shall enter into such supplemental
agreements satisfactory to the Trustee with the Obligors as shall be reasonably
requested by the Administrative Agent, with the concurrence of each Surety
Party, 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
Indenture Trustee, the Surety Parties, the Secured Parties and the Trustee and
their respective successors.
(b) Without the consent of the Administrative Agent, the Indenture
Trustee, the Surety Parties or any other 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; (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
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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; or (iv) to add, delete or modify any provision herein to
the extent required by the U.S. Securities and Exchange Commission with respect
to the qualification of the Indenture under the Trust Indenture Act.
(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 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, the Indenture Trustee and each of the Surety Parties of a
written direction (which direction shall be delivered upon the occurrence of the
applicable events described in Section 7.14(a) of the Collateral Agreement) 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
32
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, or substantially all
of the assets of such Obligor have, been sold, transferred or otherwise disposed
of to a third party and that such sale does not violate any Secured Instrument
(which certificate shall be accompanied by a written statement from the
Administrative Agent that such sale is or will be in accordance with the Senior
Loan Agreement and a written statement from each Surety Party that such sale is
or will be in accordance with the Surety Bond Documents to which such Surety
Party is a party), (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 (without the need for any action by any party to
evidence the same), (ii) the security interests created by the Trust Security
Documents in the Capital Stock of such Included Obligors and 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 (without the need for any
action by any party to evidence the same), (iii) all right, title and interest
of the Trustee in and to the Collateral subject to such security interests shall
revert to such Included Obligors (or, in the case of the Capital Stock of any
Included Obligor, to the Obligor that granted a security interest therein
pursuant to the Trust Security Documents), their successors and assigns (without
the need for any action by any party to evidence the same) and (iv) any
obligations of such Included Obligors shall, unless otherwise expressly notified
by the Company to the Trustee, the Surety Parties and the Administrative Agent
in writing, cease to be Secured Obligations (without the need for any action by
any party to evidence the same). 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 (including, without limitation, mortgage
releases in respect on any mortgage property included in such Collateral) and
(y) deliver or cause to be delivered to such Included Obligors all property of
such Included Obligors then held by the Trustee or any agent thereof and to the
Obligor that granted a security interest in Capital Stock of such Included
Obligors pursuant to the Trust Security Documents all such Capital Stock then
held by the Trustee.
(d) If any of the Collateral shall be sold, transferred or otherwise
disposed of by any Obligor in a transaction permitted by the Secured Instruments
(including without limitation, pursuant to Section 6.5 of the Senior Loan
Agreement and Section 4.10 of the Indenture), then the Collateral Trustee, at
the request 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 hereby and by the other 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 all Secured Instruments and the other Loan Documents and
(ii) a written confirmation by the Administrative Agent that such release is
permitted by the Senior Loan Agreement and a written confirmation by each Surety
Party that such sale is permitted by the Surety Bond Documents to which such
Surety Party is a party.
(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 survive any such termination.
33
(f) The Trustee will, at any time, upon the written instruction of
the Administrative Agent and the Surety Parties, 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 that become guarantors pursuant to the terms of any
Secured Instrument shall 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, the Indenture Trustee, any Surety Party or any
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, (vi) which has been publicly disclosed other than
in breach of the Trust Agreement, or (vii) to the extent reasonably necessary,
in connection with the exercise of any remedy hereunder.
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;
34
(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 The Indenture Trustee, the Holders and the Indenture
Securities.
(a) On the date hereof, the Indenture remains in escrow and no
Indenture Securities have been issued. Until such date on which any Indenture
Securities are issued and notice of such issuance has been given to the Trustee
pursuant to Section 4.2, then, notwithstanding references in this Trust
Agreement to the Indenture, the Indenture Securities and the Holders, (i)
neither the Indenture Trustee nor any Holder shall have any rights, powers or
duties hereunder, (ii) no notices to, or other communication with, the Indenture
Trustee or any Holder shall be required hereunder and (iii) and no consent or
other action on the part of the Indenture Trustee or any Holder shall be
required or permitted hereunder.
(b) Upon the issuance of any Indenture Securities, the Company, ANC
Financial LP, the Administrative Agent and the Trustee shall enter into and
execute an amendment and restatement of the Collateral and Control Agreement
pursuant to which the Administrative Agent shall take such actions necessary to
assign to the Trustee the security interests granted pursuant to Section 2 of
the Collateral and Control Agreement, and to transfer to the Trustee its rights
and responsibilities thereunder.
6.16 Intercreditor Agreements; Authorization to Trustee in Respect
of Certain Agreements. (a) Notwithstanding anything in this Agreement to the
contrary, the rights of the Trustee and each other Secured Party hereunder are
subject to (i) in respect of Corporate Collateral, the Intercreditor Agreement,
(ii) (to the extent the Trustee is granted perfected security interests in the
Vehicle Collateral and executes the Fleet Intercreditor Agreement) in respect of
Fleet Collateral consisting of Vehicle Collateral, the Fleet Intercreditor
Agreement and (iii) in respect of Fleet Collateral consisting of the Finance
Company Equity Interests, the MBIA Consent, the Ambac Consent and the Letter
Agreement, in each case to the extent provided therein. Each of the Secured
Parties hereby acknowledges, by its acceptance of the benefits under this
Agreement, that the provisions contained in each of the Intercreditor Agreement,
the Fleet Intercreditor Agreement (if and when such Fleet Intercreditor
Agreement is executed by such Secured Party or a trustee acting on its behalf),
the MBIA Consent, the Ambac Consent and the Letter Agreement are binding upon it
as if it were a party thereto and may be enforced against it by any other party
thereto.
(b) Each Secured Party hereby agrees that to the extent any of the
Surety Bond Obligations, Indenture Obligations or Senior Loan Agreement
Obligations, as applicable, owed to such Secured Party are (i) secured by cash
provided by an Obligor to or for the benefit of such Secured Party or its
affiliates, or (ii) backed by a letter of credit provided for the account of an
Obligor and for the benefit of such Secured Party or its affiliates to provide
credit support for such Surety Bond Obligations, Indenture Obligations or Senior
Loan Agreement Obligations, as applicable (the foregoing described in clauses
(i) and (ii), collectively, the "Secured Party Credit
35
Support"), then such Secured Party shall, prior to accepting any distributions
made pursuant to this Agreement, make a demand, and take commercially reasonable
actions (for not longer than 60 days) to collect against such Secured Party
Credit Support to satisfy the applicable Secured Obligations.
(c) Under no circumstances will any payments made by AutoNation,
Inc. to Liberty under that certain Indemnification Agreement between AutoNation,
Inc. and Liberty, dated the date hereof (as amended, supplemented or otherwise
modified from time to time except for any provision of any such amendment,
supplement or modification which would have the effect of increasing the amount
set forth in the definition of Maximum Amount in such Indemnification Agreement
on the date hereof), alter, modify, delay or constitute a credit or an offset in
respect of or reduce (i) any amounts owed by any Obligor to any Surety Party, or
(ii) the amount of losses suffered by any Surety Party, or (iii) the amount of
any Surety Bond Obligations, or (iv) any rights or interests that any Surety
Party has against the Company or any Obligor, or that any Surety Party has in
the Collateral, any proceeds thereof, or any distributions of the same.
(d) Each of the Secured Parties hereby authorizes, by its acceptance
of the benefits under this Agreement, and instructs the Trustee to execute and
deliver each of the Collateral Agreement, the Intercreditor Agreement, the
Master Collateral Agency Agreement Supplement, the MBIA Consent, the Ambac
Consent, the Letter Agreement and the Burlingame Mortgage.
6.17 Further Assurances; Absolute Obligations to Grant Lien on
Vehicle Collateral. In the event that any Obligor enters into a new credit
protection or similar facility which replaces its current liquidity facility (a)
in its entirety, or (b) in a manner that either (X) increases the size of such
liquidity facility or (Y) adds any liquidity facility lenders, then
simultaneously with entering into such new facility, such Obligor shall grant to
the Trustee for the benefit of the Secured Parties a perfected security interest
in the Vehicle Collateral pursuant to the Master Collateral Agency Agreement and
the Master Collateral Agency Agreement Supplement.
6.18 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.
36
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective authorized officers as of the
day and year first written above.
ANC RENTAL CORPORATION
By: /s/ James H. Grady
------------------------------------
Name: James H. Grady
Title: Vice President
ALAMO RENT-A-CAR (CANADA), INC.
ALAMO RENT-A-CAR MANAGEMENT, LP
By: ARC-GP, Inc., its general partner
ANC COLLECTOR CORPORATION
ANC FINANCIAL, LP
By: ANC Financial GP Corporation, its
general partner
ARC-GP, INC.
ARC-TM, INC.
LIABILITY MANAGEMENT COMPANIES HOLDING, INC.
NATIONAL CAR RENTAL LICENSING, INC.
NATIONAL CAR RENTAL SYSTEM, INC.
NCR AFFILIATE SERVICER, INC.
NCRAS MANAGEMENT, LP
By: NCRAS-GP, Inc., its general partner
NCRAS-GP, INC.
REPUBLIC GUY SALMON PARTNER, INC.
REPUBLIC INDUSTRIES AUTOMOTIVE
RENTAL GROUP (BELGIUM) INC.
SPIRIT RENT-A-CAR, INC.
SRAC MANAGEMENT, LP
By: SRAC-GP, Inc., its general partner
SRAC-GP, INC.
SRAC-TM, INC.
By: /s/ James H. Grady
------------------------------------
Name: James H. Grady
Title: Vice President
ALAMO RENT-A-CAR, LLC
By: /s/ James H. Grady
------------------------------------
Name: James H. Grady
Title: Vice President
ANC FINANCIAL CORPORATION
ANC FINANCIAL PROPERTIES LLC
ANC IT COLLECTOR CORPORATION
ARC-TM PROPERTIES LLC
NCR AFFILIATE SERVICER PROPERTIES, LLC
ANC INFORMATION TECHNOLOGY HOLDING, INC.
ANC INFORMATION TECHNOLOGY, INC.
ANC INFORMATION TECHNOLOGY, L.P.
By: ANC INFORMATION TECHNOLOGY, INC.,
its general partner
By: /s/ James H. Grady
------------------------------------
Name: James H. Grady
Title: Vice President
Address for Notices:
ANC Rental Corporation
200 South Andrews Avenue
Fort Lauderdale, FL 33301
Attn: Howard D. Schwartz
Fax: 954-320-4158
With a copy to:
Attn: Leland Wilson
Fax: 954-320-4530
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
Attn: Corporate Trust Administration
Fax: 302-651-8882
ANNEX I
Trust Security Documents
1. Collateral and Control Agreement.
2. Collateral Agreement
3. Master Collateral Agency Agreement Supplement and Master Collateral Agency
Agreement
4. Burlingame Mortgage
SCHEDULE I
Existing Surety Bonds
EXHIBIT A
FORM OF NOTICE OF ACCELERATION
[Date]
To: Wilmington Trust Company, as Trustee
Re: Trust Agreement, dated as of August 30, 2001 (as amended, the "Trust
Agreement"), among ANC Rental Corporation (the "Company"), the
subsidiaries of the Company parties thereto (together with the Company,
the "Obligors") and Wilmington Trust Company, as Trustee.
[The [Senior Loan Agreement Obligations] [Surety Bond Obligations owing to
the undersigned Surety Party] [Indenture Obligations] have not been paid in full
at the stated final maturity and any applicable grace period has expired.] [An
Event of Default has occurred under the provisions of the [Senior Loan
Agreement] [ANC Liberty Agreement] [Indenture] and, as a result thereof, the
[Senior Loan Agreement Obligations] [Indenture Obligations] [have become due and
payable prior to the stated maturity thereof] [Surety Party [issued a demand to
be placed in funds or discharged pursuant to paragraph 5 of a Contract of
Indemnity which demand is not satisfied when due] [withdrew a prior deferral of
a demand to be placed in funds or discharged pursuant to paragraph 5 of a
Contract of Indemnity] [a default has occurred under the provisions of the
relevant Secured Instrument and, as a result,] [all Senior Loan Agreement
Obligations] [all Indenture Obligations] [all Surety Bond Obligations]
[outstanding under such Secured Instrument have become immediately due and
payable and have not been paid]].
Terms defined in the Trust Agreement and used herein shall have the
meanings given to them in the Trust Agreement.
[LEHMAN COMMERCIAL PAPER INC.,
as Administrative Agent]
[____________________, as
Surety Party]
By:________________________________________
Name:
Title:
[THE BANK OF NEW YORK, as Indenture Trustee]
By:________________________________________
Name:
Title:
EXHIBIT B
FORM OF ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT, dated as of ________ __, __, made by
_________________, a _________________ corporation (the "New Obligor") in favor
of Wilmington Trust Company, 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, ANC Rental Corporation, a Delaware 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
August 30, 2001 (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:
Attn:
Fax: