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Exhibit 10.45
TRUST AGREEMENT
Dated as of July 28, 2000
between
THE SEVERAL HOLDERS
FROM TIME TO TIME PARTIES HERETO,
as the Holders,
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as the Owner Trustee
VS TRUST 2000-2
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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...................................................................... 7
ARTICLE IV COLLECTIONS AND DISTRIBUTIONS......................................................................... 8
Section 4.1 Collections and Remittances by the Owner Trustee............................................... 8
Section 4.2 Priority of Distributions...................................................................... 9
Section 4.3 Excepted Payments.............................................................................. 9
Section 4.4 Distributions after Default.................................................................... 9
ARTICLE V DUTIES OF THE OWNER TRUSTEE............................................................................ 9
Section 5.1 Notice of Certain Events....................................................................... 9
Section 5.2 Action Upon Instructions....................................................................... 10
Section 5.3 Indemnification................................................................................ 10
Section 5.4 No Duties Except as Specified In Trust Agreement or Instructions............................... 10
Section 5.5 No Action Except Under Specified Documents or Instructions..................................... 11
Section 5.6 Absence of Duties.............................................................................. 11
ARTICLE VI THE OWNER TRUSTEE..................................................................................... 12
Section 6.1 Acceptance of Trust and Duties................................................................. 12
Section 6.2 Furnishing of Documents........................................................................ 12
Section 6.3 No Representations or Warranties as to the Properties or Operative Agreements.................. 12
Section 6.4 No Segregation of Moneys; No Interest.......................................................... 13
Section 6.5 Reliance; Advice of Counsel.................................................................... 13
Section 6.6 Liability With Respect to Documents............................................................ 13
Section 6.7 Not Acting In Individual Capacity.............................................................. 13
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Section 6.8 Books and Records; Tax Returns................................................................. 14
Section 6.9 Tax Treatment.................................................................................. 14
ARTICLE VII INDEMNIFICATION OF THE OWNER TRUSTEE................................................................. 14
Section 7.1 Indemnification Generally...................................................................... 14
Section 7.2 Compensation and Expenses...................................................................... 15
Section 7.3 Limitation..................................................................................... 15
ARTICLE VIII TERMINATION OF TRUST AGREEMENT...................................................................... 15
Section 8.1 Termination of Trust Agreement................................................................. 15
Section 8.2 Termination at Option of the Holders........................................................... 15
Section 8.3 Termination at Option of the Owner Trustee..................................................... 16
Section 8.4 Actions by the Owner Trustee Upon Termination.................................................. 16
Section 8.5 Bankruptcy of Holder........................................................................... 16
ARTICLE IX SUCCESSOR OWNER TRUSTEES, CO-OWNER TRUSTEES AND SEPARATE OWNER TRUSTEES.............................. 16
Section 9.1 Resignation of the Owner Trustee; Appointment of Successor..................................... 16
Section 9.2 Co-Trustees and Separate Trustees.............................................................. 17
Section 9.3 Notice ........................................................................................ 20
Section 9.4 Required Consents.............................................................................. 20
ARTICLE X AMENDMENTS............................................................................................. 21
Section 10.1 Amendments.................................................................................... 21
Section 10.2 Limitation on Amendments...................................................................... 21
ARTICLE XI MISCELLANEOUS......................................................................................... 21
Section 11.1 No Legal Title to Trust Estate in the Holders............................................... 21
Section 11.2 Sale of Property by the Owner Trustee is Binding............................................ 21
Section 11.3 Limitations on Rights of Others............................................................. 21
Section 11.4 Notices .................................................................................... 22
Section 11.5 Severability................................................................................ 22
Section 11.6 Limitation on the Holders' Liability........................................................ 22
Section 11.7 Separate Counterparts....................................................................... 22
Section 11.8 Successors and Assigns...................................................................... 22
Section 11.9 Headings.................................................................................... 22
Section 11.10 Governing Law .............................................................................. 23
Section 11.11 Performance by the Holders ................................................................. 23
Section 11.12 Conflict with Operative Agreements ......................................................... 23
Section 11.13 No Implied Waiver .......................................................................... 23
Section 11.14 SUBMISSION TO JURISDICTION; VENUE .......................................................... 23
Section 11.15 Third Party Beneficiary .................................................................... 23
Section 11.16 Representation and Warranties .............................................................. 23
Section 11.17 Mutilated, Destroyed, Lost or Stolen Certificates .......................................... 23
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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 July 28, 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 the
Property and leasing such Property 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 July 28, 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 Software Global 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, ABN
AMRO Bank N.V., as agent for the Lenders and respecting the Security Documents,
as the agent for the Lenders and the Holders, to the extent of their interests,
Credit Suisse First Boston, as Documentation Agent and Credit Lyonnais Los
Angeles Branch, as Syndication Agent. Unless
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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 the
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 2000-2".
(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
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
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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 I 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 in respect
of any portion of the Property 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 and the portion of the Property
to which such Holder Advance relates, (iii) whether the Holder Advance is to be
a Eurodollar Holder Advance or an ABR Holder Advance or a combination thereof,
(iv) if the Holder Advance is to be a combination of Eurodollar Holder Advances
and ABR Holder Advances, the respective amounts of each type of Holder Advance
and (v) the Interest Period applicable to any Eurodollar Holder Advances.
Pursuant to the terms of the Participation Agreement, the Agent shall be deemed
to have delivered such notice upon the delivery of a notice by the Construction
Agent or Lessee containing such required information.
(b) Upon receipt of any such notice delivered pursuant to
Section 3.1(a), each Holder shall make the amount of its Advance available to
the Agent for the account of the Owner Trustee at the office of the Agent
referred to in Section 12.2 of the Participation Agreement (or at such other
address as may be identified by the Agent from time to time) prior to 10:00
a.m., San Francisco, California 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 portion of the Property shall be paid on
the relevant Scheduled Interest Payment Date with the proceeds of an Interest
Payment Advance pursuant to the provisions of Section 5.1(b) of the
Participation Agreement.
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(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 Closing Date, (ii) provide that the Holder Advances
made with respect to any portion of the Property shall mature on the Maturity
Date with respect to such portion of the Property 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 portion
of the Property shall automatically be reduced to zero (0) upon the occurrence
of the Rent Commencement Date respecting such portion of the 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 or Section 5.12 of the Participation 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 in respect of Holder Advances made for any portion of the
Property shall be made in arrears on each Scheduled Interest Payment Date
occurring after the Rent Commencement Date in respect of such portion of the
Property (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.
(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 any portion of the Property has not occurred on or prior to the
Construction Period Termination Date therefor, or (C) the cost of any portion of
the Property exceeds the original Construction Budget therefor (or the
applicable Construction Budget as 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
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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 the applicable portion of the Property (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 in respect of any portion of the Property shall be due in full on the
Expiration Date applicable to such portion of the Property. On each such
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
portion of the Property in connection with the delivery of a Termination Notice
pursuant to Article XVI of the Lease, or (iii) the Termination Value of any
portion of the Property or such other applicable amount in connection with the
exercise of a Purchase Option under Article XX of the Lease or the exercise of
the option of the Owner Trustee to transfer any portion of the Property 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
portions of the Property pro rata according to the Holder Property Costs of such
portions of the Property 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 the portion(s)
thereof subject to the respective Casualty, Condemnation, Environmental
Violation, termination, purchase, transfer or other circumstance giving rise to
such prepayment.
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SECTION 3.5 PAYMENTS FROM TRUST ESTATE ONLY. All payments to be made by
the Owner Trustee under this Trust Agreement (including without limitation any
payments pursuant to Section 11.4 of the Participation Agreement) shall be made
only from the income and proceeds from the Trust Estate and only to the extent
that the Owner Trustee shall have received income or proceeds from the Trust
Estate to make such payments in accordance with the terms hereof, except as
specifically provided in Section 6.1. Each Holder agrees that it will look
solely to the income and proceeds from the Trust Estate to the extent available
for payment as herein provided and that, except as specially provided in any
Operative Agreement, Trust Company shall not be liable to any Holder for any
amounts payable under this Trust Agreement and shall not be subject to any
liability under this Trust Agreement.
SECTION 3.6 METHOD OF PAYMENT. All amounts payable to a Holder pursuant
to this Trust Agreement shall be paid or caused to be paid by the Owner Trustee
to, or for the account of, such Holder, or its nominee, by transferring such
amount in immediately available funds to a bank institution or banking
institutions with bank wire transfer facilities for the account of such Holder
or as otherwise instructed in writing from time to time by such Holder.
SECTION 3.7 COMPUTATION OF YIELD.
(a) Whenever it is calculated on the basis of the Prime
Lending Rate, Holder Yield shall be calculated on the basis of a year of three
hundred sixty-five (365) days (or three hundred sixty-six (366) days, as the
case may be) for the actual days elapsed; and, otherwise, Holder Yield shall be
calculated on the basis of a year of three hundred sixty (360) days for the
actual days elapsed. Any change in the Holder Yield resulting from a change in
the ABR or the 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 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.
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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 in respect of any portion of the
Property may be converted into a Eurodollar Holder Advance after the date that
is one (1) month prior to the applicable 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 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 in respect of any
portion of the Property may be continued as such after the date that is one (1)
month prior to the applicable 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
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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, or (iii) any Holder does not consent to
an increase in the aggregate Lender Commitments and aggregate Holder Commitments
requested pursuant to a Commitment Increase Request delivered pursuant to
Section 5.12 of the Participation Agreement, then, 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 and, in the case of a transfer or
assignment pursuant to clause (iii) above, such replacement is willing to
consent to the increase requested in such Commitment Increase Request, or (ii)
during such time as no Default or Event of Default has occurred and is
continuing, terminate the Holder Commitment of such Holder and prepay the
outstanding Holder Advances of such Holder, provided, however, that (x) subject
to Section 9.2 of the Participation Agreement, the Owner Trustee or such
replacement bank or institution, as the case may be, shall have paid to such
Holder in immediately available funds the amount of the Holder Advances and
Holder Yield accrued to the date of such payment on the Holder Advances made by
it hereunder (and, if such Holder is also a Lender, the principal and interest
on all Loans accrued and unpaid thereon) and (y) such assignment or termination
of the Holder Commitment of the Holder and prepayment of the Holder Advances do
not conflict with any law, rule or regulation or order of any court or
Governmental Authority.
ARTICLE IV
COLLECTIONS AND DISTRIBUTIONS
SECTION 4.1 COLLECTIONS AND REMITTANCES BY THE OWNER TRUSTEE. The Owner
Trustee agrees that, subject to the provisions of this Trust Agreement and the
Operative Agreements, it will during the term of this Trust administer the Trust
Estate and, at the direction of the Holders, take steps to collect all Rent and
other sums payable to the Owner 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
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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
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
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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 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 the Property or any portion thereof 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
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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 the Property or any portion thereof or any other part of
the Trust Estate except (a) as required by the terms of the Operative
Agreements, (b) in accordance with the powers granted to, or the authority
conferred upon, it pursuant to this Trust Agreement, (c) in accordance with the
express terms hereof or with written instructions from the Agent and/or the
Majority Holders, as applicable, pursuant to Sections 5.1, 5.2 or 8.4 or (d)
from the Lessee pursuant to Sections 8.5 or 9.2 of the Participation Agreement.
SECTION 5.6 ABSENCE OF DUTIES.
(a) Except in accordance with written instructions furnished
pursuant to Sections 5.1, 5.2 or 8.4, and without limitation of the generality
of Section 5.4, the Owner Trustee shall not have any duty to (i) file, record or
deposit any Operative Agreement or any other document, or to maintain any such
filing, recording or deposit or to refile, rerecord or redeposit any such
document; (ii) obtain insurance on the Property or any portion thereof 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 the Property or any portion
thereof; (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 the Property or
any portion thereof 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 the Property or any portion thereof; or
(vii) manage, control, use, sell, dispose of or otherwise deal with the Property
or any portion 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
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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.
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 THE PROPERTY (OR ANY PORTION
THEREOF), OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER, EXPRESS
OR IMPLIED, WITH RESPECT TO THE PROPERTY (OR ANY PORTION THEREOF) AND THE OWNER
TRUSTEE SHALL NOT BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR
THE FAILURE OF THE PROPERTY, OR ANY PORTION THEREOF, TO COMPLY WITH ANY LEGAL
REQUIREMENT except that the Owner Trustee hereby represents, warrants and
covenants to each Holder that it will comply with the last sentence of Section
5.4, and (ii) no representation or warranty as to the validity or enforceability
of any Operative Agreement or as to the correctness of any statement made by a
Person other than the Owner Trustee or the Owner Trustee contained in any
thereof, except that the Owner Trustee represents, warrants and covenants to
each Holder that this Trust Agreement has been and each of the other Operative
Agreements which contemplates execution thereof by the Owner Trustee has been or
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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 the Property
or any portion thereof 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 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
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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 the Property or any
portion thereof 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 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
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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 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
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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.
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
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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.
(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
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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:
(i) The Owner Trustee shall appoint a Co-Owner Trustee
hereunder in part so that if, under any present or future law of the
state where the 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 Xx-
00
00
Owner Trustee shall be entitled to all the protection, indemnification,
immunity and compensation herein provided to the Owner Trustee acting
singly in reference to such acts (subject to the limitations to such a
protection, indemnification, immunity and compensation set forth
herein).
(iv) The Owner Trustee or its successor in trust shall have
and is hereby given the power at any time by an instrument in writing
duly executed by a Vice President, to remove any Co-Owner Trustee or
his successor, from his position as Co-Owner Trustee hereunder. In the
case of death, resignation, removal, incapacity or inability to act
hereunder of the Co-Owner Trustee, or his successor as Co-Owner
Trustee, any adult citizen of the United States of America may be
appointed Co-Owner Trustee hereunder by the person who shall at the
time be a Vice President of the corporation then acting as the Owner
Trustee hereunder by an instrument in writing duly executed, and under
its corporate seal, and, subject to its right to revoke such
appointment or to appoint another person, the Owner Trustee shall
appoint a successor Co-Owner Trustee, such appointment to be
immediately effective in case of the death, resignation, removal or
inability or incapacity to act hereunder of the Co-Owner Trustee. In
the event a vacancy occurs in the office of the Co-Owner Trustee,
either by reason of resignation, removal, incapacity or inability to
act and no successor is appointed pursuant to the foregoing provisions
within thirty (30) days after such vacancy occurs, the Holders and the
Agent may jointly appoint a successor to the Co-Owner Trustee in the
same manner as is provided for the appointment of a successor to the
Co-Owner Trustee hereunder.
(v) At any time or times, for the purposes of meeting the
legal requirements of any jurisdiction in which any part of the Trust
Estate hereunder may at the time be located, or to avoid any violation
of law or imposition of taxes not otherwise imposed on the Owner
Trustee, or if the Owner Trustee shall deem it desirable for its own
protection, the Owner Trustee shall have power to appoint one (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
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in which any particular act or acts are to be performed the
Owner Trustee or the Owner Trustee shall be incompetent or
unqualified to perform such act or acts or to avoid any
violation of law or imposition of taxes not otherwise imposed
on the Owner Trustee, or if the Owner Trustee shall deem it
desirable for its own protection, in which event such rights,
powers, duties and obligations shall be exercised and
performed by such co-trustee or Co-Owner Trustee.
(vii) No power granted by this Trust Agreement to, or which
this Trust Agreement provides may be exercised by, the Owner Trustee in
respect of the custody, control and management of moneys may be
exercised by any Co-Owner Trustee or any subsequently appointed
co-trustee except jointly with, or with the consent in writing of, the
Owner Trustee for disbursement or application in accordance with the
terms hereof.
(viii) All moneys which may be received or collected by any
Co-Owner Trustee or such subsequently appointed co-trustees shall be
paid over to the Owner Trustee to be distributed in accordance with
this Trust Agreement and the other Operative Agreements.
(ix) Any Co-Owner Trustee, or any subsequently appointed
co-trustee to the extent permitted by law, does hereby constitute the
Owner Trustee or its successors hereunder his or her agent or attorney
in fact, with full power and authority to do any and all acts and
things and exercise any and all discretion authorized or permitted by
the Co-Owner Trustee or such subsequently appointed co-trustee, in its
behalf or in its name.
(x) No trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder.
SECTION 9.3 NOTICE. At all times that a successor Owner Trustee is
appointed pursuant to Section 9.1, an Owner Trustee resigns pursuant to Section
9.1 or the Co-Owner Trustee, a co-trustee or separate trustee, is appointed
pursuant to Section 9.2, the Holders shall give joint notice of such fact within
thirty (30) days of its occurrence to (x) Lessee, if the Lease is then in effect
and (y) the Agent, if the Credit Agreement is in effect.
SECTION 9.4 REQUIRED CONSENTS. Notwithstanding the provisions of
Sections 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.
20
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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.
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 PROPERTY BY THE OWNER TRUSTEE IS BINDING. Any
sale, transfer, or other conveyance of the Property or any portion 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 the Property or such portion 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 portion 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.
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SECTION 11.4 NOTICES.Unless otherwise expressly specified or permitted
by the terms hereof, all notices hereunder shall be given as provided in Section
12.2 of the Participation Agreement.
SECTION 11.5 SEVERABILITY. Any provision of this Trust Agreement that
may be determined by competent authority to be prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 11.6 LIMITATION ON THE HOLDERS' LIABILITY. No Holder shall have
any liability for the performance of this Trust Agreement except as expressly
set forth herein.
SECTION 11.7 SEPARATE COUNTERPARTS. This Trust Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one (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.
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.
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27
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.
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
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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]
24
29
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:
ABN AMRO LEASING, INC., as a Holder
By: /s/ XXXXXXXXX X. XXXXXXXXX
--------------------------------
Name: Xxxxxxxxx X. XxXxxxxxx
--------------------------------
Title: Vice President
--------------------------------
25
30
CREDIT SUISSE LEASING 92A, L.P.,
as a Holder
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
--------------------------------
Title: VP
--------------------------------
By: /s/ XXXXXXX O'DAY
--------------------------------
Name: Xxxxxxx O'Day
--------------------------------
Title: VP
--------------------------------
26
31
CREDIT LYONNAIS LEASING
CORPORATION, as a Holder
By: /s/ X.X. XXXXXXXX
--------------------------------
Name: X.X. Xxxxxxxx
--------------------------------
Title: President
--------------------------------
27
32
FBTC LEASING CORP., as a Holder
By: /s/ XXXXXX XXXX .
--------------------------------
Name: Xxxxxx Xxxx
--------------------------------
Title: Vice President
--------------------------------
28
33
OWNER TRUSTEE:
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually,
except as stated herein, but solely
as the Owner Trustee under the
VS Trust 2000-2
By: /s/ XXX X. XXXXX
--------------------------------
Name: Xxx X. Xxxxx
--------------------------------
Title: Vice President
--------------------------------
29
34
SCHEDULE I
HOLDER COMMITMENTS
HOLDER COMMITMENT
-------------------------------------------
NAME OF HOLDER AMOUNT PERCENTAGE
------------- ---------------
ABN AMRO Leasing, Inc $1,145,000.00 15.70644719 %
Credit Lyonnais Leasing Corporation $3,000,000.00 41.152263337 %
Credit Suisse Leasing 92A, L.P. $2,000,000.00 27.43484225 %
FBTC Leasing Corporation $1,145,000.00 15.70644719 %
TOTAL $7,290,000.00 100.00000000 %
35
EXHIBIT A
FORM OF HOLDER CERTIFICATE
First Security Bank, National Association
Trustee Under
Trust Agreement Dated As Of July ___, 2000
Holder Certificate
VS TRUST 2000-2
____________, 2000
FIRST SECURITY BANK, NATIONAL ASSOCIATION, as trustee (herein in such
capacity called the "Owner Trustee") under that certain Trust Agreement dated as
of July 28, 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
Property 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 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.
A-1
36
All Holder Advances evidenced by this Holder Certificate with respect
to any portion of the Property shall mature, and all amounts payable to the
holder hereof pursuant to the Trust Agreement with respect to such portion of
the Property shall be due and payable, on the Maturity Date with respect to such
portion of the Property.
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.
A-2
37
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 2000-2
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
A-3
38
EXHIBIT B
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Trust Agreement, dated as of July 28, 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 2000-2 (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
B-1
39
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 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
40
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 SOFTWARE GLOBAL CORPORATION, as the
Construction Agent and as the Lessee
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
ABN AMRO BANK N.V., as the Agent
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, but solely as the Owner
Trustee under the VS Trust 2000-2
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
B-3
41
SCHEDULE 1
To Assignment And Acceptance
Relating To The Trust Agreement,
Dated As Of July 28, 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 Amount pursuant to [$_______________] [_______% of the aggregate Holder
above-referenced Trust Agreement Commitment (which is [_____%] of the
Assignor's Holder Commitment
[ ]
-----------------------------
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
[ ]
-----------------------------
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
B-4
