1
THIRD AMENDED AND RESTATED TRUST AGREEMENT
dated as of June 19, 1997
among
NATIONSBANK, NATIONAL ASSOCIATION,
and the other financial institutions parties thereto,
as Holders,
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION, as Owner Trustee
WACKENHUT CORRECTIONS TRUST 1997-1
2
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS; AMENDED AND RESTATED AGREEMENT
SECTION 1.1 Definitions............................................... 1
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................................................. 2
SECTION 2.2 Declaration of Trust by Trust Company..................... 2
ARTICLE III CONTRIBUTIONS AND PAYMENTS
SECTION 3.1 Procedure for Holder Fundings; Certificates............... 3
SECTION 3.2 Certificate Yield......................................... 4
SECTION 3.3 Scheduled Return of Holder Fundings....................... 4
SECTION 3.4 Early Return of Holder Fundings........................... 5
SECTION 3.5 Payments from Trust Estate Only........................... 5
SECTION 3.6 Method of Payment......................................... 5
SECTION 3.7 Computation of Yield...................................... 5
SECTION 3.8 Conversion and Continuation Options....................... 6
SECTION 3.9 Increased Costs, Illegality, etc.......................... 7
SECTION 3.10 Contribution Indemnity.................................... 8
SECTION 3.11 Notice of Amounts Payable; Mandatory
Assignment................................................ 8
SECTION 3.12 Taxes..................................................... 9
SECTION 3.13 Holder Overdue Rate....................................... 10
ARTICLE IV COLLECTIONS AND DISTRIBUTIONS
SECTION 4.1 Collections and Remittances by the Owner
Trustee................................................... 11
SECTION 4.2 Priority of Distributions................................. 11
SECTION 4.3 Excepted Payments......................................... 11
SECTION 4.4 Distributions after Default............................... 11
ARTICLE V DUTIES OF THE OWNER TRUSTEE
SECTION 5.1 Notice of Certain Events.................................. 12
i
3
SECTION 5.2 Action Upon Instructions.................................. 12
SECTION 5.3 Indemnification........................................... 12
SECTION 5.4 No Duties Except as Specified In Trust
Agreement or Instructions................................. 13
SECTION 5.5 No Action Except Under Specified
Documents or Instructions................................. 13
SECTION 5.6 Absence of Duties......................................... 13
SECTION 5.7 Owner Trustee's Annual Certification...................... 14
ARTICLE VI THE OWNER TRUSTEE
SECTION 6.1 Acceptance of Trust and Duties............................ 14
SECTION 6.2 Furnishing of Documents................................... 15
SECTION 6.3 No Representations or Warranties as to the Properties or
Operative Agreements...................................... 15
SECTION 6.4 No Segregation of Moneys; No Interest..................... 15
SECTION 6.5 Reliance; Advice of Counsel............................... 15
SECTION 6.6 Liability With Respect to Documents....................... 16
SECTION 6.7 Not Acting In Individual Capacity......................... 16
SECTION 6.8 Books and Records; Tax Returns............................ 16
SECTION 6.9 Substitute Owner Trustee; Owner Trustee Advisor.......... 17
SECTION 6.10 Maintain Character of Holder Fundings..................... 17
ARTICLE VII INDEMNIFICATION OF THE OWNER TRUSTEE
SECTION 7.1 Indemnification Generally................................. 18
SECTION 7.2 Compensation and Expenses................................. 18
ARTICLE VIII TERMINATION OF TRUST AGREEMENT
SECTION 8.1 Termination of Trust Agreement............................ 18
SECTION 8.2 Termination at Option of the Holders...................... 18
SECTION 8.3 Termination at Option of the Owner
Trustee................................................... 19
SECTION 8.4 Actions by the Owner Trustee Upon
Termination............................................... 19
ARTICLE IX SUCCESSOR OWNER TRUSTEES, CO-OWNER TRUSTEES
AND SEPARATE OWNER TRUSTEES
SECTION 9.1 Resignation of the Owner Trustee; Appointment
of Successor.............................................. 19
SECTION 9.2 Co-Trustees and Separate Trustees......................... 20
SECTION 9.3 Notice.................................................... 23
ii
4
ARTICLE X SUPPLEMENTS AND AMENDMENTS
SECTION 10.1 Supplements and Amendments................................ 23
SECTION 10.2 Limitation on Amendments.................................. 24
ARTICLE XI MISCELLANEOUS
SECTION 11.1 No Legal Title to Trust Estate in
the Holders............................................... 24
SECTION 11.2 Sale of Properties by the Owner Trustee is
Binding................................................... 24
SECTION 11.3 Certification of Authorization............................ 24
SECTION 11.4 Limitations on Rights of Others........................... 24
SECTION 11.5 Notices................................................... 24
SECTION 11.6 Severability.............................................. 25
SECTION 11.7 Limitation on the Holders' Liability...................... 25
SECTION 11.8 Separate Counterparts..................................... 25
SECTION 11.9 Successors and Assigns.................................... 25
SECTION 11.10 Headings.................................................. 25
SECTION 11.11 Governing Law............................................. 25
SECTION 11.12 Performance by the Holders................................ 25
SECTION 11.13 Conflict with Agreements.................................. 25
SECTION 11.14 No Implied Waiver......................................... 26
EXHIBIT A FORM OF HOLDER CERTIFICATE
iii
5
THIRD AMENDED AND RESTATED TRUST AGREEMENT
THIS THIRD AMENDED AND RESTATED TRUST AGREEMENT, dated as of June 19,
1997, is among the Beneficiaries and Holders party hereto from time to time
parties hereto (each a "Beneficiary" or a "Holder"), and FIRST SECURITY BANK,
NATIONAL ASSOCIATION, in its individual capacity ("Trust Company"), and in its
capacity as trustee hereunder, together with its successors and assigns (the
"Owner Trustee").
WHEREAS, in order to provide a portion of the funds for the acquisition or
leasing of the Properties and for carrying out the other transactions
contemplated by the Operative Agreements, each Holder will make its respective
Holder Fundings pursuant to this Trust Agreement and the Participation
Agreement (as defined below); and
WHEREAS, the Holders desire to provide for the Trust to exist for the
purpose of purchasing the Properties and leasing such Properties to the Lessee,
and carrying out certain transactions contemplated by the Indemnification
Agreement(as defined below) and 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; AMENDED AND
RESTATED AGREEMENT
SECTION 1.1 DEFINITIONS. For purposes of this Trust Agreement (including
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 that certain Amended and Restated Participation Agreement dated as of
the date hereof (as such agreement may be amended, modified, supplemented or
restated from time to time in accordance with the terms thereof, "Participation
Agreement") among Wackenhut Corrections Corporation, as Construction Agent and
as Lessee, the Owner Trustee, the Holders party thereto, the Lenders party
thereto , and NationsBank, National Association, (successor by merger to
NationsBank, N.A. (South); "NationsBank") as Administrative Agent. 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.
6
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 (i) to execute and
deliver, as trustee for and on behalf of each such Holder, the Indemnification
Agreement dated as of March 14, 1997 by and among Owner Trustee, Guarantor and
NationsBank (as amended, modified, supplemented or restated, the
"Indemnification Agreement"), the Promissory Note dated as of March 14, 1997 in
the face principal amount of $10,000,000 executed by Owner Trustee in favor of
NationsBank (as amended, modified, supplemented or restated, the "Bridge
Note"), 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 or thereby to which the Owner Trustee is a
party, (ii) 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 (i) above as set forth in such documents, agreements and certificates,
and (iii) subject to the terms of this Trust Agreement, to take such other
action in connection with the foregoing as the Holders 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 and to the Properties, the
Indemnification Agreement, each Holder Funding, the Operative Agreements
and any other property contributed by any Holder, including, without
limitation, all amounts of Rent, insurance proceeds and condemnation
awards, indemnity or other payments of any kind (collectively, the "Trust
Estate") as 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 Wackenhut Corrections Trust 1997-1.
(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 course of the administration of the Trust or (iv)
subject any of its property or assets for 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
2
7
KIND WITH RESPECT TO THE 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 AMONG THE OWNER
TRUSTEE, THE HOLDERS, THE ADMINISTRATIVE AGENT AND THE LENDERS.
ARTICLE III
CONTRIBUTIONS AND PAYMENTS
SECTION 3.1 PROCEDURE FOR HOLDER FUNDINGS; CERTIFICATES.
(a) Upon receipt from the Construction Agent by the Owner Trustee and
the Administrative Agent of the Requisition specified in Section 5.2 of the
Participation Agreement, and subject to the terms and conditions of the
Participation Agreement, the Owner Trustee shall request from each Holder
an advance and each Holder shall make an advance under the Holder
Commitment of such Holder on each date Fundings are made pursuant to
Section 5 of the Participation Agreement provided that, after giving effect
to any Holder Funding (i) the outstanding amount of all Holder Fundings by
such Holder shall not exceed its Holder Commitment, and (ii) the aggregate
outstanding amount of Holder Fundings by all Holders shall not exceed the
Total Holder Funding Commitment. The Owner Trustee 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 Owner Trustee shall give each
Holder irrevocable notice (which notice must be received by each Holder (i)
prior to 11:00 A.M., Charlotte, North Carolina time, three Business Days
prior to the requested date of advance if all or any part of the requested
advance is to be a Eurodollar Holder Funding or (ii) prior to 11:00 A.M.,
Charlotte, North Carolina time one Business Day prior to the requested date
of advance with respect to any advance that is to be a Base Rate Holder
Funding), specifying (A) the amount to be advanced, (B) the requested date
of advance, (C) whether the advance is to be a Eurodollar Holder Funding or
a Base Rate Holder Funding or a combination thereof, and (D) if the advance
is to be a combination of Eurodollar Holder Fundings and Base Rate Holder
Fundings, the respective amounts of each type of advance; provided,
however, that prior to the Completion Date for any specified Property (1)
there shall be only two (2) Interest Periods in effect at any specified
date, which Interest Periods shall apply to all Eurodollar Holder Fundings
then outstanding with respect to such Property, and which Interest Periods
shall be one month in length (subject to the adjustments set forth in the
definition of "Interest Period"), (2) the first Interest Period shall
commence on the date that the first Eurodollar Holder Advance is made
hereunder, (3) each succeeding Interest Period shall begin on the last day
of one of the two (2) permitted Interest Periods, and (4) any amounts
advanced or converted hereunder which are to bear Holder Yield based on the
Eurodollar Rate may only be advanced or converted on the first day of a
permitted Interest Period. Pursuant to the terms of Section 5.2 and
Section 11.2 of the Participation Agreement, the Owner
3
8
Trustee shall be deemed to have delivered such notice upon the delivery of
a notice by the Lessee or the Construction Agent containing such required
information.
(b) Upon receipt of the Requisition and the notice delivered pursuant
to Section 3.1(a), each Holder shall make the amount of its Holder Funding
available to the Owner Trustee at the office of the Owner Trustee referred
to in Section 11.4 prior to 2:00 P.M., Charlotte, North Carolina time on
the date requested by the Lessee in funds immediately available to the
Owner Trustee.
(c) The Eurodollar Holder Funding shall have an Interest Period of
one, two, three, six or nine months, as specified in the definition of
"Interest Period," subject only to the limitations specified in such
definition and to the provisions of Sections 3.1(a), 3.7(c), 3.8 and 3.9.
Any Holder Funding other than a Eurodollar Holder Funding shall constitute
a Base Rate Holder Funding.
(d) On each date which is three Business Days prior to any Scheduled
Interest Payment Date, the Owner Trustee shall be deemed to have requested
a Eurodollar Holder Funding pursuant to Section 3.1(a) in an amount equal
to the aggregate amount of Allocated Return due and payable on such date
with respect to the Construction Period Properties. The date such Holder
Funding shall be made with respect to any such request shall be the
relevant Scheduled Interest Payment Date and the proceeds of such Holder
Funding shall be applied to pay such Allocated Return. On each such date,
the Holder Property Cost and Holder Construction Property Cost of each
Construction Period Property shall be increased by an amount equal to the
Allocated Return paid on such date with the proceeds of such Holder
Funding.
(e) The Holder Fundings 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 as of the Initial Closing Date and (ii) bear a yield on the unpaid
Holder Amount thereof from time to time outstanding at the Holder Yield.
SECTION 3.2 CERTIFICATE YIELD. The Owner Trustee shall pay to each
Holder, from the Trust Estate, its pro rata portion of Holder Yield on Holder
Fundings made hereunder. Payment of Holder Yield on each Holder Funding shall
be made in arrears on each Payment Date. If the date on which such payment of
Holder Yield shall be due shall not be a Business Day, such payment shall be
made on the next succeeding Business Day.
SECTION 3.3 SCHEDULED RETURN OF HOLDER FUNDINGS. Except in the case of
early return of advances as set forth in Section 3.4 below or upon default, no
return of the principal amount of the Holder Fundings shall be due prior to the
Maturity Date. On the Maturity Date, subject to the terms of the Credit
Agreement, the Owner Trustee shall pay to each Holder its aggregate unpaid
Holder Amount together with all accrued but unpaid Holder Yield
4
9
and all other amounts due the Holders from the Owner Trustee hereunder or under
the Operative Agreements.
SECTION 3.4 EARLY RETURN OF HOLDER FUNDINGS. As contemplated by and
pursuant to the terms of the Lease, the Lessee shall be required or may elect
under certain circumstances as described in the Lease to pay the Termination
Value with respect to one or more Properties or purchase one or more Properties
and upon such purchase or payment the amounts paid by the Lessee in connection
therewith shall be distributed in accordance with the terms of Section 8 of the
Credit Agreement. Any such amounts received by the Owner Trustee shall be paid
over by the Owner Trustee to each Holder in an amount equal to such Holder's
pro rata portion of the Holder Amount relating to the applicable Property or
Properties. Notwithstanding the provisions set forth in this Section 3.4, any
prepayment of the Certificates shall be in accordance with the provisions of
Sections 2.6 and 8.1(b)(i) of the Credit Agreement so that so long as any
amount of the Loans is outstanding the aggregate amount of the outstanding
Holder Fundings as evidenced by the Certificates shall be equal to or greater
than three percent (3%) of the Property Cost. Any amounts of any Holder
Funding which are repaid to the Holders may be readvanced hereunder at any time
prior to the Construction Period Termination Date subject to any conditions on
Holder Fundings (and the limit on the aggregate number of Properties) set forth
herein and in the other Operative Agreements.
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 3.10) 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 specifically provided herein, 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) Holder Yield shall be calculated on the basis established in
Section 14.16 of the Participation Agreement, with respect to length of a
"year" and number of days for which interest is accrued. Any change in the
Holder Yield resulting from a change in the Base Rate, Eurodollar Reserve
Percentage, or otherwise, shall become effective as of the opening of
business on the day on which such change would become effective under the
Existing Wackenhut Corrections Credit Agreement.
5
10
(b) Pursuant to Section 14.14 of the Participation Agreement, the
calculation of Holder Yield under this Section 3.7 shall be made by the
Administrative Agent. Each determination of an interest rate by the
Administrative 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 Administrative
Agent in the manner specified in the definition of the term "Eurodollar
Rate", the Owner Trustee shall give telecopy or telephonic notice thereof
to the Holders as soon as practicable after receipt of same from the
Administrative Agent. Until such time as the Eurodollar Rate can be
determined by the Administrative Agent in the manner specified in the
definition of such term, no further Eurodollar Holder Fundings shall be
made or continue as such at the end of the then current Interest Period and
all Holder Fundings shall continue as Base Rate Holder Fundings.
SECTION 3.8 CONVERSION AND CONTINUATION OPTIONS.
(a) Subject to the restrictions set forth in Sections 3.1, 3.7(c) and
3.9, the Owner Trustee may elect from time to time to convert Base Rate
Holder Fundings to Eurodollar Holder Fundings by giving each Holder at
least three Business Days' prior irrevocable notice of such election. All
or any part of outstanding Holder Fundings may be converted as provided
herein, provided that (i) no Base Rate Holder Funding may be converted into
a Eurodollar Holder Funding when any Event of Default has occurred and is
continuing, (ii) no Base Rate Holder Funding may be converted into a
Eurodollar Holder Funding which matures after the Maturity Date, (iii)
during the Commitment Period such conversion may only occur on the first
day of an Interest Period permitted pursuant to the terms of Section 3.1
hereof and (iv) such notice of conversion shall contain an election by the
Owner Trustee of an Interest Period for such Eurodollar Holder Funding to
be created by such conversion and such Interest Period shall satisfy the
conditions of the definition of the term "Interest Period" as set forth in
Appendix A to the Participation Agreement.
(b) Subject to the restrictions set forth in Sections 3.1, 3.7(c) and
3.9 hereof, any Eurodollar Holder Funding 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 each Holder in accordance with
the applicable provisions of the definition of the term "Interest Period"
as set forth in Appendix A to the Participation Agreement; provided that no
Eurodollar Holder Funding may be continued as such (i) when any Event of
Default has occurred and is continuing or (ii) if such Eurodollar Holder
Funding would mature after the Maturity Date and provided, further, that if
the Owner Trustee shall fail to give any required notice as described above
in this paragraph or if such continuation is not permitted pursuant to the
preceding provision, such Holder Funding shall be automatically converted
to a Base Rate Holder Funding on the last day of such then expiring
Interest Period.
6
11
SECTION 3.9 INCREASED COSTS, ILLEGALITY, ETC.
(a) If, due to either (i) the introduction of or any change (other
than any change by way of imposition or increase of reserve requirements
that are expressly included in the calculation of the Eurodollar Reserve
Rate) in or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request hereafter adopted, promulgated or
made, by any central bank or other Governmental Authority (whether or not
having the force of law), there shall be any increase in the cost to any
Holder of agreeing to make or making, funding or maintaining Holder
Fundings, then the Owner Trustee shall from time to time, upon demand by
such Holder, pay to such Holder additional amounts sufficient to compensate
such Holder for such increased cost. A certificate as to the amount of
such increased cost, submitted to the Owner Trustee by such Holder, shall
be conclusive and binding for all purposes, absent manifest error.
(b) If any Holder determines that compliance with any law or
regulation or any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law, but in each
case promulgated or made after the date hereof) affects or would affect the
amount of capital required or expected to be maintained by such Holder or
any corporation controlling such Holder and that the amount of such capital
is increased by or based upon the existence of such Holder's commitment to
make Holder Fundings hereunder and other commitments of this type, then,
upon demand by such Holder, the Owner Trustee shall immediately pay to such
Holder, from time to time as specified by such Holder, additional amounts
sufficient to compensate such Holder or such corporation in the light of
such circumstances, to the extent that such Holder reasonably determines
such increase in capital to be allocable to the existence of such Holder's
commitment to make Holder Fundings hereunder. A certificate as to such
amounts submitted to the Owner Trustee by such Holder shall be conclusive
and binding for all purposes, absent manifest error.
(c) Without affecting its rights under Section 3.9(a) or 3.9(b) or any
other provision of this Trust Agreement, each Holder agrees that if there
is any increase in any cost to or reduction in any amount receivable by
such Holder with respect to which the Owner Trustee would be obligated to
compensate such Holder pursuant to Section 3.9(a) or 3.9(b) or 2.10(b),
such Holder shall use reasonable efforts to select an alternative office
from which to fund Holder Fundings which would not result in any such
increase in any cost to or reduction in any amount receivable by such
Holder; provided, however, that no Holder shall be obligated to select such
an alternate office if such Holder determines that (i) as a result of such
selection such Holder would be in violation of any applicable law,
regulation, treaty, or guideline, or would incur additional costs or
expenses or (ii) such selection would be inadvisable for regulatory reasons
or would impose an unreasonable burden or additional costs on such Holder.
(d) Notwithstanding any other provision of this Trust Agreement, if
any Holder shall notify the Owner Trustee that the introduction of or any
change in any law or regulation, or in the interpretation of any law or
regulation makes it unlawful, or any
7
12
central bank or other Governmental Authority asserts that it is unlawful,
for any Holder to perform its obligations hereunder to make or maintain
Eurodollar Holder Fundings then (i) each Eurodollar Holder Funding will
automatically, at the end of the Interest Period for such Eurodollar Holder
Funding, convert into a Base Rate Holder Funding and (ii) the obligation of
the Holders to make, convert or continue Eurodollar Holder Fundings shall
be suspended until such Holder shall notify the Owner Trustee that such
Holder has determined that the circumstances causing such suspension no
longer exist.
SECTION 3.10 CONTRIBUTION INDEMNITY. Subject to the provisions of Section
3.11, the Owner Trustee agrees to indemnify each Holder and to hold each Holder
harmless from any loss or reasonable expense which such Holder may sustain or
incur as a consequence of (a) failure of the Owner Trustee to accept any Holder
Funding hereunder after the Owner Trustee has given a notice requesting the
same in accordance with the provisions of this Trust Agreement(other than by
reason of the failure of a Holder or Holders to make funds available without
cause), (b) failure of the Owner Trustee to make any prepayment of a Holder
Funding after the Owner Trustee has given a notice thereof in accordance with
the provisions of this Trust Agreement, or (c) the making of a voluntary or
involuntary prepayment of a Eurodollar Holder Funding on a day which is not the
last day of an Interest Period with respect thereto. Such indemnification
shall be in an amount equal to the excess, if any, of (i) the amount of Holder
Yield which would have accrued on the amount so prepaid, or not accepted,
converted or continued for the period from the date of such prepayment or of
such failure to accept, convert or continue to the last day of such Interest
Period (or, in the case of a failure to accept, convert or continue, the
Interest Period that would have commenced on the date of such failure) in each
case at the applicable Holder Yield rate for such Holder Fundings provided for
herein over (ii) the amount of yield (as determined by such Holder) which would
have accrued to such Holder on such amount by placing such amount on deposit
for a comparable period with leading banks in the relevant interest rate
market. This covenant shall survive the termination of this Trust Agreement
and the payment of all other amounts payable hereunder.
SECTION 3.11 NOTICE OF AMOUNTS PAYABLE; MANDATORY ASSIGNMENT.
(a) Notice. In the event that any Holder becomes aware that any
amounts are or will be owed to it pursuant to Section 3.9,3.10 or 3.12 or
that it is unable to make Holder Fundings which bear a yield based on the
Eurodollar Rate, 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) Mandatory Assignment. In the event that any Holder delivers to the
Owner Trustee a certificate pursuant to Section 3.11(a) in connection with
amounts payable pursuant to Section 3.9 or Section 3.10, or such Holder is
required to make Holder Fundings as Base Rate Holder Fundings in accordance
with Section 3.9(d) then the Owner Trustee may, at its own expense and in
its sole discretion, (i) require such Holder
8
13
to transfer or assign, in whole or in part, without recourse (in accordance
with Section 12.1 of the Participation Agreement), all or 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, 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 all outstanding Holder Fundings of
such Holder; provided, however, that (x) 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 principal amount of and
Holder Yield accrued to the date of such payment on the Holder Fundings
made by it hereunder and all other amounts owed to it hereunder (and, if
such Holder is also a Lender, the principal amount of all Loans and all
interest accrued and unpaid thereon), (y) any termination of Holder
Commitments shall be accompanied by a pro rata reduction of Commitments for
Loans subject to the terms of Section 2.5(a) of the Credit Agreement and
(z) such assignment or termination of the Holder Commitment of such Holder
and prepayment of Holder Fundings does not conflict with any law, rule or
regulation or order of any court or other Governmental Authority.
SECTION 3.12 TAXES.
(a) All payments made by the Owner Trustee under this Trust Agreement
and the Certificates shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income,
documentary stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding net income
taxes and franchise taxes (imposed in lieu of net income taxes) imposed on
any Holder as a result of a present or former connection between such
Holder and the jurisdiction of the Governmental Authority imposing such tax
or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from such Holder having executed,
delivered or performed its obligations or received a payment under, or
enforced, this Trust Agreement, any Certificate or any other Operative
Document). If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("Non-Excluded Taxes") are
required to be withheld from any amounts payable to any Holder hereunder or
under the Certificates, the amounts so payable to such Lender shall be
increased to the extent necessary to yield to such Holder (after payment of
all Non-Excluded Taxes) Holder Yield or any such other amounts payable
hereunder at the rates or in the amounts specified in this Trust Agreement
and the Certificates, provided, however, that the Owner Trustee shall not
be required to increase any such amounts payable to any Holder that is not
organized under the laws of the U.S. or a state thereof if such Holder
fails to comply with the requirements of paragraph (b) of
9
14
this Section 3.12. Whenever any Non-Excluded Taxes are payable by the
Owner Trustee, then as promptly as possible thereafter the Owner Trustee
shall send to such Holder a certified copy of an original official receipt
received by the Owner Trustee showing payment thereof. If the Owner
Trustee fails to pay any Non-Excluded Taxes when due to the appropriate
taxing authority or fails to remit to such Holder the required receipts or
other required documentary evidence, the Owner Trustee shall indemnify the
Holder for any incremental taxes, interest, costs or penalties that may
become payable by any Holder as a result of any such failure. The
agreements in this Section 3.12(a) shall survive the termination of this
Trust Agreement and the payment of the Certificates and all other amounts
payable hereunder.
(b) Each Holder that is not incorporated under the laws of the U.S. or
a state thereof shall:
(i) deliver to the Owner Trustee and the Administrative Agent (A)
the duly completed copies of IRS Form 1001 or 4224, or successor
applicable form, as the case may be, and (B) an IRS Form W-8 or W-9,
or successor applicable form, as the case may be;
(ii) deliver to the Owner Trustee and the Administrative Agent
two further copies of any such form or certification on or before the
date that any such form or certification expires or becomes obsolete
and after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Owner Trustee; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by Owner
Trustee or the Administrative Agent;
unless in any such case an event (including, without limitation, any change
in treaty, law or regulation or administrative or judicial interpretation
of any of the foregoing) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Holder from duly completing and
delivering any such form with respect to it and such Holder so advises the
Owner Trustee and the Administrative Agent. Such Holder shall certify (i)
in the case of a Form 1001 or 4224, that it is entitled to receive payments
under this Trust Agreement without deduction or withholding of any U.S.
federal income taxes and (ii) in the case of a Form W-8 or W-9, that it is
entitled to an exemption from U.S. backup withholding tax.
SECTION 3.13 HOLDER OVERDUE RATE. If all or a portion of (i) the
principal amount of any Holder Funding, (ii) any Holder Yield payable on any
Holder Funding, or (iii) any other amount payable hereunder shall not be paid
when due (subject to applicable grace periods) (whether at the stated maturity,
by acceleration or otherwise), such amount shall bear interest at a rate per
occurrence which is the lesser of (x) the Holder Yield applicable to such
Holder Funding
10
15
plus 2% (or in the case of clause (iii) above, the Base Rate plus 3%) and (y)
the highest interest rate permitted by applicable law, in each case from the
date of such non-payment until such amount is paid in full (whether after or
before judgment).
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, it will
during the term of this Trust administer the Trust Estate and, at the direction
of the Holders (or, so long as the Credit Agreement shall continue, subject to
the provisions of the Credit Agreement and the Security Documents), take steps
to collect all Rent and other sums payable to the Owner Trustee by the Lessee
under the Lease. The Owner Trustee agrees to distribute all proceeds received
from the Trust Estate in accordance with Article III and Sections 4.2 and 4.3.
The Owner Trustee shall make such distribution promptly upon receipt of such
proceeds (provided such proceeds are available for distribution) by the Owner
Trustee, it being understood and agreed that the Owner Trustee shall not be
obligated to make such distribution until the funds for such distribution have
been received by 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 Owner Trustee or on its behalf shall be distributed to the
Administrative Agent for allocation by the Administrative Agent in accordance
with the terms of Section 8 of the Credit Agreement or, if such payments or
amounts are received by the Owner Trustee from the Administrative 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 Article III; and, second, the balance, if any, of such payment or
amount remaining thereafter shall be distributed to the Holders pro rata.
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 hereof, 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.
11
16
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 under the terms of the Indemnification
Agreement or the Bridge Note, or any Lease Default, Lease Event of Default,
Credit Agreement Default, Credit Agreement Event of Default, Agency Agreement
Default or Agency Agreement Event of Default, the Owner Trustee shall give
written notice thereof within five (5) Business Days to each Holder, the Lessee
and the Administrative 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, the Owner Trustee shall take or refrain from taking such action as the
Administrative Agent shall direct so long as the Credit Agreement is in effect
(and as more specifically provided in Section 10.2(j) of the Participation
Agreement) and thereafter as the Holders shall jointly direct, in each case by
written instructions to the Owner Trustee. If the Owner Trustee shall have
given the Administrative Agent and the Holders notice of any event and shall
not have received written instructions as above provided within 30 days after
mailing notice of such event to the Administrative Agent and the Holders, 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 Bridge Note, the
Indemnification Agreement or the Operative Agreements, as the Owner Trustee
shall deem advisable and in the best interests of the Holders. 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, the Lessee or the Administrative Agent.
SECTION 5.2 ACTION UPON INSTRUCTIONS. Subject to the provisions of
Sections 5.1 and 5.3, upon the written instructions of the Administrative Agent
or the Holders (as applicable) or, as permitted expressly by the Operative
Agreements, the Lessee, as the case may be, 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, the Bridge
Note, the Indemnification Agreement or any 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 the Lessee
or, if Trust Company reasonably believes such indemnity to be inadequate, by
either the Lenders or the Holders in manner and form reasonably satisfactory to
Trust Company, against any liability, fee, cost or expense (including
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; and, if the Administrative Agent or
the Holders shall have directed the Owner Trustee to take or refrain from
taking any action under the Bridge Note, the Indemnification Agreement or any
Operative Agreement, the Lenders or the Holders, as applicable, agree to
furnish such indemnity by a
12
17
written undertaking of indemnification and, in addition, to pay the reasonable
compensation of Trust Company for the services performed or to be performed by
the Owner Trustee pursuant to such direction. The Owner Trustee shall not be
required to take any action under the Bridge Note, the Indemnification
Agreement or any Operative Agreement if Trust Company shall reasonably
determine, or shall have been advised by counsel, that such action (a) is
likely to result in personal liability for which Trust Company has not been and
will not be adequately indemnified, (b) is contrary to the terms hereof, the
Bridge Note, the Indemnification Agreement or of any Operative Agreement to
which the Owner Trustee is a party, or (c) 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
Administrative Agent or the Holders pursuant to Section 5.2 hereof.
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 the Properties or any other
part of the Trust Estate, or to otherwise take or refrain from taking any
action under or in connection with the Bridge Note, the Indemnification
Agreement or any Operative Agreement to which the Owner Trustee is a party,
except as expressly provided by the terms of this Trust Agreement or in written
instructions from the Administrative Agent or the Holders, as applicable,
received pursuant to Section 5.1, 5.2 or 8.4; 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
Construction Agent for all purposes shall be an independent contractor. Trust
Company nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any liens arising by or
through the Trust Company or the Owner Trustee 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 the Properties or any other part of the Trust Estate
except (i) as required by the terms of the Bridge Note, the Indemnification
Agreement or the Operative Agreements, (ii) in accordance with the powers
granted to, or the authority conferred upon, it pursuant to this Trust
Agreement or (iii) in accordance with the express terms hereof or with written
instructions from the Administrative Agent or the Holders, as applicable,
pursuant to Section 5.1, 5.2 or 8.4.
SECTION 5.6 ABSENCE OF DUTIES.
(a) Except in accordance with written instructions furnished pursuant
to Section 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 the Properties or effect or
maintain any such insurance, other than to receive and forward to each
Holder any notices, policies, certificates or binders furnished to the
Owner Trustee pursuant to the Lease; (iii) maintain the Properties; (iv)
pay or discharge any Tax or any Lien owing with
13
18
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 Administrative Agent; (v) confirm, verify, investigate or
inquire into the failure to receive any reports or financial statements of
the Lessee; (vi) inspect the Properties 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 the Bridge Note, the Indemnification Agreement or
any Operative Agreement with respect to the Properties; or(vii) manage,
control, use, sell, dispose of or otherwise deal with the Properties 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 its obligations under Section 5.2 hereof,
may, at the expense of the Lessee, employ agents, attorneys, accountants,
and auditors and enter into agreements with any of them, and Trust Company
shall not be liable, either in its individual capacity or in its capacity
as 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.
SECTION 5.7 OWNER TRUSTEE'S ANNUAL CERTIFICATION.
The Owner Trustee, upon written request of the Lessee received not less
than thirty (30) days nor more than sixty (60) days prior to each December 31st
during the Term of the Lease, shall provide to the Lessee a certification to
the effect that (i) the character of the Holder Fundings as evidenced by the
Certificates has not changed from the nature of the same as provided in this
Trust Agreement and the Participation Agreement as of the Initial Closing Date
and (ii) the Holder Fundings as evidenced by the Certificates equal or exceed
three percent (3%) of the Property Cost. With respect to the representation
provided for in clause (ii) of the immediately preceding sentence, Owner
Trustee shall be entitled to rely upon the representation of the Agent
respecting the amount of the Property Cost and the Loans.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 ACCEPTANCE OF TRUST AND DUTIES. Trust Company accepts the
trust hereby created and agrees to perform the same, but only upon the terms of
this Trust Agreement. Trust Company agrees to receive, manage and disburse all
moneys constituting part of the Trust Estate actually received by it as Owner
Trustee in accordance with the terms of this Trust Agreement. Trust Company
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 7.2 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 10.2(a) of the Participation
Agreement, (iv) 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
14
19
transactions contemplated by the Bridge Note, the Indemnification Agreement or
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
hereof.
SECTION 6.2 FURNISHING OF DOCUMENTS. The Owner Trustee will furnish to
each Holder and to the Administrative 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 Indemnification Agreement
or the Operative Agreements, unless by the express terms of the Indemnification
Agreement or any Operative Agreement a copy of the same is required to be
furnished by some other Person directly to the Holders or the Administrative
Agent, or the Owner Trustee shall have determined that the same has already
been furnished to the Holders and the Administrative Agent.
SECTION 6.3 NO REPRESENTATIONS OR WARRANTIES AS TO THE PROPERTIES OR
OPERATIVE AGREEMENTS. TRUST COMPANY 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 TRUST
COMPANY SHALL 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 Trust Company 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 the
Bridge Note, the Indemnification Agreement or any Operative Agreement or as to
the correctness of any statement made by a Person other than Trust Company or
the Owner Trustee contained in any thereof, except that Trust Company
represents, warrants and covenants to each Holder that this Trust Agreement has
been and each of the Bridge Note, the Indemnification Agreement and 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 Trust Company or the Owner
Trustee.
SECTION 6.5 RELIANCE; ADVICE OF COUNSEL. Trust Company 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. Trust Company may accept
and rely upon, a certified copy of a resolution of the board of directors or
15
20
other governing body of any corporate party as conclusive evidence that each
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, Trust Company may for all purposes
hereof rely on an Officers' Certificate of the relevant party, as to such fact
or matter, and such certificate shall constitute full protection to Trust
Company 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 Trust Company 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 (a) the recitals herein, (b) the validity or
sufficiency of this Trust Agreement, (c) the due execution hereof by any Holder,
(d) the form, character, genuineness, sufficiency, value or validity of the
Properties, or (e) the validity or sufficiency of the Bridge Note, the
Indemnification Agreement or 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 the Bridge Note, the Indemnification
Agreement or any of the other Operative Agreements.
SECTION 6.7 NOT ACTING IN INDIVIDUAL CAPACITY. All Persons having any
claim against Trust Company 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 Trust Company shall
otherwise expressly agree in the Bridge Note, the Indemnification Agreement or
any Operative Agreement to which it is a party.
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 the Bridge Note, the
Indemnification Agreement or any other Operative Agreement. The Owner
Trustee shall, at the expense of the Owner Trustee, 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 the Owner Trustee, prepare or cause to be prepared and the Owner
Trustee shall sign 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 the Bridge Note, the
Indemnification Agreement or any other Operative Agreement. Each Holder
shall furnish the Owner Trustee with all such information as may be
reasonably required from such Holder in connection with the preparation of
such tax returns. The Owner Trustee shall keep copies of all returns
delivered to or filed by it.
16
21
(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 it shall be furnished with such reasonable security
and indemnity 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 Administrative Agent or any Holder to protect the Properties and the
rights and interests of the Holders pursuant to the terms of this Trust
Agreement; provided, however, that Trust Company may obtain reimbursement
for the out-of-pocket expenses and costs of such actions, undertakings or
proceedings from the Lessee.
SECTION 6.9 SUBSTITUTE OWNER TRUSTEE; OWNER TRUSTEE ADVISOR. First
Security Bank, National Association, has entered into this Trust Agreement and
the other Operative Agreements not individually, except as expressly stated
herein or therein (as the case may be), but solely as Owner Trustee under the
Trust; provided, notwithstanding the foregoing provisions of this Section 6.9,
solely to the extent that the Louisiana Trust Code (L.A. R.S. 9:1721 et seq.)
is deemed to apply to the Trust, then (a) ▇▇. ▇▇▇ ▇. ▇▇▇▇▇, a resident of ▇▇▇▇▇
County, Utah shall be deemed to be a Co-owner Trustee (as defined in Section
9.2 hereof) with First Security Bank, National Association with respect to the
Trust and (b) First Security Bank, National Association (and any replacement or
successor thereto appointed by the Holder with the consent of the Majority
Lenders) shall be deemed to a Co-Owner Trustee and the Owner Trustee Advisor.
To the extent not prohibited by the relevant provisions of the Louisiana Trust
Code, in his capacity as Co-owner Trustee, ▇▇. ▇▇▇ ▇. ▇▇▇▇▇ shall act in
accordance with the express, written directions of the Owner Trustee Advisor
and any actions not in accordance with such directions shall be deemed null and
void and of no force or effect under this Trust Agreement and the other
Operative Agreements. In its capacity as Owner Trustee Advisor, First Security
Bank, National Association shall act (x) in accordance with the directions,
limitations, terms and provisions of this Trust Agreement and the other
Operative Agreements applicable to the Owner Trustee and (y) to the extent this
Trust Agreement and the other Operative Agreements do not contain any
direction, limitation, term or provision with regard to any particular
situation, in accordance with the written instructions of the Holders. Actions
taken by the Owner Trustee Advisor which are not in accordance with the
requirements of the immediately preceding sentence shall be deemed null and
void and of no force or effect under this Trust Agreement and the other
Operative Agreements. In the event ▇▇. ▇▇▇ ▇. ▇▇▇▇▇ shall become a Co-owner
Trustee, he shall not be required to post a bond of any kind. To the extent the
Louisiana Trust Code is deemed to apply to the Trust, ▇▇. ▇▇▇ ▇. ▇▇▇▇▇ hereby
accepts the trust and duties hereby created and agrees to perform the same, but
only upon the terms of this Trust Agreement.
SECTION 6.10 MAINTAIN CHARACTER OF HOLDER FUNDINGS. The Owner Trustee shall
at all times maintain the character of the Holder Fundings as evidenced by the
Certificates and as provided in this Trust Agreement and the Participation
Agreement to the end that the Holder Fundings shall at all times be "at-risk"
and shall not permit the same to be replaced by nonrecourse debt.
17
22
ARTICLE VII
INDEMNIFICATION OF THE OWNER TRUSTEE
SECTION 7.1 INDEMNIFICATION GENERALLY. The Owner Trustee and Trust
Company are indemnified for matters related to the transactions described
herein by the Lessee pursuant to the Indemnification Agreement and Section 13
of the Participation Agreement. Except as may be specifically provided from
time to time hereafter in writing by the Holders, neither the Owner Trustee nor
Trust Company shall have any right of indemnification from any Holder with
respect to the transactions described herein or in the Bridge Note, the
Indemnification Agreement or any of the other Operative Agreements.
SECTION 7.2 COMPENSATION AND EXPENSES. Pursuant to the Guaranty, the
Guarantor has guaranteed, among other things, the payment of various fees,
costs and expenses of the Owner Trustee and Trust Company as provided in
Section 9.3 of the Indemnification Agreement. Additionally, the Lessee has
agreed to pay the fees and reasonable expenses of the Owner Trustee and Trust
Company as provided in Section 9.3 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 hereof, be distributed pro rata to the Holders, and this Trust
Agreement shall be of no further force or effect, upon the earliest to occur of
(i) the joint written request of the 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 of Article IV; or (ii) the sale or other final disposition by the
Owner Trustee of all property constituting the Trust Estate and the final
disposition 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 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, the release of the Credit Documents and the liens and security
interest 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 (iii) 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
18
23
the Owner Trustee incurred by it as trustee hereunder; provided, however, that
each Holder agrees for the express benefit of the Administrative Agent and the
Lenders, that without the consent of the Administrative Agent, 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. Notwithstanding
any other section hereof, at any time that the Lease shall no longer be in full
force and effect, and the Administrative 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
Administrative Agent and the Lenders under the Operative Documents shall have
been paid, and the Holders shall have received payment in full of all Holder
Yield and other amounts due to the Holders under the Operative Documents, 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 hereof. 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
Section 8.1, Section 8.2 or Section 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
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 30 days' prior written notice to each Holder, the Administrative
Agent and the 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 Holders upon consent to such removal by the
Administrative Agent and with 60 days' prior written notice to the Owner
Trustee, a copy of which notice shall be concurrently delivered by the
Holders to the
19
24
Administrative Agent and the 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 each Holder; provided, however, that such successor Owner Trustee
must be approved by the Administrative Agent. If a successor Owner Trustee
shall not have been appointed within 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 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, the
foregoing notwithstanding, 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, to the
extent the provisions of the Louisiana Trust Code shall then be deemed to
apply to the Trust, be an individual, and otherwise 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 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.
SECTION 9.2 CO-TRUSTEES AND SEPARATE TRUSTEES. Whenever (a) the Owner
Trustee or the Holders (i) 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
20
25
Agreement, or (ii) shall be advised by counsel satisfactory to the Trustee or
the Holders, as the case may be, that it is so necessary or prudent, or (b) the
Owner Trustee shall have been directed to do so by the Holders and the
Administrative Agent, then 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:
(a) Trust Company shall appoint a Co-Owner Trustee hereunder in part
so that if, under any present or future law of any State where the
Properties are located or of any jurisdiction in which it may be necessary
to perform any act in carrying out the trusts herein created, Trust Company
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 Trust Company 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 such Co-Owner Trustee, or any of his successors, in trust
acting alone, as if he or such successor had been specifically authorized
to do so or had been the sole Owner Trustee hereunder. Any Co-Owner
Trustee shall continue to perform such acts until otherwise directed in
writing by Trust Company or any of its successors. Any request in writing
by Trust Company or any of its successors to a Co-Owner Trustee shall be
sufficient warrant for him to take such action as may be so requested.
(b) Except to the extent it may be deemed necessary for any Co-Owner
Trustee or any of his successors solely or jointly to execute the trusts
herein created, Trust Company or any of its successors shall alone possess
and exercise the powers, and shall be solely charged with the performance
of the duties herein declared to be possessed, exercised or performed by
the Owner Trustee; and no Co-Owner Trustee shall be liable therefor. Any
Co-Owner Trustee or any of his successors may delegate to Trust Company or
its successor hereunder the exercise of any power or discretion conferred
by any provision of this Trust Agreement.
(c) Any act of the Owner Trustee herein required or authorized shall
and will be jointly or separately performed by Trust Company 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 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
such Co-Owner Trustee, and such Co-Owner Trustee shall be entitled to all
the protection,
21
26
indemnification, immunity and compensation herein provided to Trust Company
acting singly in reference to such acts (subject to the limitations to such
a protection, indemnification, immunity and compensation set forth herein).
(d) Trust Company 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, and under its corporate seal, 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,
(i) any adult citizen of the United States of America may be appointed
Co-Owner Trustee hereunder by a person who shall at the time be a Vice
President of the corporation then acting as Owner Trustee hereunder, by an
instrument in writing duly executed, and (ii) subject to its right to
revoke such appointment or to appoint another person, Trust Company shall
appoint a successor Co-Owner Trustee, such appointment to be immediately
effective. 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 30 days after such vacancy occurs, the Holders and the
Administrative 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.
(e) 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, Trust Company
shall have power to appoint one or more persons (who may be officers of
Trust Company) either to act as an additional co-trustee, jointly with
Trust Company, 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 such capacity as
co-trustee or separate trustee), any property, title, right or power deemed
necessary or desirable, subject to the remaining provisions of this Section
9.2.
(f) Notwithstanding any provision of this Trust Agreement to the
contrary, any Co-Owner Trustee or 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 Trust Company except to the extent
that under any law of any jurisdiction in which any particular act or
acts are to be performed Trust Company 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
22
27
protection, in which event such rights, powers, duties and obligations
shall be exercised and performed by such co-trustee or Co-Owner
Trustee.
(g) 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, Trust Company for disbursement or
application in accordance with the terms hereof.
(h) All moneys which may be received or collected by any Co-Owner
Trustee or such subsequently appointed co-trustees shall be paid over to
Trust Company to be distributed in accordance with this Trust Agreement and
the other Operative Agreements.
(i) Any Co-Owner Trustee, or any subsequently appointed co-trustee to
the extent permitted by law, does hereby constitute Trust Company 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.
(j) 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 15 days of its occurrence to (x) the Lessee, if the Lease is then in
effect and (y) the Administrative Agent, if the Credit Agreement is in effect.
ARTICLE X
SUPPLEMENTS AND AMENDMENTS
SECTION 10.1 SUPPLEMENTS AND AMENDMENTS. Subject to Section 6 of the
Indemnification Agreement, Section 10.2 of this Trust Agreement, and Section
10.2 of the Participation Agreement, at the written request of any Holder, this
Trust Agreement shall be amended by a written instrument signed by Trust
Company and each Holder, but if in the opinion of Trust Company or any
non-requesting Holder, any instrument required to be so executed adversely
affects any right, duty or liability of, or immunity or indemnity in favor of,
such non-requesting Holder or the Owner Trustee under this Trust Agreement or
any of the other Operative Agreements to which the Owner Trustee is a party, or
would cause or result in any conflict with or breach of any terms, conditions
or provisions of, or default under, the charter documents or by-laws of such
non-requesting Holder or any document contemplated hereby to which it or the
Owner Trustee is a party, then Trust Company or such other Holder, as the case
may be, may in its sole discretion decline to execute such instrument, unless
it shall have been provided an indemnity satisfactory to it by the Holder so
requesting the amendment.
23
28
SECTION 10.2 LIMITATION ON AMENDMENTS. Notwithstanding Section 10.1,
Trust Company shall not, without the consent of the Administrative Agent,
execute any amendment (i) 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 any other
amounts due to the Administrative Agent or any Lender under any Credit
Document, and (ii) 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 PROPERTIES BY THE OWNER TRUSTEE IS BINDING. Any
sale, transfer, or other conveyance of the Properties or any part thereof by
the Owner Trustee made pursuant to the terms of this Trust Agreement, the
Indemnification 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 the Properties 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 CERTIFICATION OF AUTHORIZATION. Third persons may
conclusively rely on a statement signed by the Owner Trustee to establish the
authenticity of any records of the Trust or the authority of any person to act
on behalf of the Trust.
SECTION 11.4 LIMITATIONS ON RIGHTS OF OTHERS. Nothing in this Trust
Agreement whether express or implied, shall be construed to give to any Person,
other than Trust Company, 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 Administrative Agent shall
have the right to enforce the provisions of Sections 5.1, 5.2, 5.3, 5.4, 5.5,
6.2, 6.8, 8.1, 8.2, 8.3, 9.1, 9.2, 9.3, 10.1 and 10.2 hereof.
SECTION 11.5 NOTICES. Unless otherwise expressly specified or permitted
by the terms hereof, all notices hereunder shall be given as provided in the
Participation Agreement.
24
29
SECTION 11.6 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 11.7 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 11.8 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 11.9 SUCCESSORS AND ASSIGNS. 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.
SECTION 11.10 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 11.11 GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
FLORIDA, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICT OF
LAWS.
SECTION 11.12 PERFORMANCE BY THE HOLDERS. Any obligation of the Owner
Trustee hereunder or under the Bridge Note, the Indemnification Agreement or
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 11.13 CONFLICT WITH 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 the Bridge Note, the Indemnification
Agreement or 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 the Bridge Note, the Indemnification Agreement or
such other Operative Agreement (as applicable) shall control in respect
thereof.
25
30
SECTION 11.14 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 any term hereof shall be effective only in the specific instance and
for the specific purpose given.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
26
31
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: _______________________________
Witness Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
____________________________
Witness
AGREED TO:
____________________________ ____________________________
Witness ▇▇▇ ▇. ▇▇▇▇▇, in his individual capacity
____________________________
Witness
(Wackenhut Corrections Trust 1997-1)
Signature Page 1
32
NATIONSBANK, NATIONAL ASSOCIATION, as
a Holder
____________________________ By:________________________________
Witness Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
____________________________
Witness
Signature Page 2
33
SCOTIABANC INC., as a Holder
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Wire Transfer Instructions:
The Bank of Nova Scotia
New York, New York
ABA #▇▇▇▇▇▇▇▇▇
Attention: Further Credit #0735639
ScotiaBanc Inc.
Reference: Wackenhut Corrections Corporation
Signature Page 3
34
▇▇▇▇▇▇▇ BANK, N.A., as a Holder
By:______________________________________
Name:____________________________________
Title:___________________________________
Address for Notices:
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Wire Transfer Instructions:
▇▇▇▇▇▇▇ Bank, N.A.
ABA #▇▇▇▇▇▇▇▇▇
Account #06000074838
Attention: Wire Wash Acct 1396-10231
(Participation)
Reference: Wackenhut Corrections Corporation
Signature Page 4
35
SUNTRUST BANK, SOUTH FLORIDA, N.A., as a
Holder
By:____________________________________
Name:__________________________________
Title:_________________________________
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Wire Transfer Instructions:
SunTrust Bank, South Florida, N.A.
Fort Lauderdale, Florida
ABA #▇▇▇-▇▇▇-▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Reference: Wackenhut Corrections Corporation
Signature Page 5
36
EXHIBIT A
FORM OF HOLDER CERTIFICATE
FIRST SECURITY BANK, NATIONAL ASSOCIATION
TRUSTEE UNDER
SECOND AMENDED AND RESTATED TRUST AGREEMENT DATED AS OF JUNE 19,
1997
HOLDER CERTIFICATE
WACKENHUT CORRECTIONS TRUST 1997-1
$_________________________ _______________, 199_
Holder:___________________
First Security Bank, National Association, as trustee (in such capacity
the "Trustee") under that certain Third Amended and Restated Trust Agreement
(the "Trust Agreement") dated as of June 19, 1997, between NationsBank,
National Association and the other Holders party thereto, and the Trustee,
hereby certifies as follows: (i) this Holder Certificate is the Holder
Certificate referred to in the Section 3.1(d) of the Trust Agreement, which
Holder Certificate has been issued to the Holder named herein by the Trustee
pursuant to the Trust Agreement and (ii) subject to the prior payment of, and
the assignment, pledge or mortgage of the Trust Estate to secure the Notes as
set forth in the applicable Operative Agreements, the holder of this Holder
Certificate has an undivided beneficial interest in properties of
the Trustee constituting part of the Trust Estate and is entitled to receive as
provided in the Trust Agreement, a portion of the Rent received or to be
received by the Trustee for the Properties, as well as a portion of certain
other payments which may be received by the Trustee pursuant to the terms of
the Operative Agreements as more particularly set forth therein. (Capitalized
terms not otherwise defined herein shall have the respective meanings assigned
to them in the Trust Agreement.)
All amounts payable hereunder and under the Trust Agreement shall be paid
only from the income and proceeds from the Trust Estate and only to the extent
that the Trustee shall have received sufficient income or proceeds from the
Trust Estate to make such payments in accordance with the terms of the Trust
Agreement, except as specifically provided in Section 6.1 of the Trust
Agreement; and the holder hereof, by its acceptance of this Holder Certificate,
agrees that it will look solely to the income and proceeds from the Trust
Estate to the extent available for distribution to the holder hereof as
provided in the Trust Agreement and the other Operative Agreements and that,
except as specifically provided in the Trust Agreement and the other Operative
Agreements, the Trustee is not personally liable to the holder hereof for any
amount payable under this Holder Certificate or the Trust Agreement.
37
The amounts payable to the holder hereof pursuant to the 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 one or more 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.
This Holder Certificate shall mature, and all amounts payable to the
holder hereof pursuant to the Trust Agreement shall be due on, the Maturity
Date.
The Holder Fundings outstanding from time to time under this Holder
Certificate shall bear a yield on the unpaid amount hereof at the Holder Yield
as provided in the Trust Agreement. The Holder Yield on this Holder
Certificate shall be computed as provided in the Trust Agreement and shall be
payable at the rates, at the times and from the dates specified in the Trust
Agreement.
From and after the execution of the Participation Agreement, the rights of
the holder of this Holder Certificate under the Trust Agreement as well as the
beneficial interest of the holder of this Holder Certificate in and to the
properties of the Trustee constituting part of the Trust Estate, are subject
and subordinate to the rights of the holders of the Notes to the extent
provided in the applicable Operative Agreements. The Trust Estate has been or
will be assigned, pledged and mortgaged to the Administrative Agent, on behalf
of the Lenders, as security for the Notes. Reference is hereby made to the
Trust Agreement, the Participation Agreement, the Credit Agreement, the
Security Agreement and the Notes for statements of the rights of the holder of
this Holder Certificate and of the rights of the holders of, and the nature and
extent of the security for, the Notes, as well as for a statement of the terms
and conditions of the trusts created by the Trust Agreement; and the holder
hereof, by its acceptance of this Holder Certificate, agrees to all such terms
and conditions.
The holder hereof, by its acceptance of this Holder Certificate, agrees
not to transfer this Holder Certificate except in accordance with the terms of
the Trust Agreement and the other Operative Agreements.
THIS HOLDER CERTIFICATE SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES
OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS (AS
OPPOSED TO CONFLICTS OF LAW PROVISIONS) AND DECISIONS OF THE STATE OF FLORIDA.
WHENEVER POSSIBLE EACH PROVISION OF THIS HOLDER CERTIFICATE SHALL BE INTERPRETED
IN SUCH MANNER AS TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY
PROVISION OF THIS HOLDER CERTIFICATE SHALL BE PROHIBITED BY OR INVALID UNDER
APPLICABLE LAW, SUCH PROVISION SHALL BE INEFFECTIVE TO THE EXTENT OF SUCH
PROHIBITION OR INVALIDITY, WITHOUT INVALIDATING THE REMAINDER OF SUCH PROVISION
OR THE REMAINING PROVISIONS OF THIS HOLDER CERTIFICATE.
IN WITNESS WHEREOF, the undersigned authorized officer of the Trustee has
executed this Holder Certificate as of the date first set forth above.
38
FIRST SECURITY BANK, NATIONAL ASSOCIATION, as
Trustee
By:________________________________
Name: _____________________________
Title: ____________________________
39
STATE OF NORTH CAROLINA
COUNTY OF _________________
I, the undersigned, a Notary Public of said County and State, do hereby
certify that _______________________________ the _______________ of
NationsBank, National Association personally appeared before me this day and,
with authority duly given, he signed the foregoing instrument on behalf of the
corporation.
WITNESS my hand and official seal or stamp, this the ___ day of
_____________, 1997.
_________________________
Notary Public
My Commission Expires:
[SEAL or STAMP]
40
STATE OF NORTH CAROLINA
COUNTY OF _________________
I, the undersigned, a Notary Public of said County and State, do hereby
certify that _______________________________ the _______________ of First
Security Bank, National Association personally appeared before me this day and,
with authority duly given, he signed the foregoing instrument on behalf of the
corporation.
WITNESS my hand and official seal or stamp, this the ____ day of
___________, 1997.
_________________________
Notary Public
My Commission Expires:
[SEAL or STAMP]
41
STATE OF NORTH CAROLINA
COUNTY OF __________
I, the undersigned, a Notary Public of said County and State, do hereby
certify that ▇▇▇ ▇. ▇▇▇▇▇ personally appeared before me this day and
acknowledged the due execution of the foregoing instrument.
WITNESS my hand and official seal or stamp, this the ____ day of
___________, 1997.
_________________________
Notary Public
My Commission Expires:
[SEAL or STAMP]