EXHIBIT 10.31
TRUST AGREEMENT, dated as of October 2, 1996, among SPRINT
SPECTRUM L.P., a Delaware limited partnership (the "Borrower"), FIRST UNION
NATIONAL BANK, a national banking association, as corporate trustee (as
hereinafter defined, the "Corporate Trustee"), and XXXXXXX X. XXXXXX, as
individual trustee (as hereinafter defined, the "Individual Trustee").
W I T N E S S E T H :
WHEREAS, the Borrower has entered into the Initial Bank Credit
Facility and the Initial Vendor Credit Facilities (each as defined herein) and
expects to incur certain other obligations;
WHEREAS, the Borrower wishes to cause such obligations to
become Secured Obligations hereunder by causing such obligations to be secured
by the Collateral pursuant to the Security Documents and guaranteed pursuant to
the Guarantees, all in the manner described in this Trust Agreement; and
WHEREAS, the Borrower and certain of its Subsidiaries may,
from time to time, execute and deliver to the Corporate Trustee certain
Additional Guarantees and Additional Security Documents and, pursuant to such
Additional Security Documents, create in favor of the Trustees a security
interest in Additional Collateral, all in the manner described in this Trust
Agreement.
DECLARATION OF TRUST:
NOW, THEREFORE, to secure the payment of the Secured
Obligations and in consideration of the premises and the mutual agreements set
forth herein, the Trustees do hereby declare that they hold and will hold as
trustees in trust under this Trust Agreement all of their right, title and
interest in, to and under all of the Collateral, the Guarantees and the Security
Documents, whether now existing or hereafter arising (and the Borrower does
hereby consent thereto);
TO HAVE AND TO HOLD the Security Documents, the Guarantees and
the Collateral (the right, title and interest of the Trustees in the Security
Documents, the Guarantees and the Collateral being hereinafter referred to as
the "Trust Estate") unto the Trustees and their respective successors in trust
under this Trust Agreement and their respective assigns forever;
IN TRUST NEVERTHELESS, under and subject to the conditions
herein set forth and for the benefit of the Secured Parties, 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, the
Secured Instruments, the Guarantees and the Security Documents;
PROVIDED, HOWEVER, that these presents are upon the condition
that, when the events set forth in subsection 9.12(d) shall have occurred, this
Trust Agreement, and the estates and rights hereby assigned, shall cease,
determine and be void except as otherwise provided in subsection 9.12(d);
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 Trustees, subject to the further
covenants, conditions and trusts hereinafter set forth.
SECTION 1
DEFINITIONS
1.1 Defined Terms. As used herein, the following terms shall have the
following meanings:
"Additional Collateral": all Collateral other than the Ini-
tial Collateral.
"Additional Collateral Designation": each Additional Colla-
teral Designation, substantially in the form of Exhibit A, duly com-
pleted and executed by a Responsible Officer and delivered pursuant to
subsection 4.4.
"Additional Guarantee": each guarantee in favor of the
Trustees executed and delivered hereunder in the manner provided in
subsection 4.6, as amended, supplemented or otherwise modified from
time to time in accordance with this Trust Agreement.
"Additional Guarantee Designation": each Additional Guarantee
Designation, substantially in the form of Exhibit B, duly completed and
executed by a Responsible Officer and delivered pursuant to subsection
4.6.
"Additional Secured Instrument": each Secured Instrument evi-
dencing or governing Additional Secured Obligations, as amended, .
supplemented or otherwise modified from time to time in accordance with
this Trust Agreement.
"Additional Secured Obligations": any Permitted Additional
Secured Obligations that become Secured Obligations in the manner pro-
vided in subsection 4.2.
"Additional Secured Obligations Designation": each Additional
Secured Obligations Designation, substantially in the form of Exhibit
C, duly completed and executed by a Responsible Officer and delivered
pursuant to subsection 4.2.
"Additional Security Document": each agreement or instrument
(other than the Initial Security Documents) creating or evidencing a
security interest of the Trustees in, or a lien in favor of the
Trustees on, any Collateral, as amended, supplemented or otherwise
modified from time to time in accordance with this Trust Agreement.
"Affiliate": as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. For purposes of this definition,
"control" of a Person means the power, directly or indirectly, to
direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting interests, by contract
or otherwise.
"Asset Sale": any sale, transfer or other disposition or
series of related sales, transfers or other dispositions by the
Borrower or any Subsidiary of any property or assets of the Borrower or
such Subsidiary (including property subject to any Lien under any
Security Document) to a Person other than the Borrower or any
Subsidiary.
"Asset Sale Proceeds Release Request": a request delivered by
the Borrower to the Corporate Trustee requesting the Corporate Trustee
to release funds from the Asset Sale Proceeds Sub-Account for use by
the Borrower to purchase assets in accordance with the applicable
provisions of the Secured Instruments pursuant to which such funds were
originally deposited in the Asset Sale Proceeds Sub-Account. Each Asset
Sale Proceeds Release Request (a) shall specify (i) the amount of funds
to be released, (ii) the date of the requested release, (iii) the
purpose for which the Borrower expects to use such funds, (iv) the
applicable provisions of the Secured Instruments permitting the
requested release and proposed use of such funds, (v) the investments
to be liquidated to provide cash to make such release, and (vi) the
wire instructions for the transfer of such funds to or for the account
of the Borrower and (b) shall be accompanied by a certificate of a
Responsible Officer to the effect that such requested release of funds
and proposed use thereof will not violate any Secured Instrument.
"Asset Sale Proceeds Prepayment Request": a request delivered
by the Borrower to the Corporate Trustee requesting the Corporate
Trustee to release funds from the Asset Sale Proceeds Sub-Account for
use by the Borrower to make a prepayment of Secured Obligations in
accordance with the applicable provisions of the Secured Instruments
pursuant to which such funds were originally deposited in the Asset
Sale Proceeds Sub-Account. Each Asset Sale Proceeds Prepayment Request
(a) shall specify (i) the amount of funds to be released, (ii) the date
of the requested release, (iii) the applicable provisions of the
Secured Instruments permitting or requiring the requested release and
proposed use of such funds, (v) the investments to be liquidated to
provide cash to make such release, and (vi) the wire instructions for
the transfer of such funds to or for the account of Secured Parties and
(b) shall be accompanied by a certificate of a Responsible Officer to
the effect that such requested release of funds and proposed use
thereof will not violate any Secured Instrument.
"Asset Sale Proceeds Sub-Account": as defined in subsection
3.1(a).
"Bank Credit Facility": any credit facility (including the
Initial Bank Credit Facility) which (a) is provided to the Borrower by
commercial banks and/or other lenders and (b) is designated as a Bank
Credit Facility in Schedule I or is designated as a Bank Credit
Facility in the Additional Secured Obligations Designation pursuant to
which the Bank Facility Obligations under such Bank Credit Facility
become Secured Obligations hereunder.
"Bank Facility Agent": with respect to any Bank Credit Faci-
lity, the Person (howsoever designated) performing the functions
customarily associated with an administrative agent for the lenders
thereunder.
"Bank Facility Obligations": at any time, the sum (without
duplication) of (a) the aggregate principal or face amount of the loans
and other extensions of credit outstanding at such time under any of
the Bank Credit Facilities and the aggregate amount of accrued and
unpaid interest thereon at such time, (b) the aggregate amount of
accrued and unpaid fees payable by the Borrower under or in connection
with any of the Bank Credit Facilities at such time, and (c) the
aggregate amount of all other monetary obligations of the Borrower that
are accrued and owing at such time to any Secured Party under any Bank
Credit Facility, including, without limitation, indemnification and
expense reimbursement obligations.
"Bank Facility Secured Party": any Secured Party to the ex-
tent it is a Holder of Bank Facility Obligations.
"Business Day": any day other than a day on which banks are
authorized or required by law to close in New York City, Kansas City,
Missouri, Charlotte, North Carolina or Newark, New Jersey.
"Code": the Uniform Commercial Code as in effect from time t
time in the State of New York.
"Collateral": all the properties and assets of whatever na-
ture, tangible or intangible, now owned or existing or hereafter ac-
quired or arising, in which the Trustees have been granted a lien or
security interest pursuant to any of the Security Documents and all
Proceeds thereof.
"Collateral Account": as defined in subsection 3.1.
"Corporate Trustee": First Union National Bank, in its capa-
city as corporate trustee under this Trust Agreement, and any successor
corporate trustee appointed hereunder.
"Distribution Date": each date fixed by the Corporate Trustee
or the Required Secured Parties for a distribution to the Secured
Parties of funds held in the Collateral Account, the first of which
shall be within 120 days after a Notice of Enforcement is effective as
provided in subsection 2.1(b), and the remainder of which shall occur
(x) monthly thereafter on the day of the month corresponding to the
first Distribution Date (or, if there be no such corresponding day, the
last day of such month), provided, that if any such day is not a
Business Day, such Distribution Date shall be the next Business Day and
(y) on such other dates fixed by the Corporate Trustee or the Required
Secured Parties.
"Dollars" and "$": lawful currency of the United States of
America.
"Effective Date": October 11, 1996.
"Enforcement Proceeds Sub-Account": as defined in subsection
3.1(a).
"Guarantees": the Initial Guarantees and the Additional
Guarantees.
"Hedging Agreement": any interest rate swap, currency swap or
other interest rate or currency hedge arrangement (other than any
interest rate cap or other similar agreement or arrangement under which
the Borrower has no continuing payment obligations) (a) to or under
which the Borrower is a party or a beneficiary and (b) which is
designated as a Hedging Agreement in the Additional Secured Obligations
Designation pursuant to which the Hedging Agreement Obligations under
such Hedging Agreement become Secured Obligations hereunder.
"Hedging Agreement Obligations": at any time, the aggregate
amount of all monetary obligations of the Borrower to any Secured Party
that are accrued and unpaid at such time under any one or more Hedging
Agreements.
"Hedging Agreement Secured Party": any Secured Party to the
extent it is a Holder of Hedging Agreement Obligations.
"Holder": any holder of, or creditor in respect of, Secured
Obligations.
"Holder Representative": (a) with respect to any Holder of
Bank Facility Obligations, the Bank Facility Agent under the Bank
Credit Facility pursuant to which such Bank Facility Obligations are
outstanding, (b) with respect to any Holder of Vendor Facility
Obligations, the Vendor Facility Agent under the Vendor Credit Facility
pursuant to which such Vendor Facility Obligations are outstanding, (c)
with respect to any Holder of Other Facility Obligations, the Other
Facility Agent, if any, under the Other Credit Facility pursuant to
which such Other Facility Obligations are outstanding and (d) with
respect to any Holder of Public Debt Obligations, the Public Debt
Trustee under the Public Debt Indenture pursuant to which such Public
Debt Obligations are outstanding.
"Holding": Sprint Spectrum Holding Company, L.P., a Delaware
limited partnership and the general partner of the Borrower.
"Individual Trustee": Xxxxxxx X. Xxxxxx, in his capacity as
individual trustee under this Trust Agreement, and any successor indi-
vidual trustee appointed hereunder.
"Initial Bank Credit Facility": the credit facility provided
pursuant to the Credit Agreement dated as of October 2, 1996, among the
Borrower, the lenders named therein and The Chase Manhattan Bank, as
Administrative Agent, as amended, supplemented or otherwise modified
from time to time.
"Initial Collateral": the Collateral in existence on the
Effective Date in which a security interest is created under the Ini-
tial Security Documents.
"Initial Guarantees": the guarantees described in Schedule
II, as amended, supplemented or otherwise modified from time to time in
accordance with this Trust Agreement.
"Initial Secured Instruments ": the Initial Vendor Credit
Facilities and the Initial Bank Credit Facility.
"Initial Secured Obligations": the Secured Obligations de-
scribed in Schedule I.
"Initial Security Documents": the documents described in
Schedule III, as amended, supplemented or otherwise modified from time
to time in accordance with this Trust Agreement and the Secured Instru-
ments.
"Initial Vendor Credit Facilities": (a) the credit facility
provided pursuant to the Credit Agreement, dated as of October 2, 1996,
among the Borrower, the lenders named therein (including Lucent
Technologies Inc.) and Lucent Technologies Inc., as Agent, and (b) the
credit facility provided pursuant to the Credit Agreement, dated as of
October 2, 1996, among the Borrower, the lenders named therein
(including Northern Telecom Inc.) and the agent named therein, in each
case as amended, supplemented or otherwise modified from time to time.
"Notice of Cancellation of Enforcement": with respect to any
Notice of Enforcement, a notice or notices (a) delivered to the
Corporate Trustee by the Holder Representatives and/or Unrepresented
Holders that delivered such Notice of Enforcement, cancelling such
Notice of Enforcement and (b) requesting the Corporate Trustee not to
commence or, as the case may be, to cease, enforcement actions in
respect of the Collateral and the Guarantees.
"Notice of Enforcement": a notice or notices delivered to the
Corporate Trustee by Unrepresented Holders and/or Holder
Representatives representing the Required Secured Parties (a) stating
that the Secured Obligations owing to the Holders represented by such
Holder Representatives have become due and payable at or prior to the
stated maturity thereof and remain unpaid and (b) requesting the
Corporate Trustee to commence enforcement actions in respect of the
Collateral and the Guarantees as directed by the Required Secured
Parties; provided that a Notice of Enforcement shall be deemed to have
been delivered and to be effective upon the occurrence of any event
that by the terms of any Secured Instrument or Secured Instruments
pursuant to which more than 50% of the aggregate amount of the Voting
Secured Obligations are outstanding would result in such Secured
Instrument or Secured Instruments becoming due and payable prior to
their stated maturity automatically and without notice or other action
by the Secured Parties under such Secured Instrument or Secured
Instruments.
"Opinion of Counsel": an opinion in writing signed by legal
counsel reasonably satisfactory to the Corporate Trustee, who may be an
employee of the Corporate Trustee or of the Borrower or counsel
regularly retained by the Borrower or by the Corporate Trustee. Any
Opinion of Counsel may contain customary exceptions, assumptions and
qualifications and may rely, as to factual matters, on certificates of
public officials or representatives of the Borrower.
"Other Credit Facility": any loan or other credit facility or
other extension of credit to the Borrower which is designated as an
Other Credit Facility in Schedule I or is designated as an Other Credit
Facility in the Additional Secured Obligations Designation pursuant to
which the Other Credit Facility Obligations under such Other Credit
Facility become Secured Obligations hereunder.
"Other Facility Agent": with respect to any Other Credit
Facility, any Person (howsoever designated) performing the functions
customarily associated with an administrative agent for the lenders
thereunder.
"Other Facility Obligations": at any time, the sum (without
duplication) of (a) the aggregate principal or face amount of the loans
and other extensions of credit outstanding at such time under any of
the Other Credit Facilities and the aggregate amount of accrued and
unpaid interest thereon at such time, (b) the aggregate amount of
accrued and unpaid fees payable by the Borrower under or in connection
with any of the Other Credit Facilities at such time, and (c) the
aggregate amount of all other monetary obligations of the Borrower that
are accrued and owing at such time to any Secured Party under any Other
Credit Facility, including, without limitation, indemnification and
expense reimbursement obligations.
"Other Facility Secured Party": any Secured Party to the ex-
tent it is a Holder of Other Facility Obligations.
"Permitted Additional Secured Obligations": at any time, any
indebtedness or other obligations that the Borrower may incur as Bank
Facility Obligations, Vendor Facility Obligations, Public Debt
Obligations, Other Facility Obligations or Hedging Agreement
Obligations, as the case may be, without violating this Trust Agreement
or any Secured Instrument in effect at such time.
"Person": an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality
thereof.
"Pledged Equity Securities": any portion of the Collateral
consisting of stock of, partnership interests in, or other evidences of
equity ownership in, any Person.
"Possessory Collateral": Collateral in which the Trustees'
security interest may be, in accordance with the Code, perfected only
by means of possession of such Collateral by the Trustees or an agent
or bailee on their behalf.
"Proceeds": all proceeds within the meaning of the Code.
"Public Debt": any indebtedness outstanding under a Public
Debt Indenture.
"Public Debt Indenture": any indenture between the Borrower
and a trustee (a) pursuant to which there are outstanding debt
securities of the Borrower in the form of notes, bonds or debentures
that were issued and sold initially in a public offering or private
placement and (b) which is designated as a Public Debt Indenture in the
Additional Secured Obligations Designation pursuant to which the Public
Debt Obligations under such Public Debt Indenture become Secured
Obligations hereunder.
"Public Debt Obligations": at any time, the aggregate princi-
pal or face amount of Public Debt outstanding and the aggregate amount
at such time of accrued and unpaid interest thereon, and premium, if
any, thereon to the extent such premium is then due and payable.
"Public Debt Trustee": with respect to any Public Debt Inden-
ture, the entity acting as trustee thereunder.
"Required Secured Parties": at a particular time, Secured
Parties holding more than 50% of the aggregate of (a) the amount of the
Voting Secured Obligations plus, (b) if a Notice of Enforcement is not
effective, the amount of commitments to provide credit to the Borrower
pursuant to Secured Instruments that would constitute Voting Secured
Obligations when provided at such time; provided, however, that with
respect to any action (including the delivery of a Notice of
Enforcement or other instruction to exercise foreclosure or other
remedies) that relates to Collateral consisting of rights under a
contract to which any Secured Party or any Affiliate thereof is a
party, the Secured Obligations and commitments to provide credit that,
when provided, would constitute Voting Secured Obligations held by such
Secured Party shall not be included as "Voting Secured Obligations" for
purposes of determining, with respect only to the exercise of remedies
with respect to such contract, whether one or more Secured Parties
constitute Required Secured Parties.
"Responsible Officer": any of the president, chief financial
officer, treasurer, assistant treasurer, controller or director-cor-
porate finance of the Borrower.
"Responsible Trustee Officer": any officer of the Corporate
Trustee with direct responsibility for the administration of this Trust
Agreement, and with respect to a particular corporate trust matter, any
other officer of the Corporate Trustee to whom such matter is referred
because of his knowledge of and familiarity with the particular
subject.
"Secured Instruments": at any time, the loan agreements,
credit agreements, note purchase agreements, financing agreements,
notes, debentures, bonds, Hedging Agreements and other documents and
instruments, however designated (other than the Guarantees and the
Security Documents), that evidence Secured Obligations or govern the
terms of Secured Obligations or pursuant to which Secured Obligations
were issued or are outstanding, as any of the foregoing may be amended,
supplemented or otherwise modified from time to time in accordance with
the respective terms thereof.
"Secured Obligations": (a) the Bank Facility Obligations, (b)
the Vendor Facility Obligations, (c) the Public Debt Obligations,
(d) the Other Facility Obligations and (e) the Hedging Agreement Obli-
gations.
"Secured Parties": the Holders of the Secured Obligations,
including, where the context permits, the Bank Facility Agents, the
Vendor Facility Agents, the Other Facility Agents and the Public Debt
Trustees.
"Security Documents": (a) the Initial Security Documents and
(b) the Additional Security Documents.
"Sub-Account": as defined in subsection 3.1(a).
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Trust Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower.
"Trust Agreement": this Trust Agreement, dated as of October
2, 1996, among the Borrower, the Corporate Trustee and the Individual
Trustee, as amended, supplemented or otherwise modified from time to
time.
"Trust Estate": as defined in the Declaration of Trust in
this Trust Agreement.
"Trustee Fees": all fees, costs and expenses of the Trustees
of the types described in subsections 5.3, 5.4, 5.5 and 5.6.
------------
"Trustees": collectively, the Corporate Trustee and the Indi-
vidual Trustee.
"Unrepresented Holder": any Hedging Agreement Secured Party
and any other Holder of Secured Obligations for which there is no
Holder Representative.
"Vendor Credit Facility": any credit facility (including the
Initial Vendor Credit Facilities) (a) pursuant to which a Person
selling goods or services to the Borrower and/or its Subsidiaries, or
an affiliate of such Person, provides credit to the Borrower solely to
finance the purchase of goods or services relating to the Borrower's
national wireless system and/or any costs and expenses relating thereto
and (b) which is designated as a Vendor Credit Facility in Schedule I
or is designated as a Vendor Credit Facility in the Additional Secured
Obligations Designation pursuant to which the Vendor Facility
Obligations under such Vendor Credit Facility become Secured
Obligations hereunder.
"Vendor Facility Agent": in respect of any Vendor Credit Fa-
cility, the Person (howsoever designated) performing the functions
customarily associated with an administrative agent for the lenders
thereunder.
"Vendor Facility Obligations": at any time, the sum (without
duplication) of (a) the aggregate principal amount of the loans
outstanding at such time under any of the Vendor Credit Facilities and
the aggregate amount of accrued and unpaid interest thereon at such
time, (b) the aggregate amount of accrued and unpaid fees payable by
the Borrower under or in connection with any of the Vendor Credit
Facilities at such time, and (c) the aggregate amount of all other
monetary obligations of the Borrower that are accrued and owing at such
time to any Secured Party under any Vendor Credit Facility, including,
without limitation, indemnification and expense reimbursement
obligations.
"Vendor Facility Secured Party": any Secured Party to the ex-
tent it is a Holder of Vendor Facility Obligations.
"Voting Secured Obligations": all Secured Obligations other
than (i) those held by an Affiliate of the Borrower and (ii) those
outstanding under Secured Instruments that provide that the Holders of
such Secured Obligations will not be included in any determination of
Required Secured Parties.
1.2 Other Definitional Provisions. 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, the words "include", "includes"
and "including" when used in this Trust Agreement shall be deemed to be followed
by the phrase "without limitation", and Schedule, section and subsection
references are to this Trust Agreement unless otherwise specified.
SECTION 2
ENFORCEMENT OF SECURITY INTERESTS AND GUARANTEES
2.1 Notice of Enforcement. (a) Upon receipt by the Corporate
Trustee of a Notice of Enforcement, the Corporate Trustee shall immediately
notify the Borrower, each Holder Representative and each Unrepresented Holder of
the receipt and contents thereof. So long as such Notice of Enforcement is in
effect, the Trustees shall exercise the rights and remedies provided in this
Trust Agreement and in the Guarantees and the Security Documents in accordance
with the direction of the Required Secured Parties as provided herein. The
Trustees are not empowered to exercise any remedy hereunder or thereunder
relating to the foreclosure of Collateral or enforcement of any Guarantee unless
a Notice of Enforcement is in effect; provided that, for the avoidance of doubt,
this subsection 2.1(a) shall in no event limit the right of the Trustees to
exercise such rights and remedies as they may have hereunder and under the
Security Documents to preserve and protect the Collateral and the rights of the
Trustees and the Secured Parties therein.
(b) A Notice of Enforcement shall become effective upon
receipt thereof by the Corporate Trustee and, once effective, shall remain in
effect unless and until cancelled as provided in subsection 2.1(c).
(c) A Notice of Enforcement may be cancelled by the delivery
to the Corporate Trustee of a Notice of Cancellation of Enforcement (i) before
the Trustees take any action to exercise any remedy with respect to the
Collateral or the Guarantees or (ii) thereafter, if the Corporate Trustee
believes that all actions theretofore taken by the Trustees to exercise any
remedy or remedies with respect to the Collateral or the Guarantees can be
reversed without undue difficulty; provided that no Notice of Enforcement shall
be cancelled more than 30 days after it is received by the Corporate Trustee.
The Corporate Trustee shall immediately notify the Borrower as to the receipt of
any such Notice of Cancellation of Enforcement and shall promptly notify the
Borrower, each Holder Representative and each Unrepresented Holder as to the
cancellation of the related Notice of Enforcement.
2.2 General Authority of the Trustees over the Collateral and
Guarantees. The Borrower hereby irrevocably constitutes and appoints the
Trustees and any officer or agent thereof, with full power of substitution, as
its true and lawful attorneys-in-fact with full power and authority in the name
of the Borrower or in its or his own name, from time to time in the Trustees'
discretion, so long as any Notice of Enforcement 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, the Guarantees and the Security Documents and accomplish the purposes
hereof and thereof, and, without limiting the generality of the foregoing, the
Borrower hereby gives the Trustees the power and right on behalf of the
Borrower, without notice to or further assent by the Borrower, to do the
following so long as a Notice of Enforcement is in effect (and, in the case of
clause (e) (i) below, whether or not a Notice of Enforcement is in effect):
(a) to ask for, demand, xxx for, collect, re-
ceive and give acquittance for any and all moneys due or to become due
upon, or in connection with, the Guarantees, the Security Documents or
the Collateral;
(b) to receive, take, endorse, assign and deliver any and
all checks, notes, drafts, acceptances, documents and other negotiable
and non-negotiable instruments taken or received by the Trustees as
Collateral or in connection with the Guarantees or any Security
Document;
(c) to commence, prosecute, defend, settle, compromise or
adjust any claim, suit, action or proceeding with respect to, or in
connection with, the Guarantees or the Collateral or the interests,
rights, powers or duties of the Trustees or any Secured Party therein,
whether brought by or against the Borrower, the Trustees or any Secured
Party;
(d) to sell, transfer, assign or otherwise deal
in or with the Collateral or any part thereof as fully and effectively
as if the Trustees were the absolute owner thereof; and
(e) to do, at their option and at the expense and for the
account of the Borrower, at any time or from time to time, all acts and
things which the Trustees deem necessary (i) to protect or preserve the
Collateral and the rights of the Trustees and the Secured Parties
therein and (ii) to realize upon the Guarantees or the Collateral or
any part thereof.
2.3 Right to Initiate Judicial Proceedings. If a Notice of
Enforcement is in effect, the Trustees, subject to the provisions of subsection
2.5(b), (a) shall have the right and power to institute and maintain such suits
and proceedings as they may deem appropriate to protect and enforce the rights
vested in them by this Trust Agreement, the Guarantees and the Security
Documents and (b) may 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 Enforcement is
in effect, upon the filing of a xxxx in equity or other commencement of judicial
proceedings to enforce the rights of the Trustees under this Trust Agreement,
any Guarantee or any Security Document, the Trustees shall, to the extent
permitted by applicable law, without notice to the Borrower or any party
claiming through the Borrower, 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 (who may be a
Trustee) of the Trust Estate, or any part thereof, and of the rents, issues,
tolls, profits, royalties, revenues and other income thereof, pending such
proceedings, with such powers as the court making such appointment shall confer,
and to the entry of an order directing that the rents, issues, tolls, profits,
royalties, revenues and other income of the property constituting the whole or
any part of the Trust Estate be segregated, sequestered and impounded for the
benefit of the Trustees and the Secured Parties, and the Borrower irrevocably
consents to the appointment of such receiver or receivers and to the entry of
such order; provided that, notwithstanding the appointment of any receiver, the
Corporate Trustee shall be entitled to retain possession and control, pursuant
to the terms of the Trust Agreement, of all cash held by or deposited with it
pursuant to this Trust Agreement or any Security Document.
2.5 Exercise of Powers; Instructions of Required Secured
Parties. (a) All of the powers, remedies and rights of the Trustees as set forth
in this Trust Agreement may be exercised by the Trustees in respect of any
Guarantee or any Security Document as though set forth in full therein, and all
of the powers, remedies and rights of the Trustees as set forth in any Guarantee
or any Security Document may be exercised from time to time as herein and
therein provided.
(b) The Required Secured Parties shall (subject to the last
sentence of subsection 2.1(a)) have the right, by one or more instruments in
writing executed and delivered to the Corporate Trustee, to direct the time,
method and place of conducting any proceeding for any right or remedy available
to the Trustees, or of exercising any trust or power conferred on the Trustees,
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, any Guarantee or
any Security Document, and the Trustees shall act in accordance with any such
direction; provided that (i) such direction shall not conflict with any
provision of applicable law or of this Trust Agreement, any Guarantee or any
Security Document and the Trustees shall be adequately secured and indemnified
as provided in subsection 7.4(d). In the absence of direction from the Required
Secured Parties, (i) the Trustees shall have no duty to take or refrain from
taking any action unless explicitly required herein or in the Security Documents
or Guarantees and (ii) the Trustees may (but in the absence of a direction from
the Required Secured Parties shall not be required to) take any and all such
actions under this Trust Agreement, the Security Documents and the Guarantees or
any of them or otherwise as the Corporate Trustee shall deem to be in the best
interests of the Secured Parties to maintain the Collateral and protect and
preserve the Collateral and the rights of the Secured Parties; provided,
however, that in the absence of direction (which may relate to the exercise of
specific remedies or to the exercise of remedies in general) from the Required
Secured Parties while a Notice of Enforcement is in effect, the Trustees shall
not foreclose any lien on the Collateral or take any enforcement action under
any Guarantee.
2.6 Remedies Not Exclusive. (a) No remedy conferred upon or
reserved to the Trustees herein or in any Guarantee or Security Document 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, in any Guarantee or in any Security Document or now or hereafter
existing at law or in equity or by statute.
(b) No delay by the Trustees in exercising or failure by the
Trustees to exercise any right, remedy or power hereunder or under any Guarantee
or 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 to the
Trustees under this Trust Agreement, any Guarantee or any Security Document may
be exercised from time to time and as often as may be deemed expedient by the
Trustees or the Required Secured Parties.
(c) If the Trustees shall have proceeded to enforce any right,
remedy or power under this Trust Agreement, any Guarantee or any Security
Document and the proceeding for the enforcement thereof shall have been
discontinued or abandoned for any reason or shall have been determined adversely
to the Trustees, then the Borrower, the Trustees 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 Trustees 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, the Guarantees and the Security Documents may be enforced
by the Trustees without the possession of any Secured Instrument, Guarantee,
Security Document 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 Trustees shall be, subject to subsections
7.5(c), 7.5(d) and 7.10(b)(ii), brought in their name as Trustees and any
recovery of judgment shall be held as part of the Trust Estate.
2.7 Waiver and Estoppel. (a) The Borrower hereby agrees, to
the extent it may do so lawfully and without violation of its fiduciary
obligations, 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, any Guarantee or any Security Document and
waives all benefit or advantage of all such laws, and the Borrower hereby
covenants that it will not hinder, delay or impede the execution of any power
granted to the Trustees in this Trust Agreement, any Guarantee or any Security
Document but will suffer and permit the execution of every such power as though
no such law were in force.
(b) The Borrower, 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 Security Document or pursuant to judicial proceedings or upon any
foreclosure or any enforcement of this Trust Agreement or any Security Document
and consents and agrees that all the Collateral may at any such sale be offered
and sold as an entirety.
(c) The Borrower 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 Secured Instrument, any Guarantee or
any Security Document) in connection with this Trust Agreement, the Guarantees
and the Security Documents, and any action taken by the Trustees with respect to
the Collateral.
2.8 Limitation on Trustees' Duty in Respect of Collateral.
Beyond their duties as to the custody thereof expressly provided herein or in
any Security Document and to account to the Secured Parties and the Borrower for
moneys and other property received by them hereunder or under any Security
Document, the Trustees shall not have any duty to the Borrower or to the Secured
Parties as to any Collateral in their possession or control or in the possession
or control of any of their 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 herein 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 provisions of law which may be
controlling and to be limited to the extent necessary so that they will not
render this Trust Agreement invalid, unenforceable in whole or in part or not
entitled to be recorded, registered or filed under the provisions of any
applicable law.
2.10 Rights of Secured Parties Under Secured Instruments.
Notwithstanding any other provision of this Trust Agreement, any Guarantee or
any 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 or to obtain a judgment for the
collection of such Secured Obligations or to enforce any such judgment on or
after such due date, and to otherwise exercise the rights and remedies as a
general creditor in accordance with the Secured Instruments to which it is a
party, and the obligation of the Borrower to pay such Secured Obligation when
due, shall not be impaired or affected except as provided in such Secured
Instrument.
2.11 Records. The Corporate Trustee shall maintain records
regarding instructions of the Required Secured Parties, the identity of the
Holder Representatives and the other Secured Parties, determinations of the
types and amounts of the Secured Obligations for any purpose and the allocation
of deposits to the Collateral Account and the Sub-Accounts thereof and any
distributions therefrom. The information contained in such records shall be made
available to any Secured Party upon request.
2.12 Notices. The Corporate Trustee shall promptly notify each
Holder Representative and each Unrepresented Holder in the event it shall
receive, and shall deliver to each such person a copy of, (a) any Notice of
Enforcement, (b) any instructions by the Required Secured Parties to take any
action under this Trust Agreement or any Security Document or Guarantee,
including any instruction to commence any exercise of remedies with respect to
the Collateral or Guarantees, (c) any request by the Borrower or any Secured
Party for any consent, waiver, amendment, supplement, modification or release
with respect to this Agreement, any Security Document, any Collateral or any
Guarantee, or (d) any other material instruction, notice, request, demand,
certificate, opinion of counsel or other communications from any person which is
related to the Collateral, the Security Documents or the Guarantees. The
Corporate Trustee shall also deliver a reasonably detailed notice to each Holder
Representative and each Unrepresented Holder regarding the taking of any
enforcement action or the exercise of any remedies by any of the Trustees with
respect to the Security Documents, the Collateral or the Guarantees which notice
shall be delivered promptly after the occurrence of any such event.
SECTION 3
COLLATERAL ACCOUNT; DISTRIBUTIONS
3.1 The Collateral Account. (a) On the 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
Corporate Trustee at the office of the Corporate Trustee's corporate trust
division, a collateral account, which shall be entitled the "Sprint Spectrum
L.P. Collateral Account" (the "Collateral Account"). The Collateral Account
shall be subdivided into two sub-accounts, designated as the "Enforcement
Proceeds Sub-Account" and the "Asset Sale Proceeds Sub-Account" (each, a
"Sub-Account").
(b) All moneys which are required by this Trust Agreement or
any Security Document to be delivered to the Trustees while a Notice of
Enforcement is in effect or which are received by the Trustees or any agent or
nominee of the Trustees in respect of the Collateral or the Guarantees, whether
in connection with the exercise of the remedies provided in this Trust
Agreement, any Guarantee or any Security Document or otherwise, while a Notice
of Enforcement is in effect shall be deposited in the Enforcement Proceeds
Sub-Account and, in each case, held by the Corporate Trustee as part of the
Trust Estate and applied in accordance with the terms of this Trust Agreement.
Upon the cancellation of each effective Notice of Enforcement pursuant to
subsection 2.1(c) the Corporate Trustee shall (subject to the first sentence of
subsection 3.4(a) and the last sentence of subsection 3.1(c)) cause all funds on
deposit in the Enforcement Proceeds Sub-Account to be paid over to the Borrower;
provided, however, that funds (the "Hold-Back Funds") in an amount equal to the
sum of (x) the amount of funds transferred to the Enforcement Proceeds
Sub-Account pursuant to the second sentence of subsection 3.1(c) and (y) the
amount of funds that would have been deposited in the Asset Sale Proceeds
Sub-Account but for the effectiveness of any Notice of Enforcement, together
with all interest and income on such amounts, shall be deposited in the Asset
Sale Proceeds Sub-Account for application in accordance with the terms of
Section 3 as if such Hold-Back Funds had been deposited in such Asset Sale
Proceeds Sub-Account (i) in the case of funds in an amount equal to funds
referred to in (x) above, since the time they were originally deposited on the
Asset Sale Proceeds Sub-Account and (ii) in the case of funds in an amount equal
to the funds referred to in (y) above, since the time they would have been
deposited in the Asset Sale Proceeds Sub-Account if no such Notice of
Enforcement had become effective.
(c) All moneys constituting proceeds of an Asset Sale which
are delivered to the Trustees pursuant to the provisions of any Secured
Instrument shall be deposited in the Asset Sale Proceeds Sub-Account and held by
the Corporate Trustee as part of the Trust Estate and applied in accordance with
the terms of this Trust Agreement. Upon the receipt by the Corporate Trustee of
a Notice of Enforcement, all amounts on deposit in the Asset Sale Proceeds
Sub-Account shall be transferred to the Enforcement Proceeds Sub-Account;
provided, that all amounts so transferred from the Asset Sale Proceeds
Sub-Account to the Enforcement Proceeds Sub-Account, together with all interest
and income on such amounts, shall be returned to the Asset Sale Proceeds
Sub-Account under the circumstances set forth in the proviso in subsection
3.1(b).
(d) The Borrower may, by delivery to the Corporate Trustee of
an Asset Sale Proceeds Release Request, at any time within 270 days after the
deposit of any funds in the Asset Sale Proceeds Sub-Account, request a release
of such funds from the Asset Sale Proceeds Sub-Account for use in funding the
acquisition of assets in accordance with the applicable provisions of the
Secured Instruments. If no Notice of Enforcement is in effect on the date on
which such funds are requested to be released pursuant to such Asset Sale
Proceeds Release Request, the Corporate Trustee shall release to the Borrower
funds from the Asset Sale Proceeds Sub-Account in accordance with such Asset
Sale Proceeds Release Request. To effect such release, the Corporate Trust shall
liquidate such investments of such funds in the Asset Sale Proceeds Sub-Account
as shall be specified in such Asset Sale Proceeds Release Request.
(e) If any funds deposited in the Asset Sale Proceeds
Sub-Account have not been withdrawn therefrom within 270 days after the date of
deposit thereof, such funds may thereafter be withdrawn only (i) by the
Corporate Trustee while a Notice of Enforcement is in effect as contemplated by
the second sentence of subsection 3.1(c) to be distributed pursuant to
subsection 3.4 or (ii) pursuant to an Asset Sale Proceeds Prepayment Request, as
provided in subsection 3.1(f).
(f) The Borrower may, at any time, by delivery to the
Corporate Trustee of an Asset Sale Proceeds Prepayment Request, request the
Corporate Trustee to withdraw funds from the Asset Sale Proceeds Sub-Account and
transfer such funds to Secured Parties for application by such Secured Parties
toward prepayment of Secured Obligations in the manner specified by the relevant
Secured Instruments. If no Notice of Enforcement is in effect on the date on
which such funds are requested to be released pursuant to such Asset Sale
Proceeds Prepayment Request, the Corporate Trustee shall transfer funds from the
Asset Sale Proceeds Sub-Account to Secured Parties in accordance with such Asset
Sale Proceeds Prepayment Request.
3.2 Control of Collateral Account. All right, title and
interest in and to the Collateral Account shall vest in the Corporate Trustee on
behalf of the Secured Parties, and funds on deposit in the Collateral Account
shall constitute part of the Trust Estate. The Collateral Account shall be
subject to the sole and exclusive dominion and control of the Corporate Trustee.
3.3 Investment of Funds Deposited in Collateral Account. The
Corporate Trustee shall invest and reinvest moneys on deposit in the Collateral
Account at any time in:
(a) marketable obligations of the United States
having a maturity of not more than one year from the date of acquis-
tion;
(b) marketable obligations directly and fully
guaranteed by the United States having a maturity of not more than one
year from the date of acquisition;
(c) bankers' acceptances and certificates of deposit and
other interest-bearing obligations issued by any bank organized under
the laws of the United States or any state thereof with capital,
surplus and undivided profits aggregating at least $500,000,000, in
each case having a maturity of not more than one year from the date of
acquisition;
(d) repurchase obligations with a term of not more than
one day for underlying securities of the types described in clauses
(a), (b) and (c) above entered into with any bank meeting the
qualifications specified in clause (c) above;
(e) commercial paper rated at least A-2 or the
equivalent thereof by Standard & Poor's Ratings Group or at least P-2
or the equivalent thereof by Xxxxx'x Investors Service, Inc. and matur-
ing within six months after the date of acquisition; and
(f) shares of open end money market mutual or
similar funds which invest exclusively in assets satisfying the re-
quirements of clause (a) through (e) above;
provided that the (i) aggregate amount invested in obligations of the types
described in clauses (c), (d) and (e) above of any one issuer shall not exceed
$50,000,000 at any time and (ii) the Borrower may (so long as no Notice of
Enforcement shall be in effect) specify the category or categories of
investments specified above in which funds on deposit in the Asset Sale Proceeds
Sub-Account shall be invested and may specify the maturities (not in any event
longer than the maturities specified above) of such investments; provided that
the Borrower or the Corporate Trustee, as applicable, shall, to the extent that
the timing of distributions to be made from the Collateral Account is known or
can be reasonably anticipated, select investments for amounts equal to such
distributions that mature prior to the anticipated dates of such distributions.
All such investments of funds in any Sub-Account, the interest and income
received thereon and the net proceeds realized on the sale or redemption thereof
shall be held in such Sub-Account as part of the Trust Estate.
3.4 Application of Moneys. (a) The Corporate Trustee shall
have the right (pursuant to subsection 5.7) at any time to apply moneys held by
it in the Collateral Account to the payment of due and unpaid Trustee Fees. All
remaining moneys held by the Corporate Trustee in the Collateral Account or
received by the Trustees while a Notice of Enforcement is in effect shall, to
the extent available for distribution (it being understood that the Corporate
Trustee may liquidate investments prior to maturity to make a distribution
pursuant to this subsection 3.4), be distributed (subject to the provisions of
subsection 3.5) by the Corporate Trustee on each Distribution Date as follows:
First: to the Trustees, an amount equal to any unpaid Trustee
Fees, and then to any Secured Party which has theretofore advanced or
paid any Trustee Fees constituting administrative expenses allowable
under 11 U.S.C. ss. 503(b), 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;
Second: to any Secured Party which has theretofore advanced or
paid any Trustee Fees other than such administrative expenses, an
amount equal to the amount thereof so advanced or paid by such Secured
Party and for which such Secured Party has not been reimbursed prior to
such Distribution Date;
Third: to the Secured Parties in an amount equal to all sums
which constitute Secured Obligations then held by the Secured Parties,
including without limitation the unpaid principal or face amount of,
and unpaid interest on and other charges, if any, in respect of, the
Secured Obligations then outstanding whether or not due and payable and
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 sums in full, then
ratably to the Secured Parties in proportion to such sums; and
Fourth: any surplus then remaining shall be paid to the
Borrower or its successors or assigns or to whomsoever may be lawfully
entitled to receive the same or as a court of competent jurisdiction
may direct.
(b) The term "unpaid" as used in subsection 3.4(a) refers:
(i) in the absence of a bankruptcy pro-
ceeding with respect to the Borrower, to all amounts of Se-
cured Obligations outstanding as of a Distribution Date, and
(ii) during the pendency of a bankruptcy
proceeding with respect to the Borrower, to all amounts
allowed by the bankruptcy court in respect of Secured
Obligations as a basis for distribution (including estimated
amounts, if any, allowed in respect of contingent claims),
to the extent that prior distributions (whether actually distributed or set
aside pursuant to subsection 3.5) have not been made in respect thereof.
(c) The Corporate Trustee shall make all payments and
distributions under this subsection 3.4: (i) on account of Bank Facility
Obligations owing to any Bank Facility Secured Party for which there is a Bank
Facility Agent, to such Bank Facility Agent, for redistribution or application
in accordance with the provisions of the relevant Secured Instrument, (ii) on
account of any Vendor Facility Obligations owing to any Vendor Facility Secured
Party for which there is a Vendor Facility Agent, to such Vendor Facility Agent,
for redistribution or application in accordance with the provisions of the
relevant Secured Instrument, (iii) on account of any Public Debt Obligations
outstanding under any Public Debt Indenture, to the Public Debt Trustee under
such Public Debentures, for redistribution or application in accordance with the
provisions of such Public Debt Indenture, (iv) on account of any Hedging
Agreement Obligations, directly to the Holder of such Hedging Agreement
Obligations, (v) on account of any Other Facility Obligations owing to any Other
Facility Secured Party for which there is an Other Facility Agent, to such Other
Facility Agent, for redistribution or application in accordance with the
provisions of the relevant Secured Instrument, and (vi) on account of Secured
Obligations owing to any Unrepresented Holder, directly to such Unrepresented
Holder.
3.5 Amounts Held for Contingent Secured Obligations. In the
event any Holder or Holder Representative shall receive any moneys pursuant to
subsection 3.4 in respect of the contingent portion of the outstanding Secured
Obligations, then such Holder or Holder Representative, as the case may be,
shall invest such moneys in obligations of the kinds referred to in clauses (a)
and (b) of subsection 3.3 maturing within 90 days after they are acquired by
such Holder or Holder Representative and shall hold all such amounts so
distributable, and all such investments and the net proceeds thereof, in trust
until (i) all or part of such contingent claim shall have become fixed, in which
case such Holder or Holder Representative, as the case may be, shall apply to
the payment of such fixed claim from such investments and the proceeds thereof
an amount equal to such fixed claim, and shall promptly give notice thereof to
the Borrower and the Corporate Trustee or (ii) all or part of such contingent
claim shall have been extinguished, whether as the result of an expiration
without drawing of any letter of credit, payment of amounts secured or covered
by any letter of credit other than by drawing thereunder, payment of amounts
covered by any guarantee or otherwise, in which case such Holder or Holder
Representative, as the case may be, shall, as soon as practicable thereafter,
notify the Borrower and the Corporate Trustee and shall distribute from such
investments, and the proceeds thereof, an amount equal to the portion of
contingent claim which has been extinguished together with interest earned
thereon from the date first invested until so distributed, to the Corporate
Trustee for deposit in the Collateral Account and application in accordance with
the provisions of subsection 3.4.
3.6 Application of Moneys Distributable to Holder
Representatives. If at any time any moneys collected or received by the Trustees
pursuant hereto are distributable pursuant to subsection 3.4 to a Holder
Representative, and if such Holder Representative shall notify the Corporate
Trustee in writing that no provision is made under the relevant Secured
Instrument for the application by such Holder Representative of moneys (whether
because the Secured Obligations issued under such Secured Instrument have not
become due and payable or otherwise) and that such Secured Instrument does not
effectively provide for the receipt and the holding by such Holder
Representative of such moneys pending the application thereof, then the
Corporate Trustee, after receipt of such notification, shall invest such amounts
in obligations of the kinds referred to in clauses (a) and (b) of subsection 3.3
maturing within 90 days after they are acquired by the Corporate Trustee and
shall hold all such amounts so distributable and all such investments and the
net proceeds thereof in trust solely for such Holder Representative (in its
capacity as such) and for no other purpose until such time as such Holder
Representative shall request in writing the delivery thereof by the Corporate
Trustee for application pursuant to such Secured Instrument.
3.7 Trustees' Calculations. In making the determinations and
allocations required by subsection 3.4, the Corporate Trustee may, unless a
Responsible Trustee Officer has actual knowledge to the contrary, rely upon a
certificate executed and supplied by the Holder Representatives or (in the case
of Hedging Agreement Obligations or other Secured Obligations for which there is
no Holder Representative) the Holders, as the case may be, as to the amounts
payable with respect to Secured Obligations, all in accordance with subsection
7.2(b), and the Trustees shall have no liability to any of the Secured Parties
for actions taken in reliance on such information; provided, however, that if
any Secured Party receives on any Distribution Date an amount pursuant to
subsection 3.4(a) in excess of the amount to which it was entitled to receive on
such Distribution Date pursuant to such subsection 3.4(a) as a result of any
such certificate overstating the amount of the Secured Obligations held by such
Secured Party (or the Secured Obligations held by all the Secured Parties under
any Facility with respect to which such Secured Party is a Holder), then such
Secured Party (by becoming a Holder of Secured Obligations and accepting the
benefits of this Trust Agreement) shall pay such excess to the Corporate Trustee
for application in accordance with subsection 3.4(a) as soon as practicable
after the existence of such overstatement shall have been determined. All
distributions made by the Corporate Trustee pursuant to subsection 3.4 shall be
(subject to any decree of any court of competent jurisdiction and to the proviso
in the preceding sentence) final, and the Trustees shall have no duty to inquire
as to the application by any Holder or Holder Representative of any amounts
distributed to them. By accepting the benefits of this Agreement, the Security
Documents and the Guarantees, each Secured Party and Holder Representative
agrees to act in accordance with this Trust Agreement and not take any action
inconsistent herewith.
SECTION 4
ADDITIONAL SECURED OBLIGATIONS;
ADDITIONAL COLLATERAL; ADDITIONAL
GUARANTEES; CERTAIN DOCUMENTATION REQUIREMENTS
4.1 Delivery of Initial Secured Instruments, Initial Security
Documents and Initial Guarantees. On or before the Effective Date, the Borrower
shall deliver to the Corporate Trustee copies, certified by a Responsible
Officer to be true and complete, of all Initial Secured Instruments, and
executed originals of the Initial Security Documents and Initial Guarantees,
provided that the Corporate Trustee shall not distribute or disclose to any
Holder Representative or Unrepresented Holder any portions of such Initial
Secured Instruments that are reasonably designated in writing by the Borrower as
confidential.
4.2 Additional Secured Obligations. The Borrower may from time
to time designate Permitted Additional Secured Obligations as Secured
Obligations hereunder by (a) delivering to the Corporate Trustee an Additional
Secured Obligations Designation in respect of such Permitted Additional Secured
Obligations describing such Permitted Additional Secured Obligations and
specifying whether such Permitted Additional Secured Obligations shall
constitute Bank Facility Obligations, Vendor Facility Obligations, Public Debt
Obligations, Other Facility Obligations or Hedging Agreement Obligations and
attaching thereto a true and complete copy of all agreements (together with all
schedules, exhibits, annexes, appendices and other attachments thereto),
including but not limited to the applicable Secured Instruments, relating to
such Permitted Additional Secured Obligations to which the Borrower or any
Affiliate thereof is a party, and (b) fulfilling the requirements of subsection
4.8(b) in respect of such Additional Secured Obligations Designation. Upon
completion of the actions described clauses (a) and (b) of the preceding
sentence, but subject to the following sentence, the Permitted Additional
Secured Obligations designated by such Additional Secured Obligations
Designation shall constitute Secured Obligations. Notwithstanding anything
herein to the contrary, in no event shall any indebtedness or other obligations
of the Borrower constitute Additional Secured Obligations hereunder if the
designation of such indebtedness or other obligations as Additional Secured
Obligations would be in contravention of any Secured Instrument, and any
purported designation of any such indebtedness or other obligations of the
Borrower as Additional Secured Obligations in violation of any Secured
Instrument shall be null and void and of no force or effect.
4.3 Notice to Secured Parties of Additional Secured
Obligations. Promptly after the designation of Permitted Additional Secured
Obligations as Secured Obligations pursuant to subsection 4.2, the Corporate
Trustee will deliver a copy of the related Additional Secured Obligations
Designation together with all attachments thereto to each Holder Representative
and Unrepresented Holder; provided, that the Corporate Trustee shall not
distribute or disclose to any Holder Representative or Unrepresented Holder any
portions of such attachments that are reasonably designated in writing by the
Borrower as confidential.
4.4 Additional Collateral. The Borrower may from time to time
provide Additional Collateral to the Trustees by (a) delivering to the Corporate
Trustee an Additional Collateral Designation in respect of such Additional
Collateral and (b) fulfilling the requirements of subsection 4.9(b) in respect
of such Additional Collateral Designation. Upon completion of the actions
described in clauses (a) and (b) of the preceding sentence, the Additional
Collateral designated by such Additional Collateral Designation shall constitute
Collateral for the Secured Obligations.
4.5 Notice to Secured Parties of Additional Collateral.
Promptly after the delivery of Additional Collateral pursuant to subsection 4.4,
the Corporate Trustee will deliver a copy of the related Additional Collateral
Designation to each Holder Representative and Unrepresented Holder.
4.6 Additional Guarantees. The Borrower may from time to time
cause a Subsidiary thereof to provide Additional Guarantees to the Trustees by
(a) delivering to the Corporate Trustee an Additional Guarantee Designation in
respect of each such Additional Guarantee, and (b) fulfilling the requirements
of 4.10(b) in respect of such Additional Guarantee Designation. Upon completion
of the actions described in clauses (a) and (b) of the preceding sentence, the
Additional Guarantee designated by such Additional Guarantee Designation shall
constitute a Guarantee of the Secured Obligations.
4.7 Notice to Secured Parties of Additional Guarantee.
Promptly after the delivery of any Additional Guarantee pursuant to subsection
4.6, the Corporate Trustee will deliver a copy of the related Additional
Guarantee Designation to each Holder Representative and Unrepresented Holder.
4.8 Actions Required with respect to Initial Secured Obliga-
tions and Additional Secured Obligations. (a) Simultaneously with its delivery
to the Corporate Trustee of the Initial Secured Instruments pursuant to sub-
section 4.1, the Borrower shall:
(i) deliver to the Corporate Trustee a certificate of a
Responsible Officer (A) as to the names and signatures of the officers
of Holding who are authorized to execute this Trust Agreement on behalf
of the Borrower and (B) attaching copies of resolutions of the
Partnership Board of Holding authorizing the execution and delivery by
the Borrower of this Trust Agreement, and certifying that such
resolutions are in full force and effect; and
(ii) cause to be delivered to the Corporate Trustee and
each Holder Representative Opinions of Counsel substantially in the
forms of Xxxxxxxx X-0, X-0 and D-3.
(b) Simultaneously with its delivery to the Corporate Trustee
of any Additional Secured Obligation Designation pursuant to subsection 4.2, the
Borrower shall:
(i) deliver to the Corporate Trustee copies, certified by
a Responsible Officer to be true and complete, of all Secured
Instruments described in such Additional Secured Obligation
Designation; and
(ii) cause to be delivered to the Corporate Trustee and
each Holder Representative an Opinion of Counsel or Opinions of Counsel
which, taken together, shall contain the opinions set forth in Exhibit
D-4.
Promptly after receipt by the Corporate Trustee of any such documents delivered
by the Borrower pursuant to this paragraph (b), the Corporate Trustee shall at
the expense of the Borrower deliver copies thereof to each Holder Representative
and Unrepresented Holder; provided, that the Corporate Trustee shall not
distribute or disclose to any Holder Representative or Unrepresented Holder any
portions of any Secured Instruments that are reasonably designated in writing by
the Borrower as confidential.
4.9 Actions Required with respect to Security Documents and
Collateral. (a) Simultaneously with its delivery to the Corporate Trustee of the
Initial Security Documents pursuant to subsection 4.1, the Borrower shall:
(i) deliver to the Corporate Trustee a certificate of a
Responsible Officer (A) as to the names and signatures of the
Partnership Board Representatives of Holding or MinorCo, L.P., as the
case may be, who are authorized to execute the Initial Security
Documents on behalf of each grantor party thereto and (B) attaching
copies of resolutions of the Partnership Board of Holding or MinorCo,
L.P., as the case may be, authorizing the execution and delivery of the
Initial Security Document, by each grantor party thereto, and
certifying that such resolutions are in full force and effect;
(ii) deliver to the Corporate Trustee (or its
bailee or agent as designated by the Corporate Trustee) possession of
any Possessory Collateral covered by the Initial Security Documents;
(iii) cause to be filed or recorded in all required filing
or recording offices all financing statements, mortgages and other
instruments necessary to perfect the lien of the Trustees created by
such Initial Security Documents, and deliver to the Corporate Trustee
evidence reasonably satisfactory to it of each such filing and
recording; and
(iv) deliver to the Corporate Trustee and each Holder
Representative Opinions of Counsel substantially in the forms of
Xxxxxxxx X-0, X-0 and D-3.
(b) Simultaneously with its delivery to the Corporate Trustee
of any Additional Collateral Designation pursuant to subsection 4.4, the
Borrower shall:
(i) deliver to the Corporate Trustee copies, duly executed
by the grantor parties thereto, of all Additional Security Documents
described in such Additional Collateral Designation; provided that each
such Additional Security Document shall be in substantially the same
form as the corresponding Initial Security Document or, in the event
there is no applicable corresponding Initial Security Document, in form
and substance reasonably satisfactory to the Holder Representatives for
the Initial Bank Credit Facility and the Initial Vendor Credit
Facilities;
(ii) deliver to the Corporate Trustee a certificate of a
Responsible Officer (A) as to the names and signatures of the
Partnership Board Representatives of Holding who are authorized to
execute such Additional Security Documents on behalf of each grantor
party thereto and (B) attaching copies of resolutions of the
Partnership Board of Holding authorizing the execution and delivery by
the Borrower of such Additional Security Document by each grantor party
thereto, and certifying that such resolutions are in full force and
effect;
(iii) deliver to the Corporate Trustee (or its bailee or
agent as designated by the Corporate Trustee) possession of any
Possessory Collateral covered by such Additional Security Documents;
(iv) cause to be filed or recorded in all required filing
or recording offices all financing statements, mortgages and other
instruments necessary to perfect the security interest of the Trustees
created by such Additional Security Documents, and deliver to the
Corporate Trustee customary evidence of each such filing and recording;
and
(v) deliver to the Corporate Trustee and each Holder
Representative an Opinion of Counsel or Opinions of Counsel which,
taken together, shall contain the opinions set forth in Exhibit D-5.
Promptly after receipt by the Corporate Trustee of any such documents delivered
by the Borrower pursuant to this paragraph (b), the Corporate Trustee shall at
the expense of the Borrower deliver copies thereof to each Holder Representative
and Unrepresented Holder.
4.10 Actions Required with respect to Guarantees. (a) Si-
multaneously with its delivery to the Corporate Trustee of the Initial
Guarantees pursuant to subsection 4.1, the Borrower shall:
(i) deliver to the Corporate Trustee a certificate of a
Responsible Officer (A) as to the names and signatures of the
Partnership Board Representatives of Holding who are authorized to
execute the Initial Guarantees and (B) attaching copies of resolutions
of the Partnership Board of Holding authorizing the execution and
delivery by such guarantor of the Initial Guarantee to which it is a
party or evidence of such authorization, and certifying that such
resolutions are in full force and effect; and
(ii) deliver to the Corporate Trustee Opinions of
Counsel substantially in the forms of Xxxxxxxx X-0, X-0 and D-3.
(b) Simultaneously with its delivery to the Corporate Trustee
of any Additional Guarantee Designation pursuant to subsection 4.6, the Borrower
shall:
(i) deliver to the Corporate Trustee copies, duly executed
by the grantor parties thereto, of all Additional Guarantees described
in such Additional Guarantee Designation; provided that each such
Additional Guarantee shall be in the form of Exhibit E; and
(ii) deliver to the Corporate Trustee a certificate of a
Responsible Officer (A) as to the names and signatures of the officers
of the relevant guarantors (or, in the case of any guarantor that is a
partnership, the persons authorized to sign on behalf of such guarantor
pursuant to its partnership agreement and applicable law) who are
authorized to execute the Additional Guarantees and (B) attaching
copies of resolutions of the Board of Directors, Partnership Board or
other governing body of each guarantor authorizing the execution and
delivery by such guarantor of the Additional Guarantee to which it is a
party, and certifying that such resolutions are in full force and
effect; and
(iii) deliver to the Corporate Trustee and each Holder
Representative an Opinion of Counsel or Opinions of Counsel which,
taken together, shall contain the opinions set forth in Exhibit D-6.
Promptly after receipt by the Corporate Trustee of any such documents delivered
by the Borrower pursuant to this paragraph (b), the Corporate Trustee shall at
the expense of the Borrower deliver copies thereof to each Holder Representative
and Unrepresented Holder.
4.11 Possessory Collateral. The Borrower shall immediately
deliver to the Corporate Trustee (or an agent or bailee on its behalf designated
by the Corporate Trustee at the sole cost and expense of the Borrower) all
Possessory Collateral that is or may be in the possession of the Borrower or any
of its Subsidiaries, to the extent the Borrower is required to do so by any
Secured Instrument.
SECTION 5
AGREEMENTS WITH TRUSTEES
5.1 Delivery of Amendments to Secured Instruments. The
Borrower shall deliver to the Corporate Trustee (and the Corporate Trustee shall
thereupon promptly deliver to the Holder Representatives and the Unrepresented
Holders), promptly upon the execution thereof, a true and complete copy of all
amendments, supplements or other modifications to any Secured Instrument entered
into after the Effective Date; provided, that the Corporate Trustee shall not
distribute or disclose to any Holder Representative or Unrepresented Holder any
portions of any Secured Instruments (or any amendments, supplements or other
modifications thereto) that are reasonably designated in writing by the Borrower
as confidential.
5.2 Information as to Secured Parties, Holder Representatives,
Unrepresented Holders, Etc.. The Borrower shall deliver to the Corporate Trustee
(and the Corporate Trustee shall thereupon promptly deliver to the Holder
Representatives and the Unrepresented Holders), within 30 days after the
Effective Date, and between May 1 and May 15 and between November 1 and November
15 in each year, and from time to time as may be reasonably requested by the
Corporate Trustee (which request shall be made by the Corporate Trustee at the
reasonable direction of any Secured Party), (i) with respect to all Secured
Obligations other than Hedging Agreement Obligations, a list, setting forth as
of a specified date not more than 30 days prior to the date of such delivery, of
the aggregate unpaid principal or face amount of Secured Obligations outstanding
and the name and address of each Holder Representative and each Unrepresented
Holder and the respective amounts of Secured Obligations attributable to each
and (ii) with respect to Hedging Agreement Obligations, a list specifying for
each Hedging Agreement the notional amount covered thereby and the payment terms
thereof. The Borrower shall deliver to the Corporate Trustee, within 30 days
after the Effective Date, and between May 1 and May 15 and between November 1
and November 15 in each year, and from time to time as may be reasonably
requested by the Corporate Trustee (which request shall be made by the Corporate
Trustee at the reasonable direction of any Secured Party), a list, as of a date
not more than 30 days prior to the date of such list, (i) naming each Secured
Party, (ii) setting forth the amount of Voting Secured Obligations held by each
Secured Party and the amount of commitments to provide credit by such Secured
Party that would constitute Voting Secured Obligations when provided and (iii)
specifying whether any Secured Party or any Person known by the Borrower to be
an Affiliate of any Secured Party is a party to any contract, the rights under
which constitute Collateral.
5.3 Compensation and Expenses. The Borrower agrees to pay to
the Trustees, 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 their services hereunder
and under the Guarantees and Security Documents and for administering the Trust
Estate and (ii) all of the fees, costs and expenses of the Trustees (including,
without limitation, the reasonable fees and disbursements of their counsel and
such special counsel as the Trustees shall reasonably elect to retain) (A)
arising in connection with the preparation, execution, delivery, modification,
and termination of or performance under this Trust Agreement, the Guarantees and
the Security Documents 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 Security Document and the preservation, protection, enforcement
or defense of the Trustees' rights under this Trust Agreement, the Guarantees
and the Security Documents and in and to the Collateral and the Trust Estate or
(C) incurred by the Trustees in connection with the removal of either or both of
the Trustees pursuant to subsection 7.7(a). The obligations of the Borrower
under this subsection shall survive the termination of the other provisions of
this Trust Agreement and the resignation or removal of the Trustees.
5.4 Stamp and Other Similar Taxes. The Borrower agrees to
indemnify and hold harmless the Trustees 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
Security Document, any Guarantee, the Trust Estate or any Collateral. The
obligations of the Borrower under this subsection shall survive the termination
of the other provisions of this Trust Agreement and the resignation or removal
of the Trustees.
5.5 Filing Fees, Excise Taxes, Etc. The Borrower agrees to pay
or to reimburse the Trustees for any and all payments made by the Trustees 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, the Guarantees
and the Security Documents. The obligations of the Borrower under this
subsection shall survive the termination of the other provisions of this Trust
Agreement and the resignation or removal of the Trustees.
5.6 Indemnification. The Borrower agrees to pay, indemnify,
and hold the Trustees harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including, without limitation, the reasonable fees of counsel) or
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Trust Agreement,
the Guarantees and the Security Documents, unless arising from the gross
negligence or willful misconduct of the indemnified party, including, without
limitation, indemnification of the respective Trustees for liabilities of the
respective Trustees for the net amount of taxes (after taking account of any
deduction, credit or other tax reduction or benefit available by reason of the
imposition of any such tax) in any jurisdiction in which the respective Trustees
would not otherwise be subject to tax except by reason of their acting under
this Trust Agreement, any Guarantee or any Security Document (directly or
through agents, separate trustees or co-trustees), provided that such
indemnification for taxes (a) shall apply only (i) in respect of taxes
attributable to the performance of the respective Trustees' obligations as
Trustee hereunder or under any Guarantee or Security Document and (ii) to the
extent that the respective Trustees, using reasonable efforts, shall have been
unable to avoid or minimize the same as contemplated by subsection 7.10 and (b)
shall in no event cover any taxes imposed upon the respective Trustees with
respect to or measured by their net income or profits.
In any suit, proceeding or action brought by the Trustees 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 Borrower will save, indemnify and keep the Trustees 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 the Borrower 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 the
Borrower, and all such obligations of the Borrower shall be and remain
enforceable against and only against the Borrower and shall not be enforceable
against the Trustees. The agreements in this subsection shall survive the
termination of the other provisions of this Trust Agreement and the resignation
or removal of the Trustees.
5.7 Trustees' Lien. Notwithstanding anything to the contrary
in this Trust Agreement, as security for the payment of Trustee Fees (i) the
Trustees are hereby granted a first priority lien upon all Collateral and (ii)
the Trustees shall have the right to use and apply any of the funds held by the
Corporate Trustee in the Collateral Account to cover such Trustee Fees.
5.8 Further Assurances. At any time and from time to time,
whether or not a Notice of Enforcement shall be in effect, upon the written
request of the Corporate Trustee (which shall be made only upon the written
direction of the Required Secured Parties), and at the expense of the Borrower,
the Borrower will promptly execute and deliver any and all such further
instruments and documents and take such further action as the Corporate Trustee
has been so directed is necessary or reasonably requested to obtain the full
benefits of this Trust Agreement and the Security Documents and of the rights
and powers herein and therein granted or to cause any assets required under a
Secured Instrument to be subject to a perfected security interest of the
Trustees to be so subject, 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
under the Security Documents. The Borrower also hereby authorizes the Corporate
Trustee to sign and to file any such documents, instruments or financing or
continuation statements without the signature of the Borrower to the extent
permitted by applicable law, but in no way is the Corporate Trustee obligated to
do so.
SECTION 6
POSSESSION AND USE OF
COLLATERAL; PARTIAL RELEASES
6.1 Use Prior to Notice of Enforcement. (a) So long as no
Notice of Enforcement is in effect, the Borrower shall have the right (subject
to compliance with subsection 6.1(b)): (i) to remain in possession and retain
exclusive control of the Collateral (except any Possessory Collateral) with
power freely and without hindrance on the part of the Trustees or the Secured
Parties to operate, manage, develop, use and enjoy the Collateral and to receive
the rents, issues, tolls, profits, royalties, revenues and other income thereof,
and (ii) to sell or otherwise dispose of, free and clear of the lien and
security interest created by subsection 5.7 and by the Security Documents, any
Collateral if such sale or other disposition is not prohibited by any Secured
Instrument or Security Document. The Trustees shall have no duty to monitor the
exercise by the Borrower of its rights under this subsection.
(b) If a Notice of Enforcement is in effect, cash Proceeds
received by the Borrower in connection with any Asset Sale in respect of
Collateral shall be promptly deposited in the Enforcement Proceeds Sub-Account.
Any such Proceeds received by the Borrower when a Notice of Enforcement is in
effect shall be held by the Borrower in trust for the Trustees, shall be
segregated from other funds of the Borrower and shall, forthwith upon receipt by
the Borrower, be turned over to the Corporate Trustee, in the same form as
received by the Borrower (duly indorsed to the Corporate Trustee, if required)
for deposit in the Enforcement Proceeds Sub-Account.
6.2 Releases. (a) Asset Sales in respect of Collateral which
are permitted by subsection 6.1 shall not require any written or oral release or
consent of the Trustees. Nevertheless, the Borrower may, upon the delivery to
the Corporate Trustee of a certificate of a Responsible Officer, together with
such other evidence as the Corporate Trustee shall reasonably require, to the
effect that such sale, transfer or disposition is in compliance with the
requirements of such subsection 6.1, that the proceeds of such transaction have
been or will be applied as set forth in the relevant provisions, if any, of each
Secured Instrument and that subsection 6.2(b) has been complied with in full,
request that the Trustees execute and deliver to the Borrower or any purchaser
of Collateral a written release, disclaimer or quitclaim of the Trustees'
interest in any Collateral under subsection 5.7 and under the Security
Documents, and such purchaser shall be entitled to rely conclusively on such
release, disclaimer or quitclaim. Such request shall be in writing, shall
describe the property to be released in reasonable detail, and shall state that
such release is or will be in accordance with all Secured Instruments and shall
be accompanied by a written certificate of a Responsible Officer of the Borrower
directing the Trustees to execute and deliver such release, disclaimer or
quitclaim.
(b) If it is a condition of the release of any Collateral from
the security interest under subsection 5.7 or under any Security Document or
Secured Instrument that the Trustees be granted a first priority lien or
security interest in additional property to be held as Collateral pursuant to
this Trust Agreement, then the Trustees shall be granted such lien or security
interest prior to or concurrently with the delivery to the Borrower of any such
Collateral or any release, disclaimer or quitclaim in connection therewith. The
grant of such lien or security interest shall be effected by (i) delivery to the
Corporate Trustee of an Additional Collateral Designation pursuant to subsection
4.4 and (ii) fulfilling the requirements of subsection 4.9(b) with respect
thereto.
(c) If any Collateral which is being sold or otherwise
disposed of pursuant to this Section 6 is in the possession of the Trustees or
any agent or nominee thereof, the Trustees or such agent or nominee shall upon
the delivery to the Corporate Trustee of a certificate of a Responsible Officer,
together with such other evidence as the Corporate Trustee shall reasonably
require, to the effect that such sale, transfer or disposition is in compliance
with the requirements of such subsection 6.1, that the proceeds of such
transaction have been or will be applied as set forth in the relevant
provisions, if any, of each Secured Instrument and that subsection 6.2(b) has
been complied with in full, release such Collateral to the Borrower in
connection with such Asset Sale.
(d) The notices, statements, directions, evidence and
certificates requested under or required by this subsection (together with any
required certificate of a Responsible Officer under subsection 7.4(e)) shall be
full authority for and direction to the Trustees to execute and deliver the
releases, disclaimers, quitclaims and other instruments referred to in this
subsection, and the Trustees shall promptly do so, subject to the terms of this
subsection 6.2, upon a request therefor. The Trustees in so doing shall have no
liability to any Person other than for its willful misconduct or gross
negligence.
6.3 Insurance and Condemnation Proceeds; Liquidating
Dividends. Any insurance proceeds, any Proceeds from the exercise of rights of
eminent domain or condemnation and any liquidating dividends paid in respect of
Pledged Equity Securities received by the Borrower or the Trustees in respect of
Collateral shall be treated as cash Proceeds received pursuant to subsection
6.1(b) and shall, if a Notice of Enforcement is in effect, be deposited in the
Collateral Account, and if no Notice of Enforcement is in effect, such amounts
shall be delivered to the Borrower unless otherwise required by any Secured
Instrument.
6.4 Purchase of Collateral. Any Secured Party may purchase
Collateral at any public sale of such Collateral pursuant to any of the Security
Documents and, with the consent of the Required Secured Parties and if permitted
by the Secured Instrument governing such Secured Obligation, may make payment on
account of such purchase by using any Secured Obligation then due and payable to
such Secured Party as a credit (up to the amount of such Secured Obligation)
against the purchase price; provided, that in determining the Required Secured
Parties for purposes of this subsection, all Voting Secured Obligations held by
such purchasing Secured Party shall be excluded.
SECTION 7
THE TRUSTEES
7.1 Acceptance of Trust. The Trustees, for themselves and
their respective successors, hereby accept the trusts created by this Trust
Agreement upon the terms and conditions hereof.
7.2 Exculpatory Provisions. (a) The Trustees 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 Borrower. The Trustees make no representations as to the value or
condition of the Trust Estate or any part thereof, or as to the title of the
Borrower thereto or as to the security afforded by this Trust Agreement or any
Security Document, or as to the validity, execution (except their own
execution), enforceability, legality or sufficiency of this Trust Agreement, the
Guarantees, the Security Documents or the Secured Obligations, and the Trustees
shall incur no liability or responsibility in respect of any such matters. The
Trustees shall not be responsible for insuring the Collateral or for the payment
of taxes, charges or assessments or discharging of liens upon the Collateral or
otherwise as to the maintenance of the Collateral, except that if the Trustees
take possession of any Collateral, the Trustees shall use reasonable care in the
preservation of the Collateral in their possession.
(b) The Trustees shall not be required to ascertain or inquire
as to the performance by the Borrower or any of its Subsidiaries of any of the
covenants or agreements contained herein or in any Security Document, Guarantee
or Secured Instrument. Whenever it is necessary, or in the opinion of the
Trustees advisable, for the Trustees to ascertain the amount of Secured
Obligations then held by Secured Parties, the Trustees may rely, absent actual
knowledge of a Responsible Trustee Officer to the contrary, on a certificate of
the relevant Holder Representative or Unrepresented Holder, as the case may be,
and, if any Holder Representative or Unrepresented Holder shall not give such
information to the Trustees, it shall not be entitled to receive distributions
hereunder (in which case distributions to those Persons who have supplied such
information to the Corporate Trustee shall be calculated by the Corporate
Trustee using, for those Persons who have not supplied such information, the
list then most recently delivered by the Borrower pursuant to subsection 5.2),
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 Corporate Trustee, whereupon on the next
Distribution Date the amount distributable to such Person shall be recalculated
using such information and distributed to it.
(c) The Trustees shall be under no obligation or duty to take
any action under this Trust Agreement, any Guarantee or any Security Document if
taking such action (i) would subject the Trustees to a tax in any jurisdiction
where they are not then subject to a tax or (ii) would require the Corporate
Trustee to qualify to do business in any jurisdiction where it is not then so
qualified, unless the Trustees receive security or indemnity satisfactory to
them 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, any Guarantee or any Security Document.
(d) Notwithstanding any other provision of this Trust
Agreement, neither the Corporate Trustee nor the Individual Trustee, in its or
his individual capacity, shall be personally liable for any action taken or
omitted to be taken by it or him in accordance with this Trust Agreement, the
Guarantees or the Security Documents except for its or his own gross negligence
or willful misconduct.
(e) The Corporate 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 Corporate Trustee hereunder, and
may accept deposits from, lend money to, and generally engage in any kind of
banking or trust business with the Borrower and its affiliates as if it were not
the Corporate Trustee.
7.3 Delegation of Duties. The Trustees 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 Trustees shall be entitled to advice of
counsel concerning all matters pertaining to such trusts, powers and duties. The
Trustees shall not be responsible for the negligence or misconduct of any agents
or attorneys-in-fact selected by them with reasonable care.
7.4 Reliance by Trustees. (a) Whenever in the administration
of this Trust Agreement, the Guarantees or the Security Documents the Trustees
shall deem it necessary or desirable that a factual matter be proved or
established in connection with the Trustees taking, suffering or omitting any
action hereunder or thereunder, such matter (unless other evidence in respect
thereof is herein specifically prescribed) may be deemed in the absence of
actual knowledge of a Responsible Trustee Officer to the contrary to be
conclusively proved or established by a certificate of a Responsible Officer
delivered to the Corporate Trustee, and such certificate shall be full warrant
to the Trustees for any action taken, suffered or omitted in reliance thereon,
subject, however, to the provisions of subsection 7.5.
(b) The Trustees may consult with counsel, and any Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken or suffered by them hereunder or under any Guarantee or
Security Document in accordance therewith. The Trustees shall have the right at
any time to seek instructions concerning the administration of this Trust
Agreement, the Guarantees and the Security Documents from any court of competent
jurisdiction.
(c) The Trustees 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
they in good faith believe to be 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 their gross
negligence or willful misconduct, the Trustees 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 Trustees and conforming to
the requirements of this Trust Agreement.
(d) The Trustees shall not be under any obligation to exercise
any of the rights or powers vested in the Trustees by this Trust Agreement, the
Guarantees and the Security Documents, at the request or direction of the
Required Secured Parties pursuant to this Trust Agreement or otherwise, unless
the Trustees shall have been provided adequate security and indemnity against
the costs, expenses and liabilities which may be incurred by them in compliance
with such request or direction, including such reasonable advances as may be
requested by the Trustees.
(e) Upon any application or demand by the Borrower (except any
such application or demand which is expressly permitted to be made orally) to
the Trustees to take or permit any action under any of the provisions of this
Trust Agreement, any Guarantee or any Security Document, the Borrower shall
furnish to the Corporate Trustee a certificate of a Responsible Officer stating
that all conditions precedent, if any, provided for in this Trust Agreement, in
any relevant Guarantee, Security Document or 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 Guarantee or any Security Document
relating to such particular application or demand, such additional document
shall also be furnished.
7.5 Limitations on Duties of Trustees; Relationship between
Corporate Trustee and Individual Trustee. (a) Unless a Notice of Enforcement is
in effect, the Trustees shall be obligated to perform such duties and only such
duties as are specifically set forth in this Trust Agreement, the Guarantees and
the Security Documents, and no implied covenants or obligations shall be read
into this Trust Agreement, any Guarantee or any Security Document against the
Trustees. If and so long as a Notice of Enforcement is in effect, the Trustees
shall, subject to the provisions of subsection 2.5(b), exercise the rights and
powers vested in them by this Trust Agreement, the Guarantees and the Security
Documents, and shall not be liable with respect to any action taken by them, or
omitted to be taken by them, in accordance with the direction of the Required
Secured Parties.
(b) Except as herein otherwise expressly provided, the
Trustees shall not be under any obligation to take any action which is
discretionary with the Trustees under the provisions hereof or of any Guarantee
or any Security Document except upon the written request of the Required Secured
Parties. The Corporate Trustee shall make available for inspection and copying
by each Holder Representative and each Unrepresented Holder each certificate or
other paper furnished to the Corporate Trustee by the Borrower under or in
respect of this Trust Agreement, any Guarantee or any Security Document or any
of the Collateral.
(c) The Individual Trustee has been joined as such so that if,
by any present or future law in any jurisdiction in which it may be necessary to
perform any act in the execution of the trust hereby created the Corporate
Trustee, or its successor or successors, may be incompetent or unqualified to
act as such Trustee, or would be subject to a tax that would not otherwise be
imposed except for such act, then all the acts required to be performed in such
jurisdiction in the execution of the trusts hereby created, shall and will be
performed by the Individual Trustee, or his successor or successors, acting
alone. Except as it may be deemed necessary for the Individual Trustee solely or
jointly with the Corporate Trustee to execute the trusts hereby created, the
Corporate Trustee, notwithstanding any other provision of this Trust Agreement,
any Guarantee or any Security Document to the contrary, shall solely have and
exercise the powers, and shall be solely charged with the performance of the
duties, of the Trustees provided for herein, in any Guarantee or any Security
Document.
(d) No provision of this Trust Agreement, any Guarantee or any
Security Document shall be deemed to impose any duty or obligation on the
Corporate 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 Corporate 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 Corporate Trustee in such jurisdiction or impose a tax on
the Corporate Trustee by reason thereof. The Individual Trustee, to the extent
that he may lawfully so delegate and that the Corporate Trustee is permitted by
law to exercise the power so delegated, and to the extent that such delegation
is not inconsistent with the preceding sentence and does not impair the right,
title and interest of the Individual Trustee under, or the validity of the lien
of, this Trust Agreement and the Security Documents, (i) may delegate to the
Corporate Trustee the exercise of any power, discretionary or otherwise,
conferred by the provisions of this Trust Agreement, any Guarantee or any
Security Document, and (ii) hereby makes, constitutes and appoints the Corporate
Trustee, his true and lawful attorney for him and in his name, or in the name of
the Corporate Trustee, to do and perform all acts necessary or proper in the
execution and prosecution of the duties of the Trustees hereunder in as full and
ample a manner as he might do personally.
7.6 Moneys to be Held in Trust. All moneys received by the
Trustees under or pursuant to any provision of this Trust Agreement, any
Guarantee or any Security Document (except Trustee Fees) shall be held in trust
for the purposes for which they were paid or are held.
7.7 Resignation and Removal of the Trustees. (a) The Trustees
or either of them may at any time, by giving written notice of resignation to
the Borrower, each Holder Representative and each Unrepresented Holder, be
discharged of the responsibilities hereby created, such resignation to become
effective upon (i) the appointment of a successor Corporate Trustee and/or
Individual Trustee, as the case may be, (ii) the acceptance of such appointment
by such successor Trustee, (iii) the approval of such successor Trustee
evidenced by one or more instruments signed by the Required Secured Parties and
(iv) in the case of the appointment of a successor Individual Trustee, the
approval of such successor by the Corporate Trustee. If no successor Trustee
shall be appointed and shall have accepted such appointment within 90 days after
the Corporate Trustee or the Individual Trustee gives the aforesaid notice of
resignation, the Corporate Trustee or the resigning Individual Trustee, as the
case may be, or any Secured Party, may apply to any court of competent
jurisdiction to appoint a successor Corporate Trustee or Individual Trustee, as
the case may be, to act until such time, if any, as a successor Corporate
Trustee or Individual Trustee, as the case may be, shall have been appointed as
provided in this subsection. Any successor so appointed by such court shall
immediately and without further act be superseded by any successor Corporate
Trustee or Individual Trustee, as the case may be, appointed as provided in this
subsection.
The Required Secured Parties may, at any time, remove the
Trustees or either of them and appoint a successor Corporate Trustee or
Individual Trustee, as the case may be, such removal to be effective upon (i)
the acceptance of such appointment by the successor, (ii) unless a Notice of
Enforcement is in effect, the written approval of such successor by the
Borrower, such approval not to be unreasonably withheld and (iii) in the case of
the removal of the Individual Trustee, the written approval of the appointment
of the successor Individual Trustee by the Corporate Trustee. The Borrower may,
at any time after the merger of the Corporate Trustee as contemplated by
subsection 7.9, unless a Notice of Enforcement is in effect, remove the
successor Corporate Trustee and appoint another successor Corporate Trustee,
such removal to be effective upon (i) the acceptance of such appointment by the
successor and (ii) the written approval of such successor by the Required
Secured Parties, such approval not to be unreasonably withheld. The Corporate
Trustee may, at any time by giving written notice to the Borrower, each Holder
Representative, each Unrepresented Holder and the Individual Trustee, remove the
Individual Trustee and appoint a successor Individual Trustee, such removal to
be effective upon the acceptance of such appointment by the successor Individual
Trustee and the receipt by the Corporate Trustee of the written approval of such
appointment by the Required Secured Parties. Any 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 Corporate Trustee or the Individual
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 Corporate Trustee or
the Individual Trustee for any other cause, a successor Corporate Trustee or
Individual Trustee, as the case may be, may be appointed by the Required Secured
Parties, provided that the appointment of an Individual Trustee shall not be
effective until written approval of such appointment by the Corporate Trustee.
If at any time the Individual 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 Individual Trustee for any other cause, a successor Individual Trustee
may be appointed by the Corporate Trustee, provided that such appointment shall
not be effective until receipt by the Corporate Trustee of written approval of
such appointment by the Required Secured Parties. In either case, the powers,
duties, authority and title of the predecessor Corporate Trustee or Individual
Trustee, as the case may be, shall be terminated and cancelled without procuring
the resignation of such predecessor and without any other formality (except as
may be required by applicable law) than appointment and designation of a
successor in writing duly acknowledged and delivered to the predecessor and the
Borrower. 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, the Guarantees and the Security Documents 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 (subject to the lien of such predecessor pursuant to subsection
5.7); but such predecessor shall, nevertheless, on the written request of the
Required Secured Parties, the Borrower, 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 Security Documents and shall deliver all Collateral held by it or his
agents to such successor (subject to the lien of such predecessor pursuant to
subsection 5.7). Should any deed, conveyance or other instrument in writing from
the Borrower be required by any successor Corporate Trustee or Individual
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 Corporate Trustee or Individual
Trustee, as the case may be, any and all such deeds, conveyances and other
instruments in writing shall, on request of such successor, be executed,
acknowledged and delivered by the Borrower. If the Borrower 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 Corporate Trustee or
Individual Trustee, as the case may be, to do so, or if a Notice of Enforcement
is in effect, the predecessor Corporate Trustee or Individual Trustee, as the
case may be, may execute the same on behalf of the Borrower. The Borrower hereby
appoints any predecessor Corporate Trustee or Individual Trustee, as the case
may be, as its agent and attorney to act for it as provided in the next
preceding sentence.
7.8 Status of Successor Corporate Trustee. Every successor
Corporate Trustee appointed pursuant to subsection 7.7 shall be a bank or trust
company in good standing and having power to act as Corporate 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 United States and shall also have capital, surplus and undivided
profits of not less than $500,000,000, 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.
7.9 Merger of the Corporate Trustee. Any corporation into
which the Corporate Trustee may be merged, or with which it may be consolidated,
or any corporation resulting from any merger or consolidation to which the
Corporate Trustee shall be a party, shall be Corporate Trustee under this Trust
Agreement and the Security Documents without the execution or filing of any
paper or any further act on the part of the parties hereto.
7.10 Co-Trustee; Separate Trustees. (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 Trustees of taxes by such jurisdiction not
otherwise imposed on the Trustees, or the Corporate Trustee shall be advised by
counsel, satisfactory to it, that it is necessary or prudent in the interest of
the Secured Parties, or the Required Secured Parties shall in writing so request
the Corporate Trustee and the Borrower, or the Corporate Trustee shall deem it
desirable for its own protection in the performance of its duties hereunder or
under any Security Document, the Corporate Trustee and, unless a Notice of
Enforcement is in effect, the Borrower 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 Corporate Trustee and, unless a Notice of
Enforcement is in effect, the Borrower, 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 Security Documents, jointly with the Trustees originally named herein
or therein or any successor Trustees, or to act as separate trustee or trustees
of any of the Collateral. If the Borrower shall not have joined in the execution
of such instruments and agreements within 10 days after it receives a written
request from the Corporate Trustee to do so, or if a Notice of Enforcement is in
effect, the Corporate Trustee may act under the foregoing provisions of this
subsection without the concurrence of the Borrower and execute and deliver such
instruments and agreements on behalf of the Borrower. The Borrower hereby
appoints the Corporate Trustee as its agent and attorney to act for it under the
foregoing provisions of this subsection in either of such contingencies.
(b) Every separate trustee and every co-trustee, other than
any successor Corporate Trustee or Individual Trustee appointed pursuant to
subsection 7.7, 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 Corporate Trustee in respect of the custody, control and
management of moneys, papers or securities shall be exercised solely by
the Corporate Trustee or any agent appointed by the Corporate Trustee;
(ii) all rights, powers, duties and obligations conferred
or imposed upon the Corporate Trustee hereunder and under the relevant
Guarantee or Security Document shall be conferred or imposed and
exercised or performed by the Corporate 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 Corporate 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
Trustees 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 Guarantee or
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 Corporate
Trustee, anything contained herein to the contrary notwithstanding;
(iv) no trustee hereunder shall be personally li-
able by reason of any act or omission of any other trustee hereunder;
and
(v) the Borrower and the Corporate Trustee, at any time by
an instrument in writing executed by them jointly, may (and, at the
direction of the Required Secured Parties, shall) 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 Borrower shall not have joined in the execution of any such
instrument within 10 days after it receives a written request from the
Corporate Trustee to do so, or if a Notice of Enforcement is in effect,
the Corporate Trustee shall have the power to (and, at the direction of
the Required Secured Parties, shall) accept the resignation of or
remove any such separate trustee or co-trustee and to appoint a
successor without the concurrence of the Borrower, the Borrower hereby
appointing the Corporate Trustee its agent and attorney to act for it
in such connection in such contingency. If the Corporate Trustee shall
have appointed a separate trustee or separate trustees or co-trustee or
co-trustees as above provided, the Corporate 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 Borrower and
the Corporate Trustee, or by the Corporate Trustee alone pursuant to
this subsection.
7.11 Treatment of Payee or Indorsee by Trustees;
Representatives of Secured Parties. (a) The Trustees 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 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 Corporate Trustee such documents, including, without
limitation, Opinions of Counsel, as the Corporate Trustee may reasonably
require, to demonstrate to the Corporate Trustee the authority of such Person to
act as the representative of such Secured Parties (it being understood that the
authority of the Bank Facility Agents, Vendor Facility Agents, Other Facility
Agents and Public Debt Trustees shall be demonstrated by their inclusion as such
in the lists from time to time delivered pursuant to subsection 5.2.)
(c) Whenever this Trust Agreement requires or permits any
Secured Party or the Required Secured Parties to sign any instrument, give any
notice or take any action, the Holder Representative or Holder Representatives
on behalf of such Secured Party or Required Secured Parties may sign such
instrument, give such notice or take such action with the same effect as if done
directly by such Secured Party or Required Secured Parties.
7.12 Notices to Corporate Trustee under Security Documents. In
the event that the Corporate Trustee receives any notice from the grantor under
any Security Document, the Corporate Trustee shall promptly transmit a copy
thereof to the Borrower, each Holder Representative and each Unrepresented
Holder, and the Corporate Trustee shall take such action in respect of such
notice which is permitted by this Trust Agreement as shall be directed by the
Required Secured Parties.
SECTION 8
REPRESENTATIONS AND WARRANTIES
8.1 Representations and Warranties of the Corporate Trustee.
The Corporate Trustee hereby represents and warrants that:
(a) it is a national banking association duly organized,
validly existing and in good standing under the laws of the United States and
has the corporate power and authority and the legal right to execute and
deliver, and to perform its obligations under, this Trust Agreement and has
taken all necessary corporate action to authorize the execution, delivery and
performance of this Trust Agreement; and
(b) this Trust Agreement has been duly executed by the
Corporate Trustee and constitutes a legal, valid and binding obligation of the
Corporate Trustee, enforceable in accordance with its terms, subject to the
effects of insolvency, reorganization, moratorium and other similar laws
relating to or affecting the enforcement of creditors' rights generally, general
equitable principles and an implied covenant of good faith and fair dealing.
8.2 Representations and Warranties of the Borrower. The
Borrower hereby represents and warrants that:
(a) it is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
the partnership power and authority and the legal right to execute and deliver,
and to perform its obligations under, this Trust Agreement and has taken all
necessary partnership action to authorize the execution, delivery and
performance of this Trust Agreement;
(b) this Trust Agreement has been duly executed and delivered
by the Borrower and constitutes a legal, valid and binding obligation of the
Borrower, enforceable in accordance with its terms, subject to the effects of
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting the enforcement of creditors' rights generally, general
equitable principles and implied covenant of good faith and fair dealing;
(c) the execution, delivery and performance by the Borrower of
this Trust Agreement will not violate, result in a default under, or give rise
to any acceleration, prepayment, repurchase or redemption obligation of the
Borrower or any Subsidiary which is a party to any Guarantee or Security
Document as a result of (i) the partnership agreement of the Borrower or any
such Subsidiary or (ii) any law, rule or regulation binding on the Borrower or
any such Subsidiary or any contractual obligation of the Borrower and will not
result in, or require, the creation or imposition of any Lien on any of its or
their respective properties or revenues pursuant to any such law, rule or
regulation or contractual obligation, other than the Liens created by the
Security Documents; and
(d) no consent or authorization of, filing with, or other act
by or in respect of, any arbitrator or governmental authority and no consent of
any other Person is required of the Borrower in connection with the execution,
delivery, performance, validity or enforceability of this Trust Agreement,
except for any of the foregoing that have been obtained and are in full force
and effect.
SECTION 9
MISCELLANEOUS
9.1 Notices. Unless otherwise specified herein, all notices,
requests, demands or other communications given to the Borrower, the Trustees,
the Holder Representatives or the Unrepresented Holders 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 if transmitted by facsimile transmission,
when received in legible form, addressed (i) if to the Borrower or the Trustees,
to such party at its address specified on the signature pages hereof or any
other address which such party shall have specified as its address for the
purpose of communications hereunder, by notice given in accordance with this
subsection 9.1 to the party sending such communication or (ii) if to any of the
Holder Representatives or Unrepresented Holder, to it at its address specified
from time to time in the list provided by the Borrower to the Corporate Trustee
pursuant to subsection 5.2; provided that any notice, request or demand to the
Trustees shall not be effective until received by the Corporate Trustee in the
corporate trust division at the office designated by it pursuant to this
subsection 9.1.
9.2 No Waivers. No failure on the part of the Trustees, any
co-trustee, any separate trustee, 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, any Guarantee or any 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.
9.3 Amendments, Supplements, Waivers and Releases. (a) With
the written consent of the Required Secured Parties, the Trustees and the
Borrower may, from time to time, enter into written agreements supplemental
hereto or to any Guarantee or Security Document for the purpose of adding to, or
waiving any provisions of, this Trust Agreement, any Guarantee or any Security
Document or changing in any manner the rights of the Trustees, the Secured
Parties or the Borrower hereunder or thereunder or releasing any of the
Collateral or any Guarantee; provided that no such supplemental agreement shall
(i) (A) amend, modify or waive any provision of this subsection 9.3, (B) amend,
modify or waive any provision of subsections 2.10 or 3.4, or the definitions of
Secured Obligations, Voting Secured Obligations, Bank Facility Obligations,
Vendor Facility Obligations, Public Debt Obligations, Other Facility
Obligations, Hedging Agreement Obligations, Secured Parties or Required Secured
Parties, or (C) release any Guarantee, terminate any Security Document or
release all or any material part of the Collateral, unless the Trustees have
received a certificate of a Responsible Officer of the Borrower, and an Opinion
of Counsel, in each case to the effect that such action does not violate any
Secured Instrument or (ii) amend, modify or waive any provision of Section 5 or
7 or alter the duties, rights or obligations of the Trustees hereunder or under
the Guarantees or the Security Documents without the written consent of the
Trustees. Any such supplemental agreement shall be binding upon the Borrower,
each Holder Representative, the Secured Parties and the Trustees and their
respective successors and assigns.
(b) Without the consent of any Holder Representative or any Secured
Party, the Trustees and the Borrower and, in the case of any modification of any
Guarantee, the guarantor party to such Guarantee, at any time and from time to
time, may enter into one or more agreements supplemental hereto, to any
Guarantee or to any Security Document, in form satisfactory to the Corporate
Trustee, (i) to add to the covenants of the Borrower, any guarantor party to any
Guarantee or any grantor party to any Security Document, for the benefit of the
Secured Parties or to surrender any right or power herein conferred upon the
Borrower; or (ii) to cure any ambiguity, to correct or supplement any provision
herein or in any Guarantee or Security Document which may be defective or
inconsistent with any other provision herein or therein, or to make any other
provision with respect to matters or questions arising hereunder which shall not
be inconsistent with any provision hereof; provided that any such action
contemplated by this clause (ii) shall not, and could not reasonably be expected
to, adversely affect the interests of any Secured Party (as certified by a
Responsible Officer pursuant to paragraph (c) below).
(c) The Trustees shall not enter into any agreement supplemental hereto
pursuant to subsection 9.3(a) or (b) unless the Trustees have received a
certificate of a Responsible Officer of the Borrower, and an Opinion of Counsel,
in each case to the effect that such action does not violate this Trust
Agreement.
(d) The Corporate Trustee shall at the expense of the Borrower promptly
deliver to each Holder Representative and Unrepresented Holder copies of all
amendments, waivers or supplements to this Trust Agreement, any Guarantee or any
Security Document that may be entered into pursuant to subsection 9.3(a) or (b).
9.4 Headings. The table of contents and the headings of
Sections and subsections have been included herein for convenience only and
should not be considered in interpreting this Trust Agreement.
9.5 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.
9.6 Successors and Assigns. This Trust Agreement shall be
binding upon and inure to the benefit of each of the parties hereto 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, any Guarantee or any Collateral.
9.7 Currency Conversions. In calculating the amount of Secured
Obligations 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 into Dollars at the spot
rate for purchasing Dollars with such currency determined by the Corporate
Trustee to be in effect in the New York foreign exchange market at the close of
business on the Business Day prior to the date on which such calculation is to
be made.
9.8 GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
9.9 No Recourse. No claim may be made under this Trust
Agreement against any of the direct or indirect partners of the Borrower for any
obligations of the Borrower hereunder; provided that this subsection 9.9 shall
not in any way limit the Trustees' right to make any claim against any such
direct or indirect partner under any contract that any such party may have
entered into with the Borrower to the extent that the rights under such contract
constitute Collateral.
9.10 Submission to Jurisdiction; Waivers. The Borrower and
each Trustee hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement, 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) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to such party
at its address set forth on the signature pages hereof or at such other address
of which the parties hereto shall have been notified pursuant hereto; and
(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 xxx in any other jurisdiction.
9.11 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.
9.12 Release of Liens; Guarantees. (a) Upon (i) receipt by the
Corporate Trustee of a request by the Borrower to release the liens created by
subsection 5.7 and by the Security Documents in respect of any Collateral
(including, without limitation, any Collateral that is the subject of any Asset
Sale), together with a certificate of a Responsible Officer and an Opinion of
Counsel, in each case to the effect that such release will not violate any
Secured Instrument and (ii) in the case of a release of all the Collateral,
payment in full of all Trustee Fees, the security interests created by
subsection 5.7 and by the Security Documents shall terminate forthwith, and all
right, title and interest of the Trustees in and to such Collateral shall revert
to the Borrower, its successors and assigns.
(b) Upon receipt by the Corporate Trustee of a request by the
Borrower to release any Guarantee, together with a certificate of a Responsible
Officer and an Opinion of Counsel, in each case to the effect that such release
will not violate any Secured Instrument, such Guarantee shall be immediately
released.
(c) Upon the termination of the Trustees' security interest
and the release of any Collateral in accordance with subsection 9.12(a), the
Trustees will promptly, at the Borrower's written request and expense, (i)
execute and deliver to the Borrower such documents as the Borrower shall
reasonably request to evidence the termination of such security interest or the
release of such Collateral and (ii) in the case of a release of all Collateral,
deliver or cause to be delivered to the Borrower all property of the Borrower
then held by the Trustees or any agent thereof.
(d) This Trust Agreement shall terminate when (i) the
Guarantees have terminated, (ii) the Liens and security interests granted under
the Security Documents have terminated and (iii) the Collateral has been
released and the Secured Obligations have been indefeasibly paid and performed
in full and all commitments to extend credit under any Secured Instrument that
when extended would constitute Secured Obligations shall have been terminated;
provided that the provisions of subsections 5.3, 5.4, 5.5 and 5.6 shall not be
affected by any such termination.
(e) The Corporate Trustee shall promptly give notice to each
Holder Representative and Unrepresented Holder of any release of Collateral or a
Guarantee pursuant to this subsection.
9.13 Complete Agreement. This Trust Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior representations, negotiations, writings,
memoranda and agreements.
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed (by their respective authorized officers or
representatives in the case of parties other than the Individual Trustee) as of
the day and year first written above.
SPRINT SPECTRUM L.P.
By: Sprint Spectrum
Holding Company, L.P.,
its general partner
By: _ /s/ Xxxxxx X. Xxxxx, Xx.
Title: Treasurer
Address for Notices:
0000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Treasurer
Fax: (000) 000-0000
With a copy to:
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx X. Waters___
Title: Vice President
Address for Notices:
000 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Corporate Trust
Department
Fax: (000) 000-0000
[SEAL]
Attest:
/s/ Xxxxxxx Xxxxxxx
Title: Vice President
_/s/ Xxxxxxx X. Benton__________
XXXXXXX X. XXXXXX
Address for Notices:
c/o First Union National Bank
000 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
Witness:
/s/ Xxxxx X. Xxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxx
Corporate Trust Officer
BORROWER
STATE OF NEW YORK)
:ss:
COUNTY OF NEW YORK)
On the 2 day of October 1996, before me personally came Xxxxxx X. Xxxxx, Xx., to
me personally known and known to me to be the person described in and who
executed the foregoing instrument as Treasurer of Sprint Spectrum Holding
Company, L.P., who, being by me duly sworn, did depose and say that he resides
at Kansas City, Missouri, that he is the Treasurer of Sprint Spectrum Holding
Company, L.P., one of the persons described in and which executed the foregoing
instrument; that said instrument was signed on behalf of said partnership by
order of its general partners; that he signed his name thereto by like order;
and that he acknowledged said instrument to be the free act and deed of said
partnership.
[NOTARIAL SEAL] /s/ Xxxxx Xxxxxx
CORPORATE TRUSTEE
STATE OF NEW JERSEY)
) :ss:
COUNTY OF ESSEX )
On the 2nd day of October, 1996, before me personally came Xxxxx X. Xxxxxx and
Xxxxxxx Xxxxxxxx, to me personally known and known to me to be the persons
described in and who executed the foregoing instrument as Vice President, and
Vice President, respectively, of First Union National Bank, by me duly sworn,
did depose and say that they reside at 000 Xxxxxxxxx Xx., Xxxxxxxx Xxxxxxx, XX
and 00 X. Xxxxxxx Xx., Xxxxxxxxx, XX, respectively; that they are Vice President
and Vice President, respectively, of First Union National Bank, one of the
corporations described in and which executed the foregoing instrument; that they
know the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that said instrument was signed and sealed on behalf of
said corporation in accordance with its by-laws; that they signed their names
thereto by like order; and that they acknowledged said instrument to be the free
act and deed of said corporation.
[NOTARIAL SEAL] /s/ Xxxxxxx Xxxxx
INDIVIDUAL TRUSTEE
STATE OF NEW JERSEY)
) :ss:
COUNTY OF ESSEX )
On the 2nd day of October, 1996, before me personally came Xxxxxxx X. Xxxxxx, to
me personally known who, being by me duly sworn, did depose and say that he
resides in Ridgewood, New Jersey; and that said instrument is his free act and
deed.
[NOTARIAL SEAL] /s/ Xxxxxxx Xxxxx
SCHEDULE I
INITIAL SECURED OBLIGATIONS
A. Bank Facility Obligations under the following Bank Credit Facility:
1. Credit Agreement, dated as of October 2, 1996, as amended,
among the Borrower, the lenders from time to time parties
thereto and The Chase Manhattan Bank, as Administrative Agent.
B. Vendor Facility Obligations under the following Vendor Credit Facili-
ties:
1. Credit Agreement, dated as of October 2, 1996, as amended,
among the Borrower, Lucent Technologies Inc., the other
lenders from time to time parties thereto and Lucent
Technologies Inc., as Agent.
2. Credit Agreement, dated as of October 2, 1996, as amended,
among the Borrower, Northern Telecom Inc., the other lenders
from time to time parties thereto and the agent named therein.
SCHEDULE II
INITIAL GUARANTEES
1. Guarantee, dated as of October 2, 1996, by WirelessCo, L.P.
2. Guarantee, dated as of October 2, 1996, by Sprint Spectrum Equipment
Company, L.P.
3. Guarantee, dated as of October 2, 1996, by Sprint Spectrum Realty
Company, L.P.
SCHEDULE III
INITIAL SECURITY DOCUMENTS
1. Pledge Agreement, dated as of October 2, 1996, made by each of Sprint
Spectrum L.P. and MinorCo, L.P. in favor of the Trustees.
2. Security Agreement, dated as of October 2, 1996, made by Sprint Spec-
trum L.P. in favor of the Trustees.
3. Security Agreement, dated as of October 2, 1996, made by Sprint Spec-
trum Equipment Company, L.P. in favor of the Trustees.
TRUST AGREEMENT
among
SPRINT SPECTRUM L.P.
FIRST UNION NATIONAL BANK,
as Corporate Trustee
and
XXXXXXX X. XXXXXX,
as Individual Trustee
Dated as of October 2, 1996
TABLE OF CONTENTS
Page
PREAMBLE..................................................................... 1
DECLARATION OF TRUST......................................................... 1
SECTION 1 DEFINITIONS....................................................... 2
1.1 Defined Terms............................................... 2
1.2 Other Definitional Provisions............................... 10
SECTION 2 ENFORCEMENT OF SECURITY INTERESTS AND GUARANTEES.................. 11
2.1 Notice of Enforcement....................................... 11
2.2 General Authority of the Trustees over the Collateral and
Guarantees............................................... 11
2.3 Right to Initiate Judicial Proceedings...................... 12
2.4 Right to Appoint a Receiver................................. 12
2.5 Exercise of Powers; Instructions of Required Secured
Parties.................................................. 13
2.6 Remedies Not Exclusive...................................... 13
2.7 Waiver and Estoppel......................................... 14
2.8 Limitation on Trustees' Duty in Respect of Collateral....... 15
2.9 Limitation by Law........................................... 15
2.10 Rights of Secured Parties Under Secured Instruments......... 15
2.11 Records..................................................... 15
2.12 Notices..................................................... 15
SECTION 3 COLLATERAL ACCOUNT; DISTRIBUTIONS................................. 16
3.1 The Collateral Account...................................... 16
3.2 Control of Collateral Account............................... 17
3.3 Investment of Funds Deposited in Collateral Account......... 17
3.4 Application of Moneys....................................... 18
3.5 Amounts Held for Contingent Secured Obligations............. 20
3.6 Application of Moneys Distributable to Holder
Representatives.......................................... 20
3.7 Trustees' Calculations...................................... 20
SECTION 4 ADDITIONAL SECURED OBLIGATIONS; ADDITIONAL COLLATERAL; ADDITIONAL
GUARANTEES; CERTAIN DOCUMENTATION REQUIREMENTS................ 21
4.1 Delivery of Initial Secured Instruments, Initial Security
Documents and Initial Guarantees......................... 21
4.2 Additional Secured Obligations.............................. 21
4.3 Notice to Secured Parties of Additional Secured Obligations. 22
4.4 Additional Collateral....................................... 22
4.5 Notice to Secured Parties of Additional Collateral.......... 22
4.6 Additional Guarantees....................................... 22
4.7 Notice to Secured Parties of Additional Guarantee........... 22
4.8 Actions Required with respect to Initial Secured Obligations
and Additional Secured Obligations....................... 23
4.9 Actions Required with respect to Security Documents and
Collateral............................................... 23
4.10 Actions Required with respect to Guarantees................. 25
4.11 Possessory Collateral....................................... 26
SECTION 5 AGREEMENTS WITH TRUSTEES.......................................... 26
5.1 Delivery of Amendments to Secured Instruments............... 26
5.2 Information as to Secured Parties, Holder Representatives,
Unrepresented Holders, Etc............................... 26
5.3 Compensation and Expenses................................... 27
5.4 Stamp and Other Similar Taxes............................... 27
5.5 Filing Fees, Excise Taxes, Etc.............................. 27
5.6 Indemnification............................................. 27
5.7 Trustees' Lien.............................................. 28
5.8 Further Assurances.......................................... 28
SECTION 6 POSSESSION AND USE OF COLLATERAL; PARTIAL RELEASES............... 29
6.1 Use Prior to Notice of Enforcement.......................... 29
6.2 Releases.................................................... 29
6.3 Insurance and Condemnation Proceeds; Liquidating Dividends.. 30
6.4 Purchase of Collateral...................................... 30
SECTION 7 THE TRUSTEES...................................................... 31
7.1 Acceptance of Trust......................................... 31
7.2 Exculpatory Provisions...................................... 31
7.3 Delegation of Duties........................................ 32
7.4 Reliance by Trustees........................................ 32
7.5 Limitations on Duties of Trustees; Relationship between
Corporate Trustee and Individual Trustee................. 33
7.6 Moneys to be Held in Trust.................................. 34
7.7 Resignation and Removal of the Trustees..................... 34
7.8 Status of Successor Corporate Trustee....................... 36
7.9 Merger of the Corporate Trustee............................. 36
7.10 Co-Trustee; Separate Trustees............................... 36
7.11 Treatment of Payee or Indorsee by Trustees; Representatives
of Secured Parties....................................... 38
7.12 Notices to Corporate Trustee under Security Documents....... 38
SECTION 8 REPRESENTATIONS AND WARRANTIES.................................... 39
8.1 Representations and Warranties of the Corporate Trustee..... 39
8.2 Representations and Warranties of the Borrower.............. 39
SECTION 9 MISCELLANEOUS..................................................... 40
9.1 Notices..................................................... 40
9.2 No Waivers.................................................. 40
9.3 Amendments, Supplements, Waivers and Releases............... 40
9.4 Headings.................................................... 41
9.5 Severability................................................ 41
9.6 Successors and Assigns...................................... 41
9.7 Currency Conversions........................................ 41
9.8 GOVERNING LAW............................................... 42
9.9 No Recourse................................................. 42
9.10 Submission to Jurisdiction; Waivers......................... 42
9.11 Counterparts................................................ 42
9.12 Release of Liens; Guarantees................................ 42
9.13 Complete Agreement.......................................... 43
SCHEDULES:
SCHEDULE I Initial Secured Obligations
SCHEDULE II Initial Guarantees
SCHEDULE III Initial Security Documents
EXHIBITS:
EXHIBIT A Form of Additional Collateral Designation
EXHIBIT B Form of Additional Guarantee Designation
EXHIBIT C Form of Additional Secured Obligations Designation
EXHIBIT D-1 Form of Opinion of Xxxxxxx X. Xxxxxx, Esq.
EXHIBIT D-2 Form of Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx
EXHIBIT D-3 Form of Opinion of Xxxxxxxx & Xxxxxxxx LLP
EXHIBIT D-4 Matters to be Covered by Opinion Pursuant to Subsection
4.8(b)(ii)
EXHIBIT D-5 Matters to be Covered by Opinion Pursuant to Subsection
4.9(b)(v)
EXHIBIT D-6 Matters to be Covered by Opinion Pursuant to Subsection
4.10(b)(iii)
EXHIBIT E Form of Guarantee EXHIBIT F Form of Borrower
Security Agreement
EXHIBIT G Form of Pledge Agreement EXHIBIT H Form of Subsidiary
Security Agreement
