Exhibit 4.11
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TRUST AGREEMENT
Dated as of April 3, 2000
between
Owner Participant
and
WILMINGTON TRUST COMPANY,
Owner Trustee
Assorted Railroad Tank Cars and Covered ▇▇▇▇▇▇ Cars
GATX Rail Trust No. 2000-1
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS...................................................................... 3
Section 1.1 Definitions.............................................. 3
Section 1.2 Interpretation........................................... 3
ARTICLE II
AUTHORITY; DECLARATION OF TRUST.................................................. 3
Section 2.1 Authority to Execute and Perform Various Documents....... 3
Section 2.2 Declaration of Trust..................................... 4
ARTICLE III
DISTRIBUTIONS AND PAYMENTS....................................................... 4
Section 3.1 Payments to the Indenture Trustee........................ 4
Section 3.2 Payments to the Owner Trustee; Other Parties............. 4
Section 3.3 Certain Distributions to the Owner Participant........... 5
Section 3.4 Excepted Property........................................ 5
Section 3.5 Method of Payment........................................ 5
ARTICLE IV
CERTAIN DUTIES OF THE OWNER TRUSTEE.............................................. 5
Section 4.1 Notice of Certain Events................................. 5
Section 4.2 Action Upon Instructions................................. 6
Section 4.3 Indemnification.......................................... 6
Section 4.4 No Duties Except as Specified............................ 6
Section 4.5 No Action Except Under Specified
Agreements or Instructions............................... 7
Section 4.6 Tax Returns; Records..................................... 7
Section 4.7 Absence of Certain Duties................................ 7
Section 4.8 Furnishing of Documents.................................. 8
ARTICLE V
THE OWNER TRUSTEE................................................................ 8
Section 5.1 Acceptance of Trusts and Duties.......................... 8
Section 5.2 No Representations or Warranties as
to Equipment or Documents................................ 9
Section 5.3 No Segregation of Moneys; No Interest.................... 9
Section 5.4 Reliance; Advice of Counsel.............................. 9
Section 5.5 Not Acting in Individual Capacity........................10
ARTICLE VI
INDEMNIFICATION..................................................................10
Section 6.1 Indemnification of Trust Company.........................10
Section 6.2 Expenses.................................................11
ARTICLE VII
TERMINATION OF TRUST AGREEMENT...................................................12
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Section 7.1 Termination of Trust Agreement...........................12
Section 7.2 Termination at Option of the Owner Participant...........12
ARTICLE VIII
SUCCESSOR OWNER TRUSTEES, CO-OWNER TRUSTEES
AND SEPARATE OWNER TRUSTEES......................................................13
Section 8.1 Resignation of the Owner Trustee;
Appointment of Successor.................................13
Section 8.2 Additional and Separate Trustees.........................14
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS.......................................................16
Section 9.1 Supplements and Amendments...............................16
ARTICLE X
MISCELLANEOUS....................................................................16
Section 10.1 No Legal Title to Trust Estate in
the Owner Participant....................................16
Section 10.2 Sale of Accepted Equipment by
the Owner Trustee is Binding.............................16
Section 10.3 Notices..................................................16
Section 10.4 Severability.............................................17
Section 10.5 Separate Counterparts....................................17
Section 10.6 Waivers, etc.............................................17
Section 10.7 Successors and Assigns...................................17
Section 10.8 Transfer of Owner Participant's Interest.................17
Section 10.9 Actions of the Owner Participants........................17
Section 10.10 Headings; Table of Contents..............................17
Section 10.11 Governing Law............................................18
Section 10.12 Benefit..................................................18
Section 10.13 Performance by the Owner Participant.....................18
Section 10.14 Conflict with Operative Agreements.......................18
Section 10.15 Limitation on Owner Participant's Liability..............18
Section 10.16 Identification of Trust..................................18
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TRUST AGREEMENT
This Trust Agreement is entered into as of April 3, 2000 between
(the "Owner Participant"), and WILMINGTON TRUST COMPANY, (in its
individual capacity, "Trust Company," and otherwise not in its individual
capacity but solely as trustee hereunder, the "Owner Trustee"). In consideration
of the mutual agreements herein contained, the agreements contained in the other
Operative Agreements and the acceptance by Trust Company of the trusts hereby
created, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. The capitalized terms used in this Trust
Agreement have the meanings given in Appendix A unless otherwise defined herein
or unless the context otherwise requires. For all purposes hereof, the following
terms shall have the following meanings:
"Accepted Equipment" means all of the Accepted Units.
"Accepted Unit" means each Unit that has been purchased by the Owner
Trustee pursuant to the Participation Agreement and any Replacement Unit.
"Actual Knowledge" of Trust Company or the Owner Trustee means actual
knowledge of, including any written notices received by, a responsible officer
in the Corporate Trust Administration of Trust Company.
Section 1.2 Interpretation. Unless otherwise indicated, references in this
Trust Agreement to Sections, subsections, paragraphs and Appendices are to
Sections, subsections, paragraphs and Appendices of this Trust Agreement. The
terms "hereof," "herein," "hereby," "hereto" and "hereunder" refer to this Trust
Agreement, taken as a whole. References to a given agreement or instrument are
references to such agreement or instrument as originally entered into, as
modified, amended, supplemented and restated through the date as of which such
reference is made.
ARTICLE II
AUTHORITY; DECLARATION OF TRUST
Section 2.1 Authority to Execute and Perform Various Documents. The Owner
Participant hereby authorizes and directs the Owner Trustee to, and the Owner
Trustee agrees for the benefit of the Owner Participant that it will, execute
and deliver the Participation Agreement, on the Closing Date, upon receipt of
the confirmation by the Owner Participant pursuant to Section 2.4 of the
Participation Agreement, execute and deliver the Operative Agreements
contemplated by the Participation Agreement to be executed and delivered by the
Owner Trustee on the Closing Date, in the respective forms thereof in which
delivered by the Owner Participant to the Owner Trustee for execution and
delivery, and to take the other actions contemplated to be taken by the Owner
Trustee on the Closing Date in Section 2 of the Participation Agreement, execute
and deliver any other agreement, instrument or certificate contemplated by the
Operative Agreements as the Owner Participant from time to time may direct in
writing, subject to the terms of this Trust Agreement, exercise the rights (upon
written instructions received from the Owner Participant) and perform the duties
of the Owner Trustee under each of the documents,
agreements, instruments and certificates referred to in this Section 2.1 as set
forth in such documents, agreements, instruments and certificates, and subject
to the terms of this Trust Agreement, take such other action in connection with
the foregoing as the Owner Participant may from time to time direct in writing.
Section 2.2 Declaration of Trust. The Trust Company hereby declares that
it will hold as Owner Trustee all estate, right, title and interest of the Owner
Trustee in and to the Accepted Equipment and the Owner Trustee Agreements, and
any other property contributed by the Owner Participant pursuant to the terms of
any of the Operative Agreements, including without limitation all amounts of
Rent, insurance proceeds and requisition, indemnity or other payments of any
kind, but specifically excluding Excepted Property (collectively, the "Trust
Estate"), upon the trusts set forth herein and for the use and benefit of the
Owner Participant as sole beneficiary, subject, however, to the provisions of
and the Lien created by the Indenture.
ARTICLE III
DISTRIBUTIONS AND PAYMENTS
Section 3.1 Payments to the Indenture Trustee. Until the Lien of the
Indenture shall have been discharged pursuant to the terms thereof, all Basic
Rent, Supplemental Rent, insurance proceeds and requisition or other payments of
any kind (other than payments constituting Excepted Property and other than
payments received from the Indenture Trustee) for or with respect to any
Accepted Unit payable to the Owner Trustee shall be payable directly to the
Indenture Trustee for distribution in accordance with the provisions of the
Indenture, and if any such amount or payment is received by the Owner Trustee,
such amount or payment upon receipt thereof shall be paid over to the Indenture
Trustee without deduction, set-off or adjustment of any kind for distribution in
accordance with the provisions of the Indenture.
Section 3.2 Payments to the Owner Trustee; Other Parties. Any payment of
the type referred to in Section 3.1 (other than payments constituting Excepted
Property) received by the Owner Trustee after the Indenture shall have been
discharged pursuant to the terms thereof, any payment received from the
Indenture Trustee other than as specified in Section 3.4 and any other amount
received as part of the Trust Estate and for the application or distribution of
which no provision is made herein shall be distributed forthwith upon receipt by
the Owner Trustee in the following order of priority: first, so much of such
payment as shall be required to reimburse the Owner Trustee for any expenses not
otherwise reimbursed as to which the Owner Trustee is entitled to be so
reimbursed pursuant to the provisions hereof shall be retained by the Owner
Trustee; second, so much of the remainder for which provision as to the
application thereof is contained in the Lease, any of the other Operative
Agreements or any of the other Owner Trustee Agreements shall be applied and
distributed in accordance with the terms of the Lease, such other Operative
Agreement or such other Owner Trustee Agreement, as the case may be; and third,
the balance, if any, shall be paid to the Owner Participant.
Section 3.3 Certain Distributions to the Owner Participant. All amounts
from time to time distributable by the Indenture Trustee to the Owner
Participant pursuant to the terms of the Indenture shall, if paid to the Owner
Trustee, be distributed by the Owner Trustee to the Owner Participant.
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Section 3.4 Excepted Property. Anything in this Trust Agreement to the
contrary notwithstanding, any amounts or payments constituting Excepted Property
received by the Owner Trustee shall be paid promptly by the Owner Trustee to the
Person to whom such amounts or payments are payable pursuant to the terms of the
Operative Agreements.
Section 3.5 Method of Payment.
(a) All amounts payable to the Owner Participant or to the Indenture
Trustee pursuant to this Trust Agreement shall be paid by the Owner Trustee, if
to the Owner Participant, by transferring such amount in immediately available
funds to the account of the Owner Participant specified in Schedule 2 to the
Participation Agreement or, if to the Indenture Trustee, in the manner specified
in the Indenture. The Owner Trustee shall pay such amounts on the day received,
or on the next succeeding Business Day if the funds to be so paid shall not have
been received by the Owner Trustee by 1:00 p.m. New York time, provided that the
Owner Trustee shall use reasonable efforts to invest overnight in Specified
Investments at the direction and for the benefit of the Owner Participant all
funds received by it at or later than 1:00 p.m. New York time.
(b) Notwithstanding the foregoing, the Owner Trustee will pay, if so
requested by the Owner Participant in writing, any or all amounts in immediately
available funds payable by the Owner Trustee hereunder to the Owner Participant
either by crediting such amount or amounts to an account or accounts maintained
by the Owner Participant with Trust Company, by payment to such account at such
financial institution as the Owner Participant may from time to time direct in
writing or by mailing an official bank check or checks in such amount or amounts
payable to the Owner Participant at such address as the Owner Participant may
from time to time designate in writing.
ARTICLE IV
CERTAIN DUTIES OF THE OWNER TRUSTEE
Section 4.1 Notice of Certain Events. In the event that the Owner Trustee
shall have Actual Knowledge of any Lease Default, Lease Event of Default,
Indenture Default, Indenture Event of Default or Event of Loss, the Owner
Trustee shall give prompt telephonic notice thereof (promptly confirmed in
writing) to the Owner Participant, the Lessee and the Indenture Trustee unless
such Lease Default, Lease Event of Default, Indenture Default, Indenture Event
of Default or Event of Loss, as the case may be, has been remedied before the
giving of such notice and the Owner Trustee has Actual Knowledge that such Lease
Default, Lease Event of Default, Indenture Default, Indenture Event of Default
or Event of Loss has been so remedied. Subject to the terms of Section 4.3, the
Owner Trustee shall take or refrain from taking such action with respect
thereto, not inconsistent with the provisions of the Operative Agreements, as
the Owner Trustee shall be instructed in writing by the Owner Participant.
Section 4.2 Action Upon Instructions. Subject to the terms of Sections 4.1
and 4.3, upon the written instructions at any time and from time to time of the
Owner Participant, the Owner Trustee will take such of the following actions as
may be specified in such instructions: give such notice or direction or exercise
such right, remedy or power under the Owner Trustee Agreements with respect
thereto or to any Accepted Equipment, including, without limitation,
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the right to transfer, assign or convey the Owner Trustee's interest in the
Owner Trustee Agreements or any Accepted Unit, or take such other action with
respect to the Owner Trustee Agreements or any Accepted Unit as shall be
specified in such instructions; and after the expiration or earlier termination
of the Lease with respect to any Accepted Unit, convey all of the Owner
Trustee's right, title and interest in and to such Accepted Unit to the Owner
Participant or for such amount, on such terms and to such purchaser or
purchasers as shall be designated in such instructions, or net lease such
Accepted Unit as designated in such instructions; provided, however, that if
such instructions have not been delivered to the Owner Trustee prior to the
expiration of one year following such expiration or earlier termination of the
Lease, the Owner Trustee shall transfer title to such right, title and interest
to the Owner Participant.
Section 4.3 Indemnification. The Owner Trustee shall not be required to
take or refrain from taking any action under Section 4.1 or 4.2 (other than the
actions specified in the first sentence of Sections 3.1 and 4.1 and the last
sentence of Section 4.4) unless the Owner Trustee shall have been indemnified,
in manner and form reasonably satisfactory to the Owner Trustee, against any
liability, fee, cost or expense (including, without limitation, reasonable
attorneys' fees and expenses) which may be incurred or charged in connection
therewith, other than any such liability, fee, cost or expense arising as a
result of any action or circumstance for which the Owner Trustee is answerable
or accountable pursuant to the third sentence of Section 5.1. The Owner Trustee
shall not be required to take any action under any Operative Agreement or any
Owner Trustee Agreement (other than the actions specified in the first sentence
of Section 4.1 or in the second sentence of Section 4.4) if the Owner Trustee
reasonably shall determine, or shall have been advised by counsel, that such
action is likely to result in unindemnified personal liability to the Owner
Trustee or is contrary to the terms hereof or of any documents contemplated
hereby to which the Owner Trustee is a party, or otherwise contrary to law, and
the Owner Trustee in such case shall deliver promptly to the Owner Participant
written notice of the basis of its refusal to act.
Section 4.4 No Duties Except as Specified. The Owner Trustee shall not
have any duty or obligation to manage, control, use, make any payment in respect
of, register, record, insure, inspect, sell, dispose of or otherwise deal with
any Accepted Unit or any other part of the Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, any Owner Trustee
Agreement or any of the other Operative Agreements, except as expressly provided
by the terms of this Trust Agreement, the Indenture or the Owner Trustee
Agreements or in written instructions from the Owner Participant received
pursuant to Section 4.1 or 4.2; and no implied duties or obligations shall be
read into this Trust Agreement against the Owner Trustee. Notwithstanding and
without limiting the foregoing, Trust Company agrees that it will promptly
(without any right to indemnification hereunder) take all action necessary to
discharge any Lessor's Lien attributable to Trust Company on any part of the
Trust Estate or Indenture Estate. Trust Company agrees to indemnify, protect,
save and keep harmless the Owner Participant from and against any loss, cost or
expense (including reasonable legal fees and expenses) incurred by the Owner
Participant as a result of the imposition or enforcement of any such Lessor's
Lien against the Accepted Units, any interest herein or on the Trust Estate or
the Indenture Estate resulting from the Lessor's Liens attributable to Trust
Company.
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Section 4.5 No Action Except Under Specified Agreements or Instructions.
The Owner Trustee shall have no right, power or authority to, and the Owner
Trustee agrees that it will not, manage, control, use, sell, dispose of or
otherwise deal with any Accepted Unit or any other part of the Trust Estate
except as expressly provided by the terms of this Trust Agreement, expressly
required by the terms of any Owner Trustee Agreement or expressly directed or
authorized in written instructions from the Owner Participant pursuant to
Section 4.1 or 4.2.
Section 4.6 Tax Returns; Records. The Owner Trustee shall be responsible
for the keeping of all appropriate books and records relating to the receipt and
disbursement of all money which it may receive or be entitled to hereunder or
under any agreement contemplated hereby. The Owner Trustee agrees at the expense
of the Lessee to file an application with the Internal Revenue Service for a
taxpayer identification number with respect to the trust created by this Trust
Agreement. The Owner Participant shall be responsible for causing to be prepared
all income tax returns required to be filed by the Owner Participant. The Owner
Trustee shall be responsible for causing to be prepared, at the request of the
Owner Participant and the expense of the Lessee, all income tax returns required
to be filed with respect to the trusts created hereby and shall execute and file
such returns. The Owner Trustee and the Owner Participant, upon request, will
furnish each other with all such information as may be reasonably required in
connection with the preparation of such tax returns; provided that the Owner
Trustee shall send a completed copy of such return to the Owner Participant not
more than 60 nor less than 30 days prior to the due date of the return (provided
that the Owner Trustee shall have timely received all necessary information to
complete and deliver to the Owner Participant such return). The Owner Trustee
shall keep copies of all returns delivered to or filed by it.
Section 4.7 Absence of Certain Duties. Except in accordance with written
instructions furnished pursuant to Sections 4.1 and 4.2, and except as expressly
provided in any Owner Trustee Agreement, and without limiting the generality of
Section 4.4, the Owner Trustee shall not have any duty to file, record or
deposit any Operative Agreement or Owner Trustee Agreement, including without
limitation this Trust Agreement, or any other document, or to maintain any such
filing, recording or deposit, or to refile, re-record or redeposit any such
document, except that the Owner Trustee shall, upon written request by the
Lessee or the Owner Participant, sign and file such documents as Lessee or the
Owner Participant prepares as necessary to maintain the filing and recordation
for the Lease, any Lease Supplement, the Indenture and any Indenture Supplement
in the name of the Owner Trustee with the STB pursuant to 49 U.S.C. (S)11301 of
the Interstate Commerce Act or Registrar General of Canada pursuant to Section
90 of the Railway Act of Canada, or as otherwise required under applicable law,
and to the extent that such documents for that purpose are supplied by the
Lessee pursuant to any of the Operative Agreements, timely submit any and all
such documents and reports with respect to the Accepted Units which may from
time to time be required by the STB, the AAR, or any other authority having
jurisdiction, obtain insurance with respect to any Accepted Unit or to effect or
maintain any such insurance, other than to receive and promptly forward to the
Owner Participant any notices, policies, certificates or binders furnished to
the Owner Trustee by the Lessee or its insurance brokers, maintain or ▇▇▇▇ any
Accepted Unit, pay or discharge any tax, assessment or other governmental
charge, or any Lien or encumbrance of any kind, owing with respect to or
assessed or levied against any part of the Trust Estate, except as provided in
Sections 4.4 or 5.1 hereof, and Section 6.3 of the Participation Agreement
confirm, verify, investigate or inquire into the failure to receive any reports
or financial statements of the Lessee,
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inspect the Accepted Equipment at any time, or ascertain or inquire as to the
performance or observance of any of the covenants of the Lessee or any other
Person under any Operative Agreement or Owner Trustee Agreement with respect to
any Accepted Unit or any other part of the Trust Estate or manage, control, use,
sell, dispose of or otherwise deal with any Accepted Unit or any other part of
the Trust Estate, or any part thereof, except as provided in Sections 3.5(a) or
4.5 hereof.
Section 4.8 Furnishing of Documents. The Owner Trustee will furnish to the
Owner Participant, promptly upon receipt thereof, duplicates or copies of all
reports, notices, requests, demands, opinions, certificates, financial
statements and any other instruments furnished to the Owner Trustee under any
Operative Agreement or any Owner Trustee Agreement, unless the Owner Trustee
shall have determined that the same already has been furnished to the Owner
Participant.
ARTICLE V
THE OWNER TRUSTEE
Section 5.1 Acceptance of Trusts and Duties. Trust Company accepts the
trusts hereby created and agrees to perform the same on the terms of this Trust
Agreement. Trust Company also agrees to disburse all moneys actually received by
it constituting part of the Trust Estate pursuant to the terms of this Trust
Agreement. Trust Company shall not be answerable or accountable under any
circumstances except for its own willful misconduct or gross negligence
(including, without limitation, in connection with any activities of the Owner
Trustee in violation of Section 4.5), in the case of the breach or inaccuracy of
any of its representations or warranties contained in any Operative Agreement
given expressly in its individual capacity and not in its capacity as a trustee
hereunder, as arising from its failure to perform obligations expressly
undertaken by it in the penultimate and last sentence of Section 4.4 hereof or
expressly undertaken by it in its individual capacity under the Participation
Agreement, for any Taxes based on or measured by any fees, commissions or
compensation received by it for acting as Owner Trustee in connection with any
of the transactions contemplated by the Operative Agreements or for its failure
to disburse or invest funds actually received by it in accordance with the terms
hereof or the Lease or for any negligence or willful misconduct of the Owner
Trustee arising out of its obligations under Sections 4.1 or 4.4.
Section 5.2 No Representations or Warranties as to Equipment or Documents.
(a) NEITHER TRUST COMPANY NOR THE OWNER TRUSTEE MAKES ANY
REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE DESIGN,
OPERATION OR CONDITION OF ANY UNIT OR ANY PART THEREOF, THE MERCHANTABILITY
THEREOF OR THE FITNESS THEREOF FOR ANY PARTICULAR PURPOSE, TITLE TO ANY UNIT OR
ANY PART THEREOF, THE QUALITY OF THE MATERIALS OR WORKMANSHIP THEREOF OR
CONFORMITY THEREOF TO SPECIFICATIONS, OR THE PRESENCE OR ABSENCE OF ANY LATENT
OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, except that Trust Company hereby
represents and warrants that on the Closing Date for such Accepted Unit, the
Owner Trustee shall have received whatever title thereto was conveyed to it by
the Lessee and (ii) while a part of the Trust Estate, such Accepted Unit shall
be free and clear of Lessor's Liens attributable to it.
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(b) Neither Trust Company nor the Owner Trustee makes any
representation or warranty as to the validity or enforceability of any Operative
Agreement, or as to the correctness of any statement therein, except to the
extent that any such representation, warranty or statement is expressly made
therein or in any written certificate delivered pursuant thereto by the Owner
Trustee or Trust Company and except that Trust Company hereby represents and
warrants that this Trust Agreement has been duly executed and delivered by Trust
Company and each of the Owner Trustee Agreements has been or will be executed
and delivered by officers of the Owner Trustee who are or will be duly
authorized to execute and deliver documents on its behalf, and that each of this
Agreement and each of the other Owner Trustee Agreements constitutes (assuming
the due authorization, execution, and delivery of this Agreement and each such
other agreement by the other parties thereto) the legal, valid and binding
obligation of the Trust Company (or the Owner Trustee if expressly stated
therein) enforceable against it in accordance with its terms except as limited
by bankruptcy, insolvency, reorganization or other similar laws or equitable
principles of general application to or affecting the enforcement of creditors
rights generally from time to time in effect.
Section 5.3 No Segregation of Moneys; No Interest. Except as required by
Section 2.4 of the Participation Agreement, moneys received by the Owner Trustee
hereunder need not be segregated in any manner except to the extent required by
law, and such moneys may be deposited under such general conditions as may be
prescribed by law, and the Owner Trustee shall not be liable for any interest
thereon.
Section 5.4 Reliance; Advice of Counsel. The Owner Trustee shall not incur
any liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper reasonably believed by it in good faith to be genuine and
reasonably believed by it in good faith to be signed by the proper party or
parties. Any request, direction, order or demand of the Owner Participant or the
Lessee mentioned herein or in any other Operative Agreement to which the Owner
Trustee is a party shall be sufficiently evidenced by an Officer's Certificate
of the Owner Participant or the Lessee, as the case may be. The Owner Trustee
may accept in good faith a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the manner of ascertainment of
which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on an Officer's Certificate of the relevant party as to
such fact or matter, and such Officer's Certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken by
it in good faith in reliance thereon. In the administration of the trusts
hereunder, the Owner Trustee may execute any of the trusts or powers hereof and
perform its powers and duties hereunder directly or through agents or attorneys,
and may consult with counsel, accountants and other skilled persons to be
selected and employed by it (other than persons regularly employed by it), and
the Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the written advice or opinion within the
scope of the competence of any such counsel, accountants or other skilled
persons and not contrary to this Trust Agreement, except for the use of due care
in the appointment of counsel, accountants or other skilled persons.
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Section 5.5 Not Acting in Individual Capacity. Trust Company is entering
into this Agreement and accepting the trust created hereby in its individual
capacity. Otherwise, except as provided in this Trust Agreement and in the other
Operative Agreements, Trust Company agrees to act solely as trustee hereunder
and not in its individual capacity; and all Persons having any claim against the
Owner Trustee by reason of the transactions contemplated by the Operative
Agreements or the Owner Trustee Agreements shall look only to the Trust Estate
(or a part thereof, as the case may be) for payment or satisfaction thereof,
except as specifically provided in this Trust Agreement and except to the extent
the Owner Trustee otherwise shall agree in any Owner Trustee Agreement.
ARTICLE VI
INDEMNIFICATION
Section 6.1 Indemnification of Trust Company. The Owner Participant agrees
to assume liability for, and to indemnify and hold harmless Trust Company
against and from any and all liabilities, obligations, losses, damages, taxes
(excluding any taxes, fees or other charges payable by Trust Company or measured
by any compensation received by Trust Company for its services hereunder),
penalties, claims, actions, suits, proceedings, costs, expenses and
disbursements of any kind and nature whatsoever, including, without limitation,
the reasonable fees and expenses of counsel (collectively, "Trust Expenses")
which may be imposed on, incurred by or asserted against Trust Company whether
or not also indemnified by any other Person (provided, however, that to the
extent Trust Company shall have actually received any payment in the nature of
an indemnity payment from any such other Person relating to a claim hereunder,
Trust Company shall not be entitled to the amount of any such payment pursuant
to this Section 6.1) in any way relating to or arising out of the administration
of the Trust Estate or the action or inaction of Trust Company hereunder or
under the other Operative Agreements, any Accepted Equipment or any part
thereof, the Operative Agreements or any of them, or the enforcement by Trust
Company of any of its rights under the Operative Agreements, or the design,
manufacture, financing, refinancing, installation, acceptance, rejection,
ownership, delivery, nondelivery, lease, sublease, possession, control, use,
operation, condition, modification, servicing, maintenance, repair, improvement,
replacement, sale, return or other disposition of the Accepted Equipment, any
Accepted Unit or any part thereof including, without limitation, (A) any
inadequacy or deficiency or defect therein, including latent defects, whether or
not discoverable or any claim based on negligence or arising from any violation
of law or for strict liability in tort or any claim for patent, trademark or
copyright tort or any claim for patent, trademark or copyright infringement, and
(B) any loss or damage to property or the environment or injury or death to any
Person; except only that the Owner Participant shall not be required to
indemnify Trust Company for Trust Expenses arising or resulting from any of the
matters described in the last sentence of Section 5.1; provided that the Owner
Participant shall be liable under this Section 6.1 only to the extent that the
Owner Trustee is indemnified by the Lessee pursuant to Section 7 of the
Participation Agreement (with the exception of the limitations to Lessee's
indemnification obligations set forth in Sections 7.1(c)(ii), 7.1(c)(iv) (to the
extent relating to any such transfer by the Owner Participant or transfer by the
Owner Trustee at the direction of the Owner Participant), 7.2(d)(i), 7.2(d)(iv)
(to the extent relating to any such transfer by the Owner Participant or
transfer by the Owner Trustee at the direction of the Owner Participant) and
7.2(d)(vi) (when the Owner Trustee is acting on instructions from the Owner
Participant) of the Participation Agreement); provided, further, that before
asserting its right to
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indemnification pursuant to this Section 6.1, the Owner Trustee shall first
demand its corresponding right to indemnification, if any, pursuant to Section 7
of the Participation Agreement (but need not exhaust any or all remedies
available thereunder), and the Owner Participant shall have the right to pursue
any such remedies against the Lessee which are not pursued by the Owner Trustee.
The indemnities contained in this Section 6.1 shall survive the termination of
this Trust Agreement. To secure the foregoing indemnities, the Owner Trustee
shall be entitled to apply any amount otherwise distributable to the Owner
Participant pursuant to Section 3.2 against any such indemnity which has not
been paid when due. The indemnities contained in this Section 6.1 extend to
Trust Company only and shall not be construed as indemnities of the Trust
Estate. The payor of any indemnity under this Section 6.1 shall be subrogated to
any right of the Person indemnified in respect of the matter as to which such
indemnity was paid.
Section 6.2 Expenses. The Owner Participant shall pay, or reimburse the
Owner Trustee for, all reasonable expenses of the Owner Trustee, including,
without limitation, the reasonable expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and duties under the
Operative Agreements, unless and to the extent that the Owner Trustee otherwise
receives payment or reimbursement pursuant to any Operative Agreement, whether
or not the transactions contemplated hereby are consummated; provided that the
Owner Participant shall have no obligation hereunder to the extent Lessee is not
obligated to pay such amounts pursuant to Section 2.5 of the Participation
Agreement. The Owner Trustee agrees to look first to the Lessee for such payment
pursuant to Section 2.5 of the Participation Agreement. Except as provided
herein, the Owner Trustee and Trust Company shall have no right to compensation
with respect to the transactions contemplated by the Operative Agreements.
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
Section 7.1 Termination of Trust Agreement.
(a) Subject to the terms of the Participation Agreement, the
Indenture and Section 7.2, this Trust Agreement and the trusts created hereby
shall terminate and the Trust Estate shall be distributed to the Owner
Participant, and this Trust Agreement shall be of no further force or effect,
upon the earlier of the sale or other final disposition by the Owner Trustee of
all property constituting part of the Trust Estate and the final distribution by
the Owner Trustee of all moneys or other property or proceeds constituting part
of the Trust Estate in accordance with the terms of Article III and one hundred
ten (110) years after the earlier execution of this Trust Agreement by either
party hereto, but if any rights, privileges or options hereunder shall be or
become valid under applicable law for a period subsequent to one hundred ten
(110) years after the earlier execution of this Trust Agreement by either party
hereto (or, without limiting the generality of the foregoing, if legislation
shall become effective providing for the validity or permitting the effective
grant of such rights, privileges and options for a period in gross exceeding the
period for which such rights, privileges and options are hereinabove stated to
extend and be valid), then such rights, privileges or options shall not
terminate as aforesaid but shall extend to and continue in effect, but only if
such nontermination and extension shall then be
9
valid under applicable law, until such time as the same shall cease to be valid
under applicable law.
(b) Except as expressly provided in Section 7.2, the Owner
Participant shall not be entitled to revoke or terminate this Trust Agreement or
the trust created hereby. Except as otherwise provided herein, the Owner
Participant may not withdraw any of the Trust Estate until the Lien of the
Indenture on the Trust Estate shall have been discharged pursuant to the terms
thereof.
Section 7.2 Termination at Option of the Owner Participant. The provisions
of Section 7.1 notwithstanding, this Trust Agreement and the trusts created
hereby shall terminate and the Trust Estate shall be distributed to the Owner
Participant, and this Trust Agreement shall be of no further force and effect,
upon the election of the Owner Participant by notice to the Owner Trustee to
revoke the trusts created hereby; provided that, in addition to the giving of
such notice, the Owner Participant, with the cooperation of the Owner Trustee,
shall execute and deliver such written agreements and instruments and take such
actions as shall be necessary in order to cause the succession of the Owner
Participant to all the rights, title, interests, duties and liabilities of the
Owner Trustee under the Operative Agreements (other than obligations
attributable to any gross negligence or willful misconduct of Trust Company or
any breach by the Owner Trustee of its obligations under the Operative
Agreements); provided, however, that until the Lien of the Indenture on the
Trust Estate shall have been discharged pursuant to the terms thereof the Owner
Participant may not revoke such trusts without the consent of the Indenture
Trustee. The written agreements and instruments referred to in the preceding
sentence shall be reasonably satisfactory in form and substance to the Owner
Trustee and shall release the Owner Trustee from all further obligations of the
Owner Trustee hereunder and under the agreements and other instruments mentioned
in the preceding sentence.
ARTICLE VII
SUCCESSOR OWNER TRUSTEES, CO-OWNER TRUSTEES
AND SEPARATE OWNER TRUSTEES
Section 8.1 Resignation of the Owner Trustee; Appointment of Successor.
(a) The Owner Trustee may resign as the Owner Trustee at any time
without cause by giving at least thirty (30) days' prior written notice to the
Owner Participant, the Indenture Trustee and the Lessee, such resignation to be
effective on the acceptance of appointment by a successor to the Owner Trustee
under paragraph (b) of this Section 8.1. In addition, the Owner Participant at
any time may remove the Owner Trustee without cause by an instrument in writing
delivered to the Owner Trustee, the Indenture Trustee and the Lessee, such
removal to be effective upon the acceptance of appointment by a successor to the
Owner Trustee under paragraph (b) of this Section 8.1. In case of the
resignation or removal of the Owner Trustee, the Owner Participant may appoint a
successor to the Owner Trustee by an instrument in writing, signed by the Owner
Participant. If a successor to the Owner Trustee shall not have been appointed
within thirty (30) days after the giving of written notice of such resignation
or the delivery of the written instrument with respect to such removal, the
Owner Trustee or the Owner Participant may apply to any court of competent
jurisdiction to appoint a successor to the Owner Trustee to act until such time,
if any, as a successor shall have been appointed as above provided
10
in this Section 8.1. Any successor to the Owner Trustee so appointed by such
court shall immediately and without further act be superseded by any successor
to the Owner Trustee appointed as above provided in this Section 8.1.
(b) Any successor Owner Trustee, however appointed, shall execute and
deliver to the predecessor Owner Trustee an instrument accepting such
appointment and shall give the Owner Participant, the Indenture Trustee and
Lessee written notice of such acceptance. Upon the execution and delivery of
such instrument, such successor Owner Trustee, without further act, shall become
vested with all the estates, properties, rights, powers, duties and trusts of
the predecessor Owner Trustee in the trusts hereunder with like effect as if
originally named a trustee herein; provided, however, that upon the written
request of such successor Owner Trustee, such predecessor Owner Trustee shall
execute and deliver an instrument transferring to such successor Owner Trustee,
upon the trusts herein expressed, all the estates, properties, rights, powers,
duties and trusts of such predecessor trustee as the Owner Trustee hereunder,
and such predecessor trustee shall duly assign, transfer, deliver and pay over
to such successor Owner Trustee all moneys or other property then held by such
predecessor trustee as the Owner Trustee upon the trusts herein expressed. Upon
the appointment of any successor Owner Trustee hereunder, the predecessor Owner
Trustee, pursuant to written instructions of the Owner Participant, will execute
all documents and take all reasonable action within its control in order to
cause title to the Trust Estate to be transferred to the successor Owner
Trustee.
(c) Any successor Owner Trustee, however appointed, shall be a bank
or trust company incorporated and doing business within the United States of
America and having a combined capital and surplus of at least $100,000,000, if
there be such an institution willing, able and legally qualified to perform the
duties of the Owner Trustee hereunder upon reasonable or customary terms.
(d) Any corporation into which the Owner Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Owner Trustee shall be
a party, or any corporation to which substantially all the corporate trust
business of the Owner Trustee may be transferred, shall be, subject to
compliance with the terms of paragraph (c) of this Section 8.1, the Owner
Trustee under this Trust Agreement without further act; provided, that such
corporation shall in no event be the Indenture Trustee.
Section 8.2 Additional and Separate Trustees.
--------------------------------
(a) If the Owner Trustee or the Owner Participant shall conclude that
it is necessary or prudent in order to conform to the law of any jurisdiction in
which all or any part of the Trust Estate shall be situated, or to make or
defend any claim or bring or defend any suit with respect to the Trust Estate or
any Operative Agreement, or pursuant to advice of counsel satisfactory to it, or
if the Owner Trustee shall have been instructed to do so by the Owner
Participant, the Owner Trustee shall appoint another Person to act as additional
or separate trustee for all or any part of the Trust Estate with such property,
title, right, power or duty of the Owner Trustee as the Owner Trustee and the
Owner Participant may determine. In case any such additional trustee or separate
trustee shall resign or be removed, all the assets, property, rights, powers or
duties of such additional trustee or separate trustee, as the case may be, so
far as
11
permitted by any applicable law, shall vest in and be exercised by a new
successor to such additional trustee, appointed in the manner otherwise provided
in this Trust Agreement.
(b) In the event that either the Owner Participant or the Owner
Trustee shall determine to appoint another Person as additional or separate
trustee, the Owner Trustee and the Owner Participant shall execute and deliver
an agreement supplemental hereto, and all other instruments and agreements
necessary or proper to constitute another bank or trust company, or one or more
Persons approved by the Owner Trustee and the Owner Participant, either to act
as an additional trustee or trustees of all or any part of the Trust Estate,
jointly with the Owner Trustee, or to act as separate trustee or trustees of all
or any part of the Trust Estate, in any such case with such powers of the Owner
Trustee as may be provided in such agreement supplemental hereto, and to vest in
such bank, trust company or Person as such additional trustee or separate
trustee, as the case may be, any property, title, right or power of the Owner
Trustee deemed necessary or proper by the Owner Trustee or the Owner
Participant, subject to the remaining provisions of this Section 8.2. The Owner
Trustee may execute, deliver and perform any deed, conveyance, assignment or
other instrument in writing as may be required by an additional trustee or
separate trustee for more fully and certainly vesting in and confirming to such
person any property, title, right or power which, by the terms of such agreement
supplemental hereto, are expressed to be conveyed or conferred to or upon such
additional trustee or separate trustee, and the Owner Participant shall, upon
the Owner Trustee's request, join therein and execute, acknowledge and deliver
the same.
(c) Every additional trustee and separate trustee hereunder shall, to
the extent permitted by law, be appointed to act and the Owner Trustee shall
act, subject to the following provisions and conditions:
(i) all powers, duties, obligations and rights conferred or
imposed upon the Owner Trustee in respect of the receipt, custody,
investment and payment of moneys, shall be exercised solely by the
Owner Trustee;
(ii) all other rights, powers, duties, and obligations conferred
or imposed upon the Owner Trustee shall be conferred or imposed upon
and exercised or performed by the Owner Trustee and such additional
trustee or trustees and separate trustee or trustees jointly, except
to the extent that under any law of the jurisdiction in which any
particular act or acts are to be performed by the Owner Trustee shall
be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the
holding of title to the Trust Estate in any such jurisdiction) shall
be exercised and performed by such additional trustee or trustees or
separate trustee or trustees;
(iii) no power hereby given to, or which may be exercised by,
any such additional trustee or separate trustee shall be exercised
hereunder by such additional trustee or separate trustee except
jointly with, or with the consent of, the Owner Trustee; and
12
(iv) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder.
(d) If at any time the Owner Trustee and the Owner Participant shall
deem it no longer necessary or prudent in order to conform to any applicable law
or shall be advised by its counsel that it is no longer necessary or prudent in
the interest of the Owner Trustee and the Owner Participant to maintain the
appointment of such additional or separate trustee as provided herein, the Owner
Trustee and the Owner Participant shall execute and deliver any agreement
supplemental hereto and all other instruments and agreements necessary or proper
to remove any such additional or separate trustee. The Owner Participant, at any
time, by an instrument in writing may remove any separate trustee or additional
trustee.
(e) Any additional trustee or separate trustee may at any time by an
instrument in writing constitute the Owner Trustee its agent or attorney-in-fact
with full power and authority, to the extent which may be authorized by
applicable law, to do all acts and things and exercise all discretion which it
is authorized or permitted to do or exercise, for and in its behalf and in its
name. In case any such additional trustee or separate trustee shall die, become
incapable of acting, resign or be removed, all the assets, property, rights,
powers, trusts, duties and obligations of such additional trustee or separate
trustee, as the case may be, so far as permitted by law, shall vest in and be
exercised by the Owner Trustee without necessity of any act by any party and
without the appointment of a new successor to such additional or separate
trustee, unless and until a successor is appointed in the manner provided in
this Section 8.2.
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS
Section 9.1 Supplements and Amendments. Subject to Section 9.05 of the
Indenture, at the written request of the Owner Participant (and subject to the
provisions of Sections 6.5 and 6.6 of the Participation Agreement), this Trust
Agreement and each other Owner Trustee Agreement shall be amended by a written
instrument signed by Trust Company and the Owner Participant; provided, however,
if in the reasonable opinion of Trust Company any instrument required to be so
executed adversely affects any right, duty or liability of, or immunity or
indemnity in favor of, Trust Company under this Trust Agreement or any of the
documents contemplated hereby to which it is a party, or would cause or result
in any conflict with or breach of any term, condition or provision of, or
default under, its charter documents or by-laws, Trust Company in its reasonable
discretion may decline to execute such instrument, unless the Trust Company is
indemnified therefor under Section 4.3, as determined by the Trust Company in
its reasonable discretion.
ARTICLE X
MISCELLANEOUS
Section 10.1 No Legal Title to Trust Estate in the Owner Participant. The
Owner Participant shall not have legal title to any part of the Trust Estate. No
transfer, by operation of law or otherwise, of any right, title and interest of
the Owner Participant in and to the Trust Estate or hereunder, or insolvency,
dissolution or other termination of the Owner Participant, shall operate to
terminate this Trust Agreement or the trusts created hereby or entitle any
13
successor or transferee to an accounting or to the transfer to it of legal title
to any part of the Trust Estate.
Section 10.2 Sale of Accepted Equipment by the Owner Trustee is Binding.
Any sale, transfer or other conveyance of any Accepted Unit or part thereof by
the Owner Trustee made pursuant to the terms of this Trust Agreement or the
Lease shall bind the Owner Participant and shall be effective to transfer or
convey all right, title and interest of the Owner Trustee and the Owner
Participant in and to such Accepted Unit or part thereof, as the case may be. No
purchaser or other grantee shall be required to inquire as to the authorization,
necessity, expediency or regularity of such sale or conveyance or as to the
application of any sale or other proceeds with respect thereto by the Owner
Trustee.
Section 10.3 Notices. Unless otherwise expressly specified or permitted by
the terms hereof, all notices hereunder shall be given as provided in Section
10.4 of the Participation Agreement.
Section 10.4 Severability. If any term or provision of this Trust
Agreement is invalid or unenforceable in any jurisdiction, such term or
provision shall be ineffective to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable any remaining
terms and provisions hereof, and any such invalidity or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 10.5 Separate Counterparts. This Trust Agreement may be executed
by the parties hereto in any number of counterparts and by the parties hereto on
separate counterparts, each of which when so executed and delivered shall be an
original, and all of which shall together constitute but one and the same
instrument.
Section 10.6 Waivers, etc. No term or provision hereof may be changed,
waived, discharged or terminated orally, but may be changed, waived, discharged
or terminated by an instrument in writing, and any waiver of the terms hereof
shall be effective only in the specific instance and for the specific purpose
given.
Section 10.7 Successors and Assigns. This Trust Agreement, including the
terms and provisions hereof, shall be binding upon the Owner Participant and
Trust Company or the Owner Trustee, whichever is applicable pursuant to the
terms hereof, and their respective successors and assigns, and inure to the
benefit of the Owner Participant and Trust Company or the Owner Trustee,
whichever is applicable pursuant to the terms hereof, and their respective
successors and permitted assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by the Owner
Participant shall bind the successors and assigns of the Owner Participant.
Section 10.8 Transfer of Owner Participant's Interest. All provisions of
Section 6.1 of the Participation Agreement shall (with the same force and effect
as if set forth in full, mutatis mutandis, in this Section 10.8) be applicable
to any assignment, conveyance or other transfer by the Owner Participant of any
of its right, title or interest in and to the Trust Estate or this Trust
Agreement or any other Operative Agreement.
14
Section 10.9 Actions of the Owner Participants. If at any time prior to
the termination of this Trust Agreement there is more than one Owner
Participant, then during such time, if any action is required to be taken by the
Owner Participant, such action shall be taken by or on behalf of all Owner
Participants and whenever any direction, authorization, approval, consent,
instruction or other action is permitted to be given or taken by the Owner
Participant it shall be given or taken only upon such percentage agreement of
the Owner Participants as all Owner Participants may instruct the Owner Trustee.
Section 10.10 Headings; Table of Contents. The division of this Trust
Agreement into sections, the provision of a table of contents and the insertion
of headings are for convenience of reference only and shall not affect the
construction or interpretation hereof.
Section 10.11 Governing Law. The terms of this Trust Agreement and the
rights and obligations of the parties hereto shall be governed by, and construed
in accordance with, the laws of the State of Delaware applicable to contracts
made and to be performed entirely within such state.
Section 10.12 Benefit. Nothing herein, whether express or implied, shall
be construed to give any Person other than the Owner Trustee, the Indenture
Trustee and the Owner Participant any legal or equitable right, remedy or claim
under or in respect of this Trust Agreement.
Section 10.13 Performance by the Owner Participant. Any obligation of
Trust Company or the Owner Trustee hereunder or under any other Operative
Agreement or other document contemplated hereby, may be performed by the Owner
Participant and any such performance shall not be construed as a revocation of
the trusts created hereby.
Section 10.14 Conflict with Operative Agreements. If this Trust Agreement
(or any instructions given by the Owner Participant pursuant hereto) shall
require that any action be taken with respect to any matter or any other
Operative Agreement (or any instruction duly given in accordance with the terms
thereof) shall require that a different action be taken with respect to such
matter, and such actions shall be mutually exclusive, the provisions of this
Trust Agreement, in respect thereof, shall control.
Section 10.15 Limitation on Owner Participant's Liability. The Owner
Participant shall not have any liability for the performance of this Trust
Agreement, except as expressly set forth herein.
Section 10.16 Identification of Trust. The trust created hereunder may be
referred to for convenience as GATX Rail Trust No. 2000-1.
* * *
15
In Witness Whereof, the parties hereto have each caused this Trust
Agreement to be duly executed and delivered as of the day and year first above
written.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
WILMINGTON TRUST COMPANY
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
16
---------------------------------------------
TRUST AGREEMENT
(GATX Rail Trust No. 2000-2)
Dated as of April 3, 2000
between
Owner Participant
and
WILMINGTON TRUST COMPANY,
Owner Trustee
Assorted Railroad Tank Cars and Covered ▇▇▇▇▇▇ Cars
GATX Rail Trust No. 2000-2
---------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS....................................................................... 3
Section 1.1 Definitions.......................................................... 3
Section 1.2 Interpretation....................................................... 3
ARTICLE II
AUTHORITY; DECLARATION OF TRUST................................................... 3
Section 2.1 Authority to Execute and Perform Various Documents................... 3
Section 2.2 Declaration of Trust................................................. 4
ARTICLE III
DISTRIBUTIONS AND PAYMENTS........................................................ 4
Section 3.1 Payments to the Indenture Trustee.................................... 4
Section 3.2 Payments to the Owner Trustee; Other Parties......................... 4
Section 3.3 Certain Distributions to the Owner Participant....................... 5
Section 3.4 Excepted Property.................................................... 5
Section 3.5 Method of Payment.................................................... 5
ARTICLE IV
CERTAIN DUTIES OF THE OWNER TRUSTEE............................................... 5
Section 4.1 Notice of Certain Events............................................. 5
Section 4.2 Action Upon Instructions............................................. 6
Section 4.3 Indemnification...................................................... 6
Section 4.4 No Duties Except as Specified........................................ 6
Section 4.5 No Action Except Under Specified Agreements or Instructions.......... 7
Section 4.6 Tax Returns; Records................................................. 7
Section 4.7 Absence of Certain Duties............................................ 7
Section 4.8 Furnishing of Documents.............................................. 8
ARTICLE V
THE OWNER TRUSTEE................................................................. 8
Section 5.1 Acceptance of Trusts and Duties.................................. 8
Section 5.2 No Representations or Warranties as
to Equipment or Documents........................................ 9
Section 5.3 No Segregation of Moneys; No Interest............................ 9
Section 5.4 Reliance; Advice of Counsel...................................... 9
Section 5.5 Not Acting in Individual Capacity................................ 10
ARTICLE VI
INDEMNIFICATION................................................................... 10
Section 6.1 Indemnification of Trust Company................................. 10
Section 6.2 Expenses......................................................... 11
ARTICLE VII
TERMINATION OF TRUST AGREEMENT.................................................... 12
-i-
Section 7.1 Termination of Trust Agreement........................................ 12
Section 7.2 Termination at Option of the Owner Participant........................ 12
ARTICLE VIII
SUCCESSOR OWNER TRUSTEES, CO-OWNER TRUSTEES AND SEPARATE OWNER
TRUSTEES........................................................................... 13
Section 8.1 Resignation of the Owner Trustee; Appointment of Successor.......... 13
Section 8.2 Additional and Separate Trustees..................................... 14
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS......................................................... 16
Section 9.1 Supplements and Amendments........................................... 16
ARTICLE X
MISCELLANEOUS...................................................................... 16
Section 10.1 No Legal Title to Trust Estate in
the Owner Participant................................................ 16
Section 10.2 Sale of Accepted Equipment by
the Owner Trustee is Binding......................................... 16
Section 10.3 Notices.............................................................. 16
Section 10.4 Severability......................................................... 17
Section 10.5 Separate Counterparts................................................ 17
Section 10.6 Waivers, etc......................................................... 17
Section 10.7 Successors and Assigns............................................... 17
Section 10.8 Transfer of Owner Participant's Interest............................. 17
Section 10.9 Actions of the Owner Participants.................................... 17
Section 10.10 Headings; Table of Contents.......................................... 17
Section 10.11 Governing Law........................................................ 18
Section 10.12 Benefit.............................................................. 18
Section 10.13 Performance by the Owner Participant................................. 18
Section 10.14 Conflict with Operative Agreements................................... 18
Section 10.15 Limitation on Owner Participant's Liability.......................... 18
Section 10.16 Identification of Trust.............................................. 18
-ii-
TRUST AGREEMENT
(GATX Rail Trust No. 2000-2)
This Trust Agreement (GATX Rail Trust No. 2000-2) is entered into as of
April 3, 2000 between (the "Owner
Participant"), and WILMINGTON TRUST COMPANY, (in its individual capacity, "Trust
Company," and otherwise not in its individual capacity but solely as trustee
hereunder, the "Owner Trustee"). In consideration of the mutual agreements
herein contained, the agreements contained in the other Operative Agreements and
the acceptance by Trust Company of the trusts hereby created, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. The capitalized terms used in this Trust
-----------
Agreement have the meanings given in Appendix A unless otherwise defined herein
----------
or unless the context otherwise requires. For all purposes hereof, the
following terms shall have the following meanings:
"Accepted Equipment" means all of the Accepted Units.
"Accepted Unit" means each Unit that has been purchased by the Owner
Trustee pursuant to the Participation Agreement and any Replacement Unit.
"Actual Knowledge" of Trust Company or the Owner Trustee means actual
knowledge of, including any written notices received by, a responsible officer
in the Corporate Trust Administration of Trust Company.
Section 1.2 Interpretation. Unless otherwise indicated, references in
--------------
this Trust Agreement to Sections, subsections, paragraphs and Appendices are to
Sections, subsections, paragraphs and Appendices of this Trust Agreement. The
terms "hereof," "herein," "hereby," "hereto" and "hereunder" refer to this Trust
Agreement, taken as a whole. References to a given agreement or instrument are
references to such agreement or instrument as originally entered into, as
modified, amended, supplemented and restated through the date as of which such
reference is made.
ARTICLE II
AUTHORITY; DECLARATION OF TRUST
Section 2.1 Authority to Execute and Perform Various Documents. The
--------------------------------------------------
Owner Participant hereby authorizes and directs the Owner Trustee to, and the
Owner Trustee agrees for the benefit of the Owner Participant that it will,
execute and deliver the Participation Agreement, on the Closing Date, upon
receipt of the confirmation by the Owner Participant pursuant to Section 2.4 of
the Participation Agreement, execute and deliver the Operative Agreements
contemplated by the Participation Agreement to be executed and delivered by the
Owner Trustee on the Closing Date, in the respective forms thereof in which
delivered by the Owner Participant to the Owner Trustee for execution and
delivery, and to take the other actions contemplated to be taken by the Owner
Trustee on the Closing Date in Section 2 of the Participation Agreement, execute
and deliver any other agreement, instrument or certificate contemplated by the
Operative Agreements as the Owner Participant from time to time may direct in
writing, subject to the
terms of this Trust Agreement, exercise the rights (upon written instructions
received from the Owner Participant) and perform the duties of the Owner Trustee
under each of the documents, agreements, instruments and certificates referred
to in this Section 2.1 as set forth in such documents, agreements, instruments
and certificates, and subject to the terms of this Trust Agreement, take such
other action in connection with the foregoing as the Owner Participant may from
time to time direct in writing.
Section 2.2 Declaration of Trust. The Trust Company hereby declares
--------------------
that it will hold as Owner Trustee all estate, right, title and interest of the
Owner Trustee in and to the Accepted Equipment and the Owner Trustee Agreements,
and any other property contributed by the Owner Participant pursuant to the
terms of any of the Operative Agreements, including without limitation all
amounts of Rent, insurance proceeds and requisition, indemnity or other payments
of any kind, but specifically excluding Excepted Property (collectively, the
"Trust Estate"), upon the trusts set forth herein and for the use and benefit of
the Owner Participant as sole beneficiary, subject, however, to the provisions
of and the Lien created by the Indenture.
ARTICLE III
DISTRIBUTIONS AND PAYMENTS
Section 3.1 Payments to the Indenture Trustee. Until the Lien of the
---------------------------------
Indenture shall have been discharged pursuant to the terms thereof, all Basic
Rent, Supplemental Rent, insurance proceeds and requisition or other payments of
any kind (other than payments constituting Excepted Property and other than
payments received from the Indenture Trustee) for or with respect to any
Accepted Unit payable to the Owner Trustee shall be payable directly to the
Indenture Trustee for distribution in accordance with the provisions of the
Indenture, and if any such amount or payment is received by the Owner Trustee,
such amount or payment upon receipt thereof shall be paid over to the Indenture
Trustee without deduction, set-off or adjustment of any kind for distribution in
accordance with the provisions of the Indenture.
Section 3.2 Payments to the Owner Trustee; Other Parties. Any payment
--------------------------------------------
of the type referred to in Section 3.1 (other than payments constituting
Excepted Property) received by the Owner Trustee after the Indenture shall have
been discharged pursuant to the terms thereof, any payment received from the
Indenture Trustee other than as specified in Section 3.4 and any other amount
received as part of the Trust Estate and for the application or distribution of
which no provision is made herein shall be distributed forthwith upon receipt by
the Owner Trustee in the following order of priority: first, so much of such
-----
payment as shall be required to reimburse the Owner Trustee for any expenses not
otherwise reimbursed as to which the Owner Trustee is entitled to be so
reimbursed pursuant to the provisions hereof shall be retained by the Owner
Trustee; second, so much of the remainder for which provision as to the
------
application thereof is contained in the Lease, any of the other Operative
Agreements or any of the other Owner Trustee Agreements shall be applied and
distributed in accordance with the terms of the Lease, such other Operative
Agreement or such other Owner Trustee Agreement, as the case may be; and third,
-----
the balance, if any, shall be paid to the Owner Participant.
2
Section 3.3 Certain Distributions to the Owner Participant. All amounts
----------------------------------------------
from time to time distributable by the Indenture Trustee to the Owner
Participant pursuant to the terms of the Indenture shall, if paid to the Owner
Trustee, be distributed by the Owner Trustee to the Owner Participant.
Section 3.4 Excepted Property. Anything in this Trust Agreement to the
-----------------
contrary notwithstanding, any amounts or payments constituting Excepted Property
received by the Owner Trustee shall be paid promptly by the Owner Trustee to the
Person to whom such amounts or payments are payable pursuant to the terms of the
Operative Agreements.
Section 3.5 Method of Payment.
-----------------
(a) All amounts payable to the Owner Participant or to the Indenture
Trustee pursuant to this Trust Agreement shall be paid by the Owner Trustee, if
to the Owner Participant, by transferring such amount in immediately available
funds to the account of the Owner Participant specified in Schedule 2 to the
----------
Participation Agreement or, if to the Indenture Trustee, in the manner specified
in the Indenture. The Owner Trustee shall pay such amounts on the day received,
or on the next succeeding Business Day if the funds to be so paid shall not have
been received by the Owner Trustee by 1:00 p.m. New York time, provided that the
--------
Owner Trustee shall use reasonable efforts to invest overnight in Specified
Investments at the direction and for the benefit of the Owner Participant all
funds received by it at or later than 1:00 p.m. New York time.
(b) Notwithstanding the foregoing, the Owner Trustee will pay, if so
requested by the Owner Participant in writing, any or all amounts in immediately
available funds payable by the Owner Trustee hereunder to the Owner Participant
either by crediting such amount or amounts to an account or accounts maintained
by the Owner Participant with Trust Company, by payment to such account at such
financial institution as the Owner Participant may from time to time direct in
writing or by mailing an official bank check or checks in such amount or
amounts payable to the Owner Participant at such address as the Owner
Participant may from time to time designate in writing.
ARTICLE IV
CERTAIN DUTIES OF THE OWNER TRUSTEE
Section 4.1 Notice of Certain Events. In the event that the Owner
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Trustee shall have Actual Knowledge of any Lease Default, Lease Event of
Default, Indenture Default, Indenture Event of Default or Event of Loss, the
Owner Trustee shall give prompt telephonic notice thereof (promptly confirmed in
writing) to the Owner Participant, the Lessee and the Indenture Trustee unless
such Lease Default, Lease Event of Default, Indenture Default, Indenture Event
of Default or Event of Loss, as the case may be, has been remedied before the
giving of such notice and the Owner Trustee has Actual Knowledge that such Lease
Default, Lease Event of Default, Indenture Default, Indenture Event of Default
or Event of Loss has been so remedied. Subject to the terms of Section 4.3, the
Owner Trustee shall take or refrain from taking such action with respect
thereto, not inconsistent with the provisions of the Operative Agreements, as
the Owner Trustee shall be instructed in writing by the Owner Participant.
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Section 4.2 Action Upon Instructions. Subject to the terms of Sections
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4.1 and 4.3, upon the written instructions at any time and from time to time of
the Owner Participant, the Owner Trustee will take such of the following actions
as may be specified in such instructions: give such notice or direction or
exercise such right, remedy or power under the Owner Trustee Agreements with
respect thereto or to any Accepted Equipment, including, without limitation, the
right to transfer, assign or convey the Owner Trustee's interest in the Owner
Trustee Agreements or any Accepted Unit, or take such other action with respect
to the Owner Trustee Agreements or any Accepted Unit as shall be specified in
such instructions; and after the expiration or earlier termination of the Lease
with respect to any Accepted Unit, convey all of the Owner Trustee's right,
title and interest in and to such Accepted Unit to the Owner Participant or for
such amount, on such terms and to such purchaser or purchasers as shall be
designated in such instructions, or net lease such Accepted Unit as designated
in such instructions; provided, however, that if such instructions have not been
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delivered to the Owner Trustee prior to the expiration of one year following
such expiration or earlier termination of the Lease, the Owner Trustee shall
transfer title to such right, title and interest to the Owner Participant.
Section 4.3 Indemnification. The Owner Trustee shall not be required to
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take or refrain from taking any action under Section 4.1 or 4.2 (other than the
actions specified in the first sentence of Sections 3.1 and 4.1 and the last
sentence of Section 4.4) unless the Owner Trustee shall have been indemnified,
in manner and form reasonably satisfactory to the Owner Trustee, against any
liability, fee, cost or expense (including, without limitation, reasonable
attorneys' fees and expenses) which may be incurred or charged in connection
therewith, other than any such liability, fee, cost or expense arising as a
result of any action or circumstance for which the Owner Trustee is answerable
or accountable pursuant to the third sentence of Section 5.1. The Owner Trustee
shall not be required to take any action under any Operative Agreement or any
Owner Trustee Agreement (other than the actions specified in the first sentence
of Section 4.1 or in the second sentence of Section 4.4) if the Owner Trustee
reasonably shall determine, or shall have been advised by counsel, that such
action is likely to result in unindemnified personal liability to the Owner
Trustee or is contrary to the terms hereof or of any documents contemplated
hereby to which the Owner Trustee is a party, or otherwise contrary to law, and
the Owner Trustee in such case shall deliver promptly to the Owner Participant
written notice of the basis of its refusal to act.
Section 4.4 No Duties Except as Specified. The Owner Trustee shall not
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have any duty or obligation to manage, control, use, make any payment in respect
of, register, record, insure, inspect, sell, dispose of or otherwise deal with
any Accepted Unit or any other part of the Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, any Owner Trustee
Agreement or any of the other Operative Agreements, except as expressly provided
by the terms of this Trust Agreement, the Indenture or the Owner Trustee
Agreements or in written instructions from the Owner Participant received
pursuant to Section 4.1 or 4.2; and no implied duties or obligations shall be
read into this Trust Agreement against the Owner Trustee. Notwithstanding and
without limiting the foregoing, Trust Company agrees that it will promptly
(without any right to indemnification hereunder) take all action necessary to
discharge any Lessor's Lien attributable to Trust Company on any part of the
Trust Estate or Indenture Estate. Trust Company agrees to indemnify, protect,
save and keep harmless the Owner Participant from and against any loss, cost or
expense (including reasonable legal fees and expenses) incurred by the Owner
Participant as a result of the imposition or enforcement of any
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such Lessor's Lien against the Accepted Units, any interest herein or on the
Trust Estate or the Indenture Estate resulting from the Lessor's Liens
attributable to Trust Company.
Section 4.5 No Action Except Under Specified Agreements or Instructions.
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The Owner Trustee shall have no right, power or authority to, and the Owner
Trustee agrees that it will not, manage, control, use, sell, dispose of or
otherwise deal with any Accepted Unit or any other part of the Trust Estate
except as expressly provided by the terms of this Trust Agreement, expressly
required by the terms of any Owner Trustee Agreement or expressly directed or
authorized in written instructions from the Owner Participant pursuant to
Section 4.1 or 4.2.
Section 4.6 Tax Returns; Records. The Owner Trustee shall be
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responsible for the keeping of all appropriate books and records relating to the
receipt and disbursement of all money which it may receive or be entitled to
hereunder or under any agreement contemplated hereby. The Owner Trustee agrees
at the expense of the Lessee to file an application with the Internal Revenue
Service for a taxpayer identification number with respect to the trust created
by this Trust Agreement. The Owner Participant shall be responsible for causing
to be prepared all income tax returns required to be filed by the Owner
Participant. The Owner Trustee shall be responsible for causing to be prepared,
at the request of the Owner Participant and the expense of the Lessee, all
income tax returns required to be filed with respect to the trusts created
hereby and shall execute and file such returns. The Owner Trustee and the Owner
Participant, upon request, will furnish each other with all such information as
may be reasonably required in connection with the preparation of such tax
returns; provided that the Owner Trustee shall send a completed copy of such
return to the Owner Participant not more than 60 nor less than 30 days prior to
the due date of the return (provided that the Owner Trustee shall have timely
received all necessary information to complete and deliver to the Owner
Participant such return). The Owner Trustee shall keep copies of all returns
delivered to or filed by it.
Section 4.7 Absence of Certain Duties. Except in accordance with
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written instructions furnished pursuant to Sections 4.1 and 4.2, and except as
expressly provided in any Owner Trustee Agreement, and without limiting the
generality of Section 4.4, the Owner Trustee shall not have any duty to file,
record or deposit any Operative Agreement or Owner Trustee Agreement, including
without limitation this Trust Agreement, or any other document, or to maintain
any such filing, recording or deposit, or to refile, re-record or redeposit any
such document, except that the Owner Trustee shall, upon written request by the
Lessee or the Owner Participant, sign and file such documents as Lessee or the
Owner Participant prepares as necessary to maintain the filing and recordation
for the Lease, any Lease Supplement, the Indenture and any Indenture Supplement
in the name of the Owner Trustee with the STB pursuant to 49 U.S.C. (S)11301 of
the Interstate Commerce Act or Registrar General of Canada pursuant to Section
90 of the Railway Act of Canada, or as otherwise required under applicable law,
and to the extent that such documents for that purpose are supplied by the
Lessee pursuant to any of the Operative Agreements, timely submit any and all
such documents and reports with respect to the Accepted Units which may from
time to time be required by the STB, the AAR, or any other authority having
jurisdiction, obtain insurance with respect to any Accepted Unit or to effect
or maintain any such insurance, other than to receive and promptly forward to
the Owner Participant any notices, policies, certificates or binders furnished
to the Owner Trustee by the Lessee or its insurance brokers, maintain or ▇▇▇▇
any Accepted Unit, pay or discharge any tax, assessment or other governmental
charge, or any Lien or encumbrance of any kind, owing with
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respect to or assessed or levied against any part of the Trust Estate, except as
provided in Sections 4.4 or 5.1 hereof, and Section 6.3 of the Participation
Agreement confirm, verify, investigate or inquire into the failure to receive
any reports or financial statements of the Lessee, inspect the Accepted
Equipment at any time, or ascertain or inquire as to the performance or
observance of any of the covenants of the Lessee or any other Person under any
Operative Agreement or Owner Trustee Agreement with respect to any Accepted Unit
or any other part of the Trust Estate or manage, control, use, sell, dispose of
or otherwise deal with any Accepted Unit or any other part of the Trust Estate,
or any part thereof, except as provided in Sections 3.5(a) or 4.5 hereof.
Section 4.8 Furnishing of Documents. The Owner Trustee will furnish to
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the Owner Participant, promptly upon receipt thereof, duplicates or copies of
all reports, notices, requests, demands, opinions, certificates, financial
statements and any other instruments furnished to the Owner Trustee under any
Operative Agreement or any Owner Trustee Agreement, unless the Owner Trustee
shall have determined that the same already has been furnished to the Owner
Participant.
ARTICLE V
THE OWNER TRUSTEE
Section 5.1 Acceptance of Trusts and Duties. Trust Company accepts the
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trusts hereby created and agrees to perform the same on the terms of this Trust
Agreement. Trust Company also agrees to disburse all moneys actually received
by it constituting part of the Trust Estate pursuant to the terms of this Trust
Agreement. Trust Company shall not be answerable or accountable under any
circumstances except for its own willful misconduct or gross negligence
(including, without limitation, in connection with any activities of the Owner
Trustee in violation of Section 4.5), in the case of the breach or inaccuracy
of any of its representations or warranties contained in any Operative Agreement
given expressly in its individual capacity and not in its capacity as a trustee
hereunder, as arising from its failure to perform obligations expressly
undertaken by it in the penultimate and last sentence of Section 4.4 hereof or
expressly undertaken by it in its individual capacity under the Participation
Agreement, for any Taxes based on or measured by any fees, commissions or
compensation received by it for acting as Owner Trustee in connection with any
of the transactions contemplated by the Operative Agreements or for its failure
to disburse or invest funds actually received by it in accordance with the terms
hereof or the Lease or for any negligence or willful misconduct of the Owner
Trustee arising out of its obligations under Sections 4.1 or 4.4.
Section 5.2 No Representations or Warranties as to Equipment or
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Documents.
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(a) NEITHER TRUST COMPANY NOR THE OWNER TRUSTEE MAKES ANY
REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE DESIGN,
OPERATION OR CONDITION OF ANY UNIT OR ANY PART THEREOF, THE MERCHANTABILITY
THEREOF OR THE FITNESS THEREOF FOR ANY PARTICULAR PURPOSE, TITLE TO ANY UNIT OR
ANY PART THEREOF, THE QUALITY OF THE MATERIALS OR WORKMANSHIP THEREOF OR
CONFORMITY THEREOF TO SPECIFICATIONS, OR THE PRESENCE OR ABSENCE OF ANY LATENT
OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, except that Trust Company hereby
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represents and warrants that on the Closing Date for such Accepted Unit, the
Owner Trustee shall have received whatever title thereto was conveyed to it by
the Lessee and (ii) while a part of the Trust Estate, such Accepted Unit shall
be free and clear of Lessor's Liens attributable to it.
(b) Neither Trust Company nor the Owner Trustee makes any
representation or warranty as to the validity or enforceability of any Operative
Agreement, or as to the correctness of any statement therein, except to the
extent that any such representation, warranty or statement is expressly made
therein or in any written certificate delivered pursuant thereto by the Owner
Trustee or Trust Company and except that Trust Company hereby represents and
warrants that this Trust Agreement has been duly executed and delivered by Trust
Company and each of the Owner Trustee Agreements has been or will be executed
and delivered by officers of the Owner Trustee who are or will be duly
authorized to execute and deliver documents on its behalf, and that each of this
Agreement and each of the other Owner Trustee Agreements constitutes (assuming
the due authorization, execution, and delivery of this Agreement and each such
other agreement by the other parties thereto) the legal, valid and binding
obligation of the Trust Company (or the Owner Trustee if expressly stated
therein) enforceable against it in accordance with its terms except as limited
by bankruptcy, insolvency, reorganization or other similar laws or equitable
principles of general application to or affecting the enforcement of creditors
rights generally from time to time in effect.
Section 5.3 No Segregation of Moneys; No Interest. Except as required
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by Section 2.4 of the Participation Agreement, moneys received by the Owner
Trustee hereunder need not be segregated in any manner except to the extent
required by law, and such moneys may be deposited under such general conditions
as may be prescribed by law, and the Owner Trustee shall not be liable for any
interest thereon.
Section 5.4 Reliance; Advice of Counsel. The Owner Trustee shall not
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incur any liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper reasonably believed by it in good faith to be genuine and
reasonably believed by it in good faith to be signed by the proper party or
parties. Any request, direction, order or demand of the Owner Participant or
the Lessee mentioned herein or in any other Operative Agreement to which the
Owner Trustee is a party shall be sufficiently evidenced by an Officer's
Certificate of the Owner Participant or the Lessee, as the case may be. The
Owner Trustee may accept in good faith a certified copy of a resolution of the
board of directors or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter the manner of
ascertainment of which is not specifically prescribed herein, the Owner Trustee
may for all purposes hereof rely on an Officer's Certificate of the relevant
party as to such fact or matter, and such Officer's Certificate shall constitute
full protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon. In the administration of the trusts
hereunder, the Owner Trustee may execute any of the trusts or powers hereof and
perform its powers and duties hereunder directly or through agents or attorneys,
and may consult with counsel, accountants and other skilled persons to be
selected and employed by it (other than persons regularly employed by it), and
the Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the written advice or opinion within the
scope of the competence of any such counsel,
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accountants or other skilled persons and not contrary to this Trust Agreement,
except for the use of due care in the appointment of counsel, accountants or
other skilled persons.
Section 5.5 Not Acting in Individual Capacity. Trust Company is
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entering into this Agreement and accepting the trust created hereby in its
individual capacity. Otherwise, except as provided in this Trust Agreement and
in the other Operative Agreements, Trust Company agrees to act solely as trustee
hereunder and not in its individual capacity; and all Persons having any claim
against the Owner Trustee by reason of the transactions contemplated by the
Operative Agreements or the Owner Trustee Agreements shall look only to the
Trust Estate (or a part thereof, as the case may be) for payment or satisfaction
thereof, except as specifically provided in this Trust Agreement and except to
the extent the Owner Trustee otherwise shall agree in any Owner Trustee
Agreement.
ARTICLE VI
INDEMNIFICATION
Section 6.1 Indemnification of Trust Company. The Owner Participant
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agrees to assume liability for, and to indemnify and hold harmless Trust Company
against and from any and all liabilities, obligations, losses, damages, taxes
(excluding any taxes, fees or other charges payable by Trust Company or measured
by any compensation received by Trust Company for its services hereunder),
penalties, claims, actions, suits, proceedings, costs, expenses and
disbursements of any kind and nature whatsoever, including, without limitation,
the reasonable fees and expenses of counsel (collectively, "Trust Expenses")
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which may be imposed on, incurred by or asserted against Trust Company whether
or not also indemnified by any other Person (provided, however, that to the
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extent Trust Company shall have actually received any payment in the nature of
an indemnity payment from any such other Person relating to a claim hereunder,
Trust Company shall not be entitled to the amount of any such payment pursuant
to this Section 6.1) in any way relating to or arising out of the
administration of the Trust Estate or the action or inaction of Trust Company
hereunder or under the other Operative Agreements, any Accepted Equipment or any
part thereof, the Operative Agreements or any of them, or the enforcement by
Trust Company of any of its rights under the Operative Agreements, or the
design, manufacture, financing, refinancing, installation, acceptance,
rejection, ownership, delivery, nondelivery, lease, sublease, possession,
control, use, operation, condition, modification, servicing, maintenance,
repair, improvement, replacement, sale, return or other disposition of the
Accepted Equipment, any Accepted Unit or any part thereof including, without
limitation, (A) any inadequacy or deficiency or defect therein, including latent
defects, whether or not discoverable or any claim based on negligence or arising
from any violation of law or for strict liability in tort or any claim for
patent, trademark or copyright tort or any claim for patent, trademark or
copyright infringement, and (B) any loss or damage to property or the
environment or injury or death to any Person; except only that the Owner
Participant shall not be required to indemnify Trust Company for Trust Expenses
arising or resulting from any of the matters described in the last sentence of
Section 5.1; provided that the Owner Participant shall be liable under this
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Section 6.1 only to the extent that the Owner Trustee is indemnified by the
Lessee pursuant to Section 7 of the Participation Agreement (with the exception
of the limitations to Lessee's indemnification obligations set forth in Sections
7.1(c)(ii), 7.1(c)(iv) (to the extent relating to any such transfer by the Owner
Participant or transfer by the Owner Trustee at the direction of the Owner
Participant), 7.2(d)(i), 7.2(d)(iv) (to the extent relating to any such
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transfer by the Owner Participant or transfer by the Owner Trustee at the
direction of the Owner Participant) and 7.2(d)(vi) (when the Owner Trustee is
acting on instructions from the Owner Participant) of the Participation
Agreement); provided, further, that before asserting its right to
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indemnification pursuant to this Section 6.1, the Owner Trustee shall first
demand its corresponding right to indemnification, if any, pursuant to Section 7
of the Participation Agreement (but need not exhaust any or all remedies
available thereunder), and the Owner Participant shall have the right to pursue
any such remedies against the Lessee which are not pursued by the Owner Trustee.
The indemnities contained in this Section 6.1 shall survive the termination of
this Trust Agreement. To secure the foregoing indemnities, the Owner Trustee
shall be entitled to apply any amount otherwise distributable to the Owner
Participant pursuant to Section 3.2 against any such indemnity which has not
been paid when due. The indemnities contained in this Section 6.1 extend to
Trust Company only and shall not be construed as indemnities of the Trust
Estate. The payor of any indemnity under this Section 6.1 shall be subrogated to
any right of the Person indemnified in respect of the matter as to which such
indemnity was paid.
Section 6.2 Expenses. The Owner Participant shall pay, or reimburse the
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Owner Trustee for, all reasonable expenses of the Owner Trustee, including,
without limitation, the reasonable expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and duties under the
Operative Agreements, unless and to the extent that the Owner Trustee otherwise
receives payment or reimbursement pursuant to any Operative Agreement, whether
or not the transactions contemplated hereby are consummated; provided that the
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Owner Participant shall have no obligation hereunder to the extent Lessee is not
obligated to pay such amounts pursuant to Section 2.5 of the Participation
Agreement. The Owner Trustee agrees to look first to the Lessee for such
payment pursuant to Section 2.5 of the Participation Agreement. Except as
provided herein, the Owner Trustee and Trust Company shall have no right to
compensation with respect to the transactions contemplated by the Operative
Agreements.
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
Section 7.1 Termination of Trust Agreement.
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(a) Subject to the terms of the Participation Agreement, the Indenture
and Section 7.2, this Trust Agreement and the trusts created hereby shall
terminate and the Trust Estate shall be distributed to the Owner Participant,
and this Trust Agreement shall be of no further force or effect, upon the
earlier of the sale or other final disposition by the Owner Trustee of all
property constituting part of the Trust Estate and the final distribution by the
Owner Trustee of all moneys or other property or proceeds constituting part of
the Trust Estate in accordance with the terms of Article III and one hundred ten
(110) years after the earlier execution of this Trust Agreement by either party
hereto, but if any rights, privileges or options hereunder shall be or become
valid under applicable law for a period subsequent to one hundred ten (110)
years after the earlier execution of this Trust Agreement by either party hereto
(or, without limiting the generality of the foregoing, if legislation shall
become effective providing for the validity or permitting the effective grant of
such rights, privileges and options for a period in gross exceeding the period
for which such rights, privileges and options are hereinabove stated
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to extend and be valid), then such rights, privileges or options shall not
terminate as aforesaid but shall extend to and continue in effect, but only if
such nontermination and extension shall then be valid under applicable law,
until such time as the same shall cease to be valid under applicable law.
(b) Except as expressly provided in Section 7.2, the Owner Participant
shall not be entitled to revoke or terminate this Trust Agreement or the trust
created hereby. Except as otherwise provided herein, the Owner Participant may
not withdraw any of the Trust Estate until the Lien of the Indenture on the
Trust Estate shall have been discharged pursuant to the terms thereof.
Section 7.2 Termination at Option of the Owner Participant. The
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provisions of Section 7.1 notwithstanding, this Trust Agreement and the trusts
created hereby shall terminate and the Trust Estate shall be distributed to the
Owner Participant, and this Trust Agreement shall be of no further force and
effect, upon the election of the Owner Participant by notice to the Owner
Trustee to revoke the trusts created hereby; provided that, in addition to the
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giving of such notice, the Owner Participant, with the cooperation of the Owner
Trustee, shall execute and deliver such written agreements and instruments and
take such actions as shall be necessary in order to cause the succession of the
Owner Participant to all the rights, title, interests, duties and liabilities of
the Owner Trustee under the Operative Agreements (other than obligations
attributable to any gross negligence or willful misconduct of Trust Company or
any breach by the Owner Trustee of its obligations under the Operative
Agreements); provided, however, that until the Lien of the Indenture on the
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Trust Estate shall have been discharged pursuant to the terms thereof the Owner
Participant may not revoke such trusts without the consent of the Indenture
Trustee. The written agreements and instruments referred to in the preceding
sentence shall be reasonably satisfactory in form and substance to the Owner
Trustee and shall release the Owner Trustee from all further obligations of the
Owner Trustee hereunder and under the agreements and other instruments mentioned
in the preceding sentence.
ARTICLE VII
SUCCESSOR OWNER TRUSTEES, CO-OWNER TRUSTEES
AND SEPARATE OWNER TRUSTEES
Section 8.1 Resignation of the Owner Trustee; Appointment of Successor.
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(a) The Owner Trustee may resign as the Owner Trustee at any time
without cause by giving at least thirty (30) days' prior written notice to the
Owner Participant, the Indenture Trustee and the Lessee, such resignation to be
effective on the acceptance of appointment by a successor to the Owner Trustee
under paragraph (b) of this Section 8.1. In addition, the Owner Participant at
any time may remove the Owner Trustee without cause by an instrument in writing
delivered to the Owner Trustee, the Indenture Trustee and the Lessee, such
removal to be effective upon the acceptance of appointment by a successor to the
Owner Trustee under paragraph (b) of this Section 8.1. In case of the
resignation or removal of the Owner Trustee, the Owner Participant may appoint a
successor to the Owner Trustee by an instrument in writing, signed by the Owner
Participant. If a successor to the Owner Trustee shall not have been appointed
within thirty (30) days after the giving of written notice of such resignation
or the delivery of the written instrument with respect to such removal, the
Owner Trustee or the Owner
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Participant may apply to any court of competent jurisdiction to appoint a
successor to the Owner Trustee to act until such time, if any, as a successor
shall have been appointed as above provided in this Section 8.1. Any successor
to the Owner Trustee so appointed by such court shall immediately and without
further act be superseded by any successor to the Owner Trustee appointed as
above provided in this Section 8.1.
(b) Any successor Owner Trustee, however appointed, shall execute and
deliver to the predecessor Owner Trustee an instrument accepting such
appointment and shall give the Owner Participant, the Indenture Trustee and
Lessee written notice of such acceptance. Upon the execution and delivery of
such instrument, such successor Owner Trustee, without further act, shall become
vested with all the estates, properties, rights, powers, duties and trusts of
the predecessor Owner Trustee in the trusts hereunder with like effect as if
originally named a trustee herein; provided, however, that upon the written
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request of such successor Owner Trustee, such predecessor Owner Trustee shall
execute and deliver an instrument transferring to such successor Owner Trustee,
upon the trusts herein expressed, all the estates, properties, rights, powers,
duties and trusts of such predecessor trustee as the Owner Trustee hereunder,
and such predecessor trustee shall duly assign, transfer, deliver and pay over
to such successor Owner Trustee all moneys or other property then held by such
predecessor trustee as the Owner Trustee upon the trusts herein expressed. Upon
the appointment of any successor Owner Trustee hereunder, the predecessor Owner
Trustee, pursuant to written instructions of the Owner Participant, will execute
all documents and take all reasonable action within its control in order to
cause title to the Trust Estate to be transferred to the successor Owner
Trustee.
(c) Any successor Owner Trustee, however appointed, shall be a bank or
trust company incorporated and doing business within the United States of
America and having a combined capital and surplus of at least $100,000,000, if
there be such an institution willing, able and legally qualified to perform the
duties of the Owner Trustee hereunder upon reasonable or customary terms.
(d) Any corporation into which the Owner Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Owner Trustee shall be
a party, or any corporation to which substantially all the corporate trust
business of the Owner Trustee may be transferred, shall be, subject to
compliance with the terms of paragraph (c) of this Section 8.1, the Owner
Trustee under this Trust Agreement without further act; provided, that such
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corporation shall in no event be the Indenture Trustee.
Section 8.2 Additional and Separate Trustees.
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(a) If the Owner Trustee or the Owner Participant shall conclude that
it is necessary or prudent in order to conform to the law of any jurisdiction in
which all or any part of the Trust Estate shall be situated, or to make or
defend any claim or bring or defend any suit with respect to the Trust Estate or
any Operative Agreement, or pursuant to advice of counsel satisfactory to it, or
if the Owner Trustee shall have been instructed to do so by the Owner
Participant, the Owner Trustee shall appoint another Person to act as additional
or separate trustee for all or any part of the Trust Estate with such property,
title, right, power or duty of the Owner Trustee as the Owner Trustee and the
Owner Participant may determine. In case any such
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additional trustee or separate trustee shall resign or be removed, all the
assets, property, rights, powers or duties of such additional trustee or
separate trustee, as the case may be, so far as permitted by any applicable law,
shall vest in and be exercised by a new successor to such additional trustee,
appointed in the manner otherwise provided in this Trust Agreement.
(b) In the event that either the Owner Participant or the Owner
Trustee shall determine to appoint another Person as additional or separate
trustee, the Owner Trustee and the Owner Participant shall execute and deliver
an agreement supplemental hereto, and all other instruments and agreements
necessary or proper to constitute another bank or trust company, or one or more
Persons approved by the Owner Trustee and the Owner Participant, either to act
as an additional trustee or trustees of all or any part of the Trust Estate,
jointly with the Owner Trustee, or to act as separate trustee or trustees of all
or any part of the Trust Estate, in any such case with such powers of the Owner
Trustee as may be provided in such agreement supplemental hereto, and to vest in
such bank, trust company or Person as such additional trustee or separate
trustee, as the case may be, any property, title, right or power of the Owner
Trustee deemed necessary or proper by the Owner Trustee or the Owner
Participant, subject to the remaining provisions of this Section 8.2. The Owner
Trustee may execute, deliver and perform any deed, conveyance, assignment or
other instrument in writing as may be required by an additional trustee or
separate trustee for more fully and certainly vesting in and confirming to such
person any property, title, right or power which, by the terms of such agreement
supplemental hereto, are expressed to be conveyed or conferred to or upon such
additional trustee or separate trustee, and the Owner Participant shall, upon
the Owner Trustee's request, join therein and execute, acknowledge and deliver
the same.
(c) Every additional trustee and separate trustee hereunder shall, to
the extent permitted by law, be appointed to act and the Owner Trustee shall
act, subject to the following provisions and conditions:
(i) all powers, duties, obligations and rights conferred or
imposed upon the Owner Trustee in respect of the receipt, custody,
investment and payment of moneys, shall be exercised solely by the
Owner Trustee;
(ii) all other rights, powers, duties, and obligations conferred
or imposed upon the Owner Trustee shall be conferred or imposed upon
and exercised or performed by the Owner Trustee and such additional
trustee or trustees and separate trustee or trustees jointly, except
to the extent that under any law of the jurisdiction in which any
particular act or acts are to be performed by the Owner Trustee shall
be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the
holding of title to the Trust Estate in any such jurisdiction) shall
be exercised and performed by such additional trustee or trustees or
separate trustee or trustees;
(iii) no power hereby given to, or which may be exercised by, any
such additional trustee or separate trustee shall be exercised
hereunder by such additional trustee or separate trustee except
jointly with, or with the consent of, the Owner Trustee; and
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(iv) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder.
(d) If at any time the Owner Trustee and the Owner Participant shall
deem it no longer necessary or prudent in order to conform to any applicable law
or shall be advised by its counsel that it is no longer necessary or prudent in
the interest of the Owner Trustee and the Owner Participant to maintain the
appointment of such additional or separate trustee as provided herein, the Owner
Trustee and the Owner Participant shall execute and deliver any agreement
supplemental hereto and all other instruments and agreements necessary or proper
to remove any such additional or separate trustee. The Owner Participant, at
any time, by an instrument in writing may remove any separate trustee or
additional trustee.
(e) Any additional trustee or separate trustee may at any time by an
instrument in writing constitute the Owner Trustee its agent or attorney-in-fact
with full power and authority, to the extent which may be authorized by
applicable law, to do all acts and things and exercise all discretion which it
is authorized or permitted to do or exercise, for and in its behalf and in its
name. In case any such additional trustee or separate trustee shall die, become
incapable of acting, resign or be removed, all the assets, property, rights,
powers, trusts, duties and obligations of such additional trustee or separate
trustee, as the case may be, so far as permitted by law, shall vest in and be
exercised by the Owner Trustee without necessity of any act by any party and
without the appointment of a new successor to such additional or separate
trustee, unless and until a successor is appointed in the manner provided in
this Section 8.2.
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS
Section 9.1 Supplements and Amendments. Subject to Section 9.05 of the
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Indenture, at the written request of the Owner Participant (and subject to the
provisions of Sections 6.5 and 6.6 of the Participation Agreement), this Trust
Agreement and each other Owner Trustee Agreement shall be amended by a written
instrument signed by Trust Company and the Owner Participant; provided, however,
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if in the reasonable opinion of Trust Company any instrument required to be so
executed adversely affects any right, duty or liability of, or immunity or
indemnity in favor of, Trust Company under this Trust Agreement or any of the
documents contemplated hereby to which it is a party, or would cause or result
in any conflict with or breach of any term, condition or provision of, or
default under, its charter documents or by-laws, Trust Company in its reasonable
discretion may decline to execute such instrument, unless the Trust Company is
indemnified therefor under Section 4.3, as determined by the Trust Company in
its reasonable discretion.
ARTICLE X
MISCELLANEOUS
Section 10.1 No Legal Title to Trust Estate in the Owner Participant. The
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Owner Participant shall not have legal title to any part of the Trust Estate. No
transfer, by operation of law or otherwise, of any right, title and interest of
the Owner Participant in and to the Trust Estate or hereunder, or insolvency,
dissolution or other termination of the Owner Participant, shall operate to
terminate this Trust Agreement or the trusts created hereby or entitle any
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successor or transferee to an accounting or to the transfer to it of legal title
to any part of the Trust Estate.
Section 10.2 Sale of Accepted Equipment by the Owner Trustee is Binding.
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Any sale, transfer or other conveyance of any Accepted Unit or part thereof by
the Owner Trustee made pursuant to the terms of this Trust Agreement or the
Lease shall bind the Owner Participant and shall be effective to transfer or
convey all right, title and interest of the Owner Trustee and the Owner
Participant in and to such Accepted Unit or part thereof, as the case may be.
No purchaser or other grantee shall be required to inquire as to the
authorization, necessity, expediency or regularity of such sale or conveyance or
as to the application of any sale or other proceeds with respect thereto by the
Owner Trustee.
Section 10.3 Notices. Unless otherwise expressly specified or permitted
-------
by the terms hereof, all notices hereunder shall be given as provided in Section
10.4 of the Participation Agreement.
Section 10.4 Severability. If any term or provision of this Trust
------------
Agreement is invalid or unenforceable in any jurisdiction, such term or
provision shall be ineffective to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable any remaining
terms and provisions hereof, and any such invalidity or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 10.5 Separate Counterparts. This Trust Agreement may be
---------------------
executed by the parties hereto in any number of counterparts and by the parties
hereto on separate counterparts, each of which when so executed and delivered
shall be an original, and all of which shall together constitute but one and the
same instrument.
Section 10.6 Waivers, etc. No term or provision hereof may be changed,
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waived, discharged or terminated orally, but may be changed, waived, discharged
or terminated by an instrument in writing, and any waiver of the terms hereof
shall be effective only in the specific instance and for the specific purpose
given.
Section 10.7 Successors and Assigns. This Trust Agreement, including
----------------------
the terms and provisions hereof, shall be binding upon the Owner Participant and
Trust Company or the Owner Trustee, whichever is applicable pursuant to the
terms hereof, and their respective successors and assigns, and inure to the
benefit of the Owner Participant and Trust Company or the Owner Trustee,
whichever is applicable pursuant to the terms hereof, and their respective
successors and permitted assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by the Owner
Participant shall bind the successors and assigns of the Owner Participant.
Section 10.8 Transfer of Owner Participant's Interest. All provisions
----------------------------------------
of Section 6.1 of the Participation Agreement shall (with the same force and
effect as if set forth in full, mutatis mutandis, in this Section 10.8) be
applicable to any assignment, conveyance or other transfer by the Owner
Participant of any of its right, title or interest in and to the Trust Estate or
this Trust Agreement or any other Operative Agreement.
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Section 10.9 Actions of the Owner Participants. If at any time prior to
---------------------------------
the termination of this Trust Agreement there is more than one Owner
Participant, then during such time, if any action is required to be taken by the
Owner Participant, such action shall be taken by or on behalf of all Owner
Participants and whenever any direction, authorization, approval, consent,
instruction or other action is permitted to be given or taken by the Owner
Participant it shall be given or taken only upon such percentage agreement of
the Owner Participants as all Owner Participants may instruct the Owner Trustee.
Section 10.10 Headings; Table of Contents. The division of this Trust
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Agreement into sections, the provision of a table of contents and the insertion
of headings are for convenience of reference only and shall not affect the
construction or interpretation hereof.
Section 10.11 Governing Law. The terms of this Trust Agreement and the
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rights and obligations of the parties hereto shall be governed by, and construed
in accordance with, the laws of the State of Delaware applicable to contracts
made and to be performed entirely within such state.
Section 10.12 Benefit. Nothing herein, whether express or implied,
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shall be construed to give any Person other than the Owner Trustee, the
Indenture Trustee and the Owner Participant any legal or equitable right, remedy
or claim under or in respect of this Trust Agreement.
Section 10.13 Performance by the Owner Participant. Any obligation of
------------------------------------
Trust Company or the Owner Trustee hereunder or under any other Operative
Agreement or other document contemplated hereby, may be performed by the Owner
Participant and any such performance shall not be construed as a revocation of
the trusts created hereby.
Section 10.14 Conflict with Operative Agreements. If this Trust
----------------------------------
Agreement (or any instructions given by the Owner Participant pursuant hereto)
shall require that any action be taken with respect to any matter or any other
Operative Agreement (or any instruction duly given in accordance with the terms
thereof) shall require that a different action be taken with respect to such
matter, and such actions shall be mutually exclusive, the provisions of this
Trust Agreement, in respect thereof, shall control.
Section 10.15 Limitation on Owner Participant's Liability. The Owner
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Participant shall not have any liability for the performance of this Trust
Agreement, except as expressly set forth herein.
Section 10.16 Identification of Trust. The trust created hereunder may
-----------------------
be referred to for convenience as GATX Rail Trust No. 2000-2.
* * *
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In Witness Whereof, the parties hereto have each caused this Trust
Agreement to be duly executed and delivered as of the day and year first above
written.
By:____________________
Name:__________________
Title:_________________
WILMINGTON TRUST COMPANY
By:____________________
Name:__________________
Title:_________________
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