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EXHIBIT 10.36
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TRUST AGREEMENT
dated as of March 9, 2000
between
The Several Holders
from Time to Time Parties Hereto,
as the Holders,
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as the Owner Trustee
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VS TRUST 2000-1
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.......................................................... 1
SECTION 1.1 Definitions................................................ 1
SECTION 1.2 Interpretation............................................. 2
ARTICLE II AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENTS; DECLARATION
OF TRUST BY TRUST COMPANY.............................................. 2
SECTION 2.1 Authority To Execute and Perform Various Documents......... 2
SECTION 2.2 Declaration of Trust by Trust Company...................... 2
ARTICLE III CONTRIBUTIONS AND PAYMENTS......................................... 3
SECTION 3.1 Procedure for Holder Advances; Certificates................ 3
SECTION 3.2 Holder Yield............................................... 4
SECTION 3.3 Scheduled Return of Holder Advances........................ 5
SECTION 3.4 Early Return of Advances................................... 5
SECTION 3.5 Payments from Trust Estate Only............................ 6
SECTION 3.6 Method of Payment.......................................... 6
SECTION 3.7 Computation of Yield....................................... 6
SECTION 3.8 Conversion and Continuation Options........................ 7
SECTION 3.9 Notice of Amounts Payable.................................. 8
ARTICLE IV COLLECTIONS AND DISTRIBUTIONS....................................... 9
SECTION 4.1 Collections and Remittances by the Owner Trustee........... 9
SECTION 4.2 Priority of Distributions.................................. 9
SECTION 4.3 Excepted Payments.......................................... 9
SECTION 4.4 Distributions after Default................................ 9
ARTICLE V DUTIES OF THE OWNER TRUSTEE..........................................10
SECTION 5.1 Notice of Certain Events...................................10
SECTION 5.2 Action Upon Instructions...................................10
SECTION 5.3 Indemnification............................................11
SECTION 5.4 No Duties Except as Specified In Trust Agreement or
Instructions................................................11
SECTION 5.5 No Action Except Under Specified Documents or
Instructions...............................................11
SECTION 5.6 Absence of Duties..........................................12
ARTICLE VI THE OWNER TRUSTEE...................................................13
SECTION 6.1 Acceptance of Trust and Duties.............................13
SECTION 6.2 Furnishing of Documents....................................13
SECTION 6.3 No Representations or Warranties as to the Properties or
Operative Agreements.......................................13
SECTION 6.4 No Segregation of Moneys; No Interest......................14
SECTION 6.5 Reliance; Advice of Counsel................................14
SECTION 6.6 Liability With Respect to Documents........................14
SECTION 6.7 Not Acting In Individual Capacity..........................15
SECTION 6.8 Books and Records; Tax Returns.............................15
SECTION 6.9 Tax Treatment..............................................15
ARTICLE VII INDEMNIFICATION OF THE OWNER TRUSTEE...............................16
SECTION 7.1 Indemnification Generally..................................16
SECTION 7.2 Compensation and Expenses..................................16
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SECTION 7.3 Limitation.................................................16
ARTICLE VIII TERMINATION OF TRUST AGREEMENT....................................16
SECTION 8.1 Termination of Trust Agreement.............................16
SECTION 8.2 Termination at Option of the Holders.......................17
SECTION 8.3 Termination at Option of the Owner Trustee.................17
SECTION 8.4 Actions by the Owner Trustee Upon Termination..............17
SECTION 8.5 Bankruptcy of Holder.......................................18
ARTICLE IX SUCCESSOR OWNER TRUSTEES, CO-OWNER TRUSTEES AND SEPARATE OWNER
TRUSTEES..................................................18
SECTION 9.1 Resignation of the Owner Trustee; Appointment of
Successor.................................................18
SECTION 9.2 Co-Trustees and Separate Trustees..........................19
SECTION 9.3 Notice.....................................................22
SECTION 9.4 Required Consents..........................................22
ARTICLE X AMENDMENTS..........................................................22
SECTION 10.1 Amendments................................................22
SECTION 10.2 Limitation on Amendments..................................22
ARTICLE XI MISCELLANEOUS.......................................................23
SECTION 11.1 No Legal Title to Trust Estate in the Holders.............23
SECTION 11.2 Sale of a Property by the Owner Trustee is Binding........23
SECTION 11.3 Limitations on Rights of Others...........................23
SECTION 11.4 Notices...................................................23
SECTION 11.5 Severability..............................................23
SECTION 11.6 Limitation on the Holders' Liability......................24
SECTION 11.7 Separate Counterparts.....................................24
SECTION 11.8 Successors and Assigns....................................24
SECTION 11.9 Headings..................................................25
SECTION 11.10 Governing Law............................................25
SECTION 11.11 Performance by the Holders...............................25
SECTION 11.12 Conflict with Operative Agreements.......................25
SECTION 11.13 No Implied Waiver........................................25
SECTION 11.14 SUBMISSION TO JURISDICTION; VENUE........................25
SECTION 11.15 Third Party Beneficiary..................................25
SECTION 11.16 Representation and Warranties............................26
SECTION 11.17 Mutilated, Destroyed, Lost or Stolen Certificates........26
Schedule I - Holder Commitments
EXHIBIT A - Form of Holder Certificate
EXHIBIT B - Form of Assignment and Acceptance
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TRUST AGREEMENT
THIS TRUST AGREEMENT, dated as of March 9, 2000 (as amended, modified,
extended, supplemented, restated and/or replaced from time to time, the "Trust
Agreement"), is among the several banks and other financial institutions from
time to time parties to this Trust Agreement (individually, each of the
foregoing may be referred to as a "Holder," and collectively, the foregoing
together with such other persons and entities that become holders hereunder, the
"Holders"), and FIRST SECURITY BANK, NATIONAL ASSOCIATION, in its individual
capacity ("Trust Company"), and in its capacity as owner trustee hereunder,
together with its successors and assigns (the "Owner Trustee").
WHEREAS, in order to provide a portion of the funds for carrying out
the other transactions contemplated by the Operative Agreements, each Holder
will make its respective Holder Advances pursuant to this Trust Agreement and
the Participation Agreement (as defined below);
WHEREAS, the Holders desire to provide for the Trust to exist for the
purpose of (a) developing, acquiring, installing, constructing and testing
various Properties and leasing such Properties to Lessee and (b) carrying out
certain transactions contemplated by the Operative Agreements; and
WHEREAS, Trust Company is willing to act as trustee hereunder and to
accept the trust created hereby (the "Trust").
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS.
For purposes of this Trust Agreement (including without limitation the
"WHEREAS" clauses set forth above), capitalized terms used in this Trust
Agreement and not otherwise defined herein shall have the meanings assigned to
them in Appendix A to that certain Participation Agreement dated as of March 9,
2000 (as amended, modified, extended, supplemented, restated and/or replaced
from time to time in accordance with the applicable provisions thereof, the
"Participation Agreement") among VERITAS Operating Corporation, as the Lessee
and the Construction Agent, the various parties thereto from time to time, as
the Guarantor, the Owner Trustee, the various banks and other lending
institutions which are parties thereto from time to time, as the Holders, the
various banks and other lending institutions which are parties thereto from time
to time, as the Lenders, and Bank of America, N.A., as agent for the
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Lenders and respecting the Security Documents, as the agent for the Lenders and
the Holders, to the extent of their interests. Unless otherwise indicated,
references in this Trust Agreement to articles, sections, paragraphs, clauses,
appendices, schedules and exhibits are to the same contained in this Trust
Agreement.
SECTION 1.2 INTERPRETATION.
The rules of usage set forth in Appendix A to the Participation
Agreement shall apply to this Trust Agreement.
ARTICLE II
AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENTS;
DECLARATION OF TRUST BY TRUST COMPANY
SECTION 2.1 AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENTS.
Each Holder hereby authorizes and directs the Owner Trustee (a) to
execute and deliver, as trustee for and on behalf of each such Holder, each
Operative Agreement to which the Owner Trustee is a party and any other
agreements, instruments, certificates or documents related to the transactions
contemplated hereby to which the Owner Trustee is a party, (b) to take whatever
action shall be required to be taken by the Owner Trustee by the terms of, and
exercise its rights and perform its duties under, each of the documents,
agreements, instruments and certificates referred to in clause (a) above as set
forth in such documents, agreements and certificates, and (c) subject to the
terms of this Trust Agreement, to take such other action in connection with the
foregoing as the Holders may from time to time direct.
SECTION 2.2 DECLARATION OF TRUST BY TRUST COMPANY.
(a) Trust Company hereby declares that it will hold all
estate, right, title and interest of the Owner Trustee in, to and under
each Property, each Holder Advance, the Operative Agreements, any other
property contributed by any Holder and any and all other property or
assets from time to time of the Trust, including without limitation all
amounts of Rent, insurance proceeds and condemnation awards, indemnity
or other payments of any kind (collectively, the "Trust Estate") as the
Owner Trustee upon the trusts set forth herein and for the use and
benefit of each Holder, subject, however, to the provisions of the
Credit Agreement and the Security Documents. The name of the Trust
shall be "VS Trust 2000-1".
(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 (including, without limitation,
contracting with third parties to engage in business activities for the
benefit of the Trustee Estate) 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
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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 to any mortgage, Lien, security interest or other
claim or encumbrance, other than in favor of the Lenders or the Holders
pursuant to the provisions of the Operative Agreements and this Trust
Agreement. THIS TRUST IS NOT A BUSINESS TRUST. THE SOLE PURPOSE OF THE
TRUST IS TO ACQUIRE AND HOLD TITLE TO THE TRUST ESTATE, SUBJECT TO THE
RIGHTS OF THE LENDERS, FOR THE BENEFIT OF THE HOLDERS. THE OWNER
TRUSTEE MAY NOT TRANSACT BUSINESS OF ANY KIND WITH RESPECT TO ANY
PROPERTY COMPRISING THE TRUST ESTATE NOR SHALL THIS AGREEMENT BE DEEMED
TO BE, OR CREATE OR EVIDENCE THE EXISTENCE OF A CORPORATION DE FACTO OR
DE JURE, OR A MASSACHUSETTS TRUST, OR ANY OTHER TYPE OF BUSINESS TRUST,
ASSOCIATION OR JOINT VENTURE BETWEEN THE OWNER TRUSTEE, THE HOLDERS,
THE AGENT AND THE LENDERS.
ARTICLE III
CONTRIBUTIONS AND PAYMENTS
SECTION 3.1 PROCEDURE FOR HOLDER ADVANCES; CERTIFICATES.
(a) Upon receipt from Lessee by the Agent of a Requisition,
and subject to the terms and conditions of the Participation Agreement,
the Agent shall request from each Holder its pro rata share of any
Advance and each Holder shall make its pro rata share of any Advance
under the Holder Commitment of such Holder, as set forth on Schedule 1
hereto, on each date Advances are made pursuant to Section 5 of the
Participation Agreement. The Agent may request an Advance under the
Holder Commitments during the Commitment Period on any date that an
Advance may be requested pursuant to the terms of Section 5.2(a) of the
Participation Agreement, provided, that the Agent shall give each
Holder irrevocable notice (which notice must be received by such Holder
no less than three (3) Business Days prior to the requested date of the
Holder Advance) specifying (i) the amount to be advanced (which on any
date shall not be in excess of the then Available Holder Commitment),
(ii) the requested date of advance, (iii) whether the Holder Advance is
to be a Eurodollar Holder Advance or an ABR Holder Advance or a
combination thereof, (iv) if the Holder Advance is to be a combination
of Eurodollar Holder Advances and ABR Holder Advances, the respective
amounts of each type of Holder Advance and (v) the Interest Period
applicable to any Eurodollar Holder Advances. Pursuant to the terms of
the Participation Agreement, the Agent shall be deemed to have
delivered such notice upon the delivery of a notice by the Construction
Agent or Lessee containing such required information.
(b) Upon receipt of any such notice delivered pursuant to
Section 3.1(a), each Holder shall make the amount of its Advance
available to the Agent for the account of the Owner Trustee at the
office of the Agent referred to in Section 12.2 of the Participation
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Agreement(or at such other address as may be identified by the Agent
from time to time) prior to 12:00 Noon, Dallas, Texas time on the date
requested by Lessee in funds immediately available to the Owner
Trustee.
(c) Holder Yield accruing on each Holder Advance during the
Construction Period with respect to any property shall, subject to the
limitations set forth in Section 5.1(b) of the Participation Agreement,
be added to the amount of the Holder Advance on the relevant Scheduled
Interest Payment Date. On such Scheduled Interest Payment Date, the
Holder Property Cost and Holder Construction Property Cost shall be
increased by the amount of Holder Yield added to the Holder Advance.
(d) The Holder Advances made by each Holder to the Trust
Estate shall be evidenced by a Certificate of the Owner Trustee,
substantially in the form of Exhibit A hereto, issued in the name of
the Holder and in an amount equal to the Holder Commitment of such
Holder. Each Certificate shall (i) be dated on or about the Initial
Closing Date, (ii) be stated to mature on the Maturity Date and (iii)
bear a yield on the unpaid Holder Amount thereof from time to time
outstanding at the Holder Yield.
(e) To the extent that the Owner Trustee, in its capacity as
Borrower under the Credit Agreement, shall have elected to terminate or
reduce the amount of the Commitments pursuant to Section 2.5(a) of the
Credit Agreement, a pro rata election shall be deemed to have been made
with respect to the Holder Commitment. The Holder Commitments
respecting any particular Property shall automatically be reduced to
zero (0) upon the occurrence of the Rent Commencement Date respecting
such Property. On any date on which the Commitments shall be reduced to
zero (0) as a result of a Credit Agreement Event of Default, the Holder
Commitments shall automatically be reduced to zero (0) and the Owner
Trustee shall prepay the Certificates in full for the outstanding
Holder Amount, together with accrued but unpaid Holder Yield thereon
and all other amounts owing under the Certificates.
(f) The Holder Commitment of each Holder may be increased
pursuant to the agreement of such Holder, in its sole and absolute
discretion, in accordance with the provisions set forth in Section 2.1
of the Construction Agency Agreement.
SECTION 3.2 HOLDER YIELD.
(a) Holder Advances shall bear yield payable by the Owner
Trustee and calculated at the rate of Holder Yield applicable from time
to time. The Owner Trustee shall pay to each Holder, from the Trust
Estate, its pro rata portion of Holder Yield on Holder Advances made
hereunder. Payment of Holder Yield to each Holder shall be made in
arrears on each Scheduled Interest Payment Date occurring after the
Rent Commencement Date (but for Holder Yield on any Holder Advance
calculated on the basis of the six (6) month Eurodollar Rate, such
Holder Yield shall be payable in arrears on each applicable three (3)
month anniversary date of such Holder Advance) or as otherwise provided
herein or in Section 2.6 of the Credit Agreement or Section 8.7 of the
Participation Agreement.
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(b) If (i) all or a portion of Holder Yield shall not be
received by the Holders when due (whether at the stated maturity, by
acceleration or otherwise) or (ii) (A) a replacement Construction Agent
is hired in accordance with the provisions of the Construction Agency
Agreement, (B) Completion of all Properties has not occurred on prior
to the Construction Period Termination Date or (C) the cost of any
Property exceeds the original Construction Budget therefor (or the
applicable Construction Budget modified in accordance with the
Operative Agreements) in each case as previously delivered to the
Agent, such overdue amount (in the case of Section 3.2(b)(i)) or all
Holder Advances, Holder Yield and all other amounts payable hereunder
(in the case of Section 3.2(b)(ii)) shall, without limiting the rights
of the Holders hereunder or under any Operative Agreement, bear
interest at the Holder Overdue Rate, in each case (x) from the date of
nonpayment until paid (whether after or before judgment) (in the case
of Section 3.2(b)(i)) or (y) Completion of all Properties (in the case
of Section 3.2(b)(ii)). All such amounts referenced in this Section
3.2(b) shall be paid upon demand.
SECTION 3.3 SCHEDULED RETURN OF HOLDER ADVANCES.
The outstanding Holder Amount shall be due in full on the Expiration
Date. On each such date and on the Expiration Date, subject to the terms of the
Participation Agreement, the Owner Trustee shall pay to each Holder its portion
of the aggregate Holder Amount then due, together with all accrued but unpaid
Holder Yield and all other amounts due to such Holders from the Owner Trustee
hereunder or under the Operative Agreements.
SECTION 3.4 EARLY RETURN OF ADVANCES.
(a) Subject to Sections 11.2(e), 11.3 and 11.4 of the
Participation Agreement and Section 5.9 of the Credit Agreement, the
Owner Trustee may at any time and from time to time prepay the
Certificates, in whole or in part, without premium or penalty, upon at
least three (3) Business Days' irrevocable notice to the Agent, on
behalf of the Holders, specifying the date and amount of prepayment and
whether the prepayment is of ABR Holder Advances or Eurodollar Holder
Advances or a combination thereof, and, if a combination thereof, the
amount allocable to each. Upon receipt of such notice, the Agent shall
promptly notify the Holders thereof. If such notice is given, the
amount specified in such notice shall be due and payable on the date
specified therein. Amounts prepaid shall not be readvanced, except as
set forth in Section 5.2(d) of the Participation Agreement.
(b) If on any date the Agent or the Owner Trustee shall
receive any payment in respect of (i) any Casualty, Condemnation or
Environmental Violation pursuant to Sections 15.1(a) or 15.1(g) or
Article XVI of the Lease (excluding any payments in respect thereof
which are payable to Lessee in accordance with the Lease), or (ii) the
Termination Value of any Property in connection with the delivery of a
Termination Notice pursuant to Article XVI of the Lease, or (iii) the
Termination Value of any Property or such other applicable amount in
connection with the exercise of a Purchase Option under Article XX of
the Lease or the exercise of the option of the Owner Trustee
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to transfer the Properties to the Lessee pursuant to Section 20.3 of
the Lease or (iv) any payment required to be made or elected to be made
by the Construction Agent to the Owner Trustee pursuant to the
Construction Agency Agreement, then in each case, the Holders shall
receive proceeds in accordance with Section 8.7(b) of the Participation
Agreement.
(c) Each prepayment of the Certificates pursuant to Section
3.4(a) shall be allocated to reduce the respective Holder Property
Costs of all Properties pro rata according to the Holder Property Costs
of such Properties immediately before giving effect to such prepayment.
Each prepayment of the Certificates pursuant to Section 3.4(b) shall be
allocated to reduce the Holder Property Cost of the Property or
Properties subject to the respective Casualty, Condemnation,
Environmental Violation, termination, purchase, transfer or other
circumstance giving rise to such prepayment.
SECTION 3.5 PAYMENTS FROM TRUST ESTATE ONLY.
All payments to be made by the Owner Trustee under this Trust Agreement
(including without limitation any payments pursuant to Section 11.4 of the
Participation Agreement) shall be made only from the income and proceeds from
the Trust Estate and only to the extent that the Owner Trustee shall have
received income or proceeds from the Trust Estate to make such payments in
accordance with the terms hereof, except as specifically provided in Section
6.1. Each Holder agrees that it will look solely to the income and proceeds from
the Trust Estate to the extent available for payment as herein provided and
that, except as specially provided in any Operative Agreement, Trust Company
shall not be liable to any Holder for any amounts payable under this Trust
Agreement and shall not be subject to any liability under this Trust Agreement.
SECTION 3.6 METHOD OF PAYMENT.
All amounts payable to a Holder pursuant to this Trust Agreement shall
be paid or caused to be paid by the Owner Trustee to, or for the account of,
such Holder, or its nominee, by transferring such amount in immediately
available funds to a bank institution or banking institutions with bank wire
transfer facilities for the account of such Holder or as otherwise instructed in
writing from time to time by such Holder.
SECTION 3.7 COMPUTATION OF YIELD.
(a) Whenever it is calculated on the basis of the Prime
Lending Rate, Holder Yield shall be calculated on the basis of a year
of three hundred sixty-five (365) days (or three hundred sixty-six
(366) days, as the case may be) for the actual days elapsed; and,
otherwise, Holder Yield shall be calculated on the basis of a year of
three hundred sixty (360) days for the actual days elapsed. Any change
in the Holder Yield resulting from a change in the ABR or the
Eurocurrency Reserve Requirements shall become effective as of the
opening of business on the day on which such change becomes effective.
(b) Pursuant to Section 12.12 of the Participation Agreement,
the calculation of Holder Yield under this Section 3.7 shall be made by
the Agent. Each determination
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of an interest rate by the Agent shall be conclusive and binding on the
Owner Trustee and the Holders in the absence of manifest error.
(c) If the Eurodollar Rate cannot be determined by the Agent
in the manner specified in the definition of the term "Eurodollar
Rate", the Owner Trustee shall give or cause to be given telecopy or
telephonic notice thereof to the Holders as soon as practicable after
receipt of same from the Agent. Commencing on the Scheduled Interest
Payment Date next occurring after the delivery of such notice and
continuing until such time as the Eurodollar Rate can be determined by
the Agent in the manner specified in the definition of such term, all
outstanding Holder Advances shall bear a yield at the ABR. Until such
time as the Eurodollar Rate can be determined by the Agent in the
manner specified in the definition of such term, no further Eurodollar
Holder Advances shall be made or shall be continued as such at the end
of the then current Interest Period nor shall the Owner Trustee have
the right to convert ABR Holder Advances to Eurodollar Holder Advances.
SECTION 3.8 CONVERSION AND CONTINUATION OPTIONS.
(a) The Owner Trustee may elect from time to time to convert
Eurodollar Holder Advances to ABR Holder Advances by giving the Agent
(on behalf of the Holders) at least three (3) Business Days' prior
irrevocable notice of such election, provided, that any such conversion
of Eurodollar Holder Advances may only be made on the last day of an
Interest Period with respect thereto, and provided, further, to the
extent an Event of Default has occurred and is continuing on the last
day of any such Interest Period, the applicable Eurodollar Holder
Advance shall automatically be converted to an ABR Holder Advance. The
Owner Trustee may elect from time to time to convert ABR Holder
Advances to Eurodollar Holder Advances by giving the Agent (on behalf
of the Holders) at least three (3) Business Days' prior irrevocable
notice of such election. Any such notice of conversion to Eurodollar
Holder Advances shall specify the length of the initial Interest Period
or Interest Periods therefor. Upon receipt of any such notice, the
Agent (on behalf of the Holders) shall promptly notify each Holder
thereof. All or any part of outstanding Eurodollar Holder Advances or
ABR Holder Advances may be converted as provided herein, provided, that
(i) no ABR Holder Advance may be converted into a Eurodollar Holder
Advance after the date that is one (1) month prior to the Maturity Date
and (ii) such notice of conversion shall contain an election by the
Owner Trustee of an Interest Period for such Eurodollar Holder Advance
to be created by such conversion and such Interest Period shall be in
accordance with the terms of the definition of the term "Interest
Period" including without limitation subparagraphs (A) through (D)
thereof.
(b) Subject to the restrictions set forth in Section 3.1,
except as otherwise requested by the Owner Trustee upon at least three
(3) Business Days' prior written notice to the Agent (on behalf of the
Holders) in accordance with the notice provisions for the conversion of
ABR Holder Advances to Eurodollar Holder Advances set forth herein and
the applicable provisions of the term "Interest Period" of the length
of the next Interest Period to be applicable to such Eurodollar Holder
Advances, any Eurodollar
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Holder Advance shall be continued as a Eurodollar Holder Advance of the
same Interest Period upon the expiration of the then current Interest
Period with respect thereto without the need for the Owner Trustee to
give notice to the Agent (on behalf of the Holders), provided, that no
Eurodollar Holder Advance may be continued as such after the date that
is one (1) month prior to the Maturity Date, provided, further, no
Eurodollar Holder Advance may be continued as such if an Event of
Default has occurred and is continuing as of the last day of the
Interest Period for such Eurodollar Holder Advance, and provided,
further, that if the Owner Trustee shall fail to give any required
notice as described above or if such continuation is not permitted
pursuant to the preceding proviso or otherwise, such Advances shall
automatically be converted to ABR Advances on the last day of such then
expiring Interest Period.
SECTION 3.9 NOTICE OF AMOUNTS PAYABLE.
(a) In the event that any Holder becomes aware that any
amounts are or will be owed to it pursuant to Sections 11.2 or 11.3 of
the Participation Agreement or that it is unable to make Holder
Advances which bear a yield based on the Eurodollar Rate plus the
Applicable Percentage for Eurodollar Holder Advances, then it shall
promptly notify the Owner Trustee thereof and, as soon as possible
thereafter, such Holder shall submit to the Owner Trustee a certificate
indicating the amount owing to it and the calculation thereof. The
amounts set forth in such certificate shall be prima facie evidence of
the obligations of the Owner Trustee hereunder.
(b) In the event that (i) any Holder shall fail to make
available to the Owner Trustee such Holder's ratable portion of any
Holder Advance (and no Default or Event of Default shall have occurred
and be continuing) or (ii) any Holder delivers to the Owner Trustee a
certificate in accordance with Section 3.9(a), or any Holder is
required to make Holder Advances with Holder Yields calculated at the
ABR in accordance with Section 11.3(d) of the Participation Agreement,
subject to Section 9.2 of the Participation Agreement, the Owner
Trustee may, at the expense of Lessee and in the discretion of the
Owner Trustee, (i) require such Holder to transfer or assign, in whole
or (with such Holder's consent) in part, without recourse (in
accordance with Section 11.8), all or (with such Holder's consent) part
of its interests, rights (except for rights to be indemnified for
actions taken while a party hereunder) and obligations under this
Agreement to a replacement bank or institution if the Owner Trustee
(subject to Section 9.2 of the Participation Agreement) and with the
full cooperation of such Holder) can identify a Person who is ready,
willing and able to be such replacement bank or institution with
respect thereto and such replacement bank or institution (which may be
another Holder) shall assume such assigned obligations, or (ii) during
such time as no Default or Event of Default has occurred and is
continuing, terminate the Holder Commitment of such Holder and prepay
the outstanding Holder Advances of such Holder, provided, however, that
(x) subject to Section 9.2 of the Participation Agreement, the Owner
Trustee or such replacement bank or institution, as the case may be,
shall have paid to such Holder in immediately available funds the
amount of the Holder Advances and Holder Yield accrued to the date of
such payment on the Holder Advances made by it hereunder (and, if such
Holder is also a Lender, the principal and interest on all Loans
accrued and unpaid
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thereon) and (y) such assignment or termination of the Holder
Commitment of the Holder and prepayment of the Holder Advances do not
conflict with any law, rule or regulation or order of any court or
Governmental Authority.
ARTICLE IV
COLLECTIONS AND DISTRIBUTIONS
SECTION 4.1 COLLECTIONS AND REMITTANCES BY THE OWNER TRUSTEE.
The Owner Trustee agrees that, subject to the provisions of this Trust
Agreement and the Operative Agreements, it will during the term of this Trust
administer the Trust Estate and, at the direction of the Holders, take steps to
collect all Rent and other sums payable to the Owner Trustee by Lessee under the
Lease. The Owner Trustee agrees to distribute, or cause to be distributed, all
proceeds received from the Trust Estate in accordance with Article III and
Sections 4.2 and 4.3. The Owner Trustee shall make, or cause to be made, such
distribution promptly upon receipt of such proceeds (provided, such proceeds are
available for distribution) by the Agent (on behalf of the Owner Trustee), it
being understood and agreed that the Owner Trustee shall not be obligated to
make, or to cause to be made, such distribution until the funds for such
distribution have been received by the Agent (on behalf of the Owner Trustee) in
cash or its equivalent reasonably acceptable to the Owner Trustee.
SECTION 4.2 PRIORITY OF DISTRIBUTIONS.
Subject to the terms and requirements of the Operative Agreements, all
payments and amounts received by Trust Company as the Owner Trustee or on its
behalf shall be distributed to the Agent for allocation by the Agent in
accordance with the terms of Section 8.7 of the Participation Agreement.
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. Such funds, if not distributed on the day received, shall be
invested in money market funds authorized to invest in short term securities
issued or guaranteed as to principal and interest by the U.S. Government and
repurchase agreements with respect to such securities, including such funds to
which the Owner Trustee or an Affiliate provides management advice or other
services for a fee. Interest earnings on such funds invested in accordance with
this Section 4.3 shall be paid to the Lessee.
SECTION 4.4 DISTRIBUTIONS AFTER DEFAULT.
Subject to the terms of Section 5.1, the proceeds received by the Owner
Trustee from the exercise of any remedy under the Lease shall be distributed
pursuant to Section 4.2 above. This
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Trust shall cease and terminate in accordance with the terms set forth in
Section 8.1 and upon the final disposition by the Owner Trustee of all of the
Trust Estate pursuant to this Section 4.4.
ARTICLE V
DUTIES OF THE OWNER TRUSTEE
SECTION 5.1 NOTICE OF CERTAIN EVENTS.
In the event the Owner Trustee shall have knowledge of any Default or
Event of Default, the Owner Trustee shall give written notice thereof within
five (5) Business Days to each Holder, Lessee and the Agent unless such Default
or Event of Default no longer exists before the giving of such notice. Subject
to the provisions of Section 5.3 of this Trust Agreement and Sections 8.5 and
9.2 of the Participation Agreement, the Owner Trustee shall take or refrain from
taking such action as the Agent shall direct until such time as the Loans are
paid in full (and as more specifically provided in Sections 8.2(h) and 8.6 of
the Participation Agreement) and thereafter as the Majority Holders shall
direct, in each case by written instructions to the Owner Trustee. If the Owner
Trustee shall have given the Agent and the Holders (and respecting Sections 8.5
and 9.2 of the Participation Agreement, the Lessee) notice of any event and
shall not have received written instructions as above provided within thirty
(30) days after mailing notice of such event to the Agent and the Holders (and
respecting Sections 8.5 and 9.2 of the Participation Agreement, the Lessee), the
Owner Trustee may, but shall be under no duty to, and shall have no liability
for its failure or refusal to, take or refrain from taking any action with
respect thereto, not inconsistent with the provisions of the Operative
Agreements, as the Owner Trustee shall deem advisable and in the best interests
of the Lenders and the Holders. For all purposes of this Trust Agreement, in the
absence of actual knowledge of a Responsible Officer in the Corporate Trust
Department of Trust Company, the Owner Trustee shall be deemed not to have
knowledge of any Default or Event of Default unless a Responsible Officer of the
Corporate Trust Department of Trust Company receives notice thereof given by or
on behalf of a Holder, Lessee or the Agent.
SECTION 5.2 ACTION UPON INSTRUCTIONS.
Subject to the provisions of Sections 5.1 and 5.3, upon the written
instructions of the Agent or the Majority Holders (as applicable), the Owner
Trustee will take or refrain from taking such action or actions as may be
specified in such instructions. If the Owner Trustee is unable to determine
whether any such action or actions that it has been instructed to take by the
Majority Holders or the Lessee is consistent with the provisions of the
Operative Agreements, the Owner Trustee shall give notice in accordance with
Section 11.4 below of such proposed action or actions to the Holders and the
Lessee and unless, within ten (10) Business Days, any of such parties advises
the Owner Trustee in writing that the proposed action or actions are
inconsistent with the provisions of the Operative Agreements (including specific
reference to the particular provisions in question), the Owner Trustee shall be
entitled to presume that the proposed action or actions are not inconsistent
with the provisions of the Operative Agreements and the Owner Trustee shall
proceed in accordance with such instructions. The Owner Trustee and the Holders
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acknowledge that the Owner Trustee is required to take action and to refrain
from taking action with regard to the Credit Agreement as instructed by the
Lessee in accordance with, and as limited by, Section 9.1 of the Participation
Agreement.
SECTION 5.3 INDEMNIFICATION.
The Owner Trustee shall not be required to take or refrain from taking
any action under this Trust Agreement or any other Operative Agreement (other
than the actions specified in the first sentence of Section 5.1 and in the last
sentence of Section 5.4) unless Trust Company shall have been indemnified by
Lessee or, at their election, by the Holders and the Lenders against any
liability, fee, cost or expense (including without limitation reasonable
attorneys' fees and expenses) that may be incurred or charged in connection
therewith, other than such as may result from the willful misconduct, bad faith
or gross negligence of the Owner Trustee. The Owner Trustee shall not be
required to take any action under any Operative Agreement if the Owner Trustee
shall reasonably determine, or shall have been advised by counsel, that such
action is likely to result in personal liability for which the Owner Trustee has
not been and will not be adequately indemnified or is contrary to the terms
hereof or of any Operative Agreement to which the Owner Trustee is a party or is
otherwise contrary to law. The Owner Trustee shall be under no liability with
respect to any action taken or omitted to be taken by the Owner Trustee in
accordance with instructions of the Agent or the Majority Holders pursuant to
Section 5.2.
SECTION 5.4 NO DUTIES EXCEPT AS SPECIFIED IN TRUST AGREEMENT OR
INSTRUCTIONS.
The Owner Trustee shall not have any duty or obligation to manage,
control, use, make any payment in respect of, register, record, insure, inspect,
sell, dispose of or otherwise deal with any Property or any other part of the
Trust Estate, or to otherwise take or refrain from taking any action under or in
connection with any Operative Agreement to which the Owner Trustee is a party,
except as expressly provided by the terms of this Trust Agreement or any other
Operative Agreement or in written instructions from the Agent and/or the
Majority Holders, as applicable, received pursuant to Sections 5.1, 5.2 or 8.4
of this Trust Agreement or Sections 8.2(h) or 8.6 of the Participation Agreement
or from the Lessee pursuant to Sections 8.5 or 9.2 of the Participation
Agreement; and no implied duties or obligations shall be read into this Trust
Agreement against the Owner Trustee. The Owner Trustee shall have no duty or
obligation to supervise or monitor the performance of the Construction Agent
pursuant to the Construction Agency Agreement which for all purposes shall be an
independent contractor. The Owner Trustee nevertheless agrees that it will (in
its individual capacity and at its own cost and expense), promptly take all
action as may be necessary to discharge any Lessor Liens on any part of the
Trust Estate.
SECTION 5.5 NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS.
The Owner Trustee agrees that it will not manage, control, use, sell,
dispose of or otherwise deal with any Property or any other part of the Trust
Estate except (a) as required by the terms of the Operative Agreements, (b) in
accordance with the powers granted to, or the authority conferred upon, it
pursuant to this Trust Agreement, (c) in accordance with the express
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terms hereof or with written instructions from the Agent and/or the Majority
Holders, as applicable, pursuant to Sections 5.1, 5.2 or 8.4 or (d) from the
Lessee pursuant to Sections 8.5 or 9.2 of the Participation Agreement.
SECTION 5.6 ABSENCE OF DUTIES.
(a) Except in accordance with written instructions furnished
pursuant to Sections 5.1, 5.2 or 8.4, and without limitation of the
generality of Section 5.4, the Owner Trustee shall not have any duty to
(i) file, record or deposit any Operative Agreement or any other
document, or to maintain any such filing, recording or deposit or to
refile, rerecord or redeposit any such document; (ii) obtain insurance
on any Property or effect or maintain any such insurance, other than to
receive and forward to each Holder and the Agent any notices, policies,
certificates or binders furnished to the Owner Trustee pursuant to the
Lease; (iii) maintain any Property; (iv) pay or discharge any Tax or
any Lien owing with respect to or assessed or levied against any part
of the Trust Estate, except as provided in the last sentence of Section
5.4, other than to forward notice of such Tax or Lien received by the
Owner Trustee to each Holder and the Agent; (v) confirm, verify,
investigate or inquire into the failure to receive any reports or
financial statements of Lessee or any other Person; (vi) inspect any
Property any time or ascertain or inquire as to the performance or
observance of any of the covenants of Lessee or any other Person under
any Operative Agreement with respect to any Property; or (vii) manage,
control, use, sell, dispose of or otherwise deal with any Property or
any part thereof or any other part of the Trust Estate, except as
provided in Section 5.5.
(b) The Owner Trustee, in the exercise or administration of
the trusts and powers hereunder, including without limitation its
obligations under Section 5.2, may, at the reasonable expense of
Lessee, employ agents, attorneys, accountants, and auditors and enter
into agreements with any of them and the Owner Trustee shall not be
liable, either in its individual capacity or in its capacity as the
Owner Trustee, for the default or misconduct of any such agents,
attorneys, accountants or auditors if such agents, attorneys,
accountants or auditors shall have been selected by it in good faith.
Notwithstanding the foregoing, as long as there does not exist any
Lease Event of Default, no such agents, attorneys, accountants or
auditors shall be employed without the prior written consent of the
Lessee, which consent may not be unreasonably withheld or delayed;
provided that such consent shall not be required with respect to the
Owner Trustee's exercise or administration of the trusts and powers
hereunder if the same is required by any amendment, waiver or consent
relating to any Operative Agreement.
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ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 ACCEPTANCE OF TRUST AND DUTIES.
The Owner Trustee accepts the trust and duties hereby created and
agrees to perform the same, but only upon the terms of this Trust Agreement. The
Owner Trustee agrees to receive, manage and disburse all moneys constituting
part of the Trust Estate actually received by it as the Owner Trustee in
accordance with the terms of this Trust Agreement. The Owner Trustee shall not
be answerable or accountable under any circumstances, except for (i) its own
willful misconduct, bad faith or gross negligence, (ii) the inaccuracy of any of
its representations or warranties contained in Section 6.3 of this Trust
Agreement or Section 6.1 of the Participation Agreement, (iii) its failure to
perform obligations expressly undertaken by it in the last sentence of Section
5.4 of this Trust Agreement or in Section 8.2(a) of the Participation Agreement,
(iv) Taxes based on or measured by any fees, commissions or compensation
received by it for acting as the Owner Trustee in connection with any of the
transactions contemplated by the Operative Agreements, or (v) its failure to use
ordinary care to receive, manage and disburse moneys actually received by it in
accordance with the terms of the Operative Agreements.
SECTION 6.2 FURNISHING OF DOCUMENTS.
The Owner Trustee will furnish to each Holder and to the Agent,
promptly upon receipt thereof, duplicates or copies of all reports, notices,
requests, demands, opinions, certificates, financial statements and any other
instruments or writings furnished to the Owner Trustee hereunder or under the
Operative Agreements, unless by the express terms of any Operative Agreement a
copy of the same is required to be furnished by some other Person directly to
the Holders and/or the Agent, or the Owner Trustee shall have determined that
the same has already been furnished to the Holders and the Agent.
SECTION 6.3 NO REPRESENTATIONS OR WARRANTIES AS TO THE PROPERTIES
OR OPERATIVE AGREEMENTS.
THE OWNER TRUSTEE MAKES (i) NO REPRESENTATION OR WARRANTY, EITHER
EXPRESS OR IMPLIED, AS TO THE TITLE, VALUE, USE, CONDITION, DESIGN, OPERATION,
MERCHANTABILITY OR FITNESS FOR USE OF ANY PROPERTY (OR ANY PART THEREOF), OR ANY
OTHER REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO ANY PROPERTY (OR ANY PART THEREOF) AND THE OWNER TRUSTEE SHALL NOT BE
LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE OF ANY
PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY LEGAL REQUIREMENT except that
the Owner Trustee hereby represents, warrants and covenants to each Holder that
it will comply with the last sentence of Section 5.4, and (ii) no representation
or warranty as to the validity or enforceability of any Operative Agreement or
as to the correctness of any statement made by a Person other than the Owner
Trustee or the Owner Trustee contained in any thereof, except that the Owner
Trustee represents, warrants and
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covenants to each Holder that this Trust Agreement has been and each of the
other Operative Agreements which contemplates execution thereof by the Owner
Trustee has been or will be executed and delivered by its officers who are, or
will be, duly authorized to execute and deliver documents on its behalf and is
enforceable against it in accordance with its terms except to the extent such
enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
SECTION 6.4 NO SEGREGATION OF MONEYS; NO INTEREST.
Except as otherwise provided herein or in any of the other Operative
Agreements, moneys received by the Owner Trustee hereunder need not be
segregated in any manner except to the extent required by law, and may be
deposited under such general conditions as may be prescribed by law, and neither
Trust Company nor the Owner Trustee shall be liable for any interest thereon,
except as may be agreed to in writing by the Owner Trustee or the Trust Company.
SECTION 6.5 RELIANCE; ADVICE OF COUNSEL.
The Owner Trustee shall not incur any liability to any Person in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it in good faith to be signed by the proper party or
parties. The Owner Trustee may accept and rely upon a certified copy of a
resolution of the board of directors or other governing body of any corporate
party as conclusive evidence that such resolution has been duly adopted by such
body and that the same is in full force and effect. As to any fact or matter the
manner of ascertainment of which is not specifically prescribed herein, the
Owner Trustee may for all purposes hereof rely on an Officer's Certificate of
the relevant party, as to such fact or matter, and such certificate shall
constitute full protection to the Owner Trustee for any action taken or omitted
to be taken by it in good faith in reliance thereon. In the administration of
the trusts hereunder, the Owner Trustee may execute any of the trusts or powers
hereof and perform its powers and duties hereunder directly or through agents or
attorneys and may consult with counsel, accountants and other skilled Persons to
be selected and employed by it, and the Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
advice or opinion of any such counsel, accountants or other skilled Persons and
not contrary to this Trust Agreement.
SECTION 6.6 LIABILITY WITH RESPECT TO DOCUMENTS.
The Owner Trustee, either in its trust or individual capacities, shall
not incur any liability to any Person for or in respect of the recitals herein,
the validity or sufficiency of this Trust Agreement or for the due execution
hereof by each Holder or for the form, character, genuineness, sufficiency,
value or validity of any Property or for or in respect of the validity or
sufficiency of any of the Operative Agreements and the Owner Trustee, either in
its trust or individual capacities, shall in no event assume or incur any
liability, duty or obligation to any
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Person or to any Holder, other than as expressly provided for herein or in any
of the other Operative Agreements.
SECTION 6.7 NOT ACTING IN INDIVIDUAL CAPACITY.
All Persons having any claim against the Owner Trustee by reason of the
transactions contemplated by the Operative Agreements shall look only to the
Trust Estate (or a part thereof, as the case may be) for payment or satisfaction
thereof, except as specifically provided in this Article VI and except to the
extent that the Owner Trustee shall otherwise expressly agree in any Operative
Agreement to which it is a party, including without limitation Section 6.1 and
Section 8.2(a) of the Participation Agreement and the last sentence of Section
5.4 hereof.
SECTION 6.8 BOOKS AND RECORDS; TAX RETURNS.
(a) The Owner Trustee shall be responsible for the keeping of
all appropriate books and records relating to the receipt and
disbursement of all moneys that it may receive hereunder, or under any
other Operative Agreement. The Owner Trustee shall, at the expense of
Lessee, file an application with the Internal Revenue Service for a
taxpayer identification number with respect to the trust created
hereby. The Owner Trustee shall, at the expense of Lessee, prepare or
cause to be prepared and the Owner Trustee shall sign and/or file the
federal fiduciary tax return with respect to Taxes due and payable by
the trust created hereby in connection with the transactions
contemplated hereby and by any other Operative Agreement. Each Holder
shall furnish the Owner Trustee with all such information as may be
reasonably required from such Holder (as such is requested in writing
by the Owner Trustee) in connection with the preparation of such tax
returns. The Owner Trustee shall keep copies of all returns delivered
to or filed by it.
(b) The Owner Trustee, either in its trust or individual
capacities, shall be under no obligation to appear in, prosecute or
defend any action, which in its opinion may require it to incur any
out-of-pocket expense or any liability unless the Owner Trustee shall
be furnished with such reasonable security and indemnity by Lessee (or,
at the election of the Majority Secured Parties, by the Holders and the
Lenders) against such expense or liability as it may require. The Owner
Trustee may, but shall be under no duty to, undertake such action as it
may deem necessary at any and all times, without any further action by
the Agent or any Holder to protect one (1) or more of the Properties
and the rights and interests of the Holders pursuant to the terms of
this Trust Agreement; provided, however, that the Owner Trustee may
obtain reimbursement for the reasonable out-of-pocket expenses and
costs of such actions, undertakings or proceedings from Lessee.
SECTION 6.9 TAX TREATMENT.
Except as otherwise required by applicable law, each of the Holders and
the Owner Trustee, by entering into this Trust Agreement, agrees that it will
file its own federal, state and local income, franchise and other tax returns in
a manner that is consistent with the treatment of
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the trust as a grantor trust. The parties agree that, unless otherwise required
by applicable law, the Holders shall file, or cause to be filed, annual or other
necessary returns, reports and other forms consistent with the characterization
of the trust as a grantor trust for such tax purposes.
ARTICLE VII
INDEMNIFICATION OF THE OWNER TRUSTEE
SECTION 7.1 INDEMNIFICATION GENERALLY.
The Owner Trustee is indemnified for matters related to the
transactions described herein by Lessee pursuant to Section 11 of the
Participation Agreement. Except as may be specifically provided from time to
time hereafter in writing by the Holders, the Owner Trustee shall not have any
right of indemnification from any Holder with respect to the transactions
described herein or in any of the other Operative Agreements.
SECTION 7.2 COMPENSATION AND EXPENSES.
Lessee has agreed to pay the fees and expenses of the Owner Trustee and
the Holder Commitment Fees as provided in Sections 7.3 and 7.4, respectively, of
the Participation Agreement.
SECTION 7.3 LIMITATION.
The Trust Company and the Owner Trustee shall not be required to
exhaust their remedies against the Lessee (or any other liable Person) under the
Operative Agreements before seeking to enforce their rights against the Holders
under this Article VII.
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
SECTION 8.1 TERMINATION OF TRUST AGREEMENT.
This Trust Agreement and the trusts created hereby shall terminate and
the Trust Estate shall, subject to the provisions of the Participation
Agreement, the other Operative Agreements and Article IV of this Trust
Agreement, be distributed pro rata to the Holders, and this Trust Agreement
shall be of no further force or effect, upon the earliest of (a) the joint
written request of the Majority Holders following the sale or other final
disposition by the Owner Trustee of all property constituting part of the Trust
Estate and the final distribution by the Owner Trustee of all moneys or other
property or proceeds constituting part of the Trust Estate in accordance with
the terms hereof; provided, however, that (except as provided for in the
Operative Agreements) the Trust Estate shall not be subject to sale or other
final disposition by the Owner Trustee prior
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to the payment in full and discharge of the Advances and all other indebtedness
secured by the Mortgage Instruments, Security Agreement and Lease and the
release of the Credit Documents and the Liens granted thereby and the payment in
full of the Holder Amount and Holder Yield thereon and all other amounts owing
to the Holders under any of the Operative Agreements and (b) fifty (50) years
after the date hereof.
SECTION 8.2 TERMINATION AT OPTION OF THE HOLDERS.
Notwithstanding Section 8.1, this Trust Agreement and the trusts
created hereby shall terminate and the Trust Estate shall be distributed pro
rata to the Holders, and this Trust Agreement shall be of no further force and
effect, upon the joint election of the Holders by notice to the Owner Trustee,
if such notice shall be accompanied by the written agreement of each Holder
assuming all the obligations of the Owner Trustee under or contemplated by the
Operative Agreements and all other obligations of the Owner Trustee incurred by
it as trustee hereunder; provided, however, that each Holder agrees for the
express benefit of the Agent and the Lenders, that without the consent of the
Majority Lenders, no such election shall be effective until the Liens and
security interests of the Security Documents on the Collateral shall have been
released and until full payment of the principal of, and interest on the Loans
and all other sums due to the Lenders shall have been made. Such written
agreement shall be reasonably satisfactory in form and substance to the Owner
Trustee and shall release the Owner Trustee from all further obligations of the
Owner Trustee hereunder and under the agreements and other instruments mentioned
in the preceding sentence.
SECTION 8.3 TERMINATION AT OPTION OF THE OWNER TRUSTEE.
At any time that the Lease shall no longer be in full force and effect
and the Agent shall have confirmed in writing to the Owner Trustee that the
Lenders have received payment in full of the principal of and interest on the
Loans and that all other sums due to the Agent and the Lenders under the
Operative Agreements shall have been made, then the Holders hereby authorize the
Owner Trustee to: (a) terminate this Trust Agreement and the trusts created
hereby and (b) distribute and convey the Trust Estate pro rata to the Holders by
executing the necessary transfer documents as contemplated by Section 8.4. The
exercise of such option by the Owner Trustee shall cause this Trust Agreement to
be of no further force and effect and shall release the Owner Trustee from all
further obligations of the Owner Trustee hereunder and under the agreements and
other instruments mentioned in the preceding sentence.
SECTION 8.4 ACTIONS BY THE OWNER TRUSTEE UPON TERMINATION.
Upon termination of this Trust Agreement and the trusts created hereby
pursuant to Sections 8.1, 8.2 or 8.3, the Owner Trustee shall upon notice of
such event take such action as may be necessary or as may be requested by the
Majority Holders to transfer the Trust Estate pro rata to the Holders, including
without limitation the execution of instruments of transfer or assignment with
respect to any of the Operative Agreements to which the Owner Trustee is a
party.
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SECTION 8.5 BANKRUPTCY OF HOLDER.
The bankruptcy, insolvency or other similar incapacity of any Holder
shall not (i) operate to terminate this Trust Agreement or the trust created
hereby, (ii) entitle such Holder's legal representatives to claim an accounting
or to take any action in any court for a partition or winding up of the Trustee
Estate or (iii) otherwise affect the rights, obligations or liabilities of the
parties hereto. Without the prior written consent of the Agent, no Holder may
withdraw from the trust or obtain possession of, or otherwise exercise remedies
with respect to, the Trust Estate or any portion thereof prior to the
satisfaction and discharge of the Liens of the Security Documents; provided,
however, nothing in this Section 8.5 shall prevent (a) the distribution of any
funds to the Holders in accordance with Section 8 of the Credit Agreement, or
(b) the exercise by the Holders of any remedies with respect to the Excepted
Payments.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES, CO-OWNER TRUSTEES
AND SEPARATE OWNER TRUSTEES
SECTION 9.1 RESIGNATION OF THE OWNER TRUSTEE; APPOINTMENT OF
SUCCESSOR.
(a) The Owner Trustee may resign at any time without cause by
giving at least thirty (30) days' prior written notice to each Holder,
the Agent and Lessee; provided, however, that such resignation shall
not be effective until the acceptance of appointment by a successor
Owner Trustee under Section 9.1(b). The Owner Trustee may be removed
with or without cause at any time by the Majority Holders upon consent
to such removal by the Agent and with sixty (60) days' prior written
notice to the Owner Trustee, a copy of which notice shall be
concurrently delivered by the Majority Holders to the Agent and Lessee.
Any such removal shall be effective upon the acceptance of appointment
by a successor Owner Trustee under Section 9.1(b). In case of the
resignation or removal of the Owner Trustee, the Holders may appoint a
successor Owner Trustee by an instrument signed by the Majority
Holders; provided, however, that such successor Owner Trustee must be
approved by the Agent. In the event the Owner Trustee shall be an
individual, his death or incapacity, or termination of employment
(whether voluntary or involuntary) with First Security Bank, National
Association (or a successor corporate Owner Trustee) shall be treated
as a resignation hereunder and shall be effective immediately. If a
successor Owner Trustee shall not have been appointed within thirty
(30) days after the giving of written notice of such resignation or the
delivery of the written instrument with respect to such removal, the
Owner Trustee or any Holder may apply to any court of competent
jurisdiction to appoint a successor Owner Trustee to act until such
time, if any, as a successor shall have been appointed and shall have
accepted its appointment as above provided. Any successor Owner Trustee
so appointed by such court shall immediately and without further act be
superseded by any successor Owner Trustee appointed as above provided
within one (1) year from the date of the appointment by such court.
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(b) Any successor Owner Trustee, however appointed, shall
execute and deliver to the predecessor Owner Trustee an instrument
accepting such appointment, and thereupon such successor Owner Trustee,
without further act shall become vested with all the estates,
properties, rights, powers, duties and trusts of the predecessor Owner
Trustee in the trusts hereunder with like effect as if originally named
an Owner Trustee herein; but nevertheless, upon the written request of
such successor Owner Trustee such predecessor Owner Trustee shall
execute and deliver an instrument transferring to such successor Owner
Trustee, upon the trusts herein expressed, all the estates, properties,
rights, powers, duties and trusts of such predecessor Owner Trustee,
and such predecessor Owner Trustee shall duly assign, transfer, deliver
and pay over to such successor Owner Trustee all moneys or other
property then held by such predecessor Owner Trustee upon the trusts
herein expressed.
(c) Any successor Owner Trustee, however appointed, shall be a
bank or trust company incorporated and doing business within the United
States of America and having a combined capital and surplus of at least
$50,000,000, if there be such an institution willing, able and legally
qualified to perform the duties of the Owner Trustee hereunder upon
reasonable or customary terms.
(d) Any corporation into which the Owner Trustee may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Owner Trustee shall be a party, or any corporation to which
substantially all the corporate trust business of the Owner Trustee may
be transferred, shall, subject to the terms of Section 9.1(c), be the
Owner Trustee under this Trust Agreement without further act.
SECTION 9.2 CO-TRUSTEES AND SEPARATE TRUSTEES.
Whenever (a) the Owner Trustee or the Majority Holders shall deem it
necessary or prudent in order either to conform to any law of any jurisdiction
in which all or any part of the Trust Estate shall be situated or to which it
may be subject or to make any claim or bring any suit with respect to the Trust
Estate or any Operative Agreement, (b) the Owner Trustee or the Majority Holders
shall be advised by counsel satisfactory to it that it is so necessary or
prudent, or (c) the Owner Trustee shall have been directed to do so by the
Majority Holders and the Agent, the Owner Trustee and the Holders shall execute
and deliver an agreement supplemental hereto and all other instruments and
agreements, and shall take all other action, necessary or proper to constitute
one (1) or more Persons who need not meet the requirements of Section 9.1(c)
(and the Owner Trustee may appoint one (1) 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:
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(i) The Owner Trustee shall appoint a Co-Owner Trustee
hereunder in part so that if, under any present or future law of any
state where any Property is located or of any jurisdiction in which it
may be necessary to perform any act in carrying out the trusts herein
created, the Owner Trustee or any of its successors may be incompetent
or unqualified or incapacitated or unwilling to perform certain acts as
such Owner Trustee, then upon the written request of the Owner Trustee
of any of its successors received by any Co-Owner Trustee, all of such
acts required to be performed in such jurisdiction in the execution of
the trust hereby created, shall and will be performed by any Co-Owner
Trustee, or any of his successors, in trust acting alone, as if he or
such successor had been specifically authorized so to do or had been
the sole Owner Trustee hereunder. Any Co-Owner Trustee shall continue
to perform such acts until otherwise directed in writing by the Owner
Trustee or any of its successors. Any request in writing by the Owner
Trustee or any of its successors to the Co-Owner Trustee shall be
sufficient warrant for him to take such action as may be so requested.
(ii) Except as it may be deemed necessary for any Co-Owner
Trustee or any of his successors solely or jointly to execute the
trusts herein created, the Owner Trustee or any of its successors shall
solely have and exercise the powers, and shall be solely charged with
the performance of the duties, hereinbefore declared on the part of the
Owner Trustee to be had, exercised and performed; and any Co-Owner
Trustee shall not be liable therefor. Any Co-Owner Trustee or any
successor to him may delegate to the Owner Trustee or its successor
hereunder the exercise of any power, discretion or otherwise, conferred
by any provision of this Trust Agreement.
(iii) Any act of the Owner Trustee herein required or
authorized shall and will be jointly or separately performed by the
Owner Trustee or its successors hereunder and by any Co-Owner Trustee
or any of his successors appointed hereunder, if such joint performance
or separate performance shall be necessary to the legality of such act
and when so acting all references herein to "First Security Bank,
National Association" shall be deemed to be references to such Co-Owner
Trustee in its individual capacity and all references to "Owner
Trustee" shall be deemed to be references to any Co-Owner Trustee, and
such Co-Owner Trustee shall be entitled to all the protection,
indemnification, immunity and compensation herein provided to the Owner
Trustee acting singly in reference to such acts (subject to the
limitations to such a protection, indemnification, immunity and
compensation set forth herein).
(iv) The Owner Trustee or its successor in trust shall have
and is hereby given the power at any time by an instrument in writing
duly executed by a Vice President, to remove any Co-Owner Trustee or
his successor, from his position as Co-Owner Trustee hereunder. In the
case of death, resignation, removal, incapacity or inability to act
hereunder of the Co-Owner Trustee, or his successor as Co-Owner
Trustee, any adult citizen of the United States of America may be
appointed Co-Owner Trustee hereunder by the person who shall at the
time be a Vice President of the corporation then acting as the Owner
Trustee hereunder by an instrument in writing duly executed, and under
its corporate seal, and, subject to its right to revoke such
appointment or to appoint another person, the Owner Trustee shall
appoint a successor Co-Owner Trustee, such
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appointment to be immediately effective in case of the death,
resignation, removal or inability or incapacity to act hereunder of the
Co-Owner Trustee. In the event a vacancy occurs in the office of the
Co-Owner Trustee, either by reason of resignation, removal, incapacity
or inability to act and no successor is appointed pursuant to the
foregoing provisions within thirty (30) days after such vacancy occurs,
the Holders and the Agent may jointly appoint a successor to the
Co-Owner Trustee in the same manner as is provided for the appointment
of a successor to the Co-Owner Trustee hereunder.
(v) At any time or times, for the purposes of meeting the
legal requirements of any jurisdiction in which any part of the Trust
Estate hereunder may at the time be located, or to avoid any violation
of law or imposition of taxes not otherwise imposed on the Owner
Trustee, or if the Owner Trustee shall deem it desirable for its own
protection, the Owner Trustee shall have power to appoint one (1) or
more persons (who may be officers of the Owner Trustee either to act as
an additional co-trustee, jointly with the Owner Trustee) of all or any
part of the Trust Estate hereunder, or of any property constituting
part thereof, or to act as separate trustee of any part of the Trust
Estate in either case with such powers as may be provided in the
instrument of appointment and are consistent with the terms hereof, and
to vest in such person or persons in the capacity as aforesaid, any
property, title, right or power deemed necessary or desirable, subject
to the remaining provisions of this Section 9.2.
(vi) Notwithstanding any provision of this Trust Agreement to
the contrary, any additional co-trustee shall act upon and be subject
to the following terms and conditions:
All rights, powers, duties and obligations conferred
or imposed upon the Owner Trustee shall be conferred or
imposed solely upon and solely exercised and performed by the
Owner Trustee except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be
performed the Owner Trustee or the Owner Trustee shall be
incompetent or unqualified to perform such act or acts or to
avoid any violation of law or imposition of taxes not
otherwise imposed on the Owner Trustee, or if the Owner
Trustee shall deem it desirable for its own protection, in
which event such rights, powers, duties and obligations shall
be exercised and performed by such co-trustee or Co-Owner
Trustee.
(vii) No power granted by this Trust Agreement to, or which
this Trust Agreement provides may be exercised by, the Owner Trustee in
respect of the custody, control and management of moneys may be
exercised by any Co-Owner Trustee or any subsequently appointed
co-trustee except jointly with, or with the consent in writing of, the
Owner Trustee for disbursement or application in accordance with the
terms hereof.
(viii) All moneys which may be received or collected by any
Co-Owner Trustee or such subsequently appointed co-trustees shall be
paid over to the Owner Trustee to be distributed in accordance with
this Trust Agreement and the other Operative Agreements.
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(ix) Any Co-Owner Trustee, or any subsequently appointed
co-trustee to the extent permitted by law, does hereby constitute the
Owner Trustee or its successors hereunder his or her agent or attorney
in fact, with full power and authority to do any and all acts and
things and exercise any and all discretion authorized or permitted by
the Co-Owner Trustee or such subsequently appointed co-trustee, in its
behalf or in its name.
(x) No trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder.
SECTION 9.3 NOTICE.
At all times that a successor Owner Trustee is appointed pursuant to
Section 9.1, an Owner Trustee resigns pursuant to Section 9.1 or the Co-Owner
Trustee, a co-trustee or separate trustee, is appointed pursuant to Section 9.2,
the Holders shall give joint notice of such fact within thirty (30) days of its
occurrence to (x) Lessee, if the Lease is then in effect and (y) the Agent, if
the Credit Agreement is in effect.
SECTION 9.4 REQUIRED CONSENTS.
Notwithstanding the provisions of Section 9.1 and 9.2 above, the Owner
Trustee shall not be removed and no successor Owner Trustee, co-trustee or
separate trustee shall be appointed without the consent of the Agent and, so
long as no Default or Event of Default shall have occurred and be continuing,
the Lessee (which consent shall not unreasonably be withheld or delayed) as long
as the Liens of the Security Documents remain in full force and effect.
ARTICLE X
AMENDMENTS
SECTION 10.1 AMENDMENTS.
This Trust Agreement may be terminated, amended, supplemented, waived
or modified in accordance with Section 12.4 of the Participation Agreement.
SECTION 10.2 LIMITATION ON AMENDMENTS.
Notwithstanding Section 10.1, the Owner Trustee shall not, without the
consent of the Agent execute any amendment that might result in the trusts
created hereunder being terminated prior to the satisfaction and discharge of
the Lien and security interest of the Security Documents on the Collateral or
prior to the payment in full of the principal of, and interest on the Loans and
other than in accordance with the terms of the Credit Agreement.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1 NO LEGAL TITLE TO TRUST ESTATE IN THE HOLDERS.
The Holders shall not have legal title to any part of the Trust Estate;
provided, however, that each Holder has a pro rata beneficial interest in the
Trust Estate. No transfer, by operation of law or otherwise, of any right, title
or interest of a Holder in and to the Trust Estate or hereunder shall operate to
terminate this Trust Agreement or the Trust or the trusts hereunder or entitle
any successor or transferee to an accounting or to the transfer to it of legal
title to any part of the Trust Estate.
SECTION 11.2 SALE OF A PROPERTY BY THE OWNER TRUSTEE IS BINDING.
Any sale, transfer, or other conveyance of any Property or any part
thereof by the Owner Trustee made pursuant to the terms of this Trust Agreement
or any other Operative Agreement shall bind the Holders and shall be effective
to sell, transfer and convey all right, title and interest of the Owner Trustee
and the Holders in and to such Property or any part thereof. No purchaser or
other grantee shall be required to inquire as to the authorization, necessity,
expediency or regularity of such sale or conveyance or as to the application of
any sale or other proceeds with respect thereto by the Owner Trustee. Nothing
herein shall be deemed to permit any sale, transfer or other conveyance of the
Property or any part thereof by the Owner Trustee on behalf of the Trust other
than in accordance with the terms of the Operative Agreements.
SECTION 11.3 LIMITATIONS ON RIGHTS OF OTHERS.
Nothing in this Trust Agreement whether express or implied, shall be
construed to give to any Person, other than the Owner Trustee and each Holder,
any legal or equitable right, remedy or claim under or in respect of this Trust
Agreement, any covenants, conditions or provisions contained herein or in the
Trust Estate; but this Trust Agreement shall be held for the sole and exclusive
benefit of the Owner Trustee and the Holders. The Agent shall have the right to
enforce the provisions of Sections 5.1, 5.2, 5.3, 5.4, 6.2, 6.8, 8.1, 8.2, 8.3,
9.1, 9.2, 9.3, 10.1 and 10.2 prior to the payment in full of the principal of
and interest on the Loans and such other amounts due and payable to the Lenders
or the Agent under the Operative Agreements.
SECTION 11.4 NOTICES.
Unless otherwise expressly specified or permitted by the terms hereof,
all notices hereunder shall be given as provided in Section 12.2 of the
Participation Agreement.
SECTION 11.5 SEVERABILITY.
Any provision of this Trust Agreement that may be determined by
competent authority to be prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
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hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 11.6 LIMITATION ON THE HOLDERS' LIABILITY.
No Holder shall have any liability for the performance of this Trust
Agreement except as expressly set forth herein.
SECTION 11.7 SEPARATE COUNTERPARTS.
This Trust Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute but one (1) and the same
instrument.
SECTION 11.8 SUCCESSORS AND ASSIGNS.
(a) All covenants and agreements contained herein shall be
binding upon, and inure to the benefit of, Trust Company, the Owner
Trustee and its successors and assigns and each Holder and its
successors and assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by a Holder
shall bind the successors and assigns of such Holder.
(b) Any Holder may transfer or assign all or any portion of
its right, title and interest in the Trust Estate, this Trust Agreement
and the Certificate of such Holder to an Eligible Assignee in
accordance with the requirements of Section 10.1 of the Participation
Agreement and pursuant to an assignment agreement in substantially the
form of Exhibit B, which assignment agreement shall provide, without
limitation, that the assignee undertakes and assumes all obligations
and covenants of a Holder under this Trust Agreement and the other
Operative Agreements. The Holder proposing the transfer or assignment
shall notify the Owner Trustee, the Agent and Lessee in writing of the
effective date of the transfer or assignment, which effective date
shall be at least three (3) Business Days after the date of such
notification. The cost of issuance of such new Certificates shall be
allocated to the assigning Holder and the assignee as determined by
such parties. The Owner Trustee shall maintain a register showing the
Holders and their respective interests in the Trust Estate and, upon
the occurrence of a permitted assignment pursuant to this Section
11.8(b), shall issue a Certificate to the assignee and, if the
assigning Holder is maintaining an interest hereunder, a new
Certificate to such assigning Holder representing its revised interest
in the Trust Estate. The Owner Trustee shall not recognize any
purported assignment or transfer by a Holder that does not comply with
the terms of this Section 11.8 and any such attempted transfer or
assignment by a Holder in violation of the terms of this Section 11.8
shall be null and void and of no effect.
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SECTION 11.9 HEADINGS.
The headings of the various articles and sections herein are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
SECTION 11.10 GOVERNING LAW.
THIS TRUST AGREEMENT HAS BEEN DELIVERED IN, AND SHALL IN ALL RESPECTS
BE GOVERNED BY AND CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE
LAW OF, THE STATE OF UTAH.
SECTION 11.11 PERFORMANCE BY THE HOLDERS.
Any obligation of the Owner Trustee hereunder or under any Operative
Agreement or other document contemplated herein may be performed by the Holders
(or by one (1) of them with the written consent of the other) and any such
performance shall not be construed as a revocation of the trusts created hereby.
SECTION 11.12 CONFLICT WITH OPERATIVE AGREEMENTS.
If this Trust Agreement (or any instructions given by a Holder pursuant
hereto) shall require that any action be taken with respect to any matter and
any other Operative Agreement (or any instructions duly given in accordance with
the terms thereof) shall require that a different action be taken with respect
to such matter, and such actions shall be mutually exclusive, the provisions of
such other Operative Agreement, in respect thereof, shall control.
SECTION 11.13 NO IMPLIED WAIVER.
No term or provision of this Trust Agreement may be changed, waived,
discharged or terminated orally, but only by an instrument in writing entered
into as provided in Section 10.1; and any such waiver of the term hereof shall
be effective only in the specific instance and for the specific purpose given.
SECTION 11.14 SUBMISSION TO JURISDICTION; VENUE.
THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING TO SUBMISSION TO
JURISDICTION AND VENUE ARE HEREBY INCORPORATED BY REFERENCE HEREIN, MUTATIS
MUTANDIS.
SECTION 11.15 THIRD PARTY BENEFICIARY.
The parties hereto acknowledge and agree that the Lessee is a third
party beneficiary of this Agreement and has all rights attendant thereto.
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SECTION 11.16 REPRESENTATION AND WARRANTIES.
To induce the Holders to enter into this Agreement and to make the
Holder Advances, each of the Owner Trustee and the Trust Company hereby makes
and affirms the representations and warranties set forth in Section 6.1 of the
Participation Agreement to the same extent as if such representations and
warranties were set forth in this Agreement in their entirety.
SECTION 11.17 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If any Certificate shall become mutilated, destroyed, lost or stolen,
the Owner Trustee shall, upon the written request and at the sole cost and
expense of the Holder of such Certificate, issue and deliver in replacement
thereof a new Certificate in the form of Exhibit A hereto, to the same Holder
and dated the same date as the Certificate so mutilated, destroyed, lost or
stolen. The Owner Trustee shall make a notation on each new Certificate of the
amount of all redemptions of Advances and payments of yield theretofore made on
the Certificate so mutilated, destroyed, lost or stolen and the date to which
yield on such old Certificate has been paid. If the Certificate being replaced
has been mutilated, such Certificate shall be surrendered to the Owner Trustee.
If the Certificate being replaced has been destroyed, lost or stolen, the Holder
of such Certificate shall furnish to the Owner Trustee (a) such security or
indemnity as may be required by the Owner Trustee to save the Owner Trustee
harmless and (b) evidence satisfactory to the Owner Trustee of the destruction,
loss or theft of such Certificate and of the ownership thereof.
[signature pages follow]
30
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.
HOLDERS:
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
UNION BANK OF CALIFORNIA, N.A
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
OWNER TRUSTEE:
FIRST SECURITY BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
(VS Trust 2000-1)
31
SCHEDULE I
HOLDER COMMITMENTS
Holder Commitment
Name of Holder Amount/Percentage
-------------- -----------------
Bank of America, N.A. $390,000 32.5%
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Mail Code CA5-705-41-01
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
KeyBank National Association $390,000 32.5%
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Union Bank of California, N.A. $270,000 22.5%
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
Vice President
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Telecopy: (▇▇▇)▇▇▇-▇▇▇▇
▇▇▇▇▇ Fargo Bank, National Association $150,000 12.5%
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
TOTAL $1,200,000 100%
32
EXHIBIT A
FORM OF HOLDER CERTIFICATE
FIRST SECURITY BANK, NATIONAL ASSOCIATION
TRUSTEE UNDER
TRUST AGREEMENT DATED AS OF March 9, 2000
HOLDER CERTIFICATE
VS TRUST 2000-1
____________, 2000
First Security Bank, National Association, as trustee (herein in such
capacity called the "Owner Trustee") under that certain Trust Agreement dated as
of March 9, 2000 (herein called the "Trust Agreement", the defined terms therein
not otherwise defined herein being used herein with the same meanings), among
the several banks and other financial institutions from time to time parties to
the Trust Agreement as the Holders and the Owner Trustee, hereby certifies for
the benefit of [HOLDER] as follows: (i) this Holder Certificate is a Holder
Certificate referred to in Section 3.1(d) of the Trust Agreement, which Holder
Certificate has been issued by the Owner Trustee pursuant to the Trust Agreement
and (ii) subject to the prior payment of Notes to the extent provided for in
Section 8.7 of the Participation Agreement, and to 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 Owner 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 Owner Trustee for the
Properties, as well as a portion of certain other payments which may be received
by the Owner Trustee pursuant to the terms of the Operative Agreements as more
particularly set forth therein.
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 Owner Trustee (or the Agent on behalf of the Owner 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
that, except as specifically provided in the Trust
A-1
33
Agreement, the Owner Trustee is not personally liable to the holder hereof for
any amount payable under this Holder Certificate or the Trust Agreement.
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 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.
This Holder Certificate shall mature, and all amounts payable to the
holder hereof pursuant to the Trust Agreement shall be due and payable, on the
Maturity Date.
This Holder Certificate shall bear a yield on the unpaid amount hereof
from time to time outstanding hereunder and under the Trust Agreement 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 Owner 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 Agent, on behalf of the Lenders
and the Holders, as security for the Notes and the Holder Certificates.
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, to all of which terms and conditions the holder hereof agrees by its
acceptance of this Holder Certificate.
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 ENFORCED AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, INTERPRETED AND
ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW
PROVISIONS) AND DECISIONS OF THE STATE OF UTAH. 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.
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34
[The remainder of this page has been intentionally left blank.]
A-3
35
IN WITNESS WHEREOF, the undersigned authorized officer of the Owner
Trustee has executed this Holder Certificate as of the date first set forth
above.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION, not
individually, except as
expressly set forth herein,
but solely as the Owner
Trustee under the VS Trust
2000-1
By:
------------------------
Name:
----------------------
Title:
---------------------
36
EXHIBIT B
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Trust Agreement, dated as of March 9, 2000 (as
amended, supplemented or otherwise modified from time to time, the "Trust
Agreement"), among FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in its
individual capacity except as stated therein, but solely as the Owner Trustee
under the VS Trust 2000-1 (the "Owner Trustee" or the "Owner Trustee") and the
Holders named therein. Unless otherwise defined herein, terms defined in the
Trust Agreement (or pursuant to Section 1 of the Trust Agreement, defined in
other agreements) and used herein shall have the meanings given to them in or
pursuant to the Trust Agreement.
[____________________] (the "Assignor") and [____________________] (the
"Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), a [___%] interest (the "Assigned Interest")
in and to the Assignor's rights and obligations under the Trust Agreement with
respect to the facility contained in the Trust Agreement as are set forth on
Schedule 1 hereto (the "Assigned Facility"), in a principal amount for the
Assigned Facility as set forth on Schedule 1.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Trust Agreement or any other Operative
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Trust Agreement, any other Operative Agreement or
any other instrument or document furnished pursuant thereto, other than that it
has not created any adverse claim upon the interest being assigned by it
hereunder and that such interest is free and clear of any such adverse claim;
(b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Owner Trustee or any other obligor or
the performance or observance by the Owner Trustee, or any other obligor of any
of their respective obligations under the Trust Agreement or any other Operative
Agreement or any other instrument or document furnished pursuant hereto or
thereto; and (c) attaches the Certificate held by it evidencing the Assigned
Facility and requests that the Owner Trustee exchange such Certificate for a new
Certificate payable to the Assignee and (if the Assignor has retained any
interest in the Assigned Facility) a new Certificate payable to the Assignor in
the respective amounts which reflect the assignment being made hereby (and after
giving effect to any other assignments which have become effective on the
Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received copies of the Operative Agreements, and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (c) agrees that it will,
independently and without reliance upon the Assignor, the Agent, any other
Holder or the Owner Trustee and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Trust
B-1
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Agreement, the other Operative Agreements or any other instrument or document
furnished pursuant hereto or thereto; (d) appoints and authorizes the Agent and
the Owner Trustee, respectively, to take such action as agent on its behalf and
to exercise such powers and discretion under the Trust Agreement, the other
Operative Agreements or any other instrument or document furnished pursuant
hereto or thereto as are delegated to the Agent and the Owner Trustee,
respectively, by the terms thereof, together with such powers as are incidental
thereto; and (e) agrees that it will be bound by the provisions of the Trust
Agreement and the other Operative Agreements to which Assignee is a party and
will perform in accordance herewith all the obligations which by the terms of
the Trust Agreement and the other Operative Agreements to which Assignee is a
party are required to be performed by it as a Holder including without
limitation, if it is organized under the laws of a jurisdiction outside the
U.S., its obligation pursuant to Section 11.2(e) of the Participation Agreement.
4. The effective date of this Assignment and Acceptance shall be
[_________, ____] (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Owner Trustee for
acceptance by it and recording by the Owner Trustee pursuant to Section 11.8(b)
of the Trust Agreement, effective as of the Effective Date (which shall not,
unless otherwise agreed to by the Owner Trustee, be earlier than five (5)
Business Days after the date of such acceptance and recording by the Owner
Trustee).
5. Upon such acceptance and recording, from and after the Effective
Date, the Owner Trustee shall make, or cause to be made, all payments in respect
of the Assigned Interest (including without limitation payments of Holder
Advance, yield, fees and other amounts) to the Assignee whether such amounts
have accrued prior to the Effective Date or accrue subsequent to the Effective
Date. The Assignor and the Assignee shall make all appropriate adjustments in
payments by the Owner Trustee for periods prior to the Effective Date or with
respect to the making of this assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a party
to the Trust Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Operative Agreements and shall be bound by the provisions thereof and (b)
the Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Trust
Agreement and the other Operative Agreements.
7. This Assignment and Acceptance shall be governed by, and construed,
INTERPRETED AND ENFORCED in accordance with the laws of the State of UTAH.
B-2
38
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
[________________________]
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
[________________________]
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Consented To:
VERITAS OPERATING CORPORATION, as the
Construction Agent and as the Lessee
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
BANK OF AMERICA, N.A., as the Agent
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not individually, but
solely as the Owner
Trustee under the VS
Trust 2000-1
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
39
SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE TRUST AGREEMENT,
DATED AS OF March 9, 2000 (THE "TRUST AGREEMENT")
AMONG
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
NOT INDIVIDUALLY EXCEPT AS STATED THEREIN,
BUT SOLELY AS THE OWNER TRUSTEE,
AND
THE HOLDERS NAMED THEREIN
Name of Assignor: [_______________]
Name of Assignee: [_______________]
Effective Date of Assignment: [_______________]
Trust Agreement Holder Advance Commitment
Facility Assigned Amount Assigned Percentage Assigned
----------------- --------------- -------------------
Holder Commitment [$___________] [__________%] of the
Amount pursuant to aggregate Holder Commitment
above-referenced Trust (which is [___%] of the Assignor's
Agreement Holder Commitment)
[__________________]
By:
----------------------
Name:
--------------------
Title:
-------------------
[__________________]
By:
----------------------
Name:
--------------------
Title:
-------------------