TRUST AGREEMENT
dated as of June 2, 1999
between
FIRST UNION NATIONAL BANK
as the Holder,
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as the Owner Trustee
DTSD REALTY TRUST 1999-1
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS...................................................... 1
SECTION 1.1 Definitions........................................... 1
SECTION 1.2 Interpretation........................................ 1
ARTICLE II AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENT;
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................... 4
SECTION 3.4 Early Return of Advances.............................. 4
SECTION 3.5 Payments from Trust Estate Only....................... 5
SECTION 3.6 Method of Payment..................................... 5
SECTION 3.7 Computation of Yield.................................. 6
SECTION 3.8 Conversion and Continuation Options................... 6
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............................. 8
SECTION 4.3 Excepted Payments..................................... 8
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.............................. 9
SECTION 5.3 Indemnification....................................... 9
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.......................................... 10
SECTION 5.6 Absence of Duties..................................... 10
ARTICLE VI THE OWNER TRUSTEE............................................... 11
SECTION 6.1 Acceptance of Trust and Duties........................ 11
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................. 12
SECTION 6.5 Reliance; Advice of Counsel........................... 12
SECTION 6.6 Liability With Respect to Documents................... 13
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SECTION 6.7 Not Acting In Individual Capacity..................... 13
SECTION 6.8 Books and Records; Tax Returns........................ 13
ARTICLE VII INDEMNIFICATION OF THE OWNER TRUSTEE........................... 14
SECTION 7.1 Indemnification Generally............................. 14
SECTION 7.2 Compensation and Expenses............................. 14
ARTICLE VIII TERMINATION OF TRUST AGREEMENT................................ 14
SECTION 8.1 Termination of Trust Agreement........................ 14
SECTION 8.2 Termination at Option of the Holder................... 15
SECTION 8.3 Termination at Option of the Owner Trustee............ 15
SECTION 8.4 Actions by the Owner Trustee Upon Termination......... 15
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-Turstees and Separate Trustees..................... 17
SECTION 9.3 Notice................................................ 19
ARTICLE X AMENDMENTS....................................................... 20
SECTION 10.1 Amendments........................................... 20
SECTION 10.2 Limitation on Amendments............................. 20
ARTICLE XI MISCELLANEOUS................................................... 20
SECTION 11.1 No Legal Title to Trust Estate in the Holders........ 20
SECTION 11.2 Sales of a Property by the Owner Trustee is
Binding.............................................. 20
SECTION 11.3 Limitations on Rights of Others...................... 21
SECTION 11.4 Notices.............................................. 21
SECTION 11.5 Severability......................................... 21
SECTION 11.6 Limitation on the Holder's Liability................. 21
SECTION 11.7 Separate Counterparts................................ 21
SECTION 11.8 Successors and Assigns............................... 21
SECTION 11.9 Headings............................................. 22
SECTION 11.10 Governing Law....................................... 22
SECTION 11.11 Performance by the Holders.......................... 22
SECTION 11.12 Conflict with Operative Agreements.................. 22
SECTION 11.13 No Implied Waiver................................... 22
SECTION 11.14 SUBMISSION TO JURISDICTION; VENUE; ARBITRATION...... 23
EXHIBIT A - Form of Holder Certificate
EXHIBIT B - Form of Assignment and Acceptance
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THIS TRUST AGREEMENT, dated as of June 2, 1999 (as amended, modified,
extended, supplemented, restated and/or replaced from time to time, the "Trust
Agreement"), is between FIRST UNION NATIONAL BANK ("Bank" or "Holder") 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, the Holder will
make Holder Advances pursuant to this Trust Agreement and the Participation
Agreement (as defined below);
WHEREAS, the Holder desires to provide for the Trust to exist for the
purpose of (a)developing, acquiring, installing, constructing and testing
various Properties and leasing such Properties to Lessee and (b) carrying out
certain transactions contemplated by the Operative Agreements; and
WHEREAS, Trust Company is willing to act as trustee hereunder and to
accept the trust created hereby (the "Trust").
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
For purposes of this Trust Agreement (including without limitation the
"WHEREAS" clauses set forth above), capitalized terms used in this Trust
Agreement and not otherwise defined herein shall have the meanings assigned to
them in Appendix A to that certain Participation Agreement dated as of June 2,
1999 (as amended, modified, extended, supplemented, restated and/or replaced
from time to time in accordance with the applicable provisions thereof, the
"Participation Agreement") among Dollar Tree Distribution, Inc., as the Lessee
and as the Construction Agent, the various parties thereto from time to time, as
the Guarantors, the Owner Trustee, the Holder, and First Union National Bank, as
lender (the "Lender"). Unless otherwise indicated, references in this Trust
Agreement to articles, sections, paragraphs, clauses, appendices, schedules and
exhibits are to the same contained in this Trust Agreement.
SECTION 1.2 Interpretation.
The rules of usage set forth in Appendix A to the Participation
Agreement shall apply to this Trust Agreement.
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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.
The Holder hereby authorizes and directs the Owner Trustee (a) to
execute and deliver, as trustee for and on behalf of the 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 Holder may from time to time direct.
SECTION 2.2 Declaration of Trust by Trust Company.
(a) Trust Company hereby declares that it will hold all
estate, right, title and interest of the Owner Trustee in, to and under
each Property, each Holder Advance, the Operative Agreements, any other
property contributed by the 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 the Holder, subject, however, to the provisions of the
Credit Agreement and the Security Documents. The name of the Trust
shall be "DTSD Realty Trust 1999-1".
(b) The purpose of the Trust is to hold title to the Trust
Estate for the benefit of the Holder and to engage in activities
ancillary and incidental thereto as the Holder 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 Lender or the Holder 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 FOR THE BENEFIT OF THE
HOLDER. THE OWNER TRUSTEE MAY NOT TRANSACT BUSINESS OF ANY KIND WITH
RESPECT TO ANY PROPERTY COMPRISING THE TRUST ESTATE NOR SHALL THIS
AGREEMENT BE
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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 AND THE BANK.
ARTICLE III
CONTRIBUTIONS AND PAYMENTS
SECTION 3.1 Procedure for Holder Advances; Certificates.
(a) Upon receipt from Lessee by the Bank of a Requisition, and
subject to the terms and conditions of the Participation Agreement, the
Holder shall make an Advance under the Holder Commitment on each date
Advances are made pursuant to Section 5 of the Participation Agreement,
provided, that the Lessee shall give the Holder irrevocable notice
(which notice must be received by the Holder no less than two (2)
Business Days prior to the requested date of a Eurodollar Holder
Advance) specifying (i) the amount to be advanced (which on any date
shall not be in excess of the then Available Holder Commitment), (ii)
the requested date of advance, (iii) whether the Holder Advance is to
be a Eurodollar Holder Advance or an ABR Holder Advance or a
combination thereof, (iv) if the Holder Advance is to be a combination
of Eurodollar Holder Advances and ABR Holder Advances, the respective
amounts of each type of Holder Advance and (v) the Interest Period
applicable to any Eurodollar Holder Advances.
(b) Upon receipt of any such notice delivered pursuant to
Section 3.1(a), the Holder shall make the amount of its Advance
available for the account of the Owner Trustee at the office of the
Bank referred to in Section 12.2 of the Participation Agreement (or at
such other address as may be identified by the Bank from time to time)
prior to 11:00 a.m., Charlotte, North Carolina time on the date
requested by Lessee in funds immediately available to the Owner
Trustee.
(c) Holder Yield accruing on each Holder Advance during the
Construction Period with respect to any property shall, subject to the
limitations set forth in Section 5.1(b) of the Participation Agreement,
be added to the amount of the Holder Advance on the relevant Scheduled
Interest Payment Date. On such Scheduled Interest Payment Date, the
Holder Property Cost and Holder Construction Property Cost shall be
increased by the amount of Holder Yield added to the Holder Advance.
(d) The Holder Advances made to the Trust Estate shall be
evidenced by a Certificate of the Owner Trustee, substantially in the
form of Exhibit A hereto. Each Certificate shall (i) be dated on or
about the Initial Closing Date, (ii) be stated to mature on the
Maturity Date and (iii) bear a yield on the unpaid Holder Amount
thereof from time to time outstanding at the Holder Yield.
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(e) To the extent that the Owner Trustee, in its capacity as
Borrower under the Credit Agreement, shall have elected to terminate or
reduce the amount of the Commitments pursuant to Section 2.5(a) of the
Credit Agreement, a pro rata election shall be deemed to have been made
with respect to the Holder Commitment. The Holder Commitments
respecting any particular Property shall automatically be reduced to
zero (0) upon the occurrence of the Rent Commencement Date respecting
such Property. On any date on which the Commitments shall be reduced to
zero (0) as a result of a Credit Agreement Event of Default, the Holder
Commitments shall automatically be reduced to zero (0) and the Owner
Trustee shall prepay the Certificate in full for the outstanding Holder
Amount, together with accrued but unpaid Holder Yield thereon and all
other amounts owing under the Certificate.
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. Payment of Holder Yield to the Holder shall be made in arrears
on each Scheduled Interest Payment Date occurring after the Rent
Commencement Date or as otherwise provided herein or in Section 2.6 of
the Credit Agreement or Section 8.7 of the Participation Agreement.
(b) If all or a portion of Holder Yield shall not be received
by the Holder when due (whether at the stated maturity, by acceleration
or otherwise), such overdue amount shall, without limiting the rights
of the Holder hereunder or under any Operative Agreement, bear interest
at the Holder Overdue Rate, in each case from the date of nonpayment
until paid (whether after or before judgment) and shall be paid upon
demand.
SECTION 3.3 Scheduled Return of Holder Advances.
The outstanding Holder Amount shall be due in full on the Expiration
Date. On each such date and on the Expiration Date, subject to the terms of the
Participation Agreement, the Owner Trustee shall pay to the Holder the aggregate
Holder Amount then due, together with all accrued but unpaid Holder Yield and
all other amounts due to the Holder from the Owner Trustee hereunder or under
the Operative Agreements.
SECTION 3.4 Early Return of Advances.
(a) Subject to Sections 11.2(e), 11.3 and 11.4 of the
Participation Agreement, the Owner Trustee may at any time and from
time to time prepay the Certificates, in whole or in part, without
premium or penalty, upon at least three (3) Business Days' irrevocable
notice to the Holder, 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. 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.
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(b) If on any date the Bank or the Owner Trustee shall receive
any payment in respect of (i) any Casualty, Condemnation or
Environmental Violation pursuant to Sections 15.1(a) or 15.1(g) or
Article XVI of the Lease (excluding any payments in respect thereof
which are payable to Lessee in accordance with the Lease), or (ii) the
Termination Value of any Property in connection with the delivery of a
Termination Notice pursuant to Article XVI of the Lease, or (iii) the
Termination Value of any Property or such other applicable amount in
connection with the exercise of a Purchase Option under Article XX of
the Lease or the exercise of the option of the Owner Trustee to
transfer the Properties to the Lessee pursuant to Section 20.3 of the
Lease or (iv) any payment required to be made or elected to be made by
the Construction Agent to the Owner Trustee pursuant to the Agency
Agreement, then in each case, the Holder shall receive proceeds in
accordance with the allocation procedure set forth in Section 8.7(b) of
the Participation Agreement.
(c) Each prepayment of the Certificates pursuant to Section
3.4(a) shall be allocated to reduce the respective Holder Property
Costs of all Properties pro rata according to the Holder Property Costs
of such Properties immediately before giving effect to such prepayment.
Each prepayment of the Certificates pursuant to Section 3.4(b) shall be
allocated to reduce the Holder Property Cost of the Property or
Properties subject to the respective Casualty, Condemnation,
Environmental Violation, termination, purchase, transfer or other
circumstance giving rise to such prepayment. Any amounts applied to
reduce the Holder Property Cost of any Construction Period Property
pursuant to this paragraph (c) shall also be applied to reduce the
Construction Loan Property Cost of such Property until such
Construction Loan Property Cost has been reduced to zero (0).
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. The 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 the 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 the Holder pursuant to this Trust Agreement
shall be paid or caused to be paid by the Owner Trustee to, or for the account
of, the Holder, or its nominee, by transferring such amount in immediately
available funds to a bank institution or banking
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institutions with bank wire transfer facilities for the account of the Holder or
as otherwise instructed in writing from time to time by the 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 Bank. Each determination of an interest rate by the Bank shall be
conclusive and binding on the Owner Trustee in the absence of manifest
error.
(c) If the Eurodollar Rate cannot be determined by the Bank in
the manner specified in the definition of the term "Eurodollar Rate",
commencing on the next occurring Scheduled Interest Payment Date and
continuing until such time as the Eurodollar Rate can be determined by
the Bank 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 Bank in the manner
specified in the definition of such term, no further Eurodollar Holder
Advances shall be made or shall be continued as such at the end of the
then current Interest Period nor shall the Owner Trustee have the right
to convert ABR Holder Advances to Eurodollar Holder Advances.
SECTION 3.8 Conversion and Continuation Options.
(a) The Owner Trustee may elect from time to time to convert
Eurodollar Holder Advances to ABR Holder Advances by giving the Bank
irrevocable notice of such election no later than 11:00 a.m.,
Charlotte, North Carolina time on the date of such conversion,
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 Bank at least three two (2) 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. All or any part of
outstanding Eurodollar Holder Advances or ABR Holder Advances may be
converted as provided herein, provided, that (i) no ABR Holder Advance
may be converted into a Eurodollar Holder Advance after the date that
is thirty (30) days prior to the Maturity Date and (ii) such
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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, any
Eurodollar Holder Advance may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Owner
Trustee giving irrevocable notice to the Bank in accordance with the
notice provisions for the conversion of ABR Holder Advances to
Eurodollar Holder Advances set forth herein and the applicable
provisions of the term "Interest Period" of the length of the next
Interest Period to be applicable to such Eurodollar Holder Advances,
provided, that no Eurodollar Holder Advance may be continued as such
after the date that is thirty (30) days prior to the Maturity Date,
provided, further, no Eurodollar Holder Advance may be continued as
such if an Event of Default has occurred and is continuing as of the
last day of the Interest Period for such Eurodollar Holder Advance, and
provided, further, that if the Owner Trustee shall fail to give any
required notice as described above or if such continuation is not
permitted pursuant to the preceding proviso or otherwise, such Advances
shall automatically be converted to ABR Advances on the last day of
such then expiring Interest Period.
SECTION 3.9 Notice of Amounts Payable.
(a) In the event that the Holder becomes aware that any
amounts are or will be owed to it pursuant to Sections 11.2(e) 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, the Holder shall submit to the Owner Trustee a certificate
indicating the amount owing to it and the calculation thereof. The
amounts set forth in such certificate shall be prima facie evidence of
the obligations of the Owner Trustee hereunder.
(b) In the event that the Holder delivers to the Owner Trustee
a certificate in accordance with Section 3.9(a), or the Holder is
required to make Holder Advances with Holder Yields calculated at the
ABR in accordance with Section 11.3(f) of the Participation Agreement,
subject to Section 9.2 of the Participation Agreement, the Owner
Trustee may, at the expense of Lessee and in the discretion of the
Owner Trustee, (i) require the Holder to transfer or assign, in whole
or (with the Holder's consent) in part, without recourse (in accordance
with Section 11.8), all or (with the 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 the 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 shall assume such
assigned obligations, or (ii) during such time as no Default or Event
of Default has occurred and is continuing, terminate the Holder
Commitment of
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the Holder and prepay the outstanding Holder Advances of the 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 the 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 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 Holder, 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 Bank (on behalf of the Owner Trustee), it
being understood and agreed that the Owner Trustee shall not be obligated to
make, or to cause to be made, such distribution until the funds for such
distribution have been received by the Bank (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 Bank for allocation 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.
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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 the Holder and the Lessee 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 Bank 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) by written instructions to the Owner Trustee. If the
Owner Trustee shall have given the Holder (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 Holder (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 Bank. For all
purposes of this Trust Agreement, in the absence of actual knowledge of a
Responsible Officer in the Corporate Trust Department of Trust Company, the
Owner Trustee shall be deemed not to have knowledge of any Default or Event of
Default unless a Responsible Officer of the Corporate Trust Department of Trust
Company receives notice thereof given by or on behalf of the Holder or the
Lessee.
SECTION 5.2 Action Upon Instructions.
Subject to the provisions of Sections 5.1 and 5.3, upon the written
instructions of the Holder, the Owner Trustee will take or refrain from taking
such action or actions as may be specified in such instructions.
SECTION 5.3 Indemnification.
The Owner Trustee shall not be required to take or refrain from taking
any action under this Trust Agreement or any other Operative Agreement (other
than the actions specified in the first sentence of Section 5.1 and in the last
sentence of Section 5.4) unless Trust Company shall
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have been indemnified by Lessee or by the Bank, at its election, against any
liability, fee, cost or expense (including without limitation reasonable
attorneys' fees and expenses) that may be incurred or charged in connection
therewith, other than such as may result from the willful misconduct or gross
negligence of the Owner Trustee. The Owner Trustee shall not be required to take
any action under any Operative Agreement if the Owner Trustee shall reasonably
determine, or shall have been advised by counsel, that such action is likely to
result in personal liability for which the Owner Trustee has not been and will
not be adequately indemnified or is contrary to the terms hereof or of any
Operative Agreement to which the Owner Trustee is a party or is otherwise
contrary to law. The Owner Trustee shall be under no liability with respect to
any action taken or omitted to be taken by the Owner Trustee in accordance with
instructions of the Holder pursuant to Section 5.2.
SECTION 5.4 No Duties Except as Specified In Trust Agreement or
Instructions.
The Owner Trustee shall not have any duty or obligation to manage,
control, use, make any payment in respect of, register, record, insure, inspect,
sell, dispose of or otherwise deal with any Property or any other part of the
Trust Estate, or to otherwise take or refrain from taking any action under or in
connection with any Operative Agreement to which the Owner Trustee is a party,
except as expressly provided by the terms of this Trust Agreement or in written
instructions from the Holder received pursuant to Sections 5.1, 5.2 or 8.4 of
this Trust Agreement or Sections 8.2(h) or 8.6 of the Participation Agreement or
from the Lessee pursuant to Sections 8.5 or 9.2 of the Participation Agreement;
and no implied duties or obligations shall be read into this Trust Agreement
against the Owner Trustee. The Owner Trustee shall have no duty or obligation to
supervise or monitor the performance of the Construction Agent pursuant to the
Agency Agreement which for all purposes shall be an independent contractor. The
Owner Trustee nevertheless agrees that it will (in its individual capacity and
at its own cost and expense), promptly take all action as may be necessary to
discharge any Lessor Liens on any part of the Trust Estate.
SECTION 5.5 No Action Except Under Specified Documents or
Instructions.
The Owner Trustee agrees that it will not manage, control, use, sell,
dispose of or otherwise deal with any Property or any other part of the Trust
Estate except (a) as required by the terms of the Operative Agreements, (b) in
accordance with the powers granted to, or the authority conferred upon, it
pursuant to this Trust Agreement, (c) in accordance with the express terms
hereof or with written instructions from the Holder 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,
10
rerecord or redeposit any such document; (ii) obtain insurance on any
Property or effect or maintain any such insurance, other than to
receive and forward to the Holder any notices, policies, certificates
or binders furnished to the Owner Trustee pursuant to the Lease; (iii)
maintain any Property; (iv) pay or discharge any Tax or any Lien owing
with respect to or assessed or levied against any part of the Trust
Estate, except as provided in the last sentence of Section 5.4, other
than to forward notice of such Tax or Lien received by the Owner
Trustee to the Holder; (v) confirm, verify, investigate or inquire into
the failure to receive any reports or financial statements of Lessee or
any other Person; (vi) inspect any Property any time or ascertain or
inquire as to the performance or observance of any of the covenants of
Lessee or any other Person under any Operative Agreement with respect
to any Property; or (vii) manage, control, use, sell, dispose of or
otherwise deal with any Property or any part thereof or any other part
of the Trust Estate, except as provided in Section 5.5.
(b) The Owner Trustee, in the exercise or administration of
the trusts and powers hereunder, including without limitation its
obligations under Section 5.2, may, at the expense of Lessee, employ
agents, attorneys, accountants, and auditors and enter into agreements
with any of them and the Owner Trustee shall not be liable, either in
its individual capacity or in its capacity as the Owner Trustee, for
the default or misconduct of any such agents, attorneys, accountants or
auditors if such agents, attorneys, accountants or auditors shall have
been selected by it in good faith.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 Acceptance of Trust and Duties.
The Owner Trustee accepts the trust and duties hereby created and
agrees to perform the same, but only upon the terms of this Trust Agreement. The
Owner Trustee agrees to receive, manage and disburse all moneys constituting
part of the Trust Estate actually received by it as the Owner Trustee in
accordance with the terms of this Trust Agreement. The Owner Trustee shall not
be answerable or accountable under any circumstances, except for (i) its own
willful misconduct or gross negligence, (ii) the inaccuracy of any of its
representations or warranties contained in Section 6.3 of this Trust Agreement
or Section 6.1 of the Participation Agreement, (iii) its failure to perform
obligations expressly undertaken by it in the last sentence of Section 5.4 of
this Trust Agreement or in Section 8.2(a) of the Participation Agreement, (iv)
Taxes based on or measured by any fees, commissions or compensation received by
it for acting as the Owner Trustee in connection with any of the transactions
contemplated by the Operative Agreements, or (v) its failure to use ordinary
care to receive, manage and disburse moneys actually received by it in
accordance with the terms of the Operative Agreements.
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SECTION 6.2 Furnishing of Documents.
The Owner Trustee will furnish to the Holder, 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 Holder, or
the Owner Trustee shall have determined that the same has already been furnished
to the Holder.
SECTION 6.3 No Representations or Warranties as to the Properties
or Operative Agreements.
THE OWNER TRUSTEE MAKES (i) NO REPRESENTATION OR WARRANTY, EITHER
EXPRESS OR IMPLIED, AS TO THE TITLE, VALUE, USE, CONDITION, DESIGN, OPERATION,
MERCHANTABILITY OR FITNESS FOR USE OF ANY PROPERTY (OR ANY PART THEREOF), OR ANY
OTHER REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO ANY PROPERTY (OR ANY PART THEREOF) AND THE OWNER TRUSTEE SHALL NOT BE
LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE OF ANY
PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY LEGAL REQUIREMENT except that
the Owner Trustee hereby represents, warrants and covenants to the 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 the Holder that this Trust
Agreement has been and each of the other Operative Agreements which contemplates
execution thereof by the Owner Trustee has been or will be executed and
delivered by its officers who are, or will be, duly authorized to execute and
deliver documents on its behalf.
SECTION 6.4 No Segregation of Moneys; No Interest.
Except as otherwise provided herein or in any of the other Operative
Agreements, moneys received by the Owner Trustee hereunder need not be
segregated in any manner except to the extent required by law, and may be
deposited under such general conditions as may be prescribed by law, and neither
Trust Company nor the Owner Trustee shall be liable for any interest thereon,
except as may be agreed to in writing by the Owner Trustee or the Trust Company.
SECTION 6.5 Reliance; Advice of Counsel.
The Owner Trustee shall not incur any liability to any Person in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it in good faith to be signed by the proper party or
parties. The Owner Trustee may accept and rely upon a certified
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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 the Holder or for the form, character, genuineness, sufficiency, value
or validity of any Property or for or in respect of the validity or sufficiency
of any of the Operative Agreements and the Owner Trustee, either in its trust or
individual capacities, shall in no event assume or incur any liability, duty or
obligation to any Person or to the Holder, other than as expressly provided for
herein or in any of the other Operative Agreements.
SECTION 6.7 Not Acting In Individual Capacity.
All Persons having any claim against the Owner Trustee by reason of the
transactions contemplated by the Operative Agreements shall look only to the
Trust Estate (or a part thereof, as the case may be) for payment or satisfaction
thereof, except as specifically provided in this Article VI and except to the
extent that the Owner Trustee shall otherwise expressly agree in any Operative
Agreement to which it is a party, including without limitation Section 6.1 and
Section 8.2(a) of the Participation Agreement and the last sentence of Section
5.4 hereof.
SECTION 6.8 Books and Records; Tax Returns.
(a) The Owner Trustee shall be responsible for the keeping of
all appropriate books and records relating to the receipt and
disbursement of all moneys that it may receive hereunder, or under any
other Operative Agreement. The Owner Trustee shall, at the expense of
Lessee, file an application with the Internal Revenue Service for a
taxpayer identification number with respect to the trust created
hereby. The Owner Trustee shall, at the expense of Lessee, prepare or
cause to be prepared and the Owner Trustee shall sign and/or file the
federal fiduciary tax return with respect to Taxes due and payable by
the trust created hereby in connection with the transactions
contemplated hereby and by any other Operative Agreement. The Holder
shall furnish the Owner Trustee with all such information as may be
reasonably required (as such is requested in
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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
by the Bank) 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 Holder to protect one (1) or more of the Properties and
the rights and interests of the Holder pursuant to the terms of this
Trust Agreement; provided, however, that the Owner Trustee may obtain
reimbursement for the out-of-pocket expenses and costs of such actions,
undertakings or proceedings from Lessee.
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 Holder, the Owner Trustee shall not have any
right of indemnification from the 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 Commitment Fee as provided in Sections 7.3 and 7.4, respectively, of the
Participation Agreement.
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
SECTION 8.1 Termination of Trust Agreement.
This Trust Agreement and the trusts created hereby shall terminate and
the Trust Estate shall, subject to the provisions of the Participation
Agreement, the other Operative Agreements and Article IV of this Trust
Agreement, be distributed to the Holders, and this Trust Agreement shall be of
no further force or effect, upon the earliest of (a) the written request of the
Holder
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following the sale or other final disposition by the Owner Trustee of all
property constituting part of the Trust Estate and the final distribution by the
Owner Trustee of all moneys or other property or proceeds constituting part of
the Trust Estate in accordance with the terms hereof; provided, however, that
(except as provided for in the Operative Agreements) the Trust Estate shall not
be subject to sale or other final disposition by the Owner Trustee prior to the
payment in full and discharge of the Loans and all other indebtedness secured by
the Credit Documents and the release of the Credit Documents and the Liens
granted thereby and the payment in full of the Holder Amount and Holder Yield
thereon and all other amounts owing to the Holder under any of the Operative
Agreements and (b) fifty (50) years after the date hereof.
SECTION 8.2 Termination at Option of the Holder.
Notwithstanding Section 8.1, this Trust Agreement and the trusts
created hereby shall terminate and the Trust Estate shall be distributed to the
Holder, and this Trust Agreement shall be of no further force and effect, upon
the election of the Holder and, so long as no Default or Event of Default shall
have occurred and be continuing, with the consent of the Lessee by notice to the
Owner Trustee, if such notice shall be accompanied by the written agreement of
the 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. Such written agreement shall be
reasonably satisfactory in form and substance to the Owner Trustee and shall
release the Owner Trustee from all further obligations of the Owner Trustee
hereunder and under the agreements and other instruments mentioned in the
preceding sentence.
SECTION 8.3 Termination at Option of the Owner Trustee.
At any time that the Lease shall no longer be in full force and effect
and the Bank shall have confirmed in writing to the Owner Trustee that it has
received payment in full of the principal of and interest on the Loans and that
all other sums due to it under the Operative Agreements shall have been made,
then the Holder hereby authorizes the Owner Trustee to: (a) terminate this Trust
Agreement and the trusts created hereby and (b) distribute and convey the Trust
Estate to the Holder 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
Holder to transfer the Trust Estate to the Holder, including without limitation
the execution of instruments of transfer or assignment with respect to any of
the Operative Agreements to which the Owner Trustee is a party.
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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 Holder with sixty (60) days'
prior written notice to the Owner Trustee, a copy of which notice shall
be concurrently delivered to the Lessee. Any such removal shall be
effective upon the acceptance of appointment by a successor Owner
Trustee under Section 9.1(b). In case of the resignation or removal of
the Owner Trustee, the Holder may appoint a successor Owner Trustee. 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
the 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
16
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 the Owner Trustee or the Holder shall deem it necessary or
prudent in order either (a) to conform to any law of any jurisdiction in which
all or any part of the Trust Estate shall be situated or to which it may be
subject or to make any claim or bring any suit with respect to the Trust Estate
or any Operative Agreement, (b) 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 Holder, the Owner Trustee and the Holder 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 Section9.1(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 Holder. In accordance with the foregoing:
(i) The Owner Trustee shall appoint a Co-Owner Trustee
hereunder in part so that if, under any present or future law of any
state where any Property is located or of any jurisdiction in which it
may be necessary to perform any act in carrying out the trusts herein
created, the Owner Trustee or any of its successors may be incompetent
or unqualified or incapacitated or unwilling to perform certain acts as
such Owner Trustee, then upon the written request of the Owner Trustee
of any of its successors received by any Co-Owner Trustee, all of such
acts required to be performed in such jurisdiction in the execution of
the trust hereby created, shall and will be performed by any Co-Owner
Trustee, or any of his successors, in trust acting alone, as if he or
such successor had been specifically authorized so to do or had been
the sole Owner Trustee hereunder. Any Co-Owner Trustee shall continue
to perform such acts until otherwise directed in writing by the Owner
Trustee or any of its successors. Any request in writing by the Owner
Trustee or any of its successors to the Co-Owner Trustee shall be
sufficient warrant for him to take such action as may be so requested.
(ii) Except as it may be deemed necessary for any Co-Owner
Trustee or any of his successors solely or jointly to execute the
trusts herein created, the Owner Trustee or
17
any of its successors shall solely have and exercise the powers, and
shall be solely charged with the performance of the duties, herein-
before declared on the part of the Owner Trustee to be had, exercised
and performed; and any Co-Owner Trustee shall not be liable therefor.
Any Co-Owner Trustee or any successor to him may delegate to the Owner
Trustee or its successor hereunder the exercise of any power,
discretion or otherwise, conferred by any provision of this Trust
Agreement.
(iii) Any act of the Owner Trustee herein required or
authorized shall and will be jointly or separately performed by the
Owner Trustee or its successors hereunder and by any Co-Owner Trustee
or any of his successors appointed hereunder, if such joint performance
or separate performance shall be necessary to the legality of such act
and when so acting all references herein to "First Security Bank,
National Association" shall be deemed to be references to such Co-Owner
Trustee in its individual capacity and all references to "Owner
Trustee" shall be deemed to be references to any Co-Owner Trustee, and
such Co-Owner Trustee shall be entitled to all the protection,
indemnification, immunity and compensation herein provided to the Owner
Trustee acting singly in reference to such acts (subject to the
limitations to such a protection, indemnification, immunity and
compensation set forth herein).
(iv) The Owner Trustee or its successor in trust shall have
and is hereby given the power at any time by an instrument in writing
duly executed by a Vice President, to remove any Co-Owner Trustee or
his successor, from his position as Co-Owner Trustee hereunder. In the
case of death, resignation, removal, incapacity or inability to act
hereunder of the Co-Owner Trustee, or his successor as Co-Owner
Trustee, any adult citizen of the United States of America may be
appointed Co-Owner Trustee hereunder by the person who shall at the
time be a Vice President of the corporation then acting as the Owner
Trustee hereunder by an instrument in writing duly executed, and under
its corporate seal, and, subject to its right to revoke such
appointment or to appoint another person, the Owner Trustee shall
appoint a successor Co-Owner Trustee, such 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 Holder may
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
18
either case with such powers as may be provided in the instrument
of appointment and are consistent with the terms hereof, and to vest in
such person or persons in the capacity as aforesaid, any property,
title, right or power deemed necessary or desirable, subject to the
remaining provisions of this Section 9.2.
(vi) Notwithstanding any provision of this Trust Agreement to
the contrary, any additional co-trustee shall act upon and be subject
to the following terms and conditions:
All rights, powers, duties and obligations conferred
or imposed upon the Owner Trustee shall be conferred or
imposed solely upon and solely exercised and performed by the
Owner Trustee except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be
performed the Owner Trustee or the Owner Trustee shall be
incompetent or unqualified to perform such act or acts or to
avoid any violation of law or imposition of taxes not
otherwise imposed on the Owner Trustee, or if the Owner
Trustee shall deem it desirable for its own protection, in
which event such rights, powers, duties and obligations shall
be exercised and performed by such co-trustee or Co-Owner
Trustee.
(vii) No power granted by this Trust Agreement to, or which
this Trust Agreement provides may be exercised by, the Owner Trustee in
respect of the custody, control and management of moneys may be
exercised by any Co-Owner Trustee or any subsequently appointed
co-trustee except jointly with, or with the consent in writing of, the
Owner Trustee for disbursement or application in accordance with the
terms hereof.
(viii) All moneys which may be received or collected by any
Co-Owner Trustee or such subsequently appointed co-trustees shall be
paid over to the Owner Trustee to be distributed in accordance with
this Trust Agreement and the other Operative Agreements.
(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 Holder shall give notice of such fact within thirty (30) days of its
occurrence to Lessee, if the Lease is then in effect.
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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 Bank 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 Holder shall not have legal title to any part of the Trust Estate;
provided, however, that Holder has a beneficial interest in the Trust Estate. No
transfer, by operation of law or otherwise, of any right, title or interest of
the Holder in and to the Trust Estate or hereunder shall operate to terminate
this Trust Agreement or the Trust or the trusts hereunder or entitle any
successor or transferee to an accounting or to the transfer to it of legal title
to any part of the Trust Estate.
SECTION 11.2 Sale of a Property by the Owner Trustee is Binding.
Any sale, transfer, or other conveyance of any Property or any part
thereof by the Owner Trustee made pursuant to the terms of this Trust Agreement
or any other Operative Agreement shall bind the Holder and shall be effective to
sell, transfer and convey all right, title and interest of the Owner Trustee and
the Holder in and to such Property or any part thereof. No purchaser or other
grantee shall be required to inquire as to the authorization, necessity,
expediency or regularity of such sale or conveyance or as to the application of
any sale or other proceeds with respect thereto by the Owner Trustee.
20
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 the 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 Holder.
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.
The Holder shall not 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 the Holder and its
successors and assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by the Holder
shall bind the successors and assigns of the Holder.
(b) The Holder may transfer or assign all of its right, title
and interest in the Trust Estate, this Trust Agreement and the
Certificate 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. The Holder shall notify the Owner
Trustee and Lessee in writing of the effective date of the transfer or
assignment,
21
which effective date shall be at least three (3) Business Days after
the date of such notification. Upon the occurrence of a permitted
assignment pursuant to this Section 11.8(b), the Owner Trustee shall
issue a Certificate to the assignee. The Owner Trustee shall not
recognize any purported assignment or transfer by the Holder that does
not comply with the terms of this Section 11.8 and any such attempted
transfer or assignment by the Holder in violation of the terms of this
Section 11.8 shall be null and void and of no effect.
SECTION 11.9 Headings.
The headings of the various articles and sections herein are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
SECTION 11.10 Governing Law.
THIS TRUST AGREEMENT HAS BEEN DELIVERED IN, AND SHALL IN ALL RESPECTS
BE GOVERNED BY AND CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE
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 Holder
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 the 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.
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SECTION 11.14 SUBMISSION TO JURISDICTION; VENUE; ARBITRATION.
THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING TO SUBMISSION TO
JURISDICTION, VENUE AND ARBITRATION ARE HEREBY INCORPORATED BY REFERENCE HEREIN,
MUTATIS MUTANDIS.
[signature pages follow]
23
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.
HOLDER:
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxx XxXxxxxxxx
Name: Xxxxxx XxXxxxxxxx
Title: Vice President
OWNER TRUSTEE:
FIRST SECURITY BANK, NATIONAL ASSOCIATION
By: /s/ Xxx X. Xxxxx
Name: Xxx X. Xxxxx
Title: Vice President
(DTSD Realty Trust 1999-1)
EXHIBIT A
FORM OF HOLDER CERTIFICATE
FIRST SECURITY BANK, NATIONAL ASSOCIATION
TRUSTEE UNDER
TRUST AGREEMENT DATED AS OF
JUNE 2, 1999
HOLDER CERTIFICATE
DTSD REALTY TRUST 1999-1
___________, 199__
First Security Bank, National Association, as trustee (herein in such
capacity called the "Owner Trustee") under that certain Trust Agreement dated as
of June 2, 1999 (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 FIRST UNION NATIONAL BANK 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 a beneficial interest in properties of the Owner Trustee
constituting part of the Trust Estate and is entitled to receive as provided in
the Trust Agreement, a portion of the Rent received or to be received by the
Owner Trustee for the Properties, as well as 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 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
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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.
This Holder Certificate shall mature, and all amounts payable to the
holder hereof pursuant to the Trust Agreement shall be due and payable, on the
Maturity Date.
This Holder Certificate shall bear a yield on the unpaid amount hereof
from time to time outstanding hereunder and under the Trust Agreement at the
Holder Yield as provided in the Trust Agreement. The Holder Yield on this Holder
Certificate shall be computed as provided in the Trust Agreement and shall be
payable at the rates, at the times and from the dates specified in the Trust
Agreement.
From and after the execution of the Participation Agreement, the rights
of the holder of this Holder Certificate under the Trust Agreement as well as
the beneficial interest of the holder of this Holder Certificate in and to the
properties of the Owner Trustee constituting part of the Trust Estate, are
subject and subordinate to the rights of the holders of the Notes to the extent
provided in the applicable Operative Agreements. The Trust Estate has been or
will be assigned, pledged and mortgaged to First Union National Bank 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
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INVALIDITY, WITHOUT INVALIDATING THE REMAINDER OF SUCH PROVISION OR THE
REMAINING PROVISIONS OF THIS HOLDER CERTIFICATE.
[The remainder of this page has been intentionally left blank.]
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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 DTSD
Realty Trust 1999-1
By:
Name:
Title:
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EXHIBIT B
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Trust Agreement, dated as of June 2, 1999 (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 DTSD Realty Trust 1999-1 (the "Owner Trustee" or the "Owner Trustee")
and FIRST UNION NATIONAL BANK, as the Holder. 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.
FIRST UNION NATIONAL BANK (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 100% 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.
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received copies of the Operative Agreements, and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (c) agrees that it will,
independently and without reliance upon the Assignor 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
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Operative Agreements or any other instrument or document furnished pursuant
hereto or thereto; (d) appoints and authorizes the Owner Trustee 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 Owner
Trustee 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.
4. The effective date of this Assignment and Acceptance shall be
[________, 19__] (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 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. 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.
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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.
FIRST UNION NATIONAL BANK, as Assignor
By:
Name:
Title:
[ ], as Assignee
By:
Name:
Title:
Consented To:
DOLLAR TREE DISTRIBUTION, INC., as the
Construction Agent and as the Lessee
By:
Name:
Title:
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but solely
as the Owner Trustee under the DTSD
Realty Trust 1999-1
By:
Name:
Title:
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SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE TRUST AGREEMENT,
DATED AS OF JUNE 2, 1999, (THE "TRUST AGREEMENT")
AMONG
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
NOT INDIVIDUALLY EXCEPT AS STATED THEREIN,
BUT SOLELY AS THE OWNER TRUSTEE,
AND
FIRST UNION NATIONAL BANK,
AS HOLDER
Name of Assignor: First Union National Bank
Name of Assignee: [_______________]
Effective Date of Assignment: [_______________]
Trust Agreement Holder Advance Commitment
Facility Assigned. Amount Assigned Percentage Assigned
Holder Commitment $___________ 100%
Amount pursuant to
above-referenced Trust
Agreement
FIRST UNION NATIONAL BANK, as Assignor
By:
Name:
Title:
[ ], as Assignee
By:
Name:
Title:
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