EXHIBIT 10.9
[Execution Copy]
COLLATERAL TRUST AGREEMENT
AMONG
THE XXXXXXXX COMPANIES, INC., AND
CERTAIN OF ITS SUBSIDIARIES,
AS DEBTORS,
AND
CITIBANK, N.A.,
AS COLLATERAL TRUSTEE
DATED AS OF JULY 31, 2002
COLLATERAL TRUST AGREEMENT, dated as of July 31, 2002 (this
"Agreement"), among THE XXXXXXXX COMPANIES, INC., a Delaware corporation (the
"Company"), the undersigned subsidiaries of the Company (the "Subsidiaries" and
collectively with the Company, the "Debtors"), and CITIBANK, N.A., as Collateral
Trustee (the "Collateral Trustee"):
ARTICLE 1.
DEFINITIONS
1.1 Certain Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
Bankruptcy Code: shall mean Title 11 of the United States Code, as
amended from time to time.
Class of Master Debt: shall mean any related class of Master Debt under
any Master Debt Agreement. All loans outstanding under any syndicated
bank credit agreement or bond indenture shall constitute one Class of
Master Debt.
Collateral: shall mean all property of any kind or description on which
the Collateral Trustee has, or purports to have, a Lien or other
interest under any Security Document, including Collateral Account
Collateral and all Proceeds of other Collateral.
Collateral Account: shall have the meaning specified in Section 4.4(a).
Collateral Account Collateral: shall have the meaning specified in
Section 4.4(a).
Collateral Trustee Obligations: shall mean all amounts payable by the
Debtors to the Collateral Trustee under the terms of the Security
Documents (including indemnification and reimbursement obligations and
obligations for fees of the Collateral Trustee).
Distribution Date: shall mean each date for the distribution of amounts
on deposit in the Collateral Account.
Event of Default: shall mean any default or event of default, however
denominated, under any Master Debt Agreement.
Guaranteed Obligations and Bonds: shall mean the Master Debt as defined
herein.
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Lien: shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or
preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any capital lease having
substantially the same economic effect as any of the foregoing, and the
filing of any financing statement under the UCC or comparable flaw of
any jurisdiction in respect of any of the foregoing).
Master Debt: shall mean the outstanding principal amount of
indebtedness, reimbursement obligations for draws on letters of credit,
and cash collateralization obligations for letters of credit under the
Master Debt Agreements, all accrued but unpaid interest thereon under
the Master Debt Agreements, all premium, if any, in connection
therewith under the Master Debt Agreements, all fees in connection
therewith under the Master Debt Agreements, and all other
reimbursement, indemnification, and other payment obligations in
connection therewith under the Master Debt Agreements; provided, that
Master Debt shall exclude any type or amount of Master Debt (a) under
any Master Debt Agreement that is expressly limited or excluded from
being Master Debt in the description of such Master Debt Agreement on
Schedule 1, (and without limiting the foregoing, the description of a
Master Debt Agreement in Schedule 1 may limit the maximum amount of
Master Debt thereunder or exclude any subfacilities thereunder as
Master Debt) or (b) under any Master Debt Agreement following certain
modifications to the extent set forth in Section 3.1.
Master Debt Agreements: shall mean the credit agreements, loan
agreements, securities purchase agreements, indentures, notes, bonds,
and other agreements and instruments relating to Master Debt described
on Schedule 1 as "Master Debt Agreements."
Master Debt Outstanding: shall mean all principal obligations
constituting Master Debt, plus all unreimbursed draws on letters of
credit constituting Master Debt, plus all undrawn face amounts of
letters of credit constituting Master Debt, in each case outstanding at
any time.
Notice of Event of Default: shall mean a written certification to the
Collateral Trustee certifying that an Event of Default has occurred.
Permitted Investment: shall mean (i) obligations of, or guaranteed as
to interest and principal by, the United States of America or agencies
thereof maturing not more than 90 days after such investment; (ii) open
market commercial paper of any corporation incorporated under the laws
of the United States of America or any State thereof and not an
Affiliate of the Company, which paper is rated "P-1"
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or its equivalent by Xxxxx'x Investors Service or "A-1" or its
equivalent by Standard & Poor's Ratings Group; (iii) banker's
acceptances and certificates of deposit issued by any bank or trust
company having capital, surplus and undivided profits of at least
$500,000,000.00 whose long-term debt is rated "A" or better by Standard
& Poor's Ratings Group and A2 or better by Xxxxx'x Investors Service
and maturing within ninety (90) days of the acquisition thereof; and
(iv) money market funds consisting solely (except that no more than 10%
thereof may be held in cash) of obligations of the type described in
clauses (i) through (iii) above and the shares of such money market
funds can be converted to cash within 90 days.
Person: shall mean a corporation, business trust, joint stock company,
trust, joint venture, association, partnership, limited liability
company, organization, business, individual, government or political
subdivision thereof, governmental agency, or other entity of whatever
nature.
Principal Bank Facility: shall mean the Credit Agreement dated July 25,
2000, provided to the Company and certain of its subsidiaries by The
Chase Manhattan Bank and Commerzbank AG as Co-Syndication Agents,
Credit Lyonnais New York Branch as Documentation Agent, Citibank, N.A.,
as Agent, and Xxxxxxx Xxxxx Xxxxxx, as Arranger, as further described
in Schedule 1.
Principal L/C Facility: shall mean the Credit Agreement more fully
described in Paragraph 1 of Schedule 1.
Proceeds: shall mean all "proceeds" as such term is defined in Section
9-102 of the UCC.
Release Notice: shall mean a written notice, signed by a Responsible
Officer of the Company and the Debtors with interests in the Collateral
to be released, that requests the release of Liens in favor of the
Collateral Trustee in such Collateral and that (a) certifies to the
Collateral Trustee that the release of such Collateral is permitted
under the applicable terms of the Principal Bank Facility and of the
Principal L/C Facility and has been consented to by the Required
Decision Group, (b) describes to the Collateral Trustee the expected
proceeds of such Collateral and the intended application thereof and
that such application is in accordance with the applicable requirements
of Section 2.04(c) of the Principal Bank Facility in effect on the date
hereof and the applicable requirements of Section 5.2(e) of the
Principal L/C Facility in effect on the date hereof, and (c) covenants
to the Collateral Trustee that the proceeds of such Collateral shall be
applied as described.
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Required Decision Group: shall mean, with respect to any determination,
(a) at any time when the Principal Bank Facility or the Principal L/C
Facility has outstanding Master Debt or commitments to provide Master
Debt in effect, the Required Percentage for each such Class of Master
Debt that satisfies those conditions, and (b) at any other time, the
Required Majority.
Required Majority: shall mean, with respect to any determination, a
Class or group of Classes of Master Debt that (a) have the Required
Percentage for each such Class of Master Debt agreeing upon such
determination and (b) hold more than 50% of the aggregate amount of
Master Debt Outstanding.
Required Percentage: shall mean, with respect to any Class of Master
Debt and with respect to any determination, the percentage or number of
the holder or holders of such Class of Master Debt required to make
such determination under the terms of the Master Debt Agreement under
which such Class of Master Debt was issued (but if no such percentage
or number is specified under the terms of such Master Debt Agreement,
then the holder or holders of more than 50% of the Master Debt
Outstanding with respect to such Class of Master Debt).
Responsible Officer: shall mean, with respect to any Debtor, the chief
executive officer, president, executive vice president, chief financial
officer, treasurer, or secretary of the applicable Debtor.
Secured Obligations: shall mean (a) all Collateral Trustee Obligations
and (b) all Master Debt.
Security Documents: shall mean:
(a) this Agreement.
(b) Security Agreement dated as of July 31, 2002, made by the
Company and certain Subsidiaries in favor of the Collateral Trustee
granting the Collateral Trustee a security interest in substantially
all of the personal property of the Company and such Subsidiaries.
(c) Pledge Agreement dated as of July 31, 2002, made by the
Company and certain Subsidiaries in favor of the Collateral Trustee
granting the Collateral Trustee a security interest in the stock of
certain of the subsidiaries of the Company and the Subsidiaries.
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(d) all future deeds of trust, mortgages, security agreements,
pledge agreements, and other security documents made by any Debtor in
favor of the Collateral Trustee for the benefit of the holders of
Secured Obligations.
(e) all present and future financing statements, recordings,
certificates, documents, and other instruments evidencing or related to
the foregoing.
Trust Estate: shall mean all right, title, and interest of the Debtors
in the Collateral granted to the Collateral Trustee by the Security
Documents and all rights of the Collateral Trustee thereunder.
UCC: shall mean the Uniform Commercial Code.
ARTICLE 2.
COLLATERAL TRUST
2.1 Creation of Collateral Trust. Each Debtor hereby grants the Trust
Estate to the Collateral Trustee in accordance with the terms of the Security
Documents for the benefit of the holders of the Secured Obligations as set forth
herein; provided that with respect to each Debtor the grant of the Trust Estate
is limited to the extent set forth in Section 2.2.
2.2 Limitation of Grant. Notwithstanding any provision of the Security
Documents to the contrary, the grant of the Trust Estate made by each Debtor and
the obligations of such Debtor under the Security Documents are limited to an
aggregate transfer equal to the largest amount that would not render such
Debtor's grant and obligations under the Security Documents subject to avoidance
under Section 548 of the United States Bankruptcy Code or any comparable
provisions of any applicable state law.
2.3 Possession and Use of Collateral. So long as no Event of Default
exists, each Debtor shall have the right to remain in possession of and retain
control of the Collateral (other than the Collateral Account Collateral and any
Collateral intended to be held by the Collateral Trustee at all times under the
Security Documents, such as capital stock) in accordance with the terms of the
Security Documents.
2.4 Addition of Collateral to the Trust Estate. At any time and from
time to time, the Company or any other Debtor, as applicable, may enter into one
or more Security Documents, in form reasonably satisfactory to the Collateral
Trustee to: (a) add to the covenants of the Debtors for the benefit of the
holders of the Secured Obligations or to surrender any right or power herein
conferred upon the Debtors; (b) mortgage or pledge to the Collateral Trustee, or
grant a security interest in favor of the Collateral
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Trustee in, any property or assets as additional security for the Secured
Obligations; or (c) cure any ambiguity, correct or supplement any provision in
any Security Document which may be defective or inconsistent with any other
provision herein or therein, or make any other provision with respect to matters
or questions arising under the Security Documents which shall not be
inconsistent with any provision thereof. The Company will deliver or cause to be
delivered to the Collateral Trustee, promptly upon the execution and delivery
thereof, executed counterparts of all Security Documents and all amendments and
supplements thereto. The Collateral Trustee shall keep all Security Documents at
the time held by it at the offices of the Collateral Trustee and shall permit
any holder of Secured Obligations or the representative thereof to inspect the
same upon reasonable request. The Collateral Trustee shall cooperate with the
Company and accept any additional collateral furnished from time to time
pursuant to any Security Document.
2.5 Releases of Collateral. In connection with any proposed sale,
assignment, transfer, or other disposition of Collateral, the Company and the
Debtors with an interest in such Collateral may deliver a Release Notice to the
Collateral Trustee which the Collateral Trustee shall promptly distribute to the
holders of Secured Obligations under the Principal Bank Facility and the
Principal L/C Facility. If within 15 days after the receipt of such Release
Notice the Collateral Trustee shall not have received a certificate in writing
from any holder of Secured Obligations under the Principal Bank Facility or the
Principal L/C Facility stating that the release of such Collateral is improper
because (a) the release of such Collateral is not permitted under the applicable
terms of the Principal Bank Facility or the Principal L/C Facility or has not
been consented to by the Required Decision Group or (b) the intended application
of the proceeds of such Collateral is not in accordance with the applicable
requirements of Section 2.04(c) of the Principal Bank Facility in effect on the
date hereof or Section 5.2(e) of the Principal L/C Facility in effect on the
date hereof; then the Collateral Trustee shall, to the extent requested in the
Release Notice, release the Liens of the Collateral Trustee in such Collateral.
If the Collateral Trustee receives such a certification within such period, the
Liens will not be released and the Collateral Trustee will not take any actions
requested under the Release Notice until (i) such certificate shall be withdrawn
in writing by the holder of Secured Obligations which shall have delivered the
same to the Collateral Trustee or (ii) until the Collateral Trustee shall have
received a final order of a court of competent jurisdiction directing it to
release the Liens of the Collateral Trustee in such Collateral. Upon the
effectiveness of any Release Notice, the Collateral Trustee shall at the request
of the Company execute a partial release of Lien of the Security Documents and
such instruments, including UCC-3 amendments, as are necessary to partially
release any documents constituting public notice of the Security Documents and
the Liens granted thereunder and shall assign and transfer, or cause to be
assigned and transferred, and shall deliver, or cause to be delivered, to the
applicable Debtors, all property thereof
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then held by the Collateral Trustee in which the Lien of the Collateral Trustee
has been released.
2.6 Further Assurances. Each Debtor at its expense will execute,
acknowledge, and deliver all such agreements and instruments and take all such
action as the Collateral Trustee may reasonably request in order further to
effectuate the purposes of the Security Documents and to carry out the terms
thereof. Each Debtor hereby authorizes the filing by the Collateral Trustee of
financing statements or amendments relating to the security granted under the
Security Documents, including any financing statements "in lieu" of continuation
statements, terminations, continuations, assignments, or other amendments.
2.7 Obligations Absolute.
(a) The Security Documents may not be revoked by any Debtor and
shall continue to be effective with respect to Secured Obligations arising or
created after any attempted revocation by any Debtor.
(b) Each Debtor agrees that it will perform its obligations under
the Security Documents strictly in accordance with the terms thereof regardless
of any law, regulation, or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Collateral Trustee or any
holders of Master Debt with respect thereto. The liability of each of the
Debtors under the Security Documents shall be absolute and unconditional
irrespective of:
(i) any lack of validity or enforceability of any Master Debt
Agreement;
(ii) any change in the time, manner, or place of payment of, or
in any other term of, all or any of the Secured Obligations or any other
liabilities, or any other amendment or waiver of, or any consent to
departure from, any Master Debt Agreement, including, without limitation,
any increase in the Secured Obligations or any other liabilities resulting
from the extension of additional credit or otherwise;
(iii) any taking, exchange, release, or non-perfection of any
Collateral, or any taking, release, or amendment or waiver of, or consent
to departure from, any Security Document for all or any of the Secured
Obligations or any other liabilities;
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(iv) any manner of application of Collateral or proceeds
thereof, or of collections on account of any Security Document, to all or
any of the Secured Obligations or any other liabilities, or any manner of
sale or other disposition of any Collateral for all or any of the Secured
Obligations or any other liabilities or of any other assets of the Debtors
or any other Person;
(v) any liquidation, dissolution, or termination of existence
of, or other change in, any Debtor or any other Person;
(vi) any bankruptcy, insolvency, receivership, or other
proceeding involving any Debtor or any other Person or any defense that may
arise in connection with or as a result of any such bankruptcy, insolvency,
receivership, or other proceeding or otherwise; or
(vii) any other circumstances which might otherwise constitute
a defense available to, or a discharge of, any Debtor or any other Person.
(c) The Security Documents shall continue to be effective or be
reinstated, as the case may be, if any payment on the Secured Obligations must
be refunded for any reason including any bankruptcy proceeding. In the event
that the Collateral Trustee must refund any payment received against the Secured
Obligations, any prior release from the terms of the Security Documents given to
any Debtor by the Collateral Trustee shall be without effect, and the Security
Documents shall be reinstated in full force and effect.
2.8 Limited Rights; Decisions by Certain Parties. Each holder of
Secured Obligations agrees that its rights to the benefits of the Trust Estate
and the Security Documents are limited to those rights established under the
terms of the Security Documents. Without limiting the foregoing, to the extent
that any determination may be made by the Required Decision Group, the Required
Majority, or any other holders of Secured Obligations under the terms of the
Security Documents that effect any other holders of Secured Obligations, the
makers of such determination may make such determination in the makers' own
interest, without any duty or liability to any other holder of Secured
Obligations.
2.9 Termination of the Collateral Trust. When (a) the Principal Bank
Facility and the Principal L/C Facility no longer have outstanding Master Debt
or commitments to provide Master Debt in effect and (b) the Collateral Trustee
determines that the Debtors have no further obligations to the Collateral
Trustee under the Security Documents or that the surviving provisions thereof
will cover any such obligations to the satisfaction of the Collateral Trustee,
then the Collateral Trustee shall, at the request of the Company, terminate the
grant of the Trust Estate under the Security Documents and
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the Security Documents (except to the extent the provisions thereof, including
indemnification provisions for the Collateral Trustee, survive termination),
execute releases of the Liens of the Security Documents, including UCC-3
amendments, as are necessary to release any documents constituting public notice
of the Security Documents and the Liens granted thereunder, and assign and
transfer, or cause to be assigned and transferred, and deliver, or cause to be
delivered, to the applicable Debtors, all property thereof then held by the
Collateral Trustee in which the Lien of the Collateral Trustee has been
released.
ARTICLE 3.
MASTER DEBT
3.1 Master Debt; Modifications. On the date this Agreement, all Master
Debt is outstanding only under the Master Debt Agreements set forth in Schedule
1 and under the terms of such Master Debt Agreements in effect on the date
hereof. The Company may from time to time amend, waive, or otherwise modify the
terms of any Master Debt Agreement without further approval hereunder; provided
that this paragraph does not imply any waiver of any restriction on
modifications in any other agreement; and provided further that any modification
of any Master Debt Agreement that increases the principal amount thereof or the
commitments to advance funds or letters of credit thereunder, and is not
approved under Section 3.2 below, shall result in any funds advanced or letters
of credit issued under such Master Debt Agreement in each case in excess of the
prior principal amount or commitment limit, and other obligations thereunder
allocable thereto, not being Master Debt hereunder. For the avoidance of doubt,
additional fundings or letters of credit under commitments established by the
terms of Master Debt Agreements on the date when such Master Debt Agreements
became Master Debt Agreements hereunder or on the date when approved under
Section 3.2 are Master Debt hereunder.
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3.2 Additional Master Debt. From time to time the Company may request
additional obligations under additional Master Debt Agreements or increases of
the principal amount or commitments to advance funds or letters of credit under
existing Master Debt Agreements to become Master Debt under Master Debt
Agreements hereunder (such proposed additional Master Debt being "Additional
Master Debt"). Increases in commitments under existing Master Debt Agreements
shall be treated as Additional Master Debt, subject to approval as provided
below. The Company shall notify the Collateral Trustee and each holder of
Secured Obligations under the Principal Bank Facility and the Principal L/C
Facility in writing at least 20 days prior to the proposed effective date for
any such transaction. Additional Master Debt shall be designated as Master Debt
for purposes hereof only if the following conditions shall be fulfilled on or
prior to the date of the incurrence of any Additional Master Debt:
(a) The Company shall have furnished to the Collateral Trustee and
each such holder of Secured Obligations: (i) a resolution of the Board of
Directors of the Company authorizing the issuance of the Additional Master Debt,
(ii) a certificate of a Responsible Officer of the Company certifying that all
conditions precedent provided herein for such Additional Master Debt to
constitute Master Debt have been complied with and demonstrating, in reasonable
detail, compliance with any restrictions on the incurrence (including securing)
of the Additional Master Debt by the Company under the terms of the Principal
Bank Facility and the Principal L/C Facility, (iii) a copy of the Master Debt
Agreement and related documents and agreements for such Additional Master Debt
and a proposed revised Schedule 1 to this Agreement reflecting such Additional
Master Debt and any restrictions thereon, and (iv) an opinion of counsel
relating to the issuance of such Additional Master Debt as Master Debt hereunder
and as to such related matters as any holder of Secured Obligations may
reasonably request; and
(b) The Collateral Trustee shall not have received by the
expiration of the 20 days any objection from any such holder of Secured
Obligations that the designation of such Additional Master Debt as Master Debt
violates the terms of the Principal Bank Facility or the Principal L/C Facility
or if any such objection is received such objection is withdrawn or the
Collateral Trustee has received a final order of a court of competent
jurisdiction overriding such objection; and
(c) The Collateral Trustee shall have received the approval of the
Required Decision Group for such Additional Master Debt.
Upon the designation of Additional Master Debt as Master Debt hereunder, the
Company will deliver to the Collateral Trustee a certificate of a Responsible
Officer of the Company certifying the date of the transaction, the revised
Schedule 1 to this Agreement reflecting such transaction, and that such Master
Debt is entitled to the benefits of this Agreement, and such Schedule shall be
so amended and such Additional Master Debt
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shall become Master Debt hereunder. The Company will also deliver to the
Collateral Trustee promptly upon request similar certificates of a Responsible
Officer of the Company confirming such data as to all Master Debt entitled to
the benefits of this Agreement if there is a change in the identity of any
holder of Master Debt.
3.3 Release of Master Debt. From time to time the Company may designate
indebtedness of the Company to be released as Master Debt hereunder (such
released Master Debt being the "Release Master Debt"). The Company shall notify
the Collateral Trustee, each holder of Secured Obligations under the Principal
Bank Facility and the Principal L/C Facility, and each holder of Release Master
Debt in writing at least 20 days prior to the proposed effective date for any
such transaction. Release Master Debt shall be released as Master Debt hereunder
only if the Collateral Trustee shall have received confirmation of no objection
from each holder of the Release Master Debt by the expiration of the 20 days or
if any such objection is received such objection is withdrawn or the Collateral
Trustee has received a final order of a court of competent jurisdiction
overriding such objection. Upon the release of Release Master Debt as Master
Debt hereunder, the Company will deliver to the Collateral Trustee a certificate
of a Responsible Officer of the Company certifying the date of the transaction,
a revised Schedule 1 to this Agreement reflecting such transaction, and that
such Release Master Debt is no longer entitled to the benefits of this
Agreement, and such Schedule shall be so amended and such Release Master Debt
shall cease to be Master Debt hereunder.
ARTICLE 4.
ACTIONS REGARDING COLLATERAL
4.1 Preservation and Maintenance of Collateral. The Collateral Trustee
may from time to time take action for the protection and enforcement of its
rights under the Security Documents and for the benefit of the holders of the
Secured Obligations. The Collateral Trustee shall perform such duties as are
specifically set forth in the Security Documents. As to any matters not
expressly provided for by the Security Documents, the Collateral Trustee shall
not be required to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Decision
Group, and such instructions shall be binding upon all holders of Secured
Obligations. Notwithstanding the foregoing, or any provision to the contrary in
the Security Documents, the Collateral Trustee shall not be required to take any
action which exposes the Collateral Trustee to personal liability or which is
contrary to the Security Documents or applicable law.
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4.2 Enforcement of Collateral.
(a) The Collateral Trustee shall not be deemed to have knowledge of
the existence of any condition or event which constitutes an Event of Default,
unless notified in writing by any holder of Secured Obligations. The Collateral
Trustee shall not be under any obligation, as a result of knowledge of an Event
of Default, to take any action under the provisions of any Security Document
unless so directed by the holders of the Secured Obligations in accordance with
this Agreement.
(b) At any time if an Event of Default exists, the holders of any
Class of Master Debt so in default shall be entitled to give the Collateral
Trustee and the Company a Notice of Event of Default but the failure of the
Company to receive any such notice shall not affect the validity of requests to
the Collateral Trustee or the ability of the Collateral Trustee to exercise the
rights and remedies provided in the Security Documents upon receipt by the
Collateral Trustee of any such notice. Upon receipt of any such notice, the
Collateral Trustee shall promptly notify each holder of Secured Obligations and
the Company of such notice.
(c) The holders of any Class of Master Debt giving a Notice of
Event of Default shall be entitled to withdraw it by delivering a written notice
of the withdrawal to the Collateral Trustee (i) before the Collateral Trustee
takes any action to exercise any remedy with respect to the Collateral or (ii)
at any time thereafter, if the Company certifies to the Collateral Trustee that
the Company believes that all actions the Collateral Trustee has taken to
exercise any remedy or remedies with respect to the Collateral can be reversed,
terminated, or withdrawn without prejudice to the Collateral Trustee or the
other holders of the Secured Obligations (other than, with respect to the other
holders of the Secured Obligations, prejudice in the form of delay), in which
event (A) the Company must indemnify the Collateral Trustee and the holders of
the Secured Obligations with respect to all properly documented and reasonable
costs and expenses incurred by the Collateral Trustee and the holders of the
Secured Obligations in connection with all actions the Collateral Trustee has
taken to exercise any remedy or remedies with respect to the Collateral and in
connection with the reversing thereof, and (B) the Required Decision Group shall
have consented in writing to such reversal. The Collateral Trustee shall
immediately notify the Company and the holders of the Secured Obligations as to
the receipt and contents of any such notice of withdrawal. To the extent that
such Notice of Event of Default shall give rise to any such rights and remedies
or shall prohibit the Debtors from taking any actions, such rights and remedies
shall be suspended, and any exercise thereof by the Collateral Trustee shall
cease, and such prohibitions on the Debtors shall not remain in effect, upon the
withdrawal of such Notice of Event of Default pursuant to the terms and
provisions of this paragraph, but such rights and remedies and such prohibitions
shall be reinstated upon the giving of any later Notice of Event of Default.
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(d) If a Notice of Event of Default shall have been received by the
Collateral Trustee and shall not have been withdrawn in accordance with the
provisions of paragraph (c) above, the Collateral Trustee shall, promptly after
receipt of the written instructions of the Required Decision Group, exercise the
rights and remedies of the Collateral Trustee under the Security Documents and
institute and maintain suits and proceedings and take such other actions in
connection therewith, in each case as permitted under the Security Documents
during the existence of an Event of Default. Upon receipt of any written
directions pursuant to this paragraph (d), the Collateral Trustee shall promptly
send a copy thereof to each holder of Secured Obligations.
4.3 General Provisions Regarding Remedies.
(a) No remedy conferred upon or reserved to the Collateral Trustee
in the Security Documents is intended to be exclusive of any other remedy or
remedies, but every such remedy shall be cumulative and shall be in addition to
every other remedy conferred in the Security Documents or now or hereafter
existing at law or in equity or by statute. No delay or omission by the
Collateral Trustee in the exercise of any right, remedy, or power accruing upon
any Event of Default shall impair any such right, remedy, or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and every right, power, and remedy given by any Security Document may
be exercised from time to time and as often as may be deemed expedient by the
Collateral Trustee.
(b) In case the Collateral Trustee shall have proceeded to enforce
any right, remedy, or power under any Security Document and the proceeding for
the enforcement thereof shall have been discontinued or abandoned for any reason
or shall have been determined adversely to the Collateral Trustee, then and in
every such case the Debtors, the Collateral Trustee, and the holders of the
Secured Obligations shall, subject to any effect of or determination in such
proceeding, severally and respectively be restored to their former positions and
rights under such Security Document with respect to the Trust Estate and in all
other respects, and thereafter all rights, remedies, and power of the Collateral
Trustee shall continue as though no such proceeding had been taken.
(c) All rights of action and rights to assert claims upon or under
the Security Documents may be enforced by the Collateral Trustee without the
possession of any Master Debt Agreement or other instruments which manifest the
Master Debt or the production thereof in any trial or other proceeding relative
thereto, and any such suit or proceedings instituted by the Collateral Trustee
shall be brought in its name as Collateral Trustee and any recovery of judgment
shall be held as part of the Trust Estate. Each Debtor hereby waives demand,
presentment for payment, notice of nonpayment, protest, grace, notice of intent
to accelerate, notice of acceleration, and all other notices in connection with
the enforcement of the Master Debt, the Security Documents, or the
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Collateral. To the full extent each Debtor may do so, such Debtor shall not
insist upon, plead, claim, or take advantage of any law providing for any
appraisement, valuation, stay, extension, or redemption, and such Debtor hereby
waives and releases the same, and all rights to a marshaling of the assets of
such Debtor, including the Collateral, or to a sale in inverse order of
alienation in the event of foreclosure of the Liens under the Security
Documents.
(d) Each Debtor hereby irrevocably constitutes and appoints the
Collateral Trustee and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full power and
authority to act on behalf of such Debtor, in the name of such Debtor or in its
own name, upon the occurrence and during the continuance of any Event of Default
for the purpose of carrying out the terms of any of the Security Documents, to
take any and all appropriate action and to execute any and all documents and
instruments which may be reasonably necessary or desirable to accomplish the
purposes thereof, and instituting proceedings the Collateral Trustee deems
necessary or desirable to enforce the rights of the Collateral Trustee with
respect to the Security Documents. Without limiting the generality of the
foregoing, if any Debtor is obligated to take any action under any Security
Document and fails to take such action, the Collateral Trustee may take such
action as attorney-in-fact. This power of attorney is a power coupled with an
interest and shall be irrevocable. Each Debtor hereby ratifies all acts of such
attorney-in-fact consistent with the foregoing. Any such attorney-in-fact shall
not be liable for any acts or omissions unless they constitute the gross
negligence or wilful misconduct of such attorney-in-fact.
(e) Notwithstanding any other provision of any Security Document,
but subject to the actions the Collateral Trustee may take with respect to the
Security Documents, neither the right of any holder of Secured Obligations to
receive payment thereon, to institute suit for the enforcement of such payment,
to assert such holder's position as a creditor in any proceeding related to the
Bankruptcy Code, or to otherwise exercise any rights such holder may have in
connection with the Secured Obligations (other than the right to enforce any
Lien on the Collateral under the Security Documents, which shall in all
circumstances be exercisable only by the Collateral Trustee as directed in
accordance with this Agreement), nor the obligation of each Debtor to pay the
Secured Obligations owing by such Debtor, shall be impaired or affected without
the consent of such holder.
(f) If the Collateral Trustee shall have received a Notice of Event
of Default and during such time as such Notice of Event of Default shall not
have been withdrawn in accordance with the provisions of paragraph 4.2(c) above,
the Collateral Trustee, in its capacity as Collateral Trustee, is hereby
authorized at any time and from time to time to set off and apply any deposits
(general or special, time or demand, provisional or final) at any time held by
the Collateral Trustee hereunder with respect to
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any Debtor and indebtedness at any time owing by the Collateral Trustee to any
Debtor, against any Secured Obligations, irrespective of whether or not any
holder of Secured Obligations shall have made any demand and although such
obligations may be unmatured. The Collateral Trustee agrees promptly to notify
the Company after any such setoff and application made by the Collateral
Trustee, provided that the failure to give such notice shall not affect the
validity of such set off and application. The Collateral Trustee shall have no
obligation to take any action under this paragraph unless so directed in
accordance with Section 4.2(d).
4.4 Application of Moneys by Collateral Trustee.
(a) On the date hereof there shall be established and, at all times
thereafter until the Trust Estate has been terminated, there shall be maintained
by and with the Collateral Trustee an account (the "Collateral Account") for the
purposes of this Agreement. To secure the prompt and complete payment, when due,
and the observance and performance of all terms, covenants, and agreements
relating to the Secured Obligations, each Debtor hereby assigns and pledges to
the Collateral Trustee for the benefit of the holders of the Secured Obligations
and grants to the Collateral Trustee for the benefit of the holders of the
Secured Obligations a security interest in all of the right, title, and interest
of such Debtor in and to the following, whether presently existing or hereafter
arising or acquired (the "Collateral Account Collateral"): the Collateral
Account, all cash deposited therein, all certificates and instruments, if any,
from time to time representing the Collateral Account; all investments from time
to time made pursuant to paragraph (b) below; all notes, certificates of
deposit, and other instruments from time to time hereafter delivered to or
otherwise possessed by the Collateral Trustee in substitution for, or in
addition to, any or all of the then existing Collateral Account Collateral; all
interest, dividends, cash, instruments, and other property from time to time
received, receivable, or otherwise distributed in respect of or in exchange for
any or all of the then existing Collateral Account Collateral; and to the extent
not covered above, all Proceeds of the foregoing (whether the same are acquired
before or after the commencement of a case under the Bankruptcy Code). All
right, title, and interest in and to the Collateral Account shall vest in the
Collateral Trustee, and funds on deposit in the Collateral Account and other
Collateral Account Collateral shall constitute part of the Trust Estate. The
Collateral Account shall be subject to the exclusive dominion and control of the
Collateral Trustee.
(b) All money and other Proceeds received by the Collateral Trustee
in respect of any Collateral, including proceeds from sales of assets, insurance
proceeds and condemnation proceeds, amounts received as a result of set off by
the Collateral Trustee, collections of accounts, instruments, chattel paper, and
other receivables, and proceeds from any foreclosure proceedings, shall be
deposited in or credited to the Collateral Account. Any proceeds deemed not
appropriate at the time of receipt for deposit or
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credit to the Collateral Account shall be held by the Collateral Trustee for the
benefit of the holders of the Secured Obligations until such time as cash
proceeds are realized therefrom or the Collateral Trustee deems such proceeds
appropriate for deposit or credit to the Collateral Account. All funds in the
Collateral Account shall be invested, reinvested, and liquidated (at the risk
and expense of the Debtors) in accordance with instructions given to the
Collateral Trustee by a Responsible Officer of the Company prior to a Notice of
Event of Default having been received by the Collateral Trustee and such notice
not having been withdrawn and thereafter as determined by the Collateral
Trustee, provided that all circumstances all investments shall be Permitted
Investments. The Collateral Trustee shall not be liable for any loss resulting
from any Permitted Investment or the sale or redemption thereof in accordance
with the preceding sentence. If and when cash is required for disbursement in
accordance with this Agreement, the Collateral Trustee is authorized, to the
extent necessary, to cause Permitted Investments to be sold or otherwise
liquidated in such manner as the Collateral Trustee shall deem appropriate.
(c) Prior to any Notice of Event of Default having been received by
the Collateral Trustee, all amounts in the Collateral Account shall be held by
the Collateral Trustee for the benefit of the holders of the Secured Obligations
until the Company requests the release thereof. Any such request by the Company
shall be made in writing and accompanied by a certificate of a Responsible
Officer of the Company specifying the use for the funds released and stating
that the funds shall be used for the specified purpose, that the release is
permitted under the terms of all Master Debt Agreements, that no Event of
Default exists, and that the release would not reasonably be expected to cause
an Event of Default. Upon receipt of such certificate, the Collateral Trustee
shall forward notice thereof to the holders of the Secured Obligations and if no
objection that the release would violate the terms of any Master Debt Agreement
is received from any holder of Secured Obligations by the Collateral Trustee
within 15 days after such notice is given, the Collateral Trustee shall release
the amounts requested to the Company. If an objection is received, then the
Collateral Trustee shall retain the funds in the Collateral Account until such
objection is withdrawn, distributions are made under paragraph (d) below, or the
Collateral Trustee shall have received a final order of a court of competent
jurisdiction directing it to release the funds. Notwithstanding anything herein
to the contrary, and in precedence to any rights under Section 4.3(f), the
Collateral Trustee shall, at all times, have the right to apply moneys and
property held by the Collateral Trustee in the Collateral Account to the payment
of amounts due and unpaid to it pursuant to Section 5.3, and all other amounts
due to the Collateral Trustee under the terms of the Security Documents,
including all reasonable costs and expenses (including reasonable attorneys
fees) incurred in connection with any sale, disposition, or other attempt to
realize upon all or any part of the Collateral. The Collateral Trustee shall
provide the Company with prompt notice of any such application of moneys or
property.
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(d) After any Notice of Event of Default having been received by
the Collateral Trustee and such notice not having been withdrawn, all moneys and
property held or received by the Collateral Trustee in the Collateral Account
shall be held in the Collateral Account for the benefit of the holders of the
Secured Obligations and, upon election by the Collateral Trustee or direction in
accordance with Section 4.2(d), and to the extent available for distribution, be
distributed from time to time by the Collateral Trustee in the following order
of priority:
First: to the Collateral Trustee in an amount equal to the outstanding but
unpaid Collateral Trustee Obligations, whether or not due and payable,
plus an amount equal to the Collateral Trustee's estimate of the reserves
required to ensure payment of all Collateral Trustee Obligations that
could become due and payable to the Collateral Trustee in accordance with
the terms of the Security Documents from time to time;
Second: to the holders of Master Debt in an amount equal to the
outstanding but unpaid principal amount of indebtedness, reimbursement
obligations for draws on letters of credit, and cash collateralization
obligations for letters of credit under the Master Debt Agreements, all
accrued but unpaid interest thereon under the Master Debt Agreements, all
unpaid premium, if any, in connection therewith under the Master Debt
Agreements, all unpaid fees in connection therewith under the Master Debt
Agreements, in each case whether or not due and payable, and, if such
moneys and property shall be insufficient to pay such amounts in full,
then ratably (without priority of any one over any other) to the holders
of such Master Debt in proportion to the unpaid amounts thereof; provided,
however, that with respect to all cash collateralization obligations
covering contingent obligations under letters of credit, (1) rather than
distributing the amounts allocable to such obligations to the holders
thereof, such amounts shall be reserved in the Collateral Account (such
reserve being the "L/C Reserve") and set aside for the purpose of covering
reimbursement obligations for such letters of credit as they arise in
connection with draws under such letters of credit, (2) upon any draws
under such letters of credit that are not reimbursed when due, and at the
request of the Required Percentage of the holders of such obligations, the
Collateral Trustee shall distribute the ratable share of the L/C Reserve
allocable to such reimbursement obligations to the holders thereof, and
(3) as such obligations expire or become covered by cash collateral or
otherwise, the Collateral Trustee shall release the ratable share of the
L/C Reserve allocable to such obligations which have expired into the
Collateral Account for general distribution in accordance with this
Agreement as part of the next distribution;
Third: to the holders of the Secured Obligations in an amount equal to all
unpaid reimbursement, indemnification, and other payment obligations under
the Master
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Debt Agreements not covered above, in each case whether or not due and
payable, and, if such moneys and property shall be insufficient to pay
such amounts in full, then ratably (without priority of any one over any
other) to the holders of the Secured Obligations in proportion to the
unpaid amounts thereof; and
Finally: any surplus then remaining shall be paid to the Company or its
successors or assigns.
The term "unpaid" as used in this Section (d) refers: (1) in the absence of a
bankruptcy proceeding with respect to any Debtor, to all amounts of Secured
Obligations outstanding as of a Distribution Date, whether or not then due and
payable, and (2) during the pendency of a bankruptcy proceeding with respect to
any Debtor, to all amounts with respect to such Debtor allowed by the bankruptcy
court in respect of Secured Obligations as a basis for distribution (including
estimated amounts, if any, allowed in respect of contingent claims), in each
case, to the extent that prior distributions have not been made in respect
thereof.
(e) In making available amounts for distribution, the Collateral
Trustee may liquidate investments prior to maturity in order to make a
distribution. In making determinations and allocations required by Section (d)
above, all property distributed shall be distributed in accordance with, and
subsequent distributions made on the basis of, the fair market value of such
property, as determined in good faith by the Collateral Trustee
(f) In making available amounts for distribution, the Collateral
Trustee may make payments with respect to any holders of Secured Obligations
that are part of any Class of Master Debt having an agent or trustee with
general administrative responsibilities for such Class of Master Debt by
providing payment to such agent or trustee, and such payment shall be deemed
effective for all such holders of Secured Obligations upon receipt by such agent
or trustee.
ARTICLE 5.
THE COLLATERAL TRUSTEE
5.1 Acceptance of Trust Estate; Limitations. The Collateral Trustee
hereby accepts the trusts of this Agreement for the benefit of the holders of
the Secured Obligations, but only upon the terms herein set forth, including the
following:
(a) Neither the Collateral Trustee nor any of its directors,
officers, agents, or employees shall be liable for any action taken or omitted
to be taken by it or them under or in connection with the Security Documents,
except for its or their own
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gross negligence or willful misconduct. Without limitation of the generality of
the foregoing, the Collateral Trustee: (i) may continue to treat each of the
original holders of Secured Obligations as the current holders thereof until the
Collateral Trustee receives documentation that is acceptable to Collateral
Trustee (in the Collateral Trustee's sole discretion) evidencing any transfer of
such holder's rights and obligations to another entity; (ii) may consult with
legal counsel (including counsel for any Debtor), independent public
accountants, and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants, or experts; (iii) makes no warranty or
representation to any Debtor or any holder of Secured Obligations and shall not
be responsible to any Debtor or any holder of Secured Obligations for any
statements, warranties, or representations (whether written or oral) made in or
in connection with the Security Documents; (iv) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants, or conditions of any Security Document on the part of any obligor
thereunder or to inspect any property (including the books and records) of any
obligor thereunder; (v) shall not be responsible to any Person for the due
execution, legality, validity, enforceability, genuineness, sufficiency, or
value of any Security Document or any other instrument or document furnished
pursuant thereto (or the sufficiency of the Collateral, the perfection or
priority of any Lien thereon, the recordation, filing, or maintenance of
recordation or filing with respect thereto, or the sufficiency or continuation
of any insurance with respect thereto); and (vi) shall incur no liability under
or in respect of any Security Document or any other instrument or document
furnished pursuant thereto by acting upon any notice, consent, certificate, or
other instrument or writing (which may be by telecopier, telegram, cable, or
telex) believed by it to be genuine and signed or sent by the proper party or
parties.
(b) the Collateral Trustee may rely and shall be protected in
acting upon any resolution, certificate, opinion, consent, or other document
reasonably believed by it to be genuine and to have been executed or presented
by the proper party or parties, and without limiting the foregoing, (i) in
making any payment or in taking any other action hereunder in respect of any
Master Debt, the Collateral Trustee may rely upon the certificate of a
Responsible Officer of the Company with respect to the ownership of such Master
Debt and the amounts due thereunder unless it shall have received written notice
to the contrary and (ii) whenever in the administration of its duties hereunder,
the Collateral Trustee deems it reasonably necessary for a matter to be proved
or established prior to taking any action hereunder, the Collateral Trustee may
request and a Responsible Officer of the Company shall provide certification
regarding such matter, upon which the Collateral Trustee shall be protected in
relying.
(c) With respect to its commitments, the advances made by it, the
reimbursement obligations owed to it, any interest in any letter of credit held
by it, or any
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of its other rights or obligations with respect to any Master Debt or any other
present or future credit or structured finance arrangement, Citibank N.A., shall
have the same rights and powers thereunder and may exercise the same in each
case as though it was not the Collateral Trustee. The terms holder of Secured
Obligations and holder of Master Debt shall, unless otherwise expressly
indicated, include Citibank, N.A., in its individual capacity. Citibank, N.A.,
and its affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, any Debtor or
any other subsidiary or affiliate thereof, any Person who may do business with
or own, directly or indirectly, securities of any Debtor or any other subsidiary
or affiliate thereof and any other Person, all as if Citibank, N.A., were not
the Collateral Trustee, in each case without any duty to account therefor to any
Debtor or any holder of Secured Obligations.
(d) Each holder of Secured Obligations acknowledges that it has,
independently and without reliance upon the Collateral Trustee or any other
holder of Secured Obligations and based on the financial statements and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into the transactions related to the
Security Documents and the credit documents related thereto it has executed.
Each holder of Secured Obligations also acknowledges that it will, independently
and without reliance upon the Collateral Trustee or any other holder of Secured
Obligations and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Security Documents and the credit documents related
thereto.
(e) The Collateral Trustee shall incur no liability with respect to
any action or omission taken in accordance with the terms of the Security
Documents or the instructions of the Company or the Required Decision Group, the
Required Majority, or any other holders of Secured Obligations as provided in
the Security Documents or for any other action or omission of the Collateral
Trustee, so long as the same are made in good faith (except that nothing
contained herein shall relieve the Collateral Trustee from liability for its own
gross negligence or willful misconduct), and in no event shall the Collateral
Trustee be liable for special, indirect, or consequential losses or damages of
any kind whatsoever (including but not limited to lost profits).
5.2 Limitation of Scope of Duties. Beyond its duties set forth in the
Security Documents as to the custody and preservation of Collateral, which are
for the benefit of the holders of the Secured Obligations, and the accounting to
the Company and the holders of the Secured Obligations for moneys received by
the Collateral Trustee under the Security Documents, the Collateral Trustee
shall not have any duty to any Debtor or any holder of Secured Obligations with
respect to any Collateral, any income thereon, or the preservation of rights
against prior parties or any other rights pertaining thereto.
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5.3 Expenses and Indemnity.
(a) (i) Each Debtor agrees to pay on demand all reasonable
out-of-pocket costs and expenses of the Collateral Trustee in connection with
the preparation, execution, delivery, administration, modification, and
amendment of the Security Documents and the other documents to be delivered
thereunder, including the reasonable fees and out-of-pocket expenses of counsel
for the Collateral Trustee with respect thereto and with respect to advising the
Collateral Trustee as to its rights and responsibilities under the Security
Documents, and (ii) each Debtor agrees to pay on demand all costs and expenses,
if any (including reasonable counsel fees and expenses, which may include
allocated costs of in-house counsel), of the Collateral Trustee in connection
with the enforcement of the Security Documents (whether before or after the
occurrence of an Event of Default and whether through negotiations (including
formal workouts or restructurings), legal proceedings or otherwise).
(b) Each Debtor agrees, to the fullest extent permitted by law, to
indemnify and hold harmless the Collateral Trustee and its directors, officers,
agents, and employees (the "Indemnified Parties") from and against any and all
claims, damages, losses, liabilities, and expenses (including reasonable fees
and disbursements of counsel) of any kind or nature whatsoever for which any of
them may become liable or which may be incurred by or asserted against any of
the Indemnified Parties, in each case in connection with or arising out of or by
reason of any investigation, litigation, or proceeding, whether or not any of
the Indemnified Parties is a party thereto, arising out of, related to, or in
connection with any Security Document or any transaction related thereto
(EXPRESSLY INCLUDING ANY SUCH CLAIM, DAMAGE, LOSS, LIABILITY, OR EXPENSE
ATTRIBUTABLE TO THE ORDINARY, SOLE, OR CONTRIBUTORY NEGLIGENCE OF SUCH
INDEMNIFIED PARTY, BUT EXCLUDING ANY SUCH CLAIM, DAMAGE, LOSS, LIABILITY, OR
EXPENSE ATTRIBUTABLE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH
INDEMNIFIED PARTY). IT IS THE INTENT OF THE PARTIES HERETO THAT EACH INDEMNIFIED
PARTY SHALL, TO THE EXTENT PROVIDED IN THIS PARAGRAPH (b), BE INDEMNIFIED FOR
ITS OWN ORDINARY, SOLE, OR CONTRIBUTORY NEGLIGENCE.
5.4 Resignation, Removal, and Replacement of Collateral Trustee. The
Collateral Trustee or any successor Collateral Trustee may resign at any time by
giving at least 30 days' prior written notice of resignation to the Company and
each holder of Secured Obligations, such resignation to be effective on the
later of (a) the date specified in such notice or (b) the date on which a
replacement trustee is appointed to act as Collateral Trustee hereunder. The
Company shall appoint a replacement trustee within 30 days of receiving notice
of any such resignation. If an instrument of acceptance by a successor
Collateral Trustee shall not have been delivered to the Collateral Trustee
within
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30 days after the giving of such notice of resignation, the resigning Collateral
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Collateral Trustee. The Required Decision Group may at any time
remove the Collateral Trustee for or without cause by an instrument or
instruments in writing delivered to the Collateral Trustee and the Company. In
case the office of Collateral Trustee shall become vacant for any reason, the
Required Decision Group may appoint a successor Collateral Trustee (eligible as
provided in Section 5.6) to fill such vacancy by an instrument or instruments in
writing delivered to such successor Collateral Trustee, the retiring Collateral
Trustee and the Company. Upon the appointment of any successor Collateral
Trustee pursuant to this Section 5.4, such successor Collateral Trustee shall
execute, acknowledge, and deliver to the Company and to the retiring Collateral
Trustee an instrument accepting such appointment, and thereupon such successor
Collateral Trustee shall immediately and without any further action succeed to
all the rights and obligations of the retiring Collateral Trustee under the
Security Documents as if originally named therein and the retiring Collateral
Trustee, at the expense of the Company, shall duly assign, transfer, and deliver
to such successor Collateral Trustee all the rights and moneys at the time held
by the retiring Collateral Trustee under the Security Documents and shall
execute and deliver such proper instruments as may be reasonably requested to
evidence such assignment, transfer, and delivery.
5.5 Fees of Collateral Trustee. The Debtors agree to pay compensation
for the services of the Collateral Trustee hereunder in accordance with the
letter agreement dated as of even date herewith related thereto or any future
applicable agreements among the Debtors and the Collateral Trustee.
5.6 Appointment of Separate or Co-Collateral Trustee. The Collateral
Trustee may, and upon the request of the Required Decision Group shall, by an
instrument in writing delivered to the Company and to each holder of Secured
Obligations, appoint a bank or trust company or an individual to act as separate
trustee or co-trustee in a jurisdiction where the Collateral Trustee is
disqualified from acting, such separate trustee or co-trustee to exercise only
such rights and to have only such duties as shall be specified in the instrument
of appointment. The Debtors will pay the reasonable compensation and expenses of
any such separate trustee or co-trustee and indemnify such Person as if such
Person was the Collateral Trustee hereunder.
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ARTICLE 6.
MISCELLANEOUS
6.1 Interpretation; Severability; Survival.
(a) Article, Section, Schedule, and Exhibit references are to this
Agreement, unless otherwise specified. All references to instruments, documents,
contracts, and agreements are references to such instruments, documents,
contracts, and agreements as the same may be amended, waived, and otherwise
modified from time to time, unless otherwise specified. The word "including"
shall mean "including but not limited to." Whenever any determination, consent,
or approval is to be made or given by the Collateral Trustee, such action shall
be in the Collateral Trustee's sole discretion unless otherwise specified in
this Agreement. This Agreement has been reviewed and negotiated by sophisticated
parties with access to legal counsel and shall not be construed against the
drafter.
(b) If any provision in this Agreement is held to be illegal, invalid,
not binding, or unenforceable, such provision shall be fully severable and this
Agreement shall be construed and enforced as if such illegal, invalid, not
binding, or unenforceable provision had never comprised a part of this
Agreement, and the remaining provisions shall remain in full force and effect.
(c) All warranties, representations, and covenants made by any Debtor
in any Security Document or in any certificate or other document delivered in
connection therewith shall be considered to have been relied upon by the
Collateral Trustee and the holders of Secured Obligations and shall survive the
issuance and delivery of any Master Debt Agreement and the advancing of any
Master Debt regardless of any investigation. The indemnities and other payment
obligations of the Debtors set forth in Section 5.3, and any provisions that
expressly so state, will survive the repayment of the Secured Obligations, the
resignation or removal of any Collateral Trustee, and the termination of the
Security Documents.
(d) Except as expressly stated otherwise in the Security Documents, the
obligations of each Debtor under the Security Documents are several and not
joint and several.
6.2 Amendments, etc. No amendment or waiver of any provision of this
Agreement, nor consent to any departure therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Debtors and the
Collateral Trustee acting with the approval of the Required Decision Group, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided that any amendment, waiver,
or consent that affect the rights or duties of the
-24-
Collateral Trustee under any Security Document or any other instrument or
document furnished pursuant thereto shall in addition require the consent of the
Collateral Trustee in its sole discretion; and provided further that any
amendment, waiver, or consent impairing the rights of the holders of Release
Master Debt under Section 3.3 shall in addition require the consent of the
Required Majority. Amendments, waivers, or consents made as required above shall
be binding on the Debtors, the Collateral Trustee, and all holders of Secured
Obligations, including any amendment, waiver, or consent that impairs the
rights, if any, of holders of certain Secured Obligations under Sections 2.5,
2.9, 3.2, or 4.4. Nothing herein is intended to impair the rights of the Debtors
and the holders of Secured Obligations from entering into documents and
agreements outside of the Security Agreements.
6.3 Binding Effect; Assignment. The Security Documents shall be binding
upon and inure to the benefit of the Debtors and the Collateral Trustee, and
their respective successors and permitted assigns. Except as expressly provided
in the Security Documents, the Security Documents shall not be construed so as
to confer any right or benefit upon non-parties other than the holders of the
Secured Obligations and their respective successors and permitted assigns. The
Debtors may not assign their rights or duties under the Security Documents. The
Collateral Trustee may assign its rights and duties under the Security Documents
in accordance with the terms of thereof. The rights and duties of the holders of
the Secured Obligations under the Security Documents shall be transferred with
the Secured Obligations in accordance with the terms of the applicable Master
Debt Agreements.
6.4 Notice, etc., under Security Documents.
(a) All notices and other communications provided for under the
Security Documents shall be in writing (including telecopy communication) and
mailed, telecopied, or delivered, (i) if to the Collateral Trustee, to its
address at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (telecopier number: (212)
657-3862), Attention: Xxxxxx Xxxxxxx, with a copy to Citicorp North America,
Inc., 0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 (telecopier number:
(000) 000-0000), Attention: The Xxxxxxxx Companies, Inc. Account Officer; (ii)
if to any holder of Secured Obligations other than the Collateral Trustee, at
the address specified for such holder of Secured Obligations under the
applicable Master Debt Agreement (and the Company shall provide updated
information regarding such notice addresses to the Collateral Trustee promptly
upon any change thereof), (iii) if to the Company or any Debtor, to the Company
at Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxxx 00000 (telecopier number:
(000) 000-0000), Attention: Xxxxx X. Xxxxx; or (iv) with respect to any of the
foregoing, at such other address as shall be designated by such Person in a
written notice to the Collateral Trustee and the Company. All such notices and
communications shall, when mailed or telecopied, be
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effective when received in the mail or sent by telecopier, except that notices
and communications to the Collateral Trustee shall not be effective until
received by the Collateral Trustee.
(b) The Collateral Trustee shall deliver to each holder of Secured
Obligations and to the Company, promptly upon receipt thereof, duplicates or
copies of all notices, requests, and other instruments received by the
Collateral Trustee under or pursuant to the Security Documents, to the extent
that the same shall not have been furnished pursuant thereto to such holder of
Secured Obligations.
(c) For the purposes of the Security Documents, the Collateral
Trustee may give notices with respect to any holders of Secured Obligations that
are part of any Class of Master Debt having an agent or trustee with general
administrative responsibilities for such Class of Master Debt by providing
notice to such agent or trustee, and such notice shall be deemed effective for
all such holders of Secured Obligations upon receipt by such agent or trustee.
6.5 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
6.6 Waiver of Jury Trial. THE DEBTORS AND THE COLLATERAL TRUSTEE, AND
EACH HOLDER OF SECURED OBLIGATIONS, HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF THE SECURITY DOCUMENTS
OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY.
6.7 Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED
ON THE SECURITY DOCUMENTS, OR ARISING OUT OF ANY SECURITY DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF THE COLLATERAL TRUSTEE, THE HOLDERS OF SECURED OBLIGATIONS, OR ANY
DEBTOR IN CONNECTION WITH THE SECURITY DOCUMENTS MAY BE BROUGHT AND MAINTAINED
IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
COLLATERAL TRUSTEE'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH DEBTOR IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR NOTICES
SPECIFIED IN SECTION 6.4. EACH DEBTOR HEREBY
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EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT
THAT ANY DEBTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF
ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION, OR OTHERWISE) WITH
RESPECT TO ITSELF OR ITS PROPERTY, SUCH DEBTOR HEREBY IRREVOCABLY WAIVES TO THE
FULLEST EXTENT PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER THE SECURITY DOCUMENTS.
6.8 Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which counterparts, when so executed and delivered, shall be deemed to
be an original and all of which counterparts, taken together, shall constitute
but one and the same Agreement.
[the remainder of this page is intentionally blank]
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EXECUTED as of the date first above written.
COLLATERAL TRUSTEE:
CITIBANK, N.A.,
as Collateral Trustee
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Signature Page to Collateral Trust Agreement
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DEBTORS:
THE XXXXXXXX COMPANIES, INC.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Treasurer
Signature Page to Collateral Trust Agreement
[SUBSIDIARIES]
Collateral Trust Agreement executed by the following Xxxxxxxx entities:
Black Marlin Pipeline Company
-------------------------------------------------------------
Gas Supply, L.L.C.
-------------------------------------------------------------
Xxxxxx Pipeline Company
-------------------------------------------------------------
Mapco, Inc.
-------------------------------------------------------------
MAPL Investments, Inc.
-------------------------------------------------------------
Memphis Generation, L.L.C.
-------------------------------------------------------------
North Padre Island Spindown, Inc.
-------------------------------------------------------------
The Xxxxxxxx Companies, Inc.
-------------------------------------------------------------
WFS Enterprises, Inc.
-------------------------------------------------------------
WFS-Liquids Company
-------------------------------------------------------------
WFS-NGL Pipeline Company Inc.
-------------------------------------------------------------
WFS-Offshore Gathering Company
-------------------------------------------------------------
Xxxxxxxx Alaska Air Cargo Properties, L.L.C.
-------------------------------------------------------------
Xxxxxxxx Alaska Petroleum, Inc.
-------------------------------------------------------------
Xxxxxxxx Alaska Pipeline Company, L.L.C.
-------------------------------------------------------------
Xxxxxxxx Bio-Energy, L.L.C.
-------------------------------------------------------------
Xxxxxxxx Energy Services, L.L.C.
-------------------------------------------------------------
Xxxxxxxx Ethanol Services, Inc.
-------------------------------------------------------------
Xxxxxxxx Express, Inc. [AK]
-------------------------------------------------------------
Xxxxxxxx Express, Inc. [DE]
-------------------------------------------------------------
Xxxxxxxx Field Services Company
-------------------------------------------------------------
Xxxxxxxx Field Services Group, Inc.
-------------------------------------------------------------
Xxxxxxxx Field Services-Gulf Coast Company, L.P.
-------------------------------------------------------------
Xxxxxxxx Gas Processing-Wamsutter Company
-------------------------------------------------------------
Xxxxxxxx Gas Processing Company
-------------------------------------------------------------
Xxxxxxxx Generating Memphis, LLC
-------------------------------------------------------------
Xxxxxxxx Generation Company - Xxxxxxxx
-------------------------------------------------------------
Xxxxxxxx Memphis Terminal, Inc.
-------------------------------------------------------------
Xxxxxxxx Merchant Services Company, Inc.
-------------------------------------------------------------
Xxxxxxxx Midstream Natural Gas Liquids, Inc.
-------------------------------------------------------------
Xxxxxxxx Mid-South Pipelines, LLC
-------------------------------------------------------------
Xxxxxxxx Natural Gas Liquids, Inc.
-------------------------------------------------------------
Xxxxxxxx Olefins Feedstock Pipelines, L.L.C.
-------------------------------------------------------------
Xxxxxxxx Olefins, L.L.C.
-------------------------------------------------------------
Xxxxxxxx Petroleum Pipeline Systems, Inc.
-------------------------------------------------------------
Xxxxxxxx Refining & Marketing, L.L.C.
-------------------------------------------------------------
Worthington Generation, L.L.C.
-------------------------------------------------------------
Schedule 1
to Collateral Trust Agreement
MASTER DEBT AGREEMENTS
1. That Credit Agreement dated as of July 31, 2002 (as amended, modified,
supplemented or restated from time to time), by and among the Company together
with Citicorp USA, Inc., as agent and collateral agent, Bank of America N. A. as
syndication agent, Citibank, N.A. and Bank of America N.A. as issuing bank,
Xxxxxxx Xxxxx Xxxxxx Inc. as L/C Arranger, and the banks named therein.
2. The Company; Northwest Pipeline Corporation, a Delaware corporation;
Transcontinental Gas Pipe Line Corporation, a Delaware corporation; and Texas
Gas Transmission Corporation, a Delaware corporation, as the borrowers, have
entered into a Credit Agreement dated July 25, 2000, as amended, together with
the banks named therein, and The Chase Manhattan Bank and Commerzbank AG as
co-syndication agents, and Credit Lyonnais New York Branch as documentation
agent and Citibank, N.A., as agent, and Xxxxxxx Xxxxx Xxxxxx, as Arranger.
3 Indenture between MAPCO, Inc., as Issuer, and Bankers Trust Company, as
Trustee dated March 31, 1990.
4 Indenture between Transco Energy Company, as Issuer, and The Bank of
New York, as Trustee, dated May 1, 1990.
All documents, instruments, agreements, certificates and notices at any time
executed and/or delivered in connection with any of the foregoing Master Debt
Agreements.
