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EXHIBIT 10.33
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TRUST AGREEMENT
dated as of February 26, 2001
between
The Several Holders
from Time to Time Parties Hereto,
as the Holders,
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as the Owner Trustee
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STORAGE CENTERS TRUST 2001
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.......................................................................1
SECTION 1.1 Definitions.........................................................1
SECTION 1.2 Interpretation......................................................2
ARTICLE II AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENTS; DECLARATION OF TRUST BY
TRUST COMPANY................................................................2
SECTION 2.1 Authority To Execute and Perform Various Documents..................2
SECTION 2.2 Declaration of Trust by Trust Company...............................2
ARTICLE III CONTRIBUTIONS AND PAYMENTS......................................................3
SECTION 3.1 Procedure for Holder Advances; Certificates.........................3
SECTION 3.2 Holder Yield........................................................4
SECTION 3.3 Scheduled Return of Holder Advances.................................5
SECTION 3.4 Early Return of Advances............................................5
SECTION 3.5 Payments from Trust Estate Only.....................................6
SECTION 3.6 Method of Payment...................................................6
SECTION 3.7 Computation of Yield................................................6
SECTION 3.8 Conversion and Continuation Options.................................7
SECTION 3.9 Notice of Amounts Payable...........................................8
ARTICLE IV COLLECTIONS AND DISTRIBUTIONS....................................................8
SECTION 4.1 Collections and Remittances by the Owner Trustee....................8
SECTION 4.2 Priority of Distributions...........................................9
SECTION 4.3 Excepted Payments...................................................9
SECTION 4.4 Distributions after Default.........................................9
ARTICLE V DUTIES OF THE OWNER TRUSTEE.......................................................9
SECTION 5.1 Notice of Certain Events............................................9
SECTION 5.2 Action Upon Instructions...........................................10
SECTION 5.3 Indemnification....................................................10
SECTION 5.4 No Duties Except as Specified In Trust Agreement or Instructions...10
SECTION 5.5 No Action Except Under Specified Documents or Instructions.........11
SECTION 5.6 Absence of Duties..................................................11
ARTICLE VI THE OWNER TRUSTEE...............................................................12
SECTION 6.1 Acceptance of Trust and Duties.....................................12
SECTION 6.2 Furnishing of Documents............................................12
SECTION 6.3 No Representations or Warranties as to the Properties or Operative
Agreements.........................................................12
SECTION 6.4 No Segregation of Moneys; No Interest..............................13
SECTION 6.5 Reliance; Advice of Counsel........................................13
SECTION 6.6 Liability With Respect to Documents................................13
SECTION 6.7 Not Acting In Individual Capacity..................................14
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SECTION 6.8 Books and Records; Tax Returns.....................................14
ARTICLE VII INDEMNIFICATION OF THE OWNER TRUSTEE...........................................15
SECTION 7.1 Indemnification Generally..........................................15
SECTION 7.2 Compensation and Expenses..........................................15
ARTICLE VIII TERMINATION OF TRUST AGREEMENT................................................15
SECTION 8.1 Termination of Trust Agreement.....................................15
SECTION 8.2 Termination at Option of the Holders...............................15
SECTION 8.3 Termination at Option of the Owner Trustee.........................16
SECTION 8.4 Actions by the Owner Trustee Upon Termination......................16
ARTICLE IX SUCCESSOR OWNER TRUSTEES, CO-OWNER TRUSTEES AND SEPARATE OWNER TRUSTEES.........16
SECTION 9.1 Resignation of the Owner Trustee; Appointment of Successor.........16
SECTION 9.2 Co-Trustees and Separate Trustees..................................16
SECTION 9.3 Notice.............................................................16
ARTICLE X AMENDMENTS......................................................................16
SECTION 10.1 Amendments.........................................................16
SECTION 10.2 Limitation on Amendments...........................................16
ARTICLE XI MISCELLANEOUS...................................................................16
SECTION 11.1 No Legal Title to Trust Estate in the Holders......................16
SECTION 11.2 Sale of a Property by the Owner Trustee is Binding.................16
SECTION 11.3 Limitations on Rights of Others....................................16
SECTION 11.4 Notices............................................................16
SECTION 11.5 Severability.......................................................16
SECTION 11.6 Limitation on the Holders' Liability...............................16
SECTION 11.7 Separate Counterparts..............................................16
SECTION 11.8 Successors and Assigns.............................................16
SECTION 11.9 Headings...........................................................16
SECTION 11.10 Governing Law......................................................16
SECTION 11.11 Performance by the Holders.........................................16
SECTION 11.12 Conflict with Operative Agreements.................................16
SECTION 11.13 No Implied Waiver..................................................16
SECTION 11.14 SUBMISSION TO JURISDICTION; VENUE..................................16
SECTION 11.15 Certain Rights of Lessee...........................................16
Schedule I - Holder Commitments
EXHIBIT A - Form of Holder Certificate
EXHIBIT B - Form of Assignment and Acceptance
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TRUST AGREEMENT
THIS TRUST AGREEMENT, dated as of February 26, 2001 (as amended,
modified, extended, supplemented, restated and/or replaced from time to time,
the "Trust Agreement"), is among the several banks and other financial
institutions from time to time parties to this Trust Agreement (individually,
each of the foregoing may be referred to as a "Holder," and collectively, the
foregoing together with such other persons and entities that become holders
hereunder, the "Holders"), and FIRST SECURITY BANK, NATIONAL ASSOCIATION, in its
individual capacity ("Trust Company"), and in its capacity as owner trustee
hereunder, together with its successors and assigns (the "Owner Trustee").
WHEREAS, in order to provide a portion of the funds for carrying out the
other transactions contemplated by the Operative Agreements, each Holder will
make its respective Holder Advances pursuant to this Trust Agreement and the
Participation Agreement (as defined below);
WHEREAS, the Holders desire to provide for the Trust to exist for the
purpose of (a) developing, acquiring, installing, constructing and testing
various Properties and leasing such Properties to Lessee and (b) carrying out
certain transactions contemplated by the Operative Agreements; and
WHEREAS, Trust Company is willing to act as trustee hereunder and to
accept the trust created hereby (the "Trust").
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and of 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.
For purposes of this Trust Agreement (including without limitation the
"WHEREAS" clauses set forth above), capitalized terms used in this Trust
Agreement and not otherwise defined herein shall have the meanings assigned to
them in Appendix A to that certain Participation Agreement dated as of February
26, 2001 (as amended, modified, extended, supplemented, restated and/or replaced
from time to time in accordance with the applicable provisions thereof, the
"Participation Agreement") among Shurgard Storage Centers, Inc., the various
parties thereto from time to time, as the Guarantors, the Owner Trustee, the
various banks and other lending institutions which are parties thereto from time
to time, as the Holders, the various banks and other lending institutions which
are parties thereto from time to time, as the Lenders, and Bank of America,
N.A., as agent for the Lenders and respecting the Security
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Documents, as the agent for the Secured Parties. Unless otherwise indicated,
references in this Trust Agreement to articles, sections, paragraphs, clauses,
appendices, schedules and exhibits are to the same contained in this Trust
Agreement.
SECTION 1.2 INTERPRETATION.
The rules of usage set forth in Appendix A to the Participation
Agreement shall apply to this Trust Agreement.
ARTICLE II
AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENTS;
DECLARATION OF TRUST BY TRUST COMPANY
SECTION 2.1 AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENTS.
Each Holder hereby authorizes and directs the Owner Trustee (a) to
execute and deliver, as trustee for and on behalf of each such Holder, each
Operative Agreement to which the Owner Trustee is a party and any other
agreements, instruments, certificates or documents related to the transactions
contemplated hereby to which the Owner Trustee is a party, (b) to take whatever
action shall be required to be taken by the Owner Trustee by the terms of, and
exercise its rights and perform its duties under, each of the documents,
agreements, instruments and certificates referred to in clause (a) above as set
forth in such documents, agreements and certificates, and (c) subject to the
terms of this Trust Agreement, to take such other action in connection with the
foregoing as the Holders or Majority Holders (as required or permitted by the
Operative Agreements) may from time to time direct.
SECTION 2.2 DECLARATION OF TRUST BY TRUST COMPANY.
(a) Trust Company hereby declares that it will hold all estate,
right, title and interest of the Owner Trustee in, to and under each
Property, each Holder Advance, the Operative Agreements, any other
property contributed by any Holder and any and all other property or
assets from time to time of the Trust, including without limitation all
amounts of Rent, insurance proceeds and condemnation awards, indemnity
or other payments of any kind (collectively, the "Trust Estate") as the
Owner Trustee upon the trusts set forth herein and for the use and
benefit of each Holder, subject, however, to the provisions of the
Credit Agreement and the Security Documents. The name of the Trust shall
be "Storage Centers Trust 2001."
(b) The purpose of the Trust is to hold title to the Trust
Estate for the benefit of the Holders and to engage in activities
ancillary and incidental thereto as the Holders shall determine to be
desirable. Except in connection with the foregoing, the Owner Trustee
shall not (i) engage in any business activity, (ii) have any property,
rights or interest, whether real or personal, tangible or intangible,
(iii) incur any legal liability or obligation, whether fixed or
contingent, matured or unmatured, other than in the normal
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course of the administration of the Trust or (iv) subject any of its property
or assets to any mortgage, Lien, security interest or other claim or
encumbrance, other than in favor of the Lenders or the Holders pursuant
to the provisions of the Operative Agreements and this Trust Agreement.
THIS TRUST IS NOT A BUSINESS TRUST. THE SOLE PURPOSE OF THE TRUST IS TO
ACQUIRE AND HOLD TITLE TO THE TRUST ESTATE, SUBJECT TO THE RIGHTS OF THE
LENDERS, FOR THE BENEFIT OF THE HOLDERS. THE OWNER TRUSTEE MAY NOT
TRANSACT BUSINESS OF ANY KIND WITH RESPECT TO ANY PROPERTY COMPRISING
THE TRUST ESTATE NOR SHALL THIS AGREEMENT BE DEEMED TO BE, OR CREATE OR
EVIDENCE THE EXISTENCE OF A CORPORATION DE FACTO OR DE JURE, OR A
MASSACHUSETTS TRUST, OR ANY OTHER TYPE OF BUSINESS TRUST, ASSOCIATION OR
JOINT VENTURE BETWEEN OR AMONG THE OWNER TRUSTEE, THE HOLDERS, THE AGENT
AND THE LENDERS.
ARTICLE III
CONTRIBUTIONS AND PAYMENTS
SECTION 3.1 PROCEDURE FOR HOLDER ADVANCES; CERTIFICATES.
(a) Upon receipt from Lessee by the Agent of a Requisition, and
subject to the terms and conditions of the Participation Agreement, the
Agent shall request from each Holder its pro rata share of any Advance
and each Holder shall make its pro rata share of any Advance under the
Holder Commitment of such Holder, as set forth on Schedule 1 hereto, on
each date Advances are made pursuant to Section 5 of the Participation
Agreement. The Agent may request an Advance under the Holder Commitments
during the Commitment Period on any date that an Advance may be
requested pursuant to the terms of Section 5.2(a) of the Participation
Agreement, provided, that the Agent shall give each Holder irrevocable
notice (which notice must be received by such Holder no less than three
(3) Business Days prior to the requested date of the Holder Advance)
specifying (i) the amount to be advanced (which on any date shall not be
in excess of the then aggregate Available Holder Commitments), (ii) the
requested date of advance, (iii) whether the Holder Advance is to be a
Eurodollar Holder Advance or an ABR Holder Advance or a combination
thereof, (iv) if the Holder Advance is to be a combination of Eurodollar
Holder Advances and ABR Holder Advances, the respective amounts of each
type of Holder Advance and (v) the Interest Period applicable to any
Eurodollar Holder Advances. Pursuant to the terms of the Participation
Agreement, the Agent shall be deemed to have delivered such notice upon
the delivery of a notice by the Construction Agent or Lessee containing
such required information.
(b) Upon receipt of any such notice delivered pursuant to Section
3.1(a), each Holder shall make the amount of its Advance available to
the Agent for the account of the Owner Trustee at the office of the
Agent referred to in Section 12.2 of the Participation Agreement (or at
such other address as may be identified by the Agent from time to time)
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prior to 1:00 p.m., Pacific time on the date requested by Lessee in
funds immediately available to the Owner Trustee.
(c) Holder Yield accruing on each Holder Advance during the
Construction Period with respect to any Property and that portion of
Holder Yield accruing after such Construction Period that is not covered
by Basic Rent due with respect to such Property shall, subject to the
limitations set forth in Section 5.1(b) of the Participation Agreement,
be added to the amount of the Holder Advance on the relevant Scheduled
Interest Payment Date. On such Scheduled Interest Payment Date, the
Holder Property Cost shall be increased by the amount of Holder Yield
added to the Holder Advance.
(d) The Holder Advances made by each Holder to the Trust Estate
shall be evidenced by a Certificate of the Owner Trustee, substantially
in the form of Exhibit A hereto, issued in the name of the Holder and in
an amount equal to the Holder Commitment of such Holder. Each
Certificate shall (i) be dated on or about the Initial Closing Date,
(ii) be stated to mature on the Maturity Date and (iii) bear a yield on
the unpaid Holder Amount thereof from time to time outstanding at the
Holder Yield.
(e) To the extent that the Owner Trustee, in its capacity as
Borrower under the Credit Agreement, shall have elected to terminate or
reduce the amount of the Commitments pursuant to Section 2.5(a) of the
Credit Agreement, a pro rata election shall be deemed to have been made
with respect to the Holder Commitment. On any date on which the
Commitments shall be reduced to zero (0) as a result of a Credit
Agreement Event of Default, the Holder Commitments shall automatically
be reduced to zero (0) and the Owner Trustee shall prepay the
Certificates in full for the outstanding Holder Amount, together with
accrued but unpaid Holder Yield thereon and all other amounts owing
under the Certificates.
SECTION 3.2 HOLDER YIELD.
(a) Holder Advances shall bear yield payable by the Owner Trustee
and calculated at the rate of Holder Yield applicable from time to time.
The Owner Trustee shall pay to each Holder, from the Trust Estate, its
pro rata portion of Holder Yield on Holder Advances made hereunder.
Payment of Holder Yield to each Holder shall be made in arrears on each
Scheduled Interest Payment Date occurring after the Rent Commencement
Date or as otherwise provided herein, in Section 2.6 of the Credit
Agreement or Section 5.1(b) or Section 8.7 of the Participation
Agreement.
(b) If (i) all or a portion of Holder Yield shall not be received
by the Holders when due (whether at the stated maturity, by acceleration
or otherwise), such overdue amount shall, without limiting the rights of
the Holders hereunder or under any Operative Agreement, bear interest at
a per annum rate equal to the Holder Overdue Rate, in each case from the
date of nonpayment until paid (whether after or before judgment). All
such amounts referenced in this Section 3.2(b) shall be paid upon
demand.
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SECTION 3.3 SCHEDULED RETURN OF HOLDER ADVANCES.
The outstanding Holder Amount shall be due in full on the Expiration
Date. On the Expiration Date, subject to the terms of the Participation
Agreement, the Owner Trustee shall pay to each Holder its portion of the
aggregate Holder Amount then due, together with all accrued but unpaid Holder
Yield and all other amounts due to such Holders from the Owner Trustee hereunder
or under the Operative Agreements.
SECTION 3.4 EARLY RETURN OF ADVANCES.
(a) Subject to Sections 11.2(e), 11.3 and 11.4 of the
Participation Agreement, the Owner Trustee may at any time and from time
to time prepay the Certificates, in whole or in part, without premium or
penalty, and without set-off, deduction or counterclaim, upon at least
three (3) Business Days' irrevocable notice to the Agent, on behalf of
the Holders, specifying the date and amount of prepayment and whether
the prepayment is of ABR Holder Advances or Eurodollar Holder Advances
or a combination thereof, and, if a combination thereof, the amount
allocable to each. Upon receipt of such notice, the Agent shall promptly
notify the Holders thereof. If such notice is given, the amount
specified in such notice shall be due and payable on the date specified
therein. Subject to the terms hereof and of the other Operative
Agreements, the Owner Trustee may request that Holders Advances so
repaid be readvanced by the Holders; provided however, once repaid the
Initial Holder Advance may not be readvanced.
(b) If on any date the Agent or the Owner Trustee shall receive
any payment in respect of (i) any Casualty, Condemnation or
Environmental Violation pursuant to Sections 15.1(a) or 15.1(g) or
Article XVI of the Lease (excluding any payments in respect thereof
which are payable to Lessee in accordance with the Lease), or (ii) the
Termination Value of any Property in connection with the delivery of a
Termination Notice pursuant to Article XVI of the Lease, or (iii) the
Termination Value of any Property or such other applicable amount in
connection with the exercise of a Purchase Option under Article XX of
the Lease or the exercise of the option of the Owner Trustee to transfer
the Properties to the Lessee pursuant to Section 20.3 of the Lease or
(iv) any payment required to be made or elected to be made by the
Construction Agent to the Owner Trustee pursuant to the Agency
Agreement, then in each case, the Holders shall receive proceeds in
accordance with Section 8.7(b) of the Participation Agreement.
(c) Each prepayment of the Certificates pursuant to Section
3.4(a) shall be allocated to reduce the respective Holder Property Costs
of all Properties pro rata according to the Holder Property Costs of
such Properties immediately before giving effect to such prepayment.
Each prepayment of the Certificates pursuant to Section 3.4(b) shall be
allocated to reduce the Holder Property Cost of the Property or
Properties subject to the respective Casualty, Condemnation,
Environmental Violation, termination, purchase, transfer or other
circumstance giving rise to such prepayment.
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SECTION 3.5 PAYMENTS FROM TRUST ESTATE ONLY.
All payments to be made by the Owner Trustee under this Trust Agreement
(including without limitation any payments pursuant to Section 11.4 of the
Participation Agreement) shall be made only from the income and proceeds from
the Trust Estate and only to the extent that the Owner Trustee shall have
received income or proceeds from the Trust Estate to make such payments in
accordance with the terms hereof, except as specifically provided in Section
6.1. Each Holder agrees that it will look solely to the income and proceeds from
the Trust Estate to the extent available for payment as herein provided and
that, except as specially provided in any Operative Agreement, Trust Company
shall not be liable to any Holder for any amounts payable under this Trust
Agreement and shall not be subject to any liability under this Trust Agreement.
SECTION 3.6 METHOD OF PAYMENT.
All amounts payable to a Holder pursuant to this Trust Agreement shall
be paid or caused to be paid by the Owner Trustee to, or for the account of,
such Holder, or its nominee, by transferring such amount in immediately
available funds to a bank institution or banking institutions with bank wire
transfer facilities for the account of such Holder or as otherwise instructed in
writing from time to time by such Holder.
SECTION 3.7 COMPUTATION OF YIELD.
(a) Whenever it is calculated on the basis of the Prime Lending
Rate, Holder Yield shall be calculated on the basis of a year of three
hundred sixty-five (365) days (or three hundred sixty-six (366) days, as
the case may be) for the actual days elapsed; and, otherwise, Holder
Yield shall be calculated on the basis of a year of three hundred sixty
(360) days for the actual days elapsed. Any change in the Holder Yield
resulting from a change in the ABR or the Eurodollar Reserve Percentage
shall become effective as of the opening of business on the day on which
such change becomes effective.
(b) Pursuant to Section 12.12 of the Participation Agreement, the
calculation of Holder Yield under this Section 3.7 shall be made by the
Agent. Each determination of an interest rate by the Agent shall be
conclusive and binding on the Owner Trustee and the Holders in the
absence of manifest error.
(c) If the Eurodollar Rate cannot be determined by the Agent in
the manner specified in the definition of the term "Eurodollar Rate",
the Owner Trustee shall give or cause to be given telecopy or telephonic
notice thereof to the Holders as soon as practicable after receipt of
same from the Agent. Commencing on the Scheduled Interest Payment Date
next occurring after the delivery of such notice and continuing until
such time as the Eurodollar Rate can be determined by the Agent in the
manner specified in the definition of such term, all outstanding Holder
Advances shall bear a yield at the ABR. Until such time as the
Eurodollar Rate can be determined by the Agent in the manner specified
in the definition of such term, no further Eurodollar Holder Advances
shall be made or shall be continued as such at the end of the then
current Interest Period
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nor shall the Owner Trustee have the right to convert ABR Holder
Advances to Eurodollar Holder Advances.
SECTION 3.8 CONVERSION AND CONTINUATION OPTIONS.
(a) The Owner Trustee may elect from time to time to convert
Eurodollar Holder Advances to ABR Holder Advances by giving the Agent
(on behalf of the Holders) at least three (3) Business Days' prior
irrevocable notice of such election, provided, that any such conversion
of Eurodollar Holder Advances may only be made on the last day of an
Interest Period with respect thereto, and provided, further, to the
extent an Event of Default has occurred and is continuing on the last
day of any such Interest Period, the applicable Eurodollar Holder
Advance shall automatically be converted to an ABR Holder Advance. The
Owner Trustee may elect from time to time to convert ABR Holder Advances
to Eurodollar Holder Advances by giving the Agent (on behalf of the
Holders) at least three (3) Business Days' prior irrevocable notice of
such election. Upon receipt of any such notice, the Agent (on behalf of
the Holders) shall promptly notify each Holder thereof. All or any part
of outstanding Eurodollar Holder Advances or ABR Holder Advances may be
converted as provided herein, provided, that (i) no ABR Holder Advance
may be converted into a Eurodollar Holder Advance after the date that is
one (1) month prior to the Maturity Date and (ii) the Interest Period
for such Eurodollar Holder Advance to be created by such conversion
shall be in accordance with the terms of the definition of the term
"Interest Period" including without limitation subparagraphs (A) through
(C) thereof.
(b) Subject to the restrictions set forth in Section 3.1, any
Eurodollar Holder Advance may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Owner
Trustee giving irrevocable notice to the Agent (on behalf of the
Holders) in accordance with the notice provisions for the conversion of
ABR Holder Advances to Eurodollar Holder Advances set forth herein and
the applicable provisions of the term "Interest Period" of the length of
the next Interest Period to be applicable to such Eurodollar Holder
Advances, provided, that no Eurodollar Holder Advance may be continued
as such after the date that is one (1) month prior to the Maturity Date,
provided, further, no Eurodollar Holder Advance may be continued as such
if an Event of Default has occurred and is continuing as of the last day
of the Interest Period for such Eurodollar Holder Advance, and provided,
further, that if the Owner Trustee shall fail to give any required
notice as described above or if such continuation is not permitted
pursuant to the preceding proviso or otherwise, such Advances shall
automatically be converted to ABR Holder Advances on the last day of
such then expiring Interest Period.
(c) Each such conversion and continuation of a Holder Advance
shall be made pursuant to submission of an interest rate/holder yield
selection notice in the form of Exhibit N to the Participation
Agreement.
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SECTION 3.9 NOTICE OF AMOUNTS PAYABLE.
(a) In the event that any Holder becomes aware that any amounts
are or will be owed to it pursuant to Sections 11.2(e) or 11.4 of the
Participation Agreement or that it is unable to make Holder Advances
which bear a yield based on the Eurodollar Rate plus the Applicable
Percentage for Eurodollar Holder Advances, then it shall promptly notify
the Owner Trustee thereof and, as soon as possible thereafter, such
Holder shall submit to the Owner Trustee a certificate indicating the
amount owing to it and the calculation thereof. The amounts set forth in
such certificate shall be prima facie evidence of the obligations of the
Owner Trustee hereunder.
(b) In the event that any Holder delivers to the Owner Trustee a
certificate in accordance with Section 3.9(a), or any Holder is required
to make Holder Advances with Holder Yields calculated at the ABR in
accordance with Section 11.3 of the Participation Agreement, subject to
Section 9.2 of the Participation Agreement, the Owner Trustee may, at
the expense of Lessee and in the discretion of the Owner Trustee, (i)
require such Holder to transfer or assign, in whole or (with such
Holder's consent) in part, without recourse (in accordance with Section
11.8), all or (with such Holder's consent) part of its interests, rights
(except for rights to be indemnified for actions taken while a party
hereunder) and obligations under this Agreement to a replacement bank or
institution if the Owner Trustee (subject to Section 9.2 of the
Participation Agreement) and with the full cooperation of such Holder)
can identify a Person who is ready, willing and able to be such
replacement bank or institution with respect thereto and such
replacement bank or institution (which may be another Holder) shall
assume such assigned obligations, or (ii) during such time as no Default
or Event of Default has occurred and is continuing, terminate the Holder
Commitment of such Holder and prepay the outstanding Holder Advances of
such Holder, provided, however, that (x) subject to Section 9.2 of the
Participation Agreement, the Owner Trustee or such replacement bank or
institution, as the case may be, shall have paid to such Holder in
immediately available funds the amount of the Holder Advances and Holder
Yield accrued to the date of such payment on the Holder Advances made by
it hereunder (and, if such Holder is also a Lender, the principal and
interest on all Loans accrued and unpaid thereon) and (y) such
assignment or termination of the Holder Commitment of the Holder and
prepayment of the Holder Advances do not conflict with any law, rule or
regulation or order of any court or Governmental Authority.
ARTICLE IV
COLLECTIONS AND DISTRIBUTIONS
SECTION 4.1 COLLECTIONS AND REMITTANCES BY THE OWNER TRUSTEE.
The Owner Trustee agrees that, subject to the provisions of this Trust
Agreement and the Operative Agreements, it will during the term of this Trust
administer the Trust Estate and, at the direction of the Holders, take steps to
collect all Rent and other sums payable to the Owner
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Trustee by Lessee under the Lease. The Owner Trustee agrees to distribute, or
cause to be distributed, all proceeds received from the Trust Estate in
accordance with Article III and Sections 4.2 and 4.3. The Owner Trustee shall
make, or cause to be made, such distribution promptly upon receipt of such
proceeds (provided, such proceeds are available for distribution) by the Agent
(on behalf of the Owner Trustee), it being understood and agreed that the Owner
Trustee shall not be obligated to make, or to cause to be made, such
distribution until the funds for such distribution have been received by the
Agent (on behalf of the Owner Trustee) in cash or its equivalent reasonably
acceptable to the Owner Trustee.
SECTION 4.2 PRIORITY OF DISTRIBUTIONS.
Subject to the terms and requirements of the Operative Agreements, all
payments and amounts received by Trust Company as the Owner Trustee or on its
behalf shall be distributed to the Agent for allocation by the Agent in
accordance with the terms of Section 8.7 of the Participation Agreement or, if
such payments or amounts are received by the Owner Trustee from the Agent, then
they shall be distributed forthwith upon receipt in the following order of
priority: first, in accordance with the Holder Yield protection provisions set
forth in Section 11.4 of the Participation Agreement; and, second, the balance,
if any, of such payment or amount remaining thereafter shall be distributed to
the Holders pro rata (based on the ratio of the individual Holder's Holder
Commitment to the aggregate of all the Holders' Holder Commitments).
SECTION 4.3 EXCEPTED PAYMENTS.
Anything in this Article IV or elsewhere in this Trust Agreement to the
contrary notwithstanding, any Excepted Payment received at any time by the Owner
Trustee shall be distributed promptly to the Person entitled to receive such
Excepted Payment.
SECTION 4.4 DISTRIBUTIONS AFTER DEFAULT.
Subject to the terms of Section 5.1, the proceeds received by the Owner
Trustee from the exercise of any remedy under the Lease shall be distributed
pursuant to Section 4.2 above. This Trust shall cease and terminate in
accordance with the terms set forth in Section 8.1 and upon the final
disposition by the Owner Trustee of all of the Trust Estate pursuant to this
Section 4.4.
ARTICLE V
DUTIES OF THE OWNER TRUSTEE
SECTION 5.1 NOTICE OF CERTAIN EVENTS.
In the event the Owner Trustee shall have knowledge of any Default or
Event of Default, the Owner Trustee shall give written notice thereof within
five (5) Business Days to each Holder, Lessee and the Agent unless such Default
or Event of Default no longer exists before the giving of such notice. Subject
to the provisions of Section 5.3 of this Trust Agreement and Sections 8.5
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and 9.2 of the Participation Agreement, the Owner Trustee shall take or refrain
from taking such action as the Agent shall direct until such time as the Loans
are paid in full (and as more specifically provided in Sections 8.2(h) and 8.6
of the Participation Agreement) and thereafter as the Majority Holders shall
direct, in each case by written instructions to the Owner Trustee. If the Owner
Trustee shall have given the Agent and the Holders (and respecting Sections 8.5
and 9.2 of the Participation Agreement, the Lessee) notice of any event and
shall not have received written instructions as above provided within thirty
(30) days after mailing notice of such event to the Agent and the Holders (and
respecting Sections 8.5 and 9.2 of the Participation Agreement, the Lessee), the
Owner Trustee may, but shall be under no duty to, and shall have no liability
for its failure or refusal to, take or refrain from taking any action with
respect thereto, not inconsistent with the provisions of the Operative
Agreements, as the Owner Trustee shall deem advisable and in the best interests
of the Lenders and the Holders. For all purposes of this Trust Agreement, in the
absence of actual knowledge of a Responsible Officer in the Corporate Trust
Department of Trust Company, the Owner Trustee shall be deemed not to have
knowledge of any Default or Event of Default unless a Responsible Officer of the
Corporate Trust Department of Trust Company receives notice thereof given by or
on behalf of a Holder, Lessee or the Agent.
SECTION 5.2 ACTION UPON INSTRUCTIONS.
Subject to the provisions of Sections 5.1 and 5.3, upon the written
instructions of the Agent or the Majority Holders (as applicable), the Owner
Trustee will take or refrain from taking such action or actions as may be
specified in such instructions.
SECTION 5.3 INDEMNIFICATION.
The Owner Trustee shall not be required to take or refrain from taking
any action under this Trust Agreement or any other Operative Agreement (other
than the actions specified in the first sentence of Section 5.1 and in the last
sentence of Section 5.4) unless Trust Company shall have been indemnified by
Lessee or, at their election, by the Holders and the Lenders against any
liability, fee, cost or expense (including without limitation reasonable
attorneys' fees and expenses) that may be incurred or charged in connection
therewith, other than such as may result from the willful misconduct or gross
negligence of the Owner Trustee. The Owner Trustee shall not be required to take
any action under any Operative Agreement if the Owner Trustee shall reasonably
determine, or shall have been advised by counsel, that such action is likely to
result in personal liability for which the Owner Trustee has not been and will
not be adequately indemnified or is contrary to the terms hereof or of any
Operative Agreement to which the Owner Trustee is a party or is otherwise
contrary to law. The Owner Trustee shall be under no liability with respect to
any action taken or omitted to be taken by the Owner Trustee in accordance with
instructions of the Agent or the Majority Holders pursuant to Section 5.2.
SECTION 5.4 NO DUTIES EXCEPT AS SPECIFIED IN TRUST AGREEMENT OR
INSTRUCTIONS.
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
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any Property or any other part of the Trust Estate, or to otherwise take or
refrain from taking any action under or in connection with any Operative
Agreement to which the Owner Trustee is a party, except as expressly provided by
the terms of this Trust Agreement or any other Operative Agreement or in written
instructions from the Agent and/or the Majority Holders, as applicable, received
pursuant to Sections 5.1, 5.2 or 8.4 of this Trust Agreement or Sections 8.2(h)
or 8.6 of the Participation Agreement or from the Lessee pursuant to Sections
8.5 or 9.2 of the Participation Agreement; and no implied duties or obligations
shall be read into this Trust Agreement against the Owner Trustee. The Owner
Trustee shall have no duty or obligation to supervise or monitor the performance
of the Construction Agent pursuant to the Agency Agreement which for all
purposes shall be an independent contractor. The Owner Trustee nevertheless
agrees that it will (in its individual capacity and at its own cost and expense)
promptly take all action as may be necessary to discharge any Lessor Liens on
any part of the Trust Estate.
SECTION 5.5 NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS.
The Owner Trustee agrees that it will not manage, control, use, sell,
dispose of or otherwise deal with any Property or any other part of the Trust
Estate except (a) as required by the terms of the Operative Agreements, (b) in
accordance with the powers granted to, or the authority conferred upon, it
pursuant to this Trust Agreement, (c) in accordance with the express terms
hereof or with written instructions from the Agent and/or the Majority Holders,
as applicable, pursuant to Sections 5.1, 5.2 or 8.4 or (d) from the Lessee
pursuant to Sections 8.5 or 9.2 of the Participation Agreement.
SECTION 5.6 ABSENCE OF DUTIES.
(a) Except in accordance with written instructions furnished
pursuant to Sections 5.1, 5.2 or 8.4, and without limitation of the
generality of Section 5.4, the Owner Trustee shall not have any duty to
(i) file, record or deposit any Operative Agreement or any other
document, or to maintain any such filing, recording or deposit or to
refile, rerecord or redeposit any such document; (ii) obtain insurance
on any Property or effect or maintain any such insurance, other than to
receive and forward to each Holder and the Agent any notices, policies,
certificates or binders furnished to the Owner Trustee pursuant to the
Lease; (iii) maintain any Property; (iv) pay or discharge any Tax or any
Lien owing with respect to or assessed or levied against any part of the
Trust Estate, except as provided in the last sentence of Section 5.4,
other than to forward notice of such Tax or Lien received by the Owner
Trustee to each Holder and the Agent; (v) confirm, verify, investigate
or inquire into the failure to receive any reports or financial
statements of Lessee or any other Person; (vi) inspect any Property at
any time or ascertain or inquire as to the performance or observance of
any of the covenants of Lessee or any other Person under any Operative
Agreement with respect to any Property; or (vii) manage, control, use,
sell, dispose of or otherwise deal with any Property or any part thereof
or any other part of the Trust Estate, except as provided in Section
5.5.
(b) The Owner Trustee, in the exercise or administration of the
trusts and powers hereunder, including without limitation its
obligations under Section 5.2, may, at
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the expense of Lessee, employ agents, attorneys, accountants, and
auditors and enter into agreements with any of them and the Owner
Trustee shall not be liable, either in its individual capacity or in its
capacity as the Owner Trustee, for the default or misconduct of any such
agents, attorneys, accountants or auditors if such agents, attorneys,
accountants or auditors shall have been selected by it in good faith.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 ACCEPTANCE OF TRUST AND DUTIES.
The Owner Trustee accepts the trust and duties hereby created and agrees
to perform the same, but only upon the terms of this Trust Agreement. The Owner
Trustee agrees to receive, manage and disburse all moneys constituting part of
the Trust Estate actually received by it as the Owner Trustee in accordance with
the terms of this Trust Agreement. The Owner Trustee shall not be answerable or
accountable under any circumstances, except for (i) its own willful misconduct
or gross negligence, (ii) the inaccuracy of any of its representations or
warranties contained in Section 6.3 of this Trust Agreement or Section 6.1 of
the Participation Agreement, (iii) its failure to perform obligations expressly
undertaken by it in the last sentence of Section 5.4 of this Trust Agreement or
in Section 8.2(a) of the Participation Agreement, (iv) Taxes based on or
measured by any fees, commissions or compensation received by it for acting as
the Owner Trustee in connection with any of the transactions contemplated by the
Operative Agreements, or (v) its failure to use ordinary care to receive, manage
and disburse moneys actually received by it in accordance with the terms of the
Operative Agreements.
SECTION 6.2 FURNISHING OF DOCUMENTS.
The Owner Trustee will furnish to each Holder and to the Agent, promptly
upon receipt thereof, duplicates or copies of all reports, notices, requests,
demands, opinions, certificates, financial statements and any other instruments
or writings furnished to the Owner Trustee hereunder or under the Operative
Agreements, unless by the express terms of any Operative Agreement a copy of the
same is required to be furnished by some other Person directly to the Holders
and/or the Agent, or the Owner Trustee shall have determined that the same has
already been furnished to the Holders and the Agent.
SECTION 6.3 NO REPRESENTATIONS OR WARRANTIES AS TO THE PROPERTIES OR
OPERATIVE AGREEMENTS.
THE OWNER TRUSTEE MAKES (i) NO REPRESENTATION OR WARRANTY, EITHER
EXPRESS OR IMPLIED, AS TO THE TITLE, VALUE, USE, CONDITION, DESIGN, OPERATION,
MERCHANTABILITY OR FITNESS FOR USE OF ANY PROPERTY (OR ANY PART THEREOF), OR ANY
OTHER REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO ANY PROPERTY (OR ANY PART THEREOF) AND THE OWNER TRUSTEE SHALL
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NOT BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE OF
ANY PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY LEGAL REQUIREMENT except
that the Owner Trustee hereby represents, warrants and covenants to each Holder
that it will comply with the last sentence of Section 5.4, and (ii) no
representation or warranty as to the validity or enforceability of any Operative
Agreement or as to the correctness of any statement made by a Person other than
the Owner Trustee or the Owner Trustee contained in any thereof, except that the
Owner Trustee represents, warrants and covenants to each Holder that this Trust
Agreement has been and each of the other Operative Agreements which contemplates
execution thereof by the Owner Trustee has been or will be executed and
delivered by its officers who are, or will be, duly authorized to execute and
deliver documents on its behalf.
SECTION 6.4 NO SEGREGATION OF MONEYS; NO INTEREST.
Except as otherwise provided herein or in any of the other Operative
Agreements, moneys received by the Owner Trustee hereunder need not be
segregated in any manner except to the extent required by law, and may be
deposited under such general conditions as may be prescribed by law, and neither
Trust Company nor the Owner Trustee shall be liable for any interest thereon,
except as may be agreed to in writing by the Owner Trustee or the Trust Company.
SECTION 6.5 RELIANCE; ADVICE OF COUNSEL.
The Owner Trustee shall not incur any liability to any Person in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it in good faith to be signed by the proper party or
parties. The Owner Trustee may accept and rely upon 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 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, and the Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
advice or opinion of any such counsel, accountants or other skilled Persons and
not contrary to this Trust Agreement.
SECTION 6.6 LIABILITY WITH RESPECT TO DOCUMENTS.
The Owner Trustee, either in its trust or individual capacities, shall
not incur any liability to any Person for or in respect of the recitals herein,
the validity or sufficiency of this Trust Agreement or for the due execution
hereof by each Holder or for the form, character, genuineness, sufficiency,
value or validity of any Property or for or in respect of the validity or
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sufficiency of any of the Operative Agreements and the Owner Trustee, either in
its trust or individual capacities, shall in no event assume or incur any
liability, duty or obligation to any Person or to any Holder, other than as
expressly provided for herein or in any of the other Operative Agreements.
SECTION 6.7 NOT ACTING IN INDIVIDUAL CAPACITY.
All Persons having any claim against the Owner Trustee by reason of the
transactions contemplated by the Operative 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 Article VI and except to the
extent that the Owner Trustee shall otherwise expressly agree in any Operative
Agreement to which it is a party, including without limitation Section 6.1
hereof and Section 8.2(a) of the Participation Agreement and the last sentence
of Section 5.4 hereof.
SECTION 6.8 BOOKS AND RECORDS; TAX RETURNS.
(a) The Owner Trustee shall be responsible for the keeping of all
appropriate books and records relating to the receipt and disbursement
of all moneys that it may receive hereunder, or under any other
Operative Agreement. The Owner Trustee shall, at the expense of Lessee,
file an application with the Internal Revenue Service for a taxpayer
identification number with respect to the trust created hereby. The
Owner Trustee shall, at the expense of Lessee, prepare or cause to be
prepared and the Owner Trustee shall sign and/or file the federal
fiduciary tax return with respect to Taxes due and payable by the trust
created hereby in connection with the transactions contemplated hereby
and by any other Operative Agreement. Each Holder shall furnish the
Owner Trustee with all such information as may be reasonably required
from such Holder (as such is requested in writing by the Owner Trustee)
in connection with the preparation of such tax returns. The Owner
Trustee shall keep copies of all returns delivered to or filed by it.
(b) The Owner Trustee, either in its trust or individual
capacities, shall be under no obligation to appear in, prosecute or
defend any action, which in its opinion may require it to incur any
out-of-pocket expense or any liability unless the Owner Trustee shall be
furnished with such reasonable security and indemnity by Lessee (or, at
the election of the Majority Secured Parties, by the Holders and the
Lenders) against such expense or liability as it may require. The Owner
Trustee may, but shall be under no duty to, undertake such action as it
may deem necessary at any and all times, without any further action by
the Agent or any Holder to protect one or more of the Properties and the
rights and interests of the Holders pursuant to the terms of this Trust
Agreement; provided, however, that the Owner Trustee may obtain
reimbursement for the out-of-pocket expenses and costs of such actions,
undertakings or proceedings from Lessee.
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ARTICLE VII
INDEMNIFICATION OF THE OWNER TRUSTEE
SECTION 7.1 INDEMNIFICATION GENERALLY.
The Owner Trustee is indemnified for matters related to the transactions
described herein by Lessee pursuant to and subject to the terms of Section 11 of
the Participation Agreement. Except as may be specifically provided from time to
time hereafter in writing by the Holders, the Owner Trustee shall not have any
right of indemnification from any Holder with respect to the transactions
described herein or in any of the other Operative Agreements.
SECTION 7.2 COMPENSATION AND EXPENSES.
Lessee has agreed to pay the fees and expenses of the Owner Trustee and
the Holder Unused Fees as provided in Sections 7.3 and 7.4, respectively, of the
Participation Agreement.
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
SECTION 8.1 TERMINATION OF TRUST AGREEMENT.
This Trust Agreement and the trusts created hereby shall terminate and
the Trust Estate shall, subject to the provisions of the Participation
Agreement, the other Operative Agreements and Article IV of this Trust
Agreement, be distributed pro rata to the Holders, and this Trust Agreement
shall be of no further force or effect, upon the earliest of (a) the joint
written request of the Majority Holders following 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 hereof; provided, however, that (except as provided for in the
Operative Agreements) the Trust Estate shall not be subject to sale or other
final disposition by the Owner Trustee prior to the payment in full and
discharge of the Loans and all other indebtedness secured by the Credit
Documents and the release of the Credit Documents and the Liens granted thereby
and the payment in full of the Holder Amount and Holder Yield thereon and all
other amounts owing to the Holders under any of the Operative Agreements and (b)
fifty (50) years after the date hereof.
SECTION 8.2 TERMINATION AT OPTION OF THE HOLDERS.
Notwithstanding Section 8.1, this Trust Agreement and the trusts created
hereby shall terminate and the Trust Estate shall be distributed pro rata to the
Holders, and this Trust Agreement shall be of no further force and effect, upon
the joint election of the Holders by notice to the Owner Trustee, if such notice
shall be accompanied by the written agreement of each Holder assuming all the
obligations of the Owner Trustee under or contemplated by the Operative
Agreements and all other obligations of the Owner Trustee incurred by it as
trustee
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hereunder; provided, however, that each Holder agrees for the express benefit of
the Agent and the Lenders, that without the consent of the Majority Lenders, no
such election shall be effective until the Liens and security interests of the
Security Documents on the Collateral shall have been released and until full
payment of the principal of, and interest on the Loans and all other sums due to
the Lenders shall have been made. Such written agreement 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.
SECTION 8.3 TERMINATION AT OPTION OF THE OWNER TRUSTEE.
At any time that the Lease shall no longer be in full force and effect
and the Agent shall have confirmed in writing to the Owner Trustee that the
Lenders have received payment in full of the principal of and interest on the
Loans and that all other sums due to the Agent and the Lenders under the
Operative Agreements shall have been made, then the Holders hereby authorize the
Owner Trustee to: (a) terminate this Trust Agreement and the trusts created
hereby and (b) distribute and convey the Trust Estate pro rata to the Holders by
executing the necessary transfer documents as contemplated by Section 8.4. The
exercise of such option by the Owner Trustee shall cause this Trust Agreement to
be of no further force and effect 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.
SECTION 8.4 ACTIONS BY THE OWNER TRUSTEE UPON TERMINATION.
Upon termination of this Trust Agreement and the trusts created hereby
pursuant to Sections 8.1, 8.2 or 8.3, the Owner Trustee shall upon notice of
such event take such action as may be necessary or as may be requested by the
Majority Holders to transfer the Trust Estate pro rata to the Holders, including
without limitation the execution of instruments of transfer or assignment with
respect to any of the Operative Agreements to which the Owner Trustee is a
party.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES, CO-OWNER TRUSTEES
AND SEPARATE OWNER TRUSTEES
SECTION 9.1 RESIGNATION OF THE OWNER TRUSTEE; APPOINTMENT OF
SUCCESSOR.
(a) The Owner Trustee may resign at any time without cause
by giving at least thirty (30) days' prior written notice to each
Holder, the Agent and Lessee; provided, however, that such resignation
shall not be effective until the acceptance of appointment by a
successor Owner Trustee under Section 9.1(b). The Owner Trustee may be
removed with or without cause at any time by the Majority Holders upon
consent to such removal by the Agent and with sixty (60) days' prior
written notice to the Owner Trustee, a copy of which notice shall be
concurrently delivered by the Majority Holders
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to the Agent and Lessee. Any such removal shall be effective upon the
acceptance of appointment by a successor Owner Trustee under Section
9.1(b). In case of the resignation or removal of the Owner Trustee, the
Holders may appoint a successor Owner Trustee by an instrument signed by
the Majority Holders; provided, however, that such successor Owner
Trustee must be approved by the Agent. In the event the Owner Trustee
shall be an individual, his death or incapacity, or termination of
employment (whether voluntary or involuntary) with First Security Bank,
National Association (or a successor corporate Owner Trustee) shall be
treated as a resignation hereunder and shall be effective immediately.
If a successor 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 any Holder may apply to any court of competent
jurisdiction to appoint a successor Owner Trustee to act until such
time, if any, as a successor shall have been appointed and shall have
accepted its appointment as above provided. Any successor Owner Trustee
so appointed by such court shall immediately and without further act be
superseded by any successor Owner Trustee appointed as above provided
within one (1) year from the date of the appointment by such court.
(b) Any successor Owner Trustee, however appointed, shall execute
and deliver to the predecessor Owner Trustee an instrument accepting
such appointment, and thereupon 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 an Owner
Trustee herein; but nevertheless, 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 Owner Trustee, and such
predecessor Owner Trustee shall duly assign, transfer, deliver and pay
over to such successor Owner Trustee all moneys or other property then
held by such predecessor Owner Trustee upon the trusts herein expressed.
(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
$50,000,000, 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, subject to the terms of Section 9.1(c), be the
Owner Trustee under this Trust Agreement without further act.
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SECTION 9.2 CO-TRUSTEES AND SEPARATE TRUSTEES.
Whenever (a) the Owner Trustee or the Majority Holders shall deem it
necessary or prudent in order to conform to any law of any jurisdiction in which
all or any part of the Trust Estate shall be situated or to which it may be
subject or to make any claim or bring any suit with respect to the Trust Estate
or any Operative Agreement, (b) the Owner Trustee shall be advised by counsel
satisfactory to it that it is so necessary or prudent, or (c) the Owner Trustee
shall have been directed to do so by the Majority Holders and the Agent, the
Owner Trustee and the Holders shall execute and deliver an agreement
supplemental hereto and all other instruments and agreements, and shall take all
other action, necessary or proper to constitute one or more Persons who need not
meet the requirements of Section 9.1(c) (and the Owner Trustee may appoint one
or more of its officers) either as co-trustee or co-trustees (the "Co-Owner
Trustee"), jointly with the Owner Trustee, of all or any part of the Trust
Estate, or as separate trustee or separate trustees of all or any part of the
Trust Estate, and to vest in such Persons, in such capacity, such title to the
Trust Estate or any part thereof and such rights or duties as may be necessary
or desirable, all for such period and under such terms and conditions as are
satisfactory to the Owner Trustee and the Holders. In accordance with the
foregoing:
(i) The Owner Trustee shall appoint a Co-Owner Trustee hereunder
in part so that if, under any present or future law of any state where
any Property is located or of any jurisdiction in which it may be
necessary to perform any act in carrying out the trusts herein created,
the Owner Trustee or any of its successors may be incompetent or
unqualified or incapacitated or unwilling to perform certain acts as
such Owner Trustee, then upon the written request of the Owner Trustee
of any of its successors received by any Co-Owner Trustee, all of such
acts required to be performed in such jurisdiction in the execution of
the trust hereby created, shall and will be performed by any Co-Owner
Trustee, or any of his successors, in trust acting alone, as if he or
such successor had been specifically authorized so to do or had been the
sole Owner Trustee hereunder. Any Co-Owner Trustee shall continue to
perform such acts until otherwise directed in writing by the Owner
Trustee or any of its successors. Any request in writing by the Owner
Trustee or any of its successors to the Co-Owner Trustee shall be
sufficient warrant for him to take such action as may be so requested.
(ii) Except as it may be deemed necessary for any Co-Owner
Trustee or any of his successors solely or jointly to execute the trusts
herein created, the Owner Trustee or any of its successors shall solely
have and exercise the powers, and shall be solely charged with the
performance of the duties, hereinbefore declared on the part of the
Owner Trustee to be had, exercised and performed; and any Co-Owner
Trustee shall not be liable therefor. Any Co-Owner Trustee or any
successor to him may delegate to the Owner Trustee or its successor
hereunder the exercise of any power, discretion or otherwise, conferred
by any provision of this Trust Agreement.
(iii) Any act of the Owner Trustee herein required or authorized
shall and will be jointly or separately performed by the Owner Trustee
or its successors hereunder and by any Co-Owner Trustee or any of his
successors appointed hereunder, if such joint performance or separate
performance shall be necessary to the legality of such act and
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when so acting all references herein to "First Security Bank, National
Association" shall be deemed to be references to such Co-Owner Trustee
in its individual capacity and all references to "Owner Trustee" shall
be deemed to be references to any Co-Owner Trustee, and such Co-Owner
Trustee shall be entitled to all the protection, indemnification,
immunity and compensation herein provided to the Owner Trustee acting
singly in reference to such acts (subject to the limitations to such a
protection, indemnification, immunity and compensation set forth
herein).
(iv) The Owner Trustee or its successor in trust shall have and
is hereby given the power at any time by an instrument in writing duly
executed by a Vice President, to remove any Co-Owner Trustee or his
successor, from his position as Co-Owner Trustee hereunder. In the case
of death, resignation, removal, incapacity or inability to act hereunder
of the Co-Owner Trustee, or his successor as Co-Owner Trustee, any adult
citizen of the United States of America may be appointed Co-Owner
Trustee hereunder by the person who shall at the time be a Vice
President of the corporation then acting as the Owner Trustee hereunder
by an instrument in writing duly executed, and under its corporate seal,
and, subject to its right to revoke such appointment or to appoint
another person, the Owner Trustee shall appoint a successor Co-Owner
Trustee, such appointment to be immediately effective in case of the
death, resignation, removal or inability or incapacity to act hereunder
of the Co-Owner Trustee. In the event a vacancy occurs in the office of
the Co-Owner Trustee, either by reason of resignation, removal,
incapacity or inability to act and no successor is appointed pursuant to
the foregoing provisions within thirty (30) days after such vacancy
occurs, the Holders and the Agent may jointly appoint a successor to the
Co-Owner Trustee in the same manner as is provided for the appointment
of a successor to the Co-Owner Trustee hereunder.
(v) At any time or times, for the purposes of meeting the legal
requirements of any jurisdiction in which any part of the Trust Estate
hereunder may at the time be located, or to avoid any violation of law
or imposition of taxes not otherwise imposed on the Owner Trustee, or if
the Owner Trustee shall deem it desirable for its own protection, the
Owner Trustee shall have power to appoint one or more persons (who may
be officers of the Owner Trustee either to act as an additional
co-trustee, jointly with the Owner Trustee) of all or any part of the
Trust Estate hereunder, or of any property constituting part thereof, or
to act as separate trustee of any part of the Trust Estate in either
case with such powers as may be provided in the instrument of
appointment and are consistent with the terms hereof, and to vest in
such person or persons in the capacity as aforesaid, any property,
title, right or power deemed necessary or desirable, subject to the
remaining provisions of this Section 9.2.
(vi) Notwithstanding any provision of this Trust Agreement to the
contrary, any additional co-trustee shall act upon and be subject to the
following terms and conditions:
All rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred or imposed
solely upon and solely exercised and performed by the Owner
Trustee except to the extent that under any law of
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any jurisdiction in which any particular act or acts are to be
performed the Owner Trustee or the Owner Trustee shall be
incompetent or unqualified to perform such act or acts or to
avoid any violation of law or imposition of taxes not otherwise
imposed on the Owner Trustee, or if the Owner Trustee shall deem
it desirable for its own protection, in which event such rights,
powers, duties and obligations shall be exercised and performed
by such co-trustee or Co-Owner Trustee.
(vii) No power granted by this Trust Agreement to, or which this
Trust Agreement provides may be exercised by, the Owner Trustee in
respect of the custody, control and management of moneys may be
exercised by any Co-Owner Trustee or any subsequently appointed
co-trustee except jointly with, or with the consent in writing of, the
Owner Trustee for disbursement or application in accordance with the
terms hereof.
(viii) All moneys which may be received or collected by any
Co-Owner Trustee or such subsequently appointed co-trustees shall be
paid over to the Owner Trustee to be distributed in accordance with this
Trust Agreement and the other Operative Agreements.
(ix) Any Co-Owner Trustee, or any subsequently appointed
co-trustee to the extent permitted by law, does hereby constitute the
Owner Trustee or its successors hereunder his or her agent or attorney
in fact, with full power and authority to do any and all acts and things
and exercise any and all discretion authorized or permitted by the
Co-Owner Trustee or such subsequently appointed co-trustee, in its
behalf or in its name.
(x) No trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder.
SECTION 9.3 NOTICE.
At all times that a successor Owner Trustee is appointed pursuant to
Section 9.1, an Owner Trustee resigns pursuant to Section 9.1 or the Co-Owner
Trustee, a co-trustee or separate trustee, is appointed pursuant to Section 9.2,
the Holders shall give joint notice of such fact within thirty (30) days of its
occurrence to (x) Lessee, if the Lease is then in effect and (y) the Agent, if
the Credit Agreement is in effect.
ARTICLE X
AMENDMENTS
SECTION 10.1 AMENDMENTS.
This Trust Agreement may be terminated, amended, supplemented, waived or
modified in accordance with Section 12.4 of the Participation Agreement.
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SECTION 10.2 LIMITATION ON AMENDMENTS.
Notwithstanding Section 10.1, the Owner Trustee shall not, without the
consent of the Agent execute any amendment that might result in the trusts
created hereunder being terminated prior to the satisfaction and discharge of
the Lien and security interest of the Security Documents on the Collateral or
prior to the payment in full of the principal of, and interest on the Loans and
other than in accordance with the terms of the Credit Agreement.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 NO LEGAL TITLE TO TRUST ESTATE IN THE HOLDERS.
The Holders shall not have legal title to any part of the Trust Estate;
provided, however, that each Holder has a pro rata beneficial interest in the
Trust Estate. No transfer, by operation of law or otherwise, of any right, title
or interest of a Holder in and to the Trust Estate or hereunder shall operate to
terminate this Trust Agreement or the Trust or the trusts hereunder or entitle
any successor or transferee to an accounting or to the transfer to it of legal
title to any part of the Trust Estate.
SECTION 11.2 SALE OF A PROPERTY BY THE OWNER TRUSTEE IS BINDING.
Any sale, transfer, or other conveyance of any Property or any part
thereof by the Owner Trustee made pursuant to the terms of this Trust Agreement
or any other Operative Agreement shall bind the Holders and shall be effective
to sell, transfer and convey all right, title and interest of the Owner Trustee
and the Holders in and to such Property or any part thereof. 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 11.3 LIMITATIONS ON RIGHTS OF OTHERS.
Nothing in this Trust Agreement whether express or implied, shall be
construed to give to any Person, other than the Owner Trustee and each Holder,
any legal or equitable right, remedy or claim under or in respect of this Trust
Agreement, any covenants, conditions or provisions contained herein or in the
Trust Estate; but this Trust Agreement shall be held for the sole and exclusive
benefit of the Owner Trustee and the Holders. The Agent shall have the right to
enforce the provisions of Sections 5.1, 5.2, 5.3, 5.4, 6.2, 6.8, 8.1, 8.2, 8.3,
9.1, 9.2, 9.3, 10.1 and 10.2 prior to the payment in full of the principal of
and interest on the Loans and such other amounts due and payable to the Lenders
or the Agent under the Operative Agreements.
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SECTION 11.4 NOTICES.
Unless otherwise expressly specified or permitted by the terms hereof,
all notices hereunder shall be given as provided in Section 12.2 of the
Participation Agreement.
SECTION 11.5 SEVERABILITY.
Any provision of this Trust Agreement that may be determined by
competent authority to be prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 11.6 LIMITATION ON THE HOLDERS' LIABILITY.
No Holder shall have any liability for the performance of this Trust
Agreement except as expressly set forth herein.
SECTION 11.7 SEPARATE COUNTERPARTS.
This Trust Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute but one and the same
instrument.
SECTION 11.8 SUCCESSORS AND ASSIGNS.
(a) All covenants and agreements contained herein shall be
binding upon, and inure to the benefit of, Trust Company, the Owner
Trustee and its successors and assigns and each Holder and its
successors and assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by a Holder
shall bind the successors and assigns of such Holder.
(b) Any Holder may transfer or assign all or any portion of its
right, title and interest in the Trust Estate, this Trust Agreement and
the Certificate of such Holder in accordance with the requirements of
Section 10.1 of the Participation Agreement and pursuant to an
assignment agreement in substantially the form of Exhibit B, which
assignment agreement shall provide, without limitation, that the
assignee undertakes and assumes all obligations and covenants of a
Holder under this Trust Agreement and the other Operative Agreements.
The Holder proposing the transfer or assignment shall notify the Owner
Trustee, the Agent and Lessee in writing of the effective date of the
transfer or assignment, which effective date shall be at least three (3)
Business Days after the date of such notification. The Owner Trustee
shall maintain a register showing the Holders and their respective
interests in the Trust Estate and, upon the occurrence of a permitted
assignment pursuant to this Section 11.8(b), shall issue a Certificate
to the assignee and, if the assigning Holder is maintaining an interest
hereunder, a new Certificate to such assigning Holder representing its
revised interest in the Trust Estate.
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Any such Certificate issued upon any such registration of an assignment
shall be the valid obligation of the Trust and shall be entitled to the
same security and benefits under this Trust Agreement as such
surrendered Certificate. The Owner Trustee shall not recognize any
purported assignment or transfer by a Holder that does not comply with
the terms of this Section 11.8 and any such attempted transfer or
assignment by a Holder in violation of the terms of this Section 11.8
shall be null and void and of no effect.
SECTION 11.9 HEADINGS.
The headings of the various articles and sections herein are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
SECTION 11.10 GOVERNING LAW.
THIS TRUST AGREEMENT HAS BEEN DELIVERED IN, AND SHALL IN ALL RESPECTS BE
GOVERNED BY AND CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE
INTERNAL LAWS OF, THE STATE OF UTAH (WITHOUT GIVING EFFECT TO THE PRINCIPLES
THEREOF RELATING TO CONFLICTS OF LAW).
SECTION 11.11 PERFORMANCE BY THE HOLDERS.
Any obligation of the Owner Trustee hereunder or under any Operative
Agreement or other document contemplated herein may be performed by the Holders
(or by one of them with the written consent of the other) and any such
performance shall not be construed as a revocation of the trusts created hereby.
SECTION 11.12 CONFLICT WITH OPERATIVE AGREEMENTS.
If this Trust Agreement (or any instructions given by a Holder pursuant
hereto) shall require that any action be taken with respect to any matter and
any other Operative Agreement (or any instructions 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
such other Operative Agreement, in respect thereof, shall control.
SECTION 11.13 NO IMPLIED WAIVER.
No term or provision of this Trust Agreement may be changed, waived,
discharged or terminated orally, but only by an instrument in writing entered
into as provided in Section 10.1; and any such waiver of the term hereof shall
be effective only in the specific instance and for the specific purpose given.
SECTION 11.14 SUBMISSION TO JURISDICTION; VENUE.
THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING TO SUBMISSION TO
JURISDICTION AND VENUE ARE HEREBY INCORPORATED BY REFERENCE HEREIN, MUTATIS
MUTANDIS.
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SECTION 11.15 CERTAIN RIGHTS OF LESSEE.
It is acknowledged and agreed by the parties hereto that, pursuant to
Section 9.2 of the Participation Agreement, the Lessee has the right, and, in
specified cases and at specified times, the exclusive right, to receive certain
notices and take certain actions, in its own capacity and/or on behalf of the
Owner Trustee and the Trust, under this Agreement.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized, as of
the date set forth above.
OWNER TRUSTEE:
FIRST SECURITY BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------
(Storage Centers Trust 2001)
29
HOLDERS:
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Title: Senior Vice President
------------------------------------
30
BANK HAPOALIM B.M., as a Holder
By: /s/ ▇▇▇▇ ▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇
------------------------------
Title: Vice President
-----------------------------
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Title: First Vice President
-----------------------------
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, as a Holder
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Title: Director
-----------------------------
▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ AND GRAND CAYMAN
BRANCHES, as a Holder
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: Assistant Vice President
------------------------------------
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Title: Vice President
------------------------------------
33
KEYBANK NATIONAL ASSOCIATION, as a Holder
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Title: Assistant Vice President
-------------------------------------
34
SUNTRUST BANK, as a Holder
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Title: Vice President
------------------------------------
35
U.S. BANK, NATIONAL ASSOCIATION, as a Holder
By: /s/ MILES ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: Miles ▇. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: Vice President
--------------------------------------
36
WASHINGTON MUTUAL BANK, as a Holder
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Title: Vice President
------------------------------------
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FLEET NATIONAL BANK, as a Holder
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: Director
------------------------------
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LASALLE BANK, NATIONAL ASSOCIATION, as a Holder
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: Vice President
------------------------------------
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SCHEDULE I
HOLDER COMMITMENTS
[redacted]
Schedule I-1