Representations and Warranties of the Trust Company. Trust Company, in its individual capacity (except with respect to clauses (c), (k) and (m) (to the extent applicable to Trust Company in its capacity as Owner Trustee) below) and as Owner Trustee with respect to clauses (c), (f) and (k) (to the extent applicable to Trust Company in its capacity as Owner Trustee) below, represents and warrants to each of the Owner Participant, the Indenture Trustee, the Pass Through Trustee, TILC, TRLTII, Trinity, the Lessee and the Policy Provider, notwithstanding the provisions of Section 10.13 or any similar provision in any other Operative Agreement, that, as of the date hereof and as of the Closing Date: (a) Trust Company (i) is a national banking association duly organized, validly existing and in good standing under the laws of the United States of America, (ii) has the full corporate power, authority and legal right under the laws of the State of Connecticut pertaining to its banking, trust and fiduciary powers to carry on its business as now conducted and execute, deliver and perform its obligations hereunder and under the Trust Agreement, (iii) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, the Trust is a Connecticut statutory trust duly organized and validly existing under the laws of the State of Connecticut and (iv) assuming due authorization, execution and delivery of the Trust Agreement by the Owner Participant, has full power and authority, as Owner Trustee and/or, to the extent expressly provided herein or therein, in its individual capacity, to execute, deliver and perform its obligations under each of the Owner Trustee Agreements; (i) Trust Company has duly authorized, executed and delivered the Trust Agreement, (ii) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, Trust Company in its trustee capacity and, to the extent expressly provided therein, in its individual capacity, has, or on or prior to the Closing Date will have, duly authorized, executed and delivered each of the other Owner Trustee Agreements and, as of the Closing Date, the Equipment Note, the Lease Supplement and the Indenture Supplement to be delivered on the Closing Date and (iii) the Trust Agreement constitutes a legal, valid and binding obligation of Trust Company enforceable against it in accordance with the terms thereof except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity; (c) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, each of the Owner Trustee Agreements (other than the Trust Agreement) to which it is a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of the Owner Trustee, enforceable against it in accordance with the terms thereof, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights of creditors generally and by general principles of equity; (d) neither the execution and delivery by Trust Company or Owner Trustee, as the case may be, of the Owner Trustee Agreements or the Equipment Note to be delivered on the Closing Date, nor the consummation by Trust Company or Owner Trustee, as the case may be, of any of the transactions contemplated hereby or thereby, nor the compliance by Trust Company or Owner Trustee, as the case may be, with any of the terms and provisions hereof and thereof, (i) requires or will require any approval of its stockholders, or approval or consent of any trustees or holders of any indebtedness or obligations of it in its individual capacity, or (ii) violates or will violate its articles of association or bylaws, or contravenes or will contravene any provision of, or constitutes or will constitute a default under, or results or will result in any breach of, any indenture, mortgage, chattel mortgage, deed of trust, conditional sale contract, bank loan or credit agreement, license or other agreement or instrument to which Trust Company is a party or by which it or any of its properties may be bound or affected, or contravenes or will contravene any law, governmental rule or regulation of the United States of America or the State of Connecticut governing the banking, trust or fiduciary powers of Trust Company, or any judgment or order applicable to or binding on it, or results in or will result in the creation or imposition of any Lien upon the Trust Estate (other than a Permitted Lien of the type described in clause (v) of the definition thereof); (e) there are no Taxes payable by Trust Company or the Owner Trustee, imposed by the State of Connecticut or any political subdivision thereof in connection with the execution and delivery by Trust Company of the Trust Agreement, and, as Trust Company or Owner Trustee, as the case may be, of this Agreement, the other Owner Trustee Agreements (other than the Trust Agreement) or the Equipment Note to be delivered on the Closing Date solely because Trust Company is a national banking association with an office for trust administration in Connecticut and performs certain of its duties as Owner Trustee in the State of Connecticut; and there are no Taxes payable by Trust Company or the Owner Trustee, as the case may be, imposed by the State of Connecticut or any political subdivision thereof in connection with the acquisition of its interest in the Equipment (other than franchise or other taxes based on or measured by any fees or compensation received by Trust Company or the Owner Trustee for services rendered in connection with the transactions contemplated hereby) solely because Trust Company is a national banking association with an office for trust administration in Connecticut and performs certain of its duties as Owner Trustee in the State of Connecticut; (f) there are no pending or, to its knowledge, threatened actions or proceedings against Trust Company or the Owner Trustee, before any court or administrative agency which individually or in the aggregate, if determined adversely to it, would be reasonably expected to materially adversely affect the ability of Trust Company or the Owner Trustee, as the case may be, to perform its obligations under the Trust Agreement, the other Owner Trustee Agreements or the Equipment Note to be delivered on the Closing Date; (g) the "location" of the Trust Company for purposes of Article 9 of the Uniform Commercial Code is in Delaware, and Trust Company agrees to give the Owner Participant, the Indenture Trustee and the Lessee written notice within 30 days following any relocation of said chief executive office or said place from its present location; (h) no consent, approval, order or authorization of, giving of notice to, or registration with, or taking of any other action in respect of, any Connecticut state or local governmental authority or agency or any United States federal governmental authority or agency regulating the banking or trust powers of Trust Company is required for the execution and delivery of, or the carrying out by, Trust Company or the Owner Trustee, as the case may be, of any of the transactions contemplated hereby or by the Trust Agreement or of any of the transactions contemplated by any of the other Owner Trustee Agreements, other than any such consent, approval, order, authorization, registration, notice or action as has been duly obtained, given or taken; (i) on the Closing Date, the Trust's right, title and interest in and to the Equipment delivered on the Closing Date shall be free and clear of any Lessor's Lien attributable to Trust Company; (j) proceeds received by the Owner Trustee from the Owner Participant pursuant to the Trust Agreement will be administered by it in accordance with Article III of the Trust Agreement; (k) the Trust shall receive from the Lessee such title as was conveyed to it by the Lessee, subject to the rights of the Trust and the Lessee under the Lease and the Lien created pursuant to the Indenture and the Indenture Supplement in respect of the Equipment delivered on the Closing Date, and there will be no Lessor's Liens attributable to the Trust on the Equipment or any interest therein or on the Trust Estate; (l) to its knowledge, no Indenture Default (not attributable to a Lease Default) has occurred and is continuing; (m) the Owner Trustee is not engaged in the business of extending credit for the purposes of purchasing or carrying margin stock, and no proceeds of the Equipment Note or the Owner Participant's Commitment as contemplated by this Agreement and the other Operative Agreements will be used by the Owner Trustee for a purpose which violates, or would be inconsistent with, Section 7 of the Securities Exchange Act of 1934, as amended, or Regulations T, U and X of the Federal Reserve System. Terms for which meanings are provided in Regulations T, U and X of the Federal Reserve System or any regulations substituted therefor, as from time to time in effect, are used in this Section 3.1 (m) with such meanings; and (n) the Trust is not an "investment company" or an "affiliated person" of an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 5 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Representations and Warranties of the Trust Company. Trust Company, in its individual capacity (except with respect to clauses (c), (k) and (m) (to the extent applicable to Trust Company in its capacity as Owner Trustee) below) and as Owner Trustee with respect to clauses (c), (f) and (k) (to the extent applicable to Trust Company in its capacity as Owner Trustee) below, represents and warrants to each of the Owner Participant, the Indenture Trustee, the Pass Through Trustee, TILC, TRLTII, Trinity, the Lessee and the Policy Provider, notwithstanding the provisions of Section 10.13 or any similar provision in any other Operative Agreement, that, as of the date hereof and as of the Closing Date:
(a) Trust Company (i) is a national banking association duly organized, validly existing and in good standing under the laws of the United States of America, (ii) has the full corporate power, authority and legal right under the laws of the State of Connecticut pertaining to its banking, trust and fiduciary powers to carry on its business as now conducted and execute, deliver and perform its obligations hereunder and under the Trust Agreement, (iii) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, the Trust is a Connecticut statutory trust duly organized and validly existing under the laws of the State of Connecticut and (iv) assuming due authorization, execution and delivery of the Trust Agreement by the Owner Participant, has full power and authority, as Owner Trustee and/or, to the extent expressly provided herein or therein, in its individual capacity, to execute, deliver and perform its obligations under each of the Owner Trustee Agreements;
(i) Trust Company has duly authorized, executed and delivered the Trust Agreement, (ii) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, Trust Company in its trustee capacity and, to the extent expressly provided therein, in its individual capacity, has, or on or prior to the Closing Date will have, duly authorized, executed and delivered each of the other Owner Trustee Agreements and, as of the Closing Date, the Equipment Note, the Lease Supplement and the Indenture Supplement to be delivered on the Closing Date and (iii) the Trust Agreement constitutes a legal, valid and binding obligation of Trust Company enforceable against it in accordance with the terms thereof except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity;
(c) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, each of the Owner Trustee Agreements (other than the Trust Agreement) to which it is a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of the Owner Trustee, enforceable against it in accordance with the terms thereof, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights of creditors generally and by general principles of equity;
(d) neither the execution and delivery by Trust Company or Owner Trustee, as the case may be, of the Owner Trustee Agreements or the Equipment Note to be delivered on the Closing Date, nor the consummation by Trust Company or Owner Trustee, as the case may be, of any of the transactions contemplated hereby or thereby, nor the compliance by Trust Company or Owner Trustee, as the case may be, with any of the terms and provisions hereof and thereof, ,
(i) requires or will require any approval of its stockholders, or approval or consent of any trustees or holders of any indebtedness or obligations of it in its individual capacity, or (ii) violates or will violate its articles of association or bylaws, or contravenes or will contravene any provision of, or constitutes or will constitute a default under, or results or will result in any breach of, any indenture, mortgage, chattel mortgage, deed of trust, conditional sale contract, bank loan or credit agreement, license or other agreement or instrument to which Trust Company is a party or by which it or any of its properties may be bound or affected, or contravenes or will contravene any law, governmental rule or regulation of the United States of America or the State of Connecticut governing the banking, trust or fiduciary powers of Trust Company, or any judgment or order applicable to or binding on it, or results in or will result in the creation or imposition of any Lien upon the Trust Estate (other than a Permitted Lien of the type described in clause (v) of the definition thereof);
(e) there are no Taxes payable by Trust Company or the Owner Trustee, imposed by the State of Connecticut or any political subdivision thereof in connection with the execution and delivery by Trust Company of the Trust Agreement, and, as Trust Company or Owner Trustee, as the case may be, of this Agreement, the other Owner Trustee Agreements (other than the Trust Agreement) or the Equipment Note to be delivered on the Closing Date solely because Trust Company is a national banking association with an office for trust administration in Connecticut and performs certain of its duties as Owner Trustee in the State of Connecticut; and there are no Taxes payable by Trust Company or the Owner Trustee, as the case may be, imposed by the State of Connecticut or any political subdivision thereof in connection with the acquisition of its interest in the Equipment (other than franchise or other taxes based on or measured by any fees or compensation received by Trust Company or the Owner Trustee for services rendered in connection with the transactions contemplated hereby) solely because Trust Company is a national banking association with an office for trust administration in Connecticut and performs certain of its duties as Owner Trustee in the State of Connecticut;
(f) there are no pending or, to its knowledge, threatened actions or proceedings against Trust Company or the Owner Trustee, before any court or administrative agency which individually or in the aggregate, if determined adversely to it, would be reasonably expected to materially adversely affect the ability of Trust Company or the Owner Trustee, as the case may be, to perform its obligations under the Trust Agreement, the other Owner Trustee Agreements or the Equipment Note to be delivered on the Closing Date;
(g) the "location" of the Trust Company for purposes of Article 9 of the Uniform Commercial Code is in Delaware, and Trust Company agrees to give the Owner Participant, the Indenture Trustee and the Lessee written notice within 30 days following any relocation of said chief executive office or said place from its present location;
(h) no consent, approval, order or authorization of, giving of notice to, or registration with, or taking of any other action in respect of, any Connecticut state or local governmental authority or agency or any United States federal governmental authority or agency regulating the banking or trust powers of Trust Company is required for the execution and delivery of, or the carrying out by, Trust Company or the Owner Trustee, as the case may be, of any of the transactions contemplated hereby or by the Trust Agreement or of any of the transactions contemplated by any of the other Owner Trustee Agreements, other than any such consent, approval, order, authorization, registration, notice or action as has been duly obtained, given or taken;
(i) on the Closing Date, the Trust's right, title and interest in and to the Equipment delivered on the Closing Date shall be free and clear of any Lessor's Lien attributable to Trust Company;
(j) proceeds received by the Owner Trustee from the Owner Participant pursuant to the Trust Agreement will be administered by it in accordance with Article III of the Trust Agreement;
(k) the Trust shall receive from the Lessee such title as was conveyed to it by the Lessee, subject to the rights of the Trust and the Lessee under the Lease and the Lien created pursuant to the Indenture and the Indenture Supplement in respect of the Equipment delivered on the Closing Date, and there will be no Lessor's Liens attributable to the Trust on the Equipment or any interest therein or on the Trust Estate;
(l) to its knowledge, no Indenture Default (not attributable to a Lease Default) has occurred and is continuing;
(m) the Owner Trustee is not engaged in the business of extending credit for the purposes of purchasing or carrying margin stock, and no proceeds of the Equipment Note or the Owner Participant's Commitment as contemplated by this Agreement and the other Operative Agreements will be used by the Owner Trustee for a purpose which violates, or would be inconsistent with, Section 7 of the Securities Exchange Act of 1934, as amended, or Regulations T, U and X of the Federal Reserve System. Terms for which meanings are provided in Regulations T, U and X of the Federal Reserve System or any regulations substituted therefor, as from time to time in effect, are used in this Section 3.1 (m) with such meanings; and
(n) the Trust is not an "investment company" or an "affiliated person" of an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 4 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Representations and Warranties of the Trust Company. The Trust Company, in its individual capacity (except with respect to clauses (c)capacity, (k) represents, warrants and (m) (to the extent applicable to Trust Company in its capacity as Owner Trustee) below) and as Owner Trustee with respect to clauses (c), (f) and (k) (to the extent applicable to Trust Company in its capacity as Owner Trustee) below, represents and warrants to each of the Owner Participant, the Indenture Trustee, the Pass Through Trustee, TILC, TRLTII, Trinity, the Lessee and the Policy Provider, notwithstanding the provisions of Section 10.13 or any similar provision in any other Operative Agreement, covenants that, as of the date hereof and as of the Closing Date:
(a) Trust Company (i) it is a national banking association duly organized, validly existing and in good standing under the laws of the United States of AmericaStates, (ii) and has the full corporate all requisite banking and trust power, authority and legal right under the laws of the State of Connecticut pertaining to its banking, trust and fiduciary powers to carry on its business as now conducted and execute, deliver and perform its obligations hereunder and under the Trust Agreement, (iii) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, the Trust is a Connecticut statutory trust duly organized and validly existing under the laws of the State of Connecticut and (iv) assuming due authorization, execution and delivery of the Trust Agreement by the Owner Participant, has full power and authority, as Owner Trustee and/or, to the extent expressly provided herein or therein, in its individual capacity, to execute, deliver enter into and perform its obligations under each of the Owner Trustee AgreementsTransaction Documents to which it is a party;
(ib) Trust Company it is a “citizen of the United States” qualified to engage in the coastwise trade within the meaning of Section 2 of the Shipping Act;
(c) it has duly authorizedauthorized by all necessary corporate action, executed and delivered the Trust Agreement, (ii) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, Trust Company in its trustee capacity and, to the extent expressly provided therein, in its individual capacity, has, or on or prior to the Closing Date will have, duly authorized, executed and delivered each of the other Owner Trustee Agreements and, as of the Closing Date, the Equipment Note, the Lease Supplement and the Indenture Supplement to be delivered on the Closing Date and (iii) the Trust Agreement constitutes a legal, valid and binding obligation of Trust Company enforceable against it in accordance with the terms thereof except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity;
(c) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, each of the Owner Trustee Agreements (other than the Trust Agreement) Transaction Documents to which it is a party constitutesin its individual capacity or as Trustee, or when entered into will constitute, as and to the extent specified in such Transaction Documents; and each of the Transaction Documents to which it is a party in its individual capacity constitutes the legal, valid and binding obligation of the Owner TrusteeTrust Company, enforceable against it the Trust Company in accordance with the terms thereof, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights of creditors generally and by general principles of equity;
(d) neither the execution and delivery by Trust Company it, in its individual capacity or Owner as Trustee, as the case may be, of the Owner Trustee Agreements Transaction Documents to which it is a party do not and will not result in any violation of, conflict with, or default under, any term of any charter instrument, by-law or other material agreement or instrument to which it is a party or by which it or its properties may be bound, or any judgment or order binding upon or affecting it or its properties, or any federal or Connecticut state law or regulation relating to its banking and trust powers; and
(e) other than the Equipment Note to be delivered on filing of a certificate of trust with the Closing DateSecretary of the State of the State of Connecticut, nor which filing has been duly effected, neither the consummation execution and delivery by Trust Company it, in its individual capacity or Owner as Trustee, as the case may be, of any of the transactions contemplated hereby or thereby, Transaction Documents to which it is party nor the compliance by Trust Company or Owner Trustee, as the case may be, with any of the terms and provisions hereof and thereof, (i) requires or will require any approval of its stockholders, or approval or consent of any trustees or holders of any indebtedness or obligations of it in its individual capacity, or (ii) violates or will violate its articles of association or bylaws, or contravenes or will contravene any provision of, or constitutes or will constitute a default under, or results or will result in any breach of, any indenture, mortgage, chattel mortgage, deed of trust, conditional sale contract, bank loan or credit agreement, license or other agreement or instrument to which Trust Company is a party or by which it or any of its properties may be bound or affected, or contravenes or will contravene any law, governmental rule or regulation of the United States of America or the State of Connecticut governing the banking, trust or fiduciary powers of Trust Company, or any judgment or order applicable to or binding on it, or results in or will result in the creation or imposition of any Lien upon the Trust Estate (other than a Permitted Lien of the type described in clause (v) of the definition thereof);
(e) there are no Taxes payable by Trust Company or the Owner Trustee, imposed by the State of Connecticut or any political subdivision thereof in connection with the execution and delivery by Trust Company of the Trust Agreement, and, as Trust Company or Owner Trustee, as the case may be, of this Agreement, the other Owner Trustee Agreements (other than the Trust Agreement) or the Equipment Note to be delivered on the Closing Date solely because Trust Company is a national banking association with an office for trust administration in Connecticut and performs certain of its duties as Owner Trustee in the State of Connecticut; and there are no Taxes payable by Trust Company or the Owner Trustee, as the case may be, imposed by the State of Connecticut or any political subdivision thereof in connection with the acquisition of its interest in the Equipment (other than franchise or other taxes based on or measured by any fees or compensation received by Trust Company or the Owner Trustee for services rendered in connection with the transactions contemplated hereby) solely because Trust Company is a national banking association with an office for trust administration in Connecticut and performs certain of its duties as Owner Trustee in the State of Connecticut;
(f) there are no pending or, to its knowledge, threatened actions or proceedings against Trust Company or the Owner Trustee, before any court or administrative agency which individually or in the aggregate, if determined adversely to it, would be reasonably expected to materially adversely affect the ability of Trust Company or the Owner Trustee, as the case may be, to perform its obligations under the Trust Agreement, the other Owner Trustee Agreements or the Equipment Note to be delivered on the Closing Date;
(g) the "location" of the Trust Company for purposes of Article 9 of the Uniform Commercial Code is in Delaware, and Trust Company agrees to give the Owner Participant, the Indenture Trustee and the Lessee written notice within 30 days following any relocation of said chief executive office or said place from its present location;
(h) no consent, approval, order or authorization of, giving of notice to, or registration with, or taking of any other action in respect of, any Connecticut state or local governmental authority or agency or any United States federal governmental authority or agency regulating the banking or trust powers of Trust Company is required for the execution and delivery of, or the carrying out by, Trust Company or the Owner Trustee, as the case may be, consummation of any of the transactions contemplated hereby or by thereby requires the Trust Agreement or of any of the transactions contemplated by any of the other Owner Trustee Agreements, other than any such consent, approval, order, authorization, registrationapproval or other action by, or notice to or action as has been duly obtainedfiling, given registration or taken;
(i) on the Closing Datequalification with, the Trust's rightany federal, title and interest in and to the Equipment delivered on the Closing Date shall be free and clear of any Lessor's Lien attributable to Trust Company;
(j) proceeds received by the Owner Trustee from the Owner Participant Connecticut governmental authority or regulatory body pursuant to the Trust Agreement will be administered by it in accordance with Article III of the Trust Agreement;
(k) the Trust shall receive from the Lessee such title as was conveyed to it by the Lessee, subject to the rights of the Trust and the Lessee under the Lease and the Lien created pursuant to the Indenture and the Indenture Supplement in respect of the Equipment delivered on the Closing Date, and there will be no Lessor's Liens attributable to the Trust on the Equipment any federal or any interest therein Connecticut law governing its banking or on the Trust Estate;
(l) to its knowledge, no Indenture Default (not attributable to a Lease Default) has occurred and is continuing;
(m) the Owner Trustee is not engaged in the business of extending credit for the purposes of purchasing or carrying margin stock, and no proceeds of the Equipment Note or the Owner Participant's Commitment as contemplated by this Agreement and the other Operative Agreements will be used by the Owner Trustee for a purpose which violates, or would be inconsistent with, Section 7 of the Securities Exchange Act of 1934, as amended, or Regulations T, U and X of the Federal Reserve System. Terms for which meanings are provided in Regulations T, U and X of the Federal Reserve System or any regulations substituted therefor, as from time to time in effect, are used in this Section 3.1 (m) with such meanings; and
(n) the Trust is not an "investment company" or an "affiliated person" of an "investment company" within the meaning of the Investment Company Act of 1940, as amendedtrust powers.
Appears in 4 contracts
Samples: Agreement to Acquire and Charter (Tampa Electric Co), Agreement to Acquire and Charter (Teco Energy Inc), Agreement to Acquire and Charter (Teco Energy Inc)
Representations and Warranties of the Trust Company. Trust Company, in its individual capacity (except with respect to clauses (c), (k) and (m) (to the extent applicable to Trust Company in its capacity as Owner Trustee) below) and as Owner Trustee with respect to clauses (c), (f) and (k) (to the extent applicable to Trust Company in its capacity as Owner Trustee) below, represents and warrants to each of the Owner Participant, the Indenture Trustee, the Pass Through Trustee, TILC, TRLTII, Trinity, the Lessee TRMI and the Policy ProviderLessee, notwithstanding the provisions of Section 10.13 or any similar provision in any other Operative Agreement, that, as of the date hereof and as of the Closing Datehereof:
(a) Trust Company (i) is a national banking association duly organizedincorporated, validly existing and in good standing under the laws of the United States of America, (ii) has the full corporate power, authority and legal right under the laws of the State of Connecticut and the United States pertaining to its banking, trust and fiduciary powers to carry on its business as now conducted and execute, deliver and perform its obligations hereunder and under the Trust Agreement, Agreement and (iii) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, the Trust is a Connecticut statutory trust duly organized and validly existing under the laws of the State of Connecticut and (iv) assuming due authorization, execution and delivery of the Trust Agreement by the Owner Participant, has full power and authority, as Owner Trustee and/or, to the extent expressly provided herein or therein, in its individual capacity, to execute, deliver and perform its obligations under each of the Owner Trustee Agreements;
(i) Trust Company has duly authorized, executed and delivered the Trust Agreement, (ii) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, Trust Company in its trustee capacity and, to the extent expressly provided therein, in its individual capacity, has, or on or prior to the Closing Date will have, duly authorized, executed and delivered each of the other Owner Trustee Agreements and, as of the Closing Date, the Equipment Note, the Lease Supplement and the Indenture Supplement to be delivered on the Closing Date Date, (iii) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, the Trust is a Connecticut statutory trust duly organized and validly existing in good standing under the laws of the State of Connecticut and (iiiiv) the Trust Agreement constitutes a legal, valid and binding obligation of Trust Company enforceable against it in accordance with the terms thereof except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity;
(c) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, each of the Owner Trustee Agreements (other than the Trust Agreement) to which it is a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of the Owner Trustee, enforceable against it in accordance with the terms thereof, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other Participation Agreement (TRLI 2001-1C) similar laws affecting the rights of creditors generally and by general principles of equity;
(d) neither the execution and delivery by Trust Company or Owner Trustee, as the case may be, of the Owner Trustee Agreements or the Equipment Note to be delivered on the Closing Date, nor the consummation by Trust Company or Owner Trustee, as the case may be, of any of the transactions contemplated hereby or thereby, nor the compliance by Trust Company or Owner Trustee, as the case may be, with any of the terms and provisions hereof and thereof, (i) requires or will require any approval of its stockholders, or approval or consent of any trustees or holders of any indebtedness or obligations of it in its individual capacity, or (ii) violates or will violate its articles of association or bylaws, or contravenes or will contravene any provision of, or constitutes or will constitute a default under, or results or will result in any breach of, any indenture, mortgage, chattel mortgage, deed of trust, conditional sale contract, bank loan or credit agreement, license or other agreement or instrument to which Trust Company is a party or by which it or any of its properties may be bound or affected, or contravenes or will contravene any law, governmental rule or regulation of the United States of America or the State of Connecticut governing the banking, trust or fiduciary powers of Trust Company, or any judgment or order applicable to or binding on it, or results in or will result in the creation or imposition of any Lien upon the Trust Estate (other than a Permitted Lien of the type described in clause (v) of the definition thereof);
(e) there are no Taxes payable by Trust Company or the Owner Trustee, imposed by the State of Connecticut or any political subdivision thereof in connection with the execution and delivery by Trust Company of the Trust Agreement, and, as Trust Company or Owner Trustee, as the case may be, of this Agreement, the other Owner Trustee Agreements (other than the Trust Agreement) or the Equipment Note to be delivered on the Closing Date solely because Trust Company is a national banking association with an office for trust administration its principal place of business in Connecticut and performs certain of its duties as Owner Trustee in the State of Connecticut; and there are no Taxes payable by Trust Company or the Owner Trustee, as the case may be, imposed by the State of Connecticut or any political subdivision thereof in connection with the acquisition of its interest in the Equipment (other than franchise or other taxes based on or measured by any fees or compensation received by Trust Company or the Owner Trustee for services rendered in connection with the transactions contemplated hereby) solely because Trust Company is a national banking association with an office for trust administration its principal place of business in Connecticut and performs certain of its duties as Owner Trustee in the State of Connecticut;
(f) there are no pending or, to its knowledge, threatened actions or proceedings against Trust Company or the Owner Trustee, before any court or administrative agency which individually or in the aggregate, if determined adversely to it, would be reasonably expected to materially adversely affect the ability of Trust Company or the Owner Participation Agreement (TRLI 2001-1C) Trustee, as the case may be, to perform its obligations under the Trust Agreement, the other Owner Trustee Agreements or the Equipment Note to be delivered on the Closing Date;
(g) both its chief executive office, and the "location" of place where its records concerning the Equipment and all its interest in, to and under all documents relating to the Trust Company for purposes of Article 9 of the Uniform Commercial Code is Estate, are located in DelawareHartford, Connecticut, and Trust Company agrees to give the Owner Participant, the Indenture Trustee and the Lessee written notice within 30 days following any relocation of said chief executive office or said place from its present location;
(h) no consent, approval, order or authorization of, giving of notice to, or registration with, or taking of any other action in respect of, any Connecticut state or local governmental authority or agency or any United States federal governmental authority or agency regulating the banking or trust powers of Trust Company is required for the execution and delivery of, or the carrying out by, Trust Company or the Owner Trustee, as the case may be, of any of the transactions contemplated hereby or by the Trust Agreement or of any of the transactions contemplated by any of the other Owner Trustee Agreements, other than any such consent, approval, order, authorization, registration, notice or action as has been duly obtained, given or taken;
(i) on the Closing Date, the TrustOwner Trustee's right, title and interest in and to the Equipment delivered on the Closing Date shall be free and clear of any Lessor's Lien attributable to Trust Company;
(j) proceeds received by the Owner Trustee from the Owner Participant pursuant to the Trust Agreement will be administered by it in accordance with Article III of the Trust Agreement;
(k) the Trust Owner Trustee shall receive from the Lessee such title as was conveyed to it by the Lessee, subject to the rights of the Trust Owner Trustee and the Lessee under the Lease and the Lien created pursuant to the Indenture and the Indenture Supplement in respect of the Equipment delivered on the Closing Date, and there will be no Lessor's Liens attributable to the Trust Owner Trustee on the Equipment or any interest therein or on the Trust Estate;
(l) to its knowledge, no Indenture Default (not attributable to a Lease Default) has occurred and is continuing;; and
(m) the Owner Trustee is not engaged in the business of extending credit for the purposes of purchasing or carrying margin stock, and no proceeds of the Equipment Note or the Owner Participant's Commitment as contemplated by Participation Agreement (TRLI 2001-1C) this Agreement and the other Operative Agreements will be used by the Owner Trustee for a purpose which violates, or would be inconsistent with, Section 7 of the Securities Exchange Act of 1934, as amended, or Regulations T, U and X of the Federal Reserve System. Terms for which meanings are provided in Regulations T, U and X of the Federal Reserve System or any regulations substituted therefor, as from time to time in effect, are used in this Section 3.1 (m3.1(m) with such meanings; and
(n) the Trust is not an "investment company" or an "affiliated person" of an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Representations and Warranties of the Trust Company. Trust Company, in its individual capacity (except with respect to clauses (c), (k) and (m) (to the extent applicable to Trust Company in its capacity as Owner Trustee) below) and as Owner Trustee with respect to clauses (c), (f) and (k) (to the extent applicable to Trust Company in its capacity as Owner Trustee) below, represents and warrants to each of the Owner Participant, the Indenture Trustee, the Pass Through Trustee, TILC, TRLTII, Trinity, the Lessee TRMI and the Policy ProviderLessee, notwithstanding the provisions of Section 10.13 or any similar provision in any other Operative Agreement, that, as of the date hereof and as of the Closing Datehereof:
(a) Trust Company (i) is a national banking association duly organizedincorporated, validly existing and in good standing under the laws of the United States of America, (ii) has the full corporate power, authority and legal right under the laws of the State of Connecticut and the United States pertaining to its banking, trust and fiduciary powers to carry on its business as now conducted and execute, deliver and perform its obligations hereunder and under the Trust Agreement, Agreement and (iii) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, the Trust is a Connecticut statutory trust duly organized and validly existing under the laws of the State of Connecticut and (iv) assuming due authorization, execution and delivery of the Trust Agreement by the Owner Participant, has full power and authority, as Owner Trustee and/or, to the extent expressly provided herein or therein, in its individual capacity, to execute, deliver and perform its obligations under each of the Owner Trustee Agreements;
(i) Trust Company has duly authorized, executed and delivered the Trust Agreement, (ii) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, Trust Company in its trustee capacity and, to the extent expressly provided therein, in its individual capacity, has, or on or prior to the Closing Date will have, duly authorized, executed and delivered each of the other Owner Trustee Agreements and, as of the Closing Date, the Equipment Note, the Lease Supplement and the Indenture Supplement to be delivered on the Closing Date Date, (iii) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, the Trust is a Connecticut statutory trust duly organized and validly existing in good standing under the laws of the State of Connecticut and (iiiiv) the Trust Agreement constitutes a legal, valid and binding obligation of Trust Company enforceable against it in accordance with the terms Participation Agreement (TRLI 2001-1A) 15 thereof except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity;
(c) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, each of the Owner Trustee Agreements (other than the Trust Agreement) to which it is a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of the Owner Trustee, enforceable against it in accordance with the terms thereof, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights of creditors generally and by general principles of equity;
(d) neither the execution and delivery by Trust Company or Owner Trustee, as the case may be, of the Owner Trustee Agreements or the Equipment Note to be delivered on the Closing Date, nor the consummation by Trust Company or Owner Trustee, as the case may be, of any of the transactions contemplated hereby or thereby, nor the compliance by Trust Company or Owner Trustee, as the case may be, with any of the terms and provisions hereof and thereof, (i) requires or will require any approval of its stockholders, or approval or consent of any trustees or holders of any indebtedness or obligations of it in its individual capacity, or (ii) violates or will violate its articles of association or bylaws, or contravenes or will contravene any provision of, or constitutes or will constitute a default under, or results or will result in any breach of, any indenture, mortgage, chattel mortgage, deed of trust, conditional sale contract, bank loan or credit agreement, license or other agreement or instrument to which Trust Company is a party or by which it or any of its properties may be bound or affected, or contravenes or will contravene any law, governmental rule or regulation of the United States of America or the State of Connecticut governing the banking, trust or fiduciary powers of Trust Company, or any judgment or order applicable to or binding on it, or results in or will result in the creation or imposition of any Lien upon the Trust Estate (other than a Permitted Lien of the type described in clause (v) of the definition thereof);
(e) there are no Taxes payable by Trust Company or the Owner Trustee, imposed by the State of Connecticut or any political subdivision thereof in connection with the execution and delivery by Trust Company of the Trust Agreement, and, as Trust Company or Owner Trustee, as the case may be, of this Agreement, the other Owner Trustee Agreements (other than the Trust Agreement) or the Equipment Note to be delivered on the Closing Date solely because Trust Company is a national banking association with an office for trust administration its principal place of business in Connecticut and performs certain of its duties as Owner Trustee in the State of Connecticut; and there are no Taxes payable by Trust Company or the Owner Trustee, as the case may be, imposed by the State of Connecticut or any political subdivision thereof in connection with the acquisition of its interest in the Equipment (other than franchise or other taxes based on or measured by any fees or Participation Agreement (TRLI 2001-1A) 16 compensation received by Trust Company or the Owner Trustee for services rendered in connection with the transactions contemplated hereby) solely because Trust Company is a national banking association with an office for trust administration its principal place of business in Connecticut and performs certain of its duties as Owner Trustee in the State of Connecticut;
(f) there are no pending or, to its knowledge, threatened actions or proceedings against Trust Company or the Owner Trustee, before any court or administrative agency which individually or in the aggregate, if determined adversely to it, would be reasonably expected to materially adversely affect the ability of Trust Company or the Owner Trustee, as the case may be, to perform its obligations under the Trust Agreement, the other Owner Trustee Agreements or the Equipment Note to be delivered on the Closing Date;
(g) both its chief executive office, and the "location" of place where its records concerning the Equipment and all its interest in, to and under all documents relating to the Trust Company for purposes of Article 9 of the Uniform Commercial Code is Estate, are located in DelawareHartford, Connecticut, and Trust Company agrees to give the Owner Participant, the Indenture Trustee and the Lessee written notice within 30 days following any relocation of said chief executive office or said place from its present location;
(h) no consent, approval, order or authorization of, giving of notice to, or registration with, or taking of any other action in respect of, any Connecticut state or local governmental authority or agency or any United States federal governmental authority or agency regulating the banking or trust powers of Trust Company is required for the execution and delivery of, or the carrying out by, Trust Company or the Owner Trustee, as the case may be, of any of the transactions contemplated hereby or by the Trust Agreement or of any of the transactions contemplated by any of the other Owner Trustee Agreements, other than any such consent, approval, order, authorization, registration, notice or action as has been duly obtained, given or taken;
(i) on the Closing Date, the TrustOwner Trustee's right, title and interest in and to the Equipment delivered on the Closing Date shall be free and clear of any Lessor's Lien attributable to Trust Company;
(j) proceeds received by the Owner Trustee from the Owner Participant pursuant to the Trust Agreement will be administered by it in accordance with Article III of the Trust Agreement;
(k) the Trust Owner Trustee shall receive from the Lessee such title as was conveyed to it by the Lessee, subject to the rights of the Trust Owner Trustee and the Lessee under the Lease and the Lien created pursuant to the Indenture and the Participation Agreement (TRLI 2001-1A) 17 Indenture Supplement in respect of the Equipment delivered on the Closing Date, and there will be no Lessor's Liens attributable to the Trust Owner Trustee on the Equipment or any interest therein or on the Trust Estate;
(l) to its knowledge, no Indenture Default (not attributable to a Lease Default) has occurred and is continuing;; and
(m) the Owner Trustee is not engaged in the business of extending credit for the purposes of purchasing or carrying margin stock, and no proceeds of the Equipment Note or the Owner Participant's Commitment as contemplated by this Agreement and the other Operative Agreements will be used by the Owner Trustee for a purpose which violates, or would be inconsistent with, Section 7 of the Securities Exchange Act of 1934, as amended, or Regulations T, U and X of the Federal Reserve System. Terms for which meanings are provided in Regulations T, U and X of the Federal Reserve System or any regulations substituted therefor, as from time to time in effect, are used in this Section 3.1 (m3.1(m) with such meanings; and
(n) the Trust is not an "investment company" or an "affiliated person" of an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Representations and Warranties of the Trust Company. Trust Company, in its individual capacity (except with respect to clauses (c), (k) and (m) (to the extent applicable to Trust Company in its capacity as Owner Trustee) below) and as Owner Trustee with respect to clauses (c), (f) and (k) (to the extent applicable to Trust Company in its capacity as Owner Trustee) below, represents and warrants to each of the Owner Participant, the Indenture Trustee, the Pass Through Trustee, TILC, TRLTII, Trinity, the Lessee TRMI and the Policy ProviderLessee, notwithstanding the provisions of Section 10.13 or any similar provision in any other Operative Agreement, that, as of the date hereof and as of the Closing Datehereof:
(a) Trust Company (i) is a national banking association duly organizedincorporated, validly existing and in good standing under the laws of the United States of America, (ii) has the full corporate power, authority and legal right under the laws of the State of Connecticut and the United States pertaining to its banking, trust and fiduciary powers to carry on its business as now conducted and execute, deliver and perform its obligations hereunder and under the Trust Agreement, Agreement and (iii) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, the Trust is a Connecticut statutory trust duly organized and validly existing under the laws of the State of Connecticut and (iv) assuming due authorization, execution and delivery of the Trust Agreement by the Owner Participant, has full power and authority, as Owner Trustee and/or, to the extent expressly provided herein or therein, in its individual capacity, to execute, deliver and perform its obligations under each of the Owner Trustee Agreements;
(i) Trust Company has duly authorized, executed and delivered the Trust Agreement, (ii) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, Trust Company in its trustee capacity and, to the extent expressly provided therein, in its individual capacity, has, or on or prior to the Closing Date will have, duly authorized, executed and delivered each of the other Owner Trustee Agreements and, as of the Closing Date, the Equipment Note, the Lease Supplement and the Indenture Supplement to be delivered on the Closing Date Date, (iii) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, the Trust is a Connecticut statutory trust duly organized and validly existing in good standing under the laws of the State of Connecticut and (iiiiv) the Trust Agreement constitutes a legal, valid and binding obligation of Trust Company enforceable against it in accordance with the terms thereof except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity;
(c) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, each of the Owner Trustee Agreements Participation Agreement (TRLI 2001-1B) (other than the Trust Agreement) to which it is a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of the Owner Trustee, enforceable against it in accordance with the terms thereof, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights of creditors generally and by general principles of equity;
(d) neither the execution and delivery by Trust Company or Owner Trustee, as the case may be, of the Owner Trustee Agreements or the Equipment Note to be delivered on the Closing Date, nor the consummation by Trust Company or Owner Trustee, as the case may be, of any of the transactions contemplated hereby or thereby, nor the compliance by Trust Company or Owner Trustee, as the case may be, with any of the terms and provisions hereof and thereof, (i) requires or will require any approval of its stockholders, or approval or consent of any trustees or holders of any indebtedness or obligations of it in its individual capacity, or (ii) violates or will violate its articles of association or bylaws, or contravenes or will contravene any provision of, or constitutes or will constitute a default under, or results or will result in any breach of, any indenture, mortgage, chattel mortgage, deed of trust, conditional sale contract, bank loan or credit agreement, license or other agreement or instrument to which Trust Company is a party or by which it or any of its properties may be bound or affected, or contravenes or will contravene any law, governmental rule or regulation of the United States of America or the State of Connecticut governing the banking, trust or fiduciary powers of Trust Company, or any judgment or order applicable to or binding on it, or results in or will result in the creation or imposition of any Lien upon the Trust Estate (other than a Permitted Lien of the type described in clause (v) of the definition thereof);
(e) there are no Taxes payable by Trust Company or the Owner Trustee, imposed by the State of Connecticut or any political subdivision thereof in connection with the execution and delivery by Trust Company of the Trust Agreement, and, as Trust Company or Owner Trustee, as the case may be, of this Agreement, the other Owner Trustee Agreements (other than the Trust Agreement) or the Equipment Note to be delivered on the Closing Date solely because Trust Company is a national banking association with an office for trust administration its principal place of business in Connecticut and performs certain of its duties as Owner Trustee in the State of Connecticut; and there are no Taxes payable by Trust Company or the Owner Trustee, as the case may be, imposed by the State of Connecticut or any political subdivision thereof in connection with the acquisition of its interest in the Equipment (other than franchise or other taxes based on or measured by any fees or compensation received by Trust Company or the Owner Trustee for services rendered in connection with the transactions contemplated hereby) solely because Trust Company is a national banking association with an office for trust administration its principal place of business in Connecticut and performs certain of its duties as Owner Trustee in the State of Connecticut;
(f) there are no pending or, to its knowledge, threatened actions or proceedings against Trust Company or the Owner Trustee, before any court or Participation Agreement (TRLI 2001-1B) administrative agency which individually or in the aggregate, if determined adversely to it, would be reasonably expected to materially adversely affect the ability of Trust Company or the Owner Trustee, as the case may be, to perform its obligations under the Trust Agreement, the other Owner Trustee Agreements or the Equipment Note to be delivered on the Closing Date;
(g) both its chief executive office, and the "location" of place where its records concerning the Equipment and all its interest in, to and under all documents relating to the Trust Company for purposes of Article 9 of the Uniform Commercial Code is Estate, are located in DelawareHartford, Connecticut, and Trust Company agrees to give the Owner Participant, the Indenture Trustee and the Lessee written notice within 30 days following any relocation of said chief executive office or said place from its present location;
(h) no consent, approval, order or authorization of, giving of notice to, or registration with, or taking of any other action in respect of, any Connecticut state or local governmental authority or agency or any United States federal governmental authority or agency regulating the banking or trust powers of Trust Company is required for the execution and delivery of, or the carrying out by, Trust Company or the Owner Trustee, as the case may be, of any of the transactions contemplated hereby or by the Trust Agreement or of any of the transactions contemplated by any of the other Owner Trustee Agreements, other than any such consent, approval, order, authorization, registration, notice or action as has been duly obtained, given or taken;
(i) on the Closing Date, the TrustOwner Trustee's right, title and interest in and to the Equipment delivered on the Closing Date shall be free and clear of any Lessor's Lien attributable to Trust Company;
(j) proceeds received by the Owner Trustee from the Owner Participant pursuant to the Trust Agreement will be administered by it in accordance with Article III of the Trust Agreement;
(k) the Trust Owner Trustee shall receive from the Lessee such title as was conveyed to it by the Lessee, subject to the rights of the Trust Owner Trustee and the Lessee under the Lease and the Lien created pursuant to the Indenture and the Indenture Supplement in respect of the Equipment delivered on the Closing Date, and there will be no Lessor's Liens attributable to the Trust Owner Trustee on the Equipment or any interest therein or on the Trust Estate;
(l) on the Closing Date, to its knowledge, no Indenture Default (not attributable to a Lease Default) has shall have occurred and is be continuing;; and
(m) the Owner Trustee is not engaged in the business of extending credit for the purposes of purchasing or carrying margin stock, and no proceeds of the Equipment Note or the Owner Participant's Commitment as contemplated by Participation Agreement (TRLI 2001-1B) this Agreement and the other Operative Agreements will be used by the Owner Trustee for a purpose which violates, or would be inconsistent with, Section 7 of the Securities Exchange Act of 1934, as amended, or Regulations T, U and X of the Federal Reserve System. Terms for which meanings are provided in Regulations T, U and X of the Federal Reserve System or any regulations substituted therefor, as from time to time in effect, are used in this Section 3.1 (m3.1(m) with such meanings; and
(n) the Trust is not an "investment company" or an "affiliated person" of an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Representations and Warranties of the Trust Company. Trust Company, in its individual capacity (except with respect to clauses (c), (k) and (m) (to the extent applicable to The Trust Company in its capacity as Owner Trustee) below) and as Owner Trustee with respect to clauses (c), (f) and (k) (to the extent applicable to Trust Company in its capacity as Owner Trustee) below, represents and warrants to each of the Owner Participant, the Indenture Trustee, the Pass Through Trustee, TILC, TRLTII, Trinity, the Lessee and the Policy Provider, notwithstanding the provisions of Section 10.13 or any similar provision in any other Operative Agreement, that, as of the date hereof and parties hereto as of the Closing DateDate and each Funding Date as follows:
(a) Wilmington Trust Company (i) is a national banking association corporation organized under the laws of the State of Delaware, duly organized, organized and validly existing and in good standing under the laws of the State of Delaware and the United States of America, (ii) as applicable, and has the full corporate power, power and authority and legal right under the laws of the State of Connecticut pertaining to its banking, trust and fiduciary powers to carry on its business as now conducted and execute, deliver enter into and perform its obligations hereunder and under the Trust Agreement, (iii) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, the Trust is a Connecticut statutory trust duly organized and validly existing under the laws of the State of Connecticut and (iv) assuming due authorization, execution and delivery of the Trust Agreement by the Owner Participant, has full Holders) the corporate and trust power and authority, authority to act as Owner Trustee and/or, a trustee and to the extent expressly provided herein or therein, in its individual capacity, to execute, deliver enter into and perform its the obligations under each of the Owner Trustee Agreements;
(i) Trust Company has duly authorized, executed and delivered the Trust Agreement, (ii) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, Trust Company in its trustee capacity and, to the extent expressly provided therein, in its individual capacity, has, or on or prior to the Closing Date will have, duly authorized, executed and delivered each of the other Owner Trustee Operative Agreements and, as of the Closing Date, the Equipment Note, the Lease Supplement and the Indenture Supplement to be delivered on the Closing Date and (iii) the Trust Agreement constitutes a legal, valid and binding obligation of Trust Company enforceable against it in accordance with the terms thereof except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity;
(c) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, each of the Owner Trustee Agreements (other than the Trust Agreement) to which it is or will be a party constitutesand each other agreement, instrument and document to be executed and delivered by it on or when entered into before the Closing Date in connection with or as contemplated by each such Operative Agreement to which such Trust Company is or will constitute, be a legal, valid and binding obligation of the Owner Trustee, enforceable against it in accordance with the terms thereof, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights of creditors generally and by general principles of equityparty;
(db) The execution, delivery and performance of each Operative Agreement to which it is or will be a party has been duly authorized by all necessary action on its part and neither the execution and delivery by Trust Company or Owner Trustee, as the case may be, of the Owner Trustee Agreements or the Equipment Note to be delivered on the Closing Datethereof, nor the consummation by Trust Company or Owner Trustee, as the case may be, of any of the transactions contemplated hereby or thereby, nor the compliance by Trust Company or Owner Trustee, as the case may be, it with any of the terms and provisions hereof and thereof, thereof (i) requires does or will require any approval of its stockholders, or approval or consent of any trustees trustee or holders of any of its indebtedness or obligations of it in its individual capacityobligations, or (ii) violates or will violate its articles of association or bylaws, or contravenes does or will contravene any provision ofLegal Requirement relating to its banking or trust powers, or constitutes (iii) does or will constitute a default under, contravene or results or will result in any breach ofof or constitute any default under, (A) its charter or bylaws or (B) any indenture, mortgage, chattel mortgage, deed of trust, conditional sale sales contract, bank loan or credit agreement, license agreement or other agreement or instrument to which Trust Company it is a party party, which contravention, breach or by which it or any of its properties may be bound or affected, or contravenes or will contravene any law, governmental rule or regulation of the United States of America or the State of Connecticut governing the banking, trust or fiduciary powers of Trust Company, or any judgment or order applicable to or binding on it, or results in or will result in the creation or imposition of any Lien upon the Trust Estate (other than a Permitted Lien of the type described in default under clause (vB) of the definition thereof);
(e) there are no Taxes payable by Trust Company or the Owner Trustee, imposed by the State of Connecticut or any political subdivision thereof in connection with the execution would materially and delivery by Trust Company of the Trust Agreement, and, as Trust Company or Owner Trustee, as the case may be, of this Agreement, the other Owner Trustee Agreements (other than the Trust Agreement) or the Equipment Note to be delivered on the Closing Date solely because Trust Company is a national banking association with an office for trust administration in Connecticut and performs certain of its duties as Owner Trustee in the State of Connecticut; and there are no Taxes payable by Trust Company or the Owner Trustee, as the case may be, imposed by the State of Connecticut or any political subdivision thereof in connection with the acquisition of its interest in the Equipment (other than franchise or other taxes based on or measured by any fees or compensation received by Trust Company or the Owner Trustee for services rendered in connection with the transactions contemplated hereby) solely because Trust Company is a national banking association with an office for trust administration in Connecticut and performs certain of its duties as Owner Trustee in the State of Connecticut;
(f) there are no pending or, to its knowledge, threatened actions or proceedings against Trust Company or the Owner Trustee, before any court or administrative agency which individually or in the aggregate, if determined adversely to it, would be reasonably expected to materially adversely affect the its ability of Trust Company or the Owner Trustee, as the case may be, to perform its obligations under the Trust AgreementOperative Agreements to which it is a party, the other Owner Trustee Agreements or the Equipment Note to be delivered on the Closing Date(iv) does or will require any Governmental Action by any Governmental Authority regulating its banking or trust powers;
(gc) the "location" of This Agreement and each other Operative Agreement to which it is or will be a party, if any, have been, or on or before such Closing Date will be, duly executed and delivered by it, and the Trust Company for purposes of Article 9 of the Uniform Commercial Code is in Delaware, and Trust Company agrees to give the Owner Participant, the Indenture Trustee and the Lessee written notice within 30 days following any relocation of said chief executive office or said place from its present location;
(h) no consent, approval, order or authorization of, giving of notice toAgreement constitutes, or registration with, or taking of any other action in respect of, any Connecticut state or local governmental authority or agency or any United States federal governmental authority or agency regulating the banking or trust powers of Trust Company is required for the upon execution and delivery ofwill constitute, or the carrying out bya legal, Trust Company or the Owner Trustee, as the case may be, of any of the transactions contemplated hereby or by the Trust Agreement or of any of the transactions contemplated by any of the other Owner Trustee Agreements, other than any such consent, approval, order, authorization, registration, notice or action as has been duly obtained, given or taken;
(i) on the Closing Date, the Trust's right, title valid and interest in and to the Equipment delivered on the Closing Date shall be free and clear of any Lessor's Lien attributable to Trust Company;
(j) proceeds received by the Owner Trustee from the Owner Participant pursuant to the Trust Agreement will be administered by binding obligation enforceable against it in accordance with Article III the terms thereof, subject, in each case as to enforceability, to bankruptcy, insolvency, reorganization and other similar laws affecting enforcement of the Trust Agreement;
creditor rights generally (k) the Trust shall receive from the Lessee such title as was conveyed to it by the Lessee, subject to the rights of the Trust and the Lessee under the Lease and the Lien created pursuant to the Indenture and the Indenture Supplement in respect of the Equipment delivered on the Closing Date, and there will be no Lessor's Liens attributable to the Trust on the Equipment or any interest therein or on the Trust Estate;
(l) to its knowledge, no Indenture Default (not attributable to a Lease Default) has occurred and is continuing;
(m) the Owner Trustee is not engaged in the business of extending credit for the purposes of purchasing or carrying margin stock, and no proceeds of the Equipment Note or the Owner Participant's Commitment as contemplated by this Agreement and the other Operative Agreements will be used by the Owner Trustee for a purpose which violates, or would be inconsistent with, Section 7 of the Securities Exchange Act of 1934, as amended, or Regulations T, U and X of the Federal Reserve System. Terms for which meanings are provided in Regulations T, U and X of the Federal Reserve System or any regulations substituted therefor, as from time to time in effect, are used in this Section 3.1 (m) with such meanings; and
(n) the Trust is not an "investment company" or an "affiliated person" of an "investment company" within the meaning of the Investment Company Act of 1940, as amended.insofar
Appears in 1 contract
Representations and Warranties of the Trust Company. Trust Company, in its individual capacity (except with respect to clauses (c), (k) and (m) (to the extent applicable to The Trust Company in its capacity as Owner Trustee) below) and as Owner Trustee with respect to clauses (c), (f) and (k) (to the extent applicable to Trust Company in its capacity as Owner Trustee) below, represents and warrants to each of the Owner Participant, the Indenture Trustee, the Pass Through Trustee, TILC, TRLTII, Trinity, the Lessee and the Policy Provider, notwithstanding the provisions of Section 10.13 or any similar provision in any other Operative Agreement, that, Bank as of the date hereof and as of the Closing Datefollows:
(i) The Trust Company has all requisite corporate power and authority to enter into and perform all of the obligations under this Agreement. The execution and delivery of this Agreement and the performance of the transactions contemplated herein have been duly and validly authorized by the Board of Directors of the Trust Company and, the Trust Company has taken all corporate action necessary on its part to authorize this Agreement and the performance of the transactions contemplated herein. This Agreement has been duly executed and delivered by the Trust Company and assuming due authorization, execution and delivery by the Bank, constitutes a valid and binding obligation of the Trust Company, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, and other laws of general applicability relating to or affecting creditors' rights and general equity principles. Neither the execution and delivery of this Agreement nor consummation of the transactions contemplated hereby nor compliance with any of the provisions hereof shall (a) conflict with or result in a breach of any provisions of the Article of Incorporation or Bylaws 75446 9/18/97 17 of the Trust Company, (b) constitute or result in a material breach of any term, condition or provisions of, or constitute a default under or give rise to any right of termination, cancellation or acceleration with respect to, or result in the creation of any lien, charge or encumbrance upon any property or asset of the Trust Company pursuant to any note, bond, mortgage, indenture, license, agreement or other instrument or obligation, or (ic) violate any order, writ, injunction, decree, statute, rule or regulation applicable to the Trust Company.
(ii) The Trust Company is a national banking association duly organizedorganized District of Columbia Trust Company, validly existing and in good standing under the laws of the United States District of America, Columbia. The Trust Company (iia) has the full corporate power, power and authority and legal right under the laws of the State of Connecticut pertaining to its banking, trust and fiduciary powers to carry on out its business as now conducted and execute(b) is duly qualified to do business in the states of the United States and foreign jurisdictions where the conduct of its business requires such qualification and where failure to so qualify would have a material adverse effect on the financial condition, deliver and perform its obligations hereunder and under results of operations, business or prospects of the Trust Agreement, Company.
(iii) assuming The Trust Company owns no subsidiaries directly or indirectly.
(iv) Except where noncompliance would not have a material adverse effect upon the due authorizationcondition (financial or otherwise), execution and delivery assets, liabilities, business, operations or future prospects of the Trust Agreement by the Owner Participant, the Trust is a Connecticut statutory trust duly organized and validly existing under the laws of the State of Connecticut and (iv) assuming due authorization, execution and delivery of the Trust Agreement by the Owner Participant, has full power and authority, as Owner Trustee and/or, to the extent expressly provided herein or therein, in its individual capacity, to execute, deliver and perform its obligations under each of the Owner Trustee Agreements;Company:
(i) Trust Company has duly authorized, executed and delivered the Trust Agreement, (ii) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, Trust Company in its trustee capacity and, to the extent expressly provided therein, in its individual capacity, has, or on or prior to the Closing Date will have, duly authorized, executed and delivered each of the other Owner Trustee Agreements and, as of the Closing Date, the Equipment Note, the Lease Supplement and the Indenture Supplement to be delivered on the Closing Date and (iiia) the Trust Agreement constitutes a legalCompany is in compliance with all statutes, valid laws, ordinances, rules, regulations, judgments, orders, decrees, directives, consent agreements, memoranda of understanding, permits, concessions, grants, franchises, licenses, and binding obligation of other governmental authorizations or approvals applicable to the Trust Company enforceable against it in accordance with the terms thereof except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity;
(c) assuming the due authorization, execution and delivery of the Trust Agreement by the Owner Participant, each of the Owner Trustee Agreements (other than the Trust Agreement) to which it is a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of the Owner Trustee, enforceable against it in accordance with the terms thereof, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights of creditors generally and by general principles of equity;
(d) neither the execution and delivery by Trust Company or Owner Trustee, as the case may be, of the Owner Trustee Agreements or the Equipment Note to be delivered on the Closing Date, nor the consummation by Trust Company or Owner Trustee, as the case may be, of any of the transactions contemplated hereby or thereby, nor the compliance by Trust Company or Owner Trustee, as the case may be, with any of the terms and provisions hereof and thereof, (i) requires or will require any approval of its stockholders, or approval or consent of any trustees or holders of any indebtedness or obligations of it in its individual capacity, or (ii) violates or will violate its articles of association or bylaws, or contravenes or will contravene any provision of, or constitutes or will constitute a default under, or results or will result in any breach of, any indenture, mortgage, chattel mortgage, deed of trust, conditional sale contract, bank loan or credit agreement, license or other agreement or instrument to which Trust Company is a party or by which it or any of its properties may be bound or affectedproperties; and (b) all permits, or contravenes or will contravene any lawconcessions, grants, franchises, licenses and other governmental rule or regulation authorizations and approvals necessary for the conduct of the United States business of America or the State of Connecticut governing the banking, trust or fiduciary powers of Trust Company, or any judgment or order applicable to or binding on it, or results as presently conducted have been duly obtained and are in or will result in the creation or imposition of any Lien upon the Trust Estate (other than a Permitted Lien of the type described in clause (v) of the definition thereof);
(e) there are no Taxes payable by Trust Company or the Owner Trustee, imposed by the State of Connecticut or any political subdivision thereof in connection with the execution full force and delivery by Trust Company of the Trust Agreement, and, as Trust Company or Owner Trustee, as the case may be, of this Agreement, the other Owner Trustee Agreements (other than the Trust Agreement) or the Equipment Note to be delivered on the Closing Date solely because Trust Company is a national banking association with an office for trust administration in Connecticut and performs certain of its duties as Owner Trustee in the State of Connecticut; effect and there are no Taxes payable by Trust Company proceedings pending, or to the Owner Trustee, as the case may be, imposed by the State of Connecticut or any political subdivision thereof in connection with the acquisition of its interest in the Equipment (other than franchise or other taxes based on or measured by any fees or compensation received by Trust Company or the Owner Trustee for services rendered in connection with the transactions contemplated hereby) solely because Trust Company is a national banking association with an office for trust administration in Connecticut and performs certain of its duties as Owner Trustee in the State of Connecticut;
(f) there are no pending or, to its knowledge, threatened actions or proceedings against Trust Company or the Owner Trustee, before any court or administrative agency which individually or in the aggregate, if determined adversely to it, would be reasonably expected to materially adversely affect the ability of Trust Company or the Owner Trustee, as the case may be, to perform its obligations under the Trust Agreement, the other Owner Trustee Agreements or the Equipment Note to be delivered on the Closing Date;
(g) the "location" knowledge of the Trust Company for purposes of Article 9 of threatened, which may result in the Uniform Commercial Code is in Delawarerevocation, and Trust Company agrees to give the Owner Participantcancellation, the Indenture Trustee and the Lessee written notice within 30 days following any relocation of said chief executive office suspension or said place from its present location;
(h) no consent, approval, order or authorization of, giving of notice to, or registration with, or taking materially adverse modification of any such permits, concessions, grants, franchises, licenses and other action in respect of, any Connecticut state or local governmental authority or agency or any United States federal governmental authority or agency regulating the banking or trust powers of Trust Company is required for the execution authorizations and delivery of, or the carrying out by, Trust Company or the Owner Trustee, as the case may be, of any of the transactions contemplated hereby or by the Trust Agreement or of any of the transactions contemplated by any of the other Owner Trustee Agreements, other than any such consent, approval, order, authorization, registration, notice or action as has been duly obtained, given or taken;
(i) on the Closing Date, the Trust's right, title and interest in and to the Equipment delivered on the Closing Date shall be free and clear of any Lessor's Lien attributable to Trust Company;
(j) proceeds received by the Owner Trustee from the Owner Participant pursuant to the Trust Agreement will be administered by it in accordance with Article III of the Trust Agreement;
(k) the Trust shall receive from the Lessee such title as was conveyed to it by the Lessee, subject to the rights of the Trust and the Lessee under the Lease and the Lien created pursuant to the Indenture and the Indenture Supplement in respect of the Equipment delivered on the Closing Date, and there will be no Lessor's Liens attributable to the Trust on the Equipment or any interest therein or on the Trust Estate;
(l) to its knowledge, no Indenture Default (not attributable to a Lease Default) has occurred and is continuing;
(m) the Owner Trustee is not engaged in the business of extending credit for the purposes of purchasing or carrying margin stock, and no proceeds of the Equipment Note or the Owner Participant's Commitment as contemplated by this Agreement and the other Operative Agreements will be used by the Owner Trustee for a purpose which violates, or would be inconsistent with, Section 7 of the Securities Exchange Act of 1934, as amended, or Regulations T, U and X of the Federal Reserve System. Terms for which meanings are provided in Regulations T, U and X of the Federal Reserve System or any regulations substituted therefor, as from time to time in effect, are used in this Section 3.1 (m) with such meanings; and
(n) the Trust is not an "investment company" or an "affiliated person" of an "investment company" within the meaning of the Investment Company Act of 1940, as amendedapprovals.
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