TRI-PARTY AGREEMENT
This TRI-PARTY AGREEMENT (this "Instrument"), dated as of (April
24, 1996) by and among Summit Securities, INC., an Idaho
Corporation (the "Company"), WESTONE BANK, IDAHO, an Idaho
Banking Corporation (formerly WESTONE BANK, IDAHO, N.A.) (the
"Prior Trustee"), and FIRST TRUST WASHINGTON, a trust company
duly organized and existing under the laws of the State of
Washington (the Successor Trustee").
WITNESSETH
WHEREAS, the Company and the Prior Trustee entered into an
Indenture dated as of November 15, 1990, providing for the
establishment Summit Securities Inc. Investment Certificates (the
"Trust"); and
WHEREAS, the Prior Trustee has been acting as Trustee under the
Indenture; and
WHEREAS, Section 6-10 of the Indenture provides that the Prior
Trustee may resign at any time upon notice to the Company; and
WHEREAS, Section 6-10 of the Indenture further provides that in
case the trustee shall resign, the Company may appoint a
successor trustee; and
WHEREAS, Section 6-11 of the Indenture further provides that any
successor trustee appointed under the Indenture shall execute,
acknowledge and deliver to the Company and to the Prior Trustee
an instrument accepting such appointment, thereupon the removal
of the Prior Trustee shall become effective and the Successor
Trustee without any further act, deed or conveyance, shall become
fully vested with all the rights, powers, duties and
responsibilities of the Prior Trustee;
NOW, THEREFORE, pursuant to the Indenture and in consideration of
the covenants herein contained, it is agreed as follows:
1. Pursuant to the terms of the Indenture, the Prior Trustee has
notified the Company of its intention to resign as Trustee under
the Indenture.
2. Effective as of April 24,1996 (the "Effective Date"), the
Prior Trustee hereby assigns, transfers, delivers and confirms to
the Successor Trustee all of its rights, title, interest under
the Indenture and all of its rights, title, interests,
capacities, privileges, duties and responsibilities as Trustee
under the Indenture, except as set forth in paragraph 19 hereof.
3. The Prior Trustee agrees to execute and deliver such further
instruments and shall take such further actions as the Successor
Trustee or the Company may reasonably request so as to more fully
and certainly vest and confirm in the Successor Trustee all of
the rights, title, interests, capacities, privileges, duties and
responsibilities hereby assigned, transferred, delivered and
confirmed to the Successor Trustee, including without limitation,
the execution and delivery of any instruments required to assign
all liens in the name of the Successor Trustee.
4. Effective as of the Effective Date, the Company hereby accepts
the resignation of the Prior Trustee and the Company appoints the
Successor Trustee as successor trustee and confirms that by Board
Resolution it has appointed the Successor Trustee under the
Indenture and the Company confirms to the Successor Trustee all
of the rights, title, interest, capacities, privileges, duties
and responsibilities of the Trustee under the Indenture except as
set forth in paragraph 19 hereof.
5. The Company agrees to execute and deliver such further
instruments and to take such further action as the Successor
Trustee may reasonably request so as to more fully and certainly
vest and confirm in the Successor Trustee all the rights, title,
interests, capacities, privileges, duties and responsibilities
hereby assigned, transferred, delivered and confirmed to the
Successor Trustee.
6. Effective as of the Effective Date, the Successor Trustee
hereby accepts its appointment as Successor Trustee under the
Indenture and shall be vested with all of the rights, title,
interests, capacities, privileges, duties and responsibilities of
the Trustee under the Indenture.
7. The Successor Trustee hereby represents that it is qualified
and eligible under the provisions of Section 6-9 of the Indenture
to be appointed Successor Trustee and hereby accepts the
appointment as Successor Trustee and agrees that upon the signing
of this Instrument it shall become vested with all the rights,
title interests, capacities, privileges, duties and
responsibilities of the Prior Trustee with like effect as if
originally named as Trustee under the Indenture.
8. Effective as of the Effective Date, the Successor Trustee
shall serve as trustee as set forth in the Indenture at its
principal corporate trust office in Seattle, Washington or such
other address as may be specified, where notices and demands to
or upon the Company in respect of the Trust may be served. 9. The
Prior Trustee hereby represents and warrants to the Successor
Trustee that:
a) To the best of its knowledge no Event of Default and no
event which, after notice or lapse of time or both, would become
an Event of Default has occurred and is continuing under the
Indenture.
b) No covenant or condition contained in the Indenture has
been waived by the Prior Trustee or to the best of its knowledge
by the Company, the beneficiaries of the Trust of any other
interested party required by the Indenture to effect any such
waiver.
c) There is no action, suit or proceeding pending or
threatened against the Prior Trustee before any court or
government authority arising out of any action or omission by the
Prior Trustee as Trustee under the Indenture.
d) The Prior Trustee has entered into no other supplement
or amendment to the Indenture or any other document executed by
the Prior Trustee in connection with the Trust except as noted
herein.
e) As of the Effective Date, the Prior Trustee holds no
monies in any fund or account established by it as trustee under
the Indenture.
10) Each of the parties hereto hereby represents and warrants for
itself that as of the date hereof, and the Effective Date:
a) It has power and authority to execute and deliver this
instrument and to perform its obligations hereunder, and all such
action has been duly and validly authorized by all necessary
proceedings on its part; and
b) This Instrument has been duly authorized, executed and
delivered by it, and constitutes a legal, valid and binding
agreement enforceable against it in accordance with its terms,
except as the enforceability of this Instrument may be limited by
bankruptcy, insolvency or other similar laws of general
application affecting the enforcement of creditors' rights or by
general principles of equity limiting the availability of
equitable remedies.
11. The parties hereto agree that this Instrument does not
constitute an assumption by the Successor Trustee of any
liability of the Prior Trustee arising out of any actions or
inaction by the Prior Trustee under the Indenture.
12. The parties hereto agree that as of the Effective Date, all
references to the Prior Trustee as Trustee in the Indenture shall
be deemed to refer to the Successor Trustee. From and after the
Effective Date, all notices or payments which were required by
the terms of the Indenture to be given or paid to the Trustee
shall be delivered to: First Trust Washington, Two Union Square,
000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000.
13. The Prior Trustee agrees to indemnify the Successor Trustee
and defend and save the Successor Trustee harmless from and
against any and all costs, claims, liabilities, expenses, losses
or damages whatsoever (including all reasonable fees, expenses,
and disbursements of its counsel and agents) which the Successor
Trustee may incur or have incurred as a result of or arising out
of any of the Prior Trustee's actions or omissions, during the
term of the Prior Trustee's service as Trustee.
However, the indemnity provided by the Prior Trustee hereunder
shall not extend to fees, charges or liability arising out of:
a) The Successor Trustee's own willful misconduct, bad
faith, or negligence, as determined on the basis of the
provisions contained in the Indenture; or
b) The Successor Trustee's failure to execute properly its
duties as Trustee, as determined on the basis of the provisions
contained in the Indenture.
14. The resignation, appointment and acceptance effected hereby
shall become effective as of the opening of business on the
Effective Date.
15. This instrument shall be governed by and construed in
accordance with the laws of the State of Washington.
16. This instrument may be executed in any number of
counterparts, each of which shall be an original, but which
counterparts shall together constitute but one and the same
instrument.
17. This instrument shall be binding upon and inure to the
benefit of the Company, the Prior Trustee and the Successor
Trustee and their respective successors and assigns.
18. All fees paid to the Prior Trustee in advance but unearned
for the period from and after the Effective Date shall be
credited to any current fees owed the Prior Trustee with balance,
if any, remitted to the Company and the fees payable by the
Company on and after the Effective Date under the Indenture shall
henceforth be invoiced by and paid to the Successor Trustee at
such address and account as shall hereafter be provided by the
Successor Trustee to the Company.
19. Nothing contained in this instrument shall in any way affect
the obligations of the Company to the Prior Trustee under Section
6-13 of the Indenture or any lien created thereunder.
20. The Company certifies that it has filed the reports, if any,
required under Section 7 - and delivered the Statements of
Compliance required under Section 10-6 of the Indenture, and it
confirms that it will in the future provide such reports and
Statements.
21. Notices to the Successor Trustee, as provided in Section 1-5,
shall be delivered and filed in writing with the Successor
Trustee at First Trust Washington, Two Union Square, 000 Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx, 00000, Attention: Xx.
Xxxxxxx X. Xxxxx.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed and attested by their duly
authorized of ricers, as of the date and year first above
written.
SUMMIT SECURITIES, INC.
By: /S/ Xxx Xxxxxx
Xxx Xxxxxx
Title: President
WESTONE BANK, IDAHO, as Prior Trustee
By: /S/Xxxxx Xxxxxx
Title: Vice President & Manager
FIRST TRUST WASHINGTON, as Successor Trustee
By: /S/ Xxxx Xxxxx
Title:Trust Officer
