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EXHIBIT 4.4
AMENDED AND RESTATED TRUST AGREEMENT
dated as of June 19, 1997
among
NATIONSBANK, N.A. (SOUTH),
and the other financial institutions parties thereto,
as Holders,
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION, as Owner Trustee
WACKENHUT CORRECTIONS TRUST 1997-1
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS; AMENDED AND RESTATED AGREEMENT.............................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 Fundings; Certificates.....3
SECTION 3.2 Certificate Yield...............................4
SECTION 3.3 Scheduled Return of Holder Fundings.............5
SECTION 3.4 Early Return of Holder Fundings.................5
SECTION 3.5 Payments from Trust Estate Only.................5
SECTION 3.6 Method of Payment...............................5
SECTION 3.7 Computation of Yield............................6
SECTION 3.8 Conversion and Continuation Options.............6
SECTION 3.9 Increased Costs, Illegality, etc................7
SECTION 3.10 Contribution Indemnity..........................8
SECTION 3.11 Notice of Amounts Payable.......................9
SECTION 3.12 [INTENTIONALLY DELETED].........................9
ARTICLE IV COLLECTIONS AND DISTRIBUTIONS..........................................10
SECTION 4.1 Collections and Remittances by the Owner
Trustee........................................10
SECTION 4.2 Priority of Distributions......................10
SECTION 4.3 Excepted Payments..............................10
SECTION 4.4 Distributions after Default....................10
ARTICLE V DUTIES OF THE OWNER TRUSTEE............................................11
SECTION 5.1 Notice of Certain Events.......................11
SECTION 5.2 Action Upon Instructions.......................11
SECTION 5.3 Indemnification................................11
SECTION 5.4 No Duties Except as Specified In Trust
Agreement or Instructions......................12
SECTION 5.5 No Action Except Under Specified
Documents or Instructions......................12
SECTION 5.6 Absence of Duties..............................13
ARTICLE VI THE OWNER TRUSTEE......................................................13
SECTION 6.1 Acceptance of Trust and Duties.................13
SECTION 6.2 Furnishing of Documents........................14
SECTION 6.3 No Representations or Warranties as to
the Properties or Operative Agreements.........14
SECTION 6.4 No Segregation of Moneys; No Interest..........15
SECTION 6.5 Reliance; Advice of Counsel....................15
SECTION 6.6 Liability With Respect to Documents............15
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SECTION 6.7 Not Acting In Individual Capacity..............15
SECTION 6.8 Books and Records; Tax Returns.................16
ARTICLE VII INDEMNIFICATION OF THE OWNER TRUSTEE..................................16
SECTION 7.1 Indemnification Generally......................16
SECTION 7.2 Compensation and Expenses......................17
ARTICLE VIII TERMINATION OF TRUST AGREEMENT........................................17
SECTION 8.1 Termination of Trust Agreement.................17
SECTION 8.2 Termination at Option of the Holders...........17
SECTION 8.3 Termination at Option of the Owner
Trustee........................................18
SECTION 8.4 Actions by the Owner Trustee Upon
Termination....................................18
ARTICLE IX SUCCESSOR OWNER TRUSTEES, CO-OWNER TRUSTEES
AND SEPARATE OWNER TRUSTEES...........................................18
SECTION 9.1 Resignation of the Owner Trustee;
Appointment of Successor.......................18
SECTION 9.2 Co-Trustees and Separate Trustees..............20
SECTION 9.3 Notice.........................................23
ARTICLE X SUPPLEMENTS AND AMENDMENTS............................................23
SECTION 10.1 Supplements and Amendments.....................23
SECTION 10.2 Limitation on Amendments.......................24
ARTICLE XI MISCELLANEOUS.........................................................24
SECTION 11.1 No Legal Title to Trust Estate in the
Holders........................................24
SECTION 11.2 Sale of Properties by the Owner Trustee
is Binding.....................................24
SECTION 11.3 Limitations on Rights of Others................24
SECTION 11.4 Notices........................................25
SECTION 11.5 Severability...................................25
SECTION 11.6 Limitation on the Holders' Liability...........25
SECTION 11.7 Separate Counterparts..........................25
SECTION 11.8 Successors and Assigns.........................25
SECTION 11.9 Headings.......................................26
SECTION 11.10 Governing Law..................................26
SECTION 11.11 Performance by the Holders.....................26
SECTION 11.12 Conflict with Operative Agreements.............26
SECTION 11.13 No Implied Waiver..............................26
EXHIBIT A FORM OF HOLDER CERTIFICATE.............................................A-1
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AMENDED AND RESTATED TRUST AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT, dated as of June __, 1997,
is among the Holders from time to time parties hereto (each a "Holder"), and
FIRST SECURITY BANK, NATIONAL ASSOCIATION, in its individual capacity ("Trust
Company"), and in its capacity as trustee hereunder, together with its
successors and assigns (the "Owner Trustee").
WHEREAS, in order to provide a portion of the funds for the acquisition
or leasing of the Properties and for carrying out the other transactions
contemplated by the Operative Agreements, each Holder will make its respective
Holder Fundings pursuant to this Trust Agreement and the Participation Agreement
(as defined below); and
WHEREAS, the Holders desire to provide for the Trust to exist for the
purpose of purchasing the Properties and leasing such Properties to the Lessee,
and carrying out certain transactions contemplated by the 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:
[INSERT ADDITIONAL LANGUAGE RE INDIVIDUAL
TRUSTEE IN LOUISIANA]
ARTICLE I
DEFINITIONS; AMENDED AND
RESTATED AGREEMENT
SECTION 1.1 DEFINITIONS. For purposes of this Trust Agreement
(including the "WHEREAS" clauses set forth above), capitalized terms used in
this Trust Agreement and not otherwise defined herein shall have the meanings
assigned to them in Appendix A to that certain Participation Agreement, dated as
of the date hereof (the "Participation Agreement"), among Wackenhut Corrections
Corporation , as Construction Agent and as Lessee, the Owner Trustee, the
Holders party thereto from time to time, the Lenders party thereto from time to
time, and NationsBank, N.A. (South), as Administrative Agent for the Lenders, as
such agreement may be amended, modified, restated or supplemented from time to
time in accordance with the terms thereof. 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.
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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 (i) 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 or thereby to which the Owner Trustee is a party, (ii) to take whatever
action shall be required to be taken by the Owner Trustee by the terms of, and
exercise its rights and perform its duties under, each of the documents,
agreements, instruments and certificates referred to in clause (i) above as set
forth in such documents, agreements and certificates, and (iii) subject to the
terms of this Trust Agreement, to take such other action in connection with the
foregoing as the Holders may from time to time direct.
SECTION 2.2 DECLARATION OF TRUST BY TRUST COMPANY.
(a) Trust Company hereby declares that it will hold all
estate, right, title and interest of the Owner Trustee in and to the
Properties, each Holder Funding, the Operative Agreements and any other
property contributed by any Holder, including, without limitation, all
amounts of Rent, insurance proceeds and condemnation awards, indemnity
or other payments of any kind (collectively, the "Trust Estate") as
Owner Trustee upon the trusts set forth herein and for the use and
benefit of each Holder, subject, however, to the provisions of the
Credit Agreement and the Security Documents. The name of the Trust
shall be Wackenhut Corrections Trust 1997-1.
(b) The purpose of the Trust is to hold title to the Trust
Estate for the benefit of the Holders and to engage in activities
ancillary and incidental thereto as the Holders shall determine to be
desirable. Except in connection with the foregoing, the Owner Trustee
shall not (i) engage in any business activity, (ii) have any property,
rights or interest, whether real or personal, tangible or intangible,
(iii) incur any legal liability or obligation, whether fixed or
contingent, matured or unmatured, other than in the normal course of
the administration of the Trust or (iv) subject any of its property or
assets for any mortgage, Lien, security interest or other claim or
encumbrance, other
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than in favor of the Lenders or the Holders pursuant to the provisions
of the Operative Agreements and this Trust Agreement. THIS TRUST IS NOT
A BUSINESS TRUST. THE SOLE PURPOSE OF THE TRUST IS TO ACQUIRE AND HOLD
TITLE TO THE TRUST ESTATE, SUBJECT TO THE RIGHTS OF THE LENDERS, FOR
THE BENEFIT OF THE HOLDERS. THE OWNER TRUSTEE MAY NOT TRANSACT BUSINESS
OF ANY KIND WITH RESPECT TO THE PROPERTY COMPRISING THE TRUST ESTATE
NOR SHALL THIS AGREEMENT BE DEEMED TO BE, OR CREATE OR EVIDENCE THE
EXISTENCE OF A CORPORATION DE FACTO OR DE JURE, OR A MASSACHUSETTS
TRUST, OR ANY OTHER TYPE OF BUSINESS TRUST, ASSOCIATION OR JOINT
VENTURE AMONG THE OWNER TRUSTEE, THE HOLDERS, THE ADMINISTRATIVE AGENT
AND THE LENDERS.
ARTICLE III
CONTRIBUTIONS AND PAYMENTS
SECTION 3.1 PROCEDURE FOR HOLDER FUNDINGS; CERTIFICATES.
(a) Upon receipt from the Lessee by the Owner Trustee and the
Administrative Agent of the Requisition specified in Section 5.2 of the
Participation Agreement, and subject to the terms and conditions of the
Participation Agreement, the Owner Trustee shall request from each
Holder an advance and each Holder shall make an advance under the
Holder Commitment of such Holder on each date Fundings are made
pursuant to Section 5 of the Participation Agreement. The Owner Trustee
may request an advance under the Holder Commitments during the
Commitment Period on any date that an Advance may be requested pursuant
to the terms of Section 5.2(a) of the Participation Agreement, provided
that the Owner Trustee shall give each Holder irrevocable notice (which
notice must be received by each Holder (i) prior to 12:00 Noon,
Charlotte, North Carolina time, three Business Days prior to the
requested date of advance if all or any part of the requested advance
is to be a Eurodollar Holder Funding or (ii) prior to 12:00 Noon
Charlotte, North Carolina time one Business Day prior to the requested
date of advance with respect to any advance that is to be a Base Rate
Holder Funding), specifying (A) the amount to be advanced, (B) the
requested date of advance, (C) whether the advance is to be a
Eurodollar Holder Funding or a Base Rate Holder Funding or a
combination thereof, and (D) if the advance is to be a combination of
Eurodollar Holder Fundings and Base Rate Holder Fundings, the
respective amounts of each type of advance; provided, however, that (1)
there shall be not more than ___ (__) Interest Periods in effect at any
specified date, which Interest Periods shall apply to all Eurodollar
Holder Fundings then outstanding, and (2) any amounts advanced or
converted hereunder which are to bear Holder Yield based on the
Eurodollar Rate may only be
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advanced or converted on the first day of one of the ___ (__) permitted
Interest Periods. Pursuant to the terms of Section 11.2 of the
Participation Agreement, the Owner Trustee shall be deemed to have
delivered such notice upon the delivery of a notice by the Lessee
containing such required information.
(b) Upon receipt of the Requisition and the notice delivered
pursuant to Section 3.1(a), each Holder shall make the amount of its
Holder Funding available to the Owner Trustee at the office of the
Owner Trustee referred to in Section 11.4 prior to 12:00 Noon,
Charlotte, North Carolina time on the date requested by the Lessee in
funds immediately available to the Owner Trustee.
(c) The Holder Funding shall at all times be Eurodollar Holder
Fundings having an Interest Period of one, two, three or six months, as
specified in the definition of "Interest Period," subject only to the
limitations specified in such definition and to the provisions of
Sections 3.1(a), 3.7(c), 3.8 and 3.9. Any Holder Funding other than a
Eurodollar Holder Funding shall constitute a Base Rate Holder Funding.
(d) On each date which is three Business Days prior to any
Scheduled Interest Payment Date, the Owner Trustee shall be deemed to
have requested a Eurodollar Holder Funding pursuant to Section 3.1(a)
in an amount equal to the aggregate amount of Allocated Return due and
payable on such date with respect to the Construction Period
Properties. The date such Holder Funding shall be made with respect to
any such request shall be the relevant Scheduled Interest Payment Date
and the proceeds of such Holder Funding shall be applied to pay such
Allocated Return. On each such date, the Holder Property Cost and
Holder Construction Property Cost of each Construction Period Property
shall be increased by an amount equal to the Allocated Return paid on
such date with the proceeds of such Holder Funding.
(e) The Holder Fundings made by each Holder to the Trust
Estate shall be evidenced by a Certificate of the Owner Trustee,
substantially in the form of Exhibit A hereto, issued in the name of
the Holder and in an amount equal to the Holder Commitment of such
Holder. Each Certificate shall (i) be dated as of the Initial Closing
Date and (ii) bear a yield on the unpaid Holder Amount thereof from
time to time outstanding at the Holder Yield.
SECTION 3.2 CERTIFICATE YIELD. The Owner Trustee shall pay to each
Holder, from the Trust Estate, its pro rata portion of Holder Yield on Holder
Fundings made hereunder. Payment of Holder Yield on each Holder Funding shall be
made in arrears on each Payment Date. If the date on which such payment of
Holder
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Yield shall be due shall not be a Business Day, such payment shall be made on
the next succeeding Business Day.
SECTION 3.3 SCHEDULED RETURN OF HOLDER FUNDINGS. Except in the case
of early return of advances as set forth in Section 3.4 below or upon
default, no return of the principal amount of the Holder Fundings shall be
due prior to the Maturity Date. On the Maturity Date, subject to the terms of
the Credit Agreement, the Owner Trustee shall pay to each Holder its aggregate
unpaid Holder Amount together with all accrued but unpaid Holder Yield and all
other amounts due the Holders from the Owner Trustee hereunder or under the
Operative Agreements.
SECTION 3.4 EARLY RETURN OF HOLDER FUNDINGS. As contemplated by and
pursuant to the terms of the Lease, the Lessee shall be required or may elect
under certain circumstances as described in the Lease to pay the Termination
Value with respect to one or more Properties or purchase one or more
Properties and upon such purchase or payment the amounts paid by the Lessee in
connection therewith shall be distributed in accordance with the terms of
Section 8 of the Credit Agreement. Any such amounts received by the Owner
Trustee shall be paid over by the Owner Trustee to each Holder in an amount
equal to such Holder's pro rata portion of the Holder Amount relating to the
applicable Property or Properties. Notwithstanding the provisions set forth
in this Section 3.4, any prepayment of the Certificates shall be in accordance
with the provisions of Sections 2.6 and 8.1(b)(i) of the Credit Agreement so
that so long as any amount of the Loans is outstanding the aggregate amount of
the outstanding Holder Fundings as evidenced by the Certificates shall be equal
to or greater than three percent (3%) of the Property Cost. No amount of any
Holder Funding which is repaid to the Holders may be readvanced hereunder.
SECTION 3.5 PAYMENTS FROM TRUST ESTATE ONLY. All payments to be made
by the Owner Trustee under this Trust Agreement (including, without limitation,
any payments pursuant to Section 3.10) shall be made only from the income and
proceeds from the Trust Estate and only to the extent that the Owner Trustee
shall have received income or proceeds from the Trust Estate to make such
payments in accordance with the terms hereof, except as specifically provided
in Section 6.1. Each Holder agrees that it will look solely to the income and
proceeds from the Trust Estate to the extent available for payment as herein
provided and that, except as specifically provided herein, Trust Company shall
not be liable to any Holder for any amounts payable under this Trust Agreement
and shall not be subject to any liability under this Trust Agreement.
SECTION 3.6 METHOD OF PAYMENT. All amounts payable to a Holder
pursuant to this Trust Agreement shall be paid or caused to be paid by the Owner
Trustee to, or for the account of, such
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Holder, or its nominee, by transferring such amount in immediately available
funds to a bank institution or banking institutions with bank wire transfer
facilities for the account of such Holder or as otherwise instructed in writing
from time to time by such Holder.
SECTION 3.7 COMPUTATION OF YIELD.
(a) Holder Yield shall be calculated on the basis established
in Section 14.16 of the Participation Agreement, with respect to length
of a "year" and number of days for which interest is accrued. Any
change in the Holder Yield resulting from a change in the Base Rate,
Eurodollar Reserve Percentage, or otherwise, shall become effective as
of the opening of business on the day on which such change would become
effective under the Existing Wackenhut Corrections Credit Agreement.
(b) Pursuant to Section 14.14 of the Participation Agreement,
the calculation of Holder Yield under this Section 3.7 shall be made by
the Administrative Agent. Each determination of an interest rate by the
Administrative Agent shall be conclusive and binding on the Owner
Trustee and the Holders in the absence of manifest error.
(c) If the Eurodollar Rate cannot be determined by the
Administrative Agent in the manner specified in the definition of the
term "Eurodollar Rate", the Owner Trustee shall give telecopy or
telephonic notice thereof to the Holders as soon as practicable after
receipt of same from the Administrative Agent. Until such time as the
Eurodollar Rate can be determined by the Administrative Agent in the
manner specified in the definition of such term, no further Eurodollar
Holder Fundings shall be made or continue as such at the end of the
then current Interest Period and all Holder Fundings shall continue as
Base Rate Holder Fundings.
SECTION 3.8 CONVERSION AND CONTINUATION OPTIONS.
(a) Subject to the restrictions set forth in Sections 3.1,
3.7(c) and 3.9, the Owner Trustee may elect from time to time to
convert Base Rate Holder Fundings to Eurodollar Holder Fundings by
giving each Holder at least three Business Days' prior irrevocable
notice of such election. All or any part of outstanding Holder Fundings
may be converted as provided herein, provided that (i) no Base Rate
Holder Funding may be converted into a Eurodollar Holder Funding when
any Event of Default has occurred and is continuing, (ii) no Base Rate
Holder Funding may be converted into a Eurodollar Holder Funding which
matures after the Maturity Date, and (iii) such notice of conversion
shall contain an election by the Owner Trustee of an Interest Period
for such Eurodollar Holder Funding to be
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created by such conversion and such Interest Period shall satisfy the conditions
of the definition of the term "Interest Period" as set forth in Appendix A to
the Participation Agreement.
(b) Subject to the restrictions set forth in Sections 3.1,
3.7(c) and 3.9 hereof, any Eurodollar Holder Funding may be continued
as such upon the expiration of the then current Interest Period with
respect thereto by the Owner Trustee giving irrevocable notice to each
Holder in accordance with the applicable provisions of the definition
of the term "Interest Period" as set forth in Appendix A to the
Participation Agreement; provided that no Eurodollar Holder Funding may
be continued as such (i) when any Event of Default has occurred and is
continuing or (ii) if such Eurodollar Holder Funding would mature after
the Maturity Date and provided, further, that if the Owner Trustee
shall fail to give any required notice as described above in this
paragraph or if such continuation is not permitted pursuant to the
preceding provision, such Holder Funding shall be automatically
converted to a Base Rate Holder Funding on the last day of such then
expiring Interest Period.
SECTION 3.9 INCREASED COSTS, ILLEGALITY, ETC.
(a) If, due to either (i) the introduction of or any change
(other than any change by way of imposition or increase of reserve
requirements that are expressly included in the calculation of the
Eurodollar Reserve Rate) in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request
hereafter adopted, promulgated or made, by any central bank or other
Governmental Authority (whether or not having the force of law), there
shall be any increase in the cost to any Holder of agreeing to make or
making, funding or maintaining Holder Fundings, then the Owner Trustee
shall from time to time, upon demand by such Holder, pay to such Holder
additional amounts sufficient to compensate such Holder for such
increased cost. A certificate as to the amount of such increased cost,
submitted to the Owner Trustee by such Holder, shall be conclusive and
binding for all purposes, absent manifest error.
(b) If any Holder determines that compliance with any law or
regulation or any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law, but in
each case promulgated or made after the date hereof) affects or would
affect the amount of capital required or expected to be maintained by
such Holder or any corporation controlling such Holder and that the
amount of such capital is increased by or based upon the existence of
such Holder's commitment to make Holder Fundings hereunder and other
commitments of this
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type, then, upon demand by such Holder, the Owner Trustee shall
immediately pay to such Holder, from time to time as specified by such
Holder, additional amounts sufficient to compensate such Holder or such
corporation in the light of such circumstances, to the extent that such
Holder reasonably determines such increase in capital to be allocable
to the existence of such Holder's commitment to make Holder Fundings
hereunder. A certificate as to such amounts submitted to the Owner
Trustee by such Holder shall be conclusive and binding for all
purposes, absent manifest error.
(c) Without affecting its rights under Section 3.9(a) or
3.9(b) or any other provision of this Trust Agreement, each Holder
agrees that if there is any increase in any cost to or reduction in any
amount receivable by such Holder with respect to which the Owner
Trustee would be obligated to compensate such Holder pursuant to
Section 3.9(a) or 3.9(b) or 2.10(b), such Holder shall use reasonable
efforts to select an alternative office from which to fund Holder
Fundings which would not result in any such increase in any cost to or
reduction in any amount receivable by such Holder; provided, however,
that no Holder shall be obligated to select such an alternate office if
such Holder determines that (i) as a result of such selection such
Holder would be in violation of any applicable law, regulation, treaty,
or guideline, or would incur additional costs or expenses or (ii) such
selection would be inadvisable for regulatory reasons or would impose
an unreasonable burden or additional costs on such Holder.
(d) Notwithstanding any other provision of this Trust
Agreement, if any Holder shall notify the Owner Trustee that the
introduction of or any change in any law or regulation, or in the
interpretation of any law or regulation makes it unlawful, or any
central bank or other Governmental Authority asserts that it is
unlawful, for any Holder to perform its obligations hereunder to make
or maintain Eurodollar Holder Fundings then (i) each Eurodollar Holder
Funding will automatically, at the end of the Interest Period for such
Eurodollar Holder Funding, convert into a Base Rate Holder Funding and
(ii) the obligation of the Holders to make, convert or continue
Eurodollar Holder Fundings shall be suspended until such Holder shall
notify the Owner Trustee that such Holder has determined that the
circumstances causing such suspension no longer exist.
SECTION 3.10 CONTRIBUTION INDEMNITY. Subject to the provisions of
Section 3.11, the Owner Trustee agrees to indemnify each Holder and to hold each
Holder harmless from any loss or reasonable expense which such Holder may
sustain or incur as a consequence of (a) failure of the Owner Trustee to accept
any Holder Funding hereunder after the Owner Trustee has given a
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notice requesting the same in accordance with the provisions of this Trust
Agreement, (b) failure of the Owner Trustee to make any prepayment of a Holder
Funding after the Owner Trustee has given a notice thereof in accordance with
the provisions of this Trust Agreement, or (c) the making of a voluntary or
involuntary prepayment of a Eurodollar Holder Funding on a day which is not the
last day of an Interest Period with respect thereto. Such indemnification shall
be in an amount equal to the excess, if any, of (i) the amount of Holder Yield
which would have accrued on the amount so prepaid, or not accepted, converted or
continued for the period from the date of such prepayment or of such failure to
accept, convert or continue to the last day of such Interest Period (or, in the
case of a failure to accept, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable
Holder Yield rate for such Holder Fundings provided for herein over (ii) the
amount of yield (as determined by such Holder) which would have accrued to such
Holder on such amount by placing such amount on deposit for a comparable period
with leading banks in the relevant interest rate market. This covenant shall
survive the termination of this Trust Agreement and the payment of all other
amounts payable hereunder.
SECTION 3.11 NOTICE OF AMOUNTS PAYABLE. In the event that any
Holder becomes aware that any amounts are or will be owed to it pursuant to
Section 3.9 or 3.10 or that it is unable to make Holder Fundings which bear a
yield based on the Eurodollar Rate, then it shall promptly notify the Owner
Trustee thereof and, as soon as possible thereafter, such Holder shall submit to
the Owner Trustee a certificate indicating the amount owing to it and the
calculation thereof. The amounts set forth in such certificate shall be prima
facie evidence of the obligations of the Owner Trustee hereunder.
SECTION 3.12 [INTENTIONALLY DELETED]
SECTION 3.13 HOLDER OVERDUE RATE. If all or a portion of (i) the
principal amount of any Holder Funding, (ii) any Holder Yield payable on any
Holder Funding, or (iii) any other amount payable hereunder shall not be paid
when due (subject to applicable grace periods) (whether at the stated maturity,
by acceleration or otherwise), such amount shall bear interest at a rate per
occurrence which is the lesser of (x) the Holder Yield applicable to such Holder
Funding plus 2% (or in the case of clause (iii) above, the Base Rate plus 3%)
and (y) the highest interest rate permitted by applicable law, in each case from
the date of such non-payment until such amount is paid in full (whether after or
before judgment).
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ARTICLE IV
COLLECTIONS AND DISTRIBUTIONS
SECTION 4.1 COLLECTIONS AND REMITTANCES BY THE OWNER TRUSTEE. The
Owner Trustee agrees that, subject to the provisions of this Trust Agreement, it
will during the term of this Trust administer the Trust Estate and, at the
direction of the Holders (or, so long as the Credit Agreement shall continue,
subject to the provisions of the Credit Agreement and the Security Documents),
take steps to collect all Rent and other sums payable to the Owner Trustee by
the Lessee under the Lease. The Owner Trustee agrees to distribute all proceeds
received from the Trust Estate in accordance with Article III and Sections 4.2
and 4.3. The Owner Trustee shall make such distribution promptly upon receipt of
such proceeds (provided such proceeds are available for distribution) by the
Owner Trustee, it being understood and agreed that the Owner Trustee shall not
be obligated to make such distribution until the funds for such distribution
have been received by the Owner Trustee in cash or its equivalent reasonably
acceptable to the Owner Trustee.
SECTION 4.2 PRIORITY OF DISTRIBUTIONS. Subject to the terms and
requirements of the Operative Agreements, all payments and amounts received by
Trust Company as Owner Trustee or on its behalf shall be distributed to the
Administrative Agent for allocation by the Administrative Agent in accordance
with the terms of Section 8 of the Credit Agreement or, if such payments or
amounts are received by the Owner Trustee from the Administrative Agent, then
they shall be distributed forthwith upon receipt in the following order of
priority: first, in accordance with the Holder Yield protection provisions set
forth in Article III; and, second, the balance, if any, of such payment or
amount remaining thereafter shall be distributed to the Holders pro rata.
SECTION 4.3 EXCEPTED PAYMENTS. Anything in this Article IV, or
elsewhere in this Trust Agreement to the contrary notwithstanding, any Excepted
Payment received at any time by the Owner Trustee shall be distributed promptly
to the Person entitled to receive such Excepted Payment.
SECTION 4.4 DISTRIBUTIONS AFTER DEFAULT. Subject to the terms of
Section 5.1 hereof, the proceeds received by the Owner Trustee from the exercise
of any remedy under the Lease shall be distributed pursuant to Section 4.2
above. This Trust shall cease and terminate in accordance with the terms set
forth in Section 8.1 and upon the final disposition by the Owner Trustee of all
of the Trust Estate pursuant to this Section 4.4.
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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 Lease Default, Lease Event of Default,
Credit Agreement Default, Credit Agreement Event of Default, Agency Agreement
Default or Agency Agreement Event of Default, the Owner Trustee shall give
written notice thereof within five (5) Business Days to each Holder, the Lessee
and the Administrative Agent unless such Default or Event of Default no longer
exists before the giving of such notice. Subject to the provisions of Section
5.3, the Owner Trustee shall take or refrain from taking such action as
Administrative Agent shall direct so long as the Credit Agreement is in effect
(and as more specifically provided in Section 10.2(j) of the Participation
Agreement) and thereafter as the Holders shall jointly direct, in each case by
written instructions to the Owner Trustee. If the Owner Trustee shall have given
the Administrative Agent and the Holders notice of any event and shall not have
received written instructions as above provided within 30 days after mailing
notice of such event to the Administrative Agent and the Holders, the Owner
Trustee may, but shall be under no duty to, and shall have no liability for its
failure or refusal to, take or refrain from taking any action with respect
thereto, not inconsistent with the provisions of the Operative Agreements, as
the Owner Trustee shall deem advisable and in the best interests of the Lenders
and the Holders. For all purposes of this Trust Agreement, in the absence of
actual knowledge of a Responsible Officer in the Corporate Trust Department of
Trust Company, the Owner Trustee shall be deemed not to have knowledge of any
Default or Event of Default unless a Responsible Officer of the Corporate Trust
Department of Trust Company receives notice thereof given by or on behalf of a
Holder, the Lessee or the Administrative Agent.
SECTION 5.2 ACTION UPON INSTRUCTIONS. Subject to the provisions
of Sections 5.1 and 5.3, upon the written instructions of the Administrative
Agent or the Holders (as applicable) or, as permitted expressly by the Operative
Agreements, the Lessee, as the case may be, the Owner Trustee will take or
refrain from taking such action or actions as may be specified in such
instructions.
SECTION 5.3 INDEMNIFICATION. The Owner Trustee shall not be
required to take or refrain from taking any action under this Trust Agreement 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 the Lessee or, if Trust Company
reasonably believes such indemnity to be inadequate, by either the Lenders or
the Holders in manner and form reasonably satisfactory to
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Trust Company, against any liability, fee, cost or expense (including reasonable
attorneys' fees and expenses) that may be incurred or charged in connection
therewith, other than such as may result from the willful misconduct or gross
negligence of the Owner Trustee; and, if the Administrative Agent or the Holders
shall have directed the Owner Trustee to take or refrain from taking any action
under any Operative Agreement, the Lenders or the Holders, as applicable, agree
to furnish such indemnity by a written undertaking of indemnification and, in
addition, to pay the reasonable compensation of Trust Company for the services
performed or to be performed by the Owner Trustee pursuant to such direction.
The Owner Trustee shall not be required to take any action under any Operative
Agreement if Trust Company shall reasonably determine, or shall have been
advised by counsel, that such action (a) is likely to result in personal
liability for which Trust Company has not been and will not be adequately
indemnified, (b) is contrary to the terms hereof or of any Operative Agreement
to which the Owner Trustee is a party, or (c) is otherwise contrary to law. The
Owner Trustee shall be under no liability with respect to any action taken or
omitted to be taken by the Owner Trustee in accordance with instructions of the
Administrative Agent or the Holders pursuant to Section 5.2 hereof.
SECTION 5.4 NO DUTIES EXCEPT AS SPECIFIED IN TRUST AGREEMENT OR
INSTRUCTIONS. The Owner Trustee shall not have any duty or obligation to manage,
control, use, make any payment in respect of, register, record, insure, inspect,
sell, dispose of or otherwise deal with the Properties or any other part of the
Trust Estate, or to otherwise take or refrain from taking any action under or in
connection with any Operative Agreement to which the Owner Trustee is a party,
except as expressly provided by the terms of this Trust Agreement or in written
instructions from the Administrative Agent or the Holders, as applicable,
received pursuant to Section 5.1, 5.2 or 8.4; and no implied duties or
obligations shall be read into this Trust Agreement against the Owner Trustee.
The Owner Trustee shall have no duty or obligation to supervise or monitor the
performance of the Construction Agent pursuant to the Agency Agreement, which
Construction Agent for all purposes shall be an independent contractor. Trust
Company nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any 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 Properties or any other part of the
Trust Estate except (i) as required by the terms of the Operative Agreements,
(ii) in accordance with the powers granted to, or the authority conferred upon,
it pursuant to this Trust Agreement or (iii) in accordance
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with the express terms hereof or with written instructions from the
Administrative Agent or the Holders, as applicable, pursuant to Section 5.1, 5.2
or 8.4.
SECTION 5.6 ABSENCE OF DUTIES.
(a) Except in accordance with written instructions furnished
pursuant to Section 5.1, 5.2 or 8.4, and without limitation of the
generality of Section 5.4, the Owner Trustee shall not have any duty to
(i) file, record or deposit any Operative Agreement or any other
document, or to maintain any such filing, recording or deposit or to
refile, rerecord or redeposit any such document; (ii) obtain insurance
on the Properties or effect or maintain any such insurance, other than
to receive and forward to each Holder any notices, policies,
certificates or binders furnished to the Owner Trustee pursuant to the
Lease; (iii) maintain the Properties; (iv) pay or discharge any Tax or
any Lien owing with respect to or assessed or levied against any part
of the Trust Estate, except as provided in the last sentence of Section
5.4, other than to forward notice of such Tax or Lien received by the
Owner Trustee to each Holder and the Administrative Agent; (v) confirm,
verify, investigate or inquire into the failure to receive any reports
or financial statements of the Lessee; (vi) inspect the Properties at
any time or ascertain or inquire as to the performance or observance of
any of the covenants of the Lessee or any other Person under any
Operative Agreement with respect to the Properties; or (vii) manage,
control, use, sell, dispose of or otherwise deal with the Properties or
any part thereof or any other part of the Trust Estate, except as
provided in Section 5.5.
(b) The Owner Trustee, in the exercise or administration of
the trusts and powers hereunder, including its obligations under
Section 5.2 hereof, may, at the expense of the Lessee, employ agents,
attorneys, accountants, and auditors and enter into agreements with any
of them, and Trust Company shall not be liable, either in its
individual capacity or in its capacity as Owner Trustee, for the
default or misconduct of any such agents, attorneys, accountants or
auditors if such agents, attorneys, accountants or auditors shall have
been selected by it in good faith.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 ACCEPTANCE OF TRUST AND DUTIES. Trust Company
accepts the trust hereby created and agrees to perform
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the same, but only upon the terms of this Trust Agreement. Trust Company agrees
to receive, manage and disburse all moneys constituting part of the Trust Estate
actually received by it as Owner Trustee in accordance with the terms of this
Trust Agreement. Trust Company shall not be answerable or accountable under any
circumstances, except for (i) its own willful misconduct or gross negligence,
(ii) the inaccuracy of any of its representations or warranties contained in
Section 6.3 of this Trust Agreement or Section 7.2 of the Participation
Agreement, (iii) its failure to perform obligations expressly undertaken by it
in the last sentence of Section 5.4 of this Trust Agreement or in Section
10.2(a) of the Participation Agreement, (iv) Taxes based on or measured by any
fees, commissions or compensation received by it for acting as Owner Trustee in
connection with any of the 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 hereof.
SECTION 6.2 FURNISHING OF DOCUMENTS. The Owner Trustee will
furnish to each Holder and to the Administrative Agent, promptly upon receipt
thereof, duplicates or copies of all reports, notices, requests, demands,
opinions, certificates, financial statements and any other instruments or
writings furnished to the Owner Trustee hereunder or under the 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 or
the Administrative Agent, or the Owner Trustee shall have determined that the
same has already been furnished to the Holders and the Administrative Agent.
SECTION 6.3 NO REPRESENTATIONS OR WARRANTIES AS TO THE
PROPERTIES OR OPERATIVE AGREEMENTS. TRUST COMPANY MAKES (i) NO REPRESENTATION OR
WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE TITLE, VALUE, USE, CONDITION,
DESIGN, OPERATION, MERCHANTABILITY OR FITNESS FOR USE OF ANY PROPERTY (OR ANY
PART THEREOF), OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER,
EXPRESS OR IMPLIED, WITH RESPECT TO ANY PROPERTY (OR ANY PART THEREOF) AND TRUST
COMPANY SHALL NOT BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR
THE FAILURE OF ANY PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY LEGAL
REQUIREMENT except that Trust Company hereby represents, warrants and covenants
to each Holder that it will comply with the last sentence of Section 5.4, and
(ii) no representation or warranty as to the validity or enforceability of any
Operative Agreement or as to the correctness of any statement made by a Person
other than Trust Company or the Owner Trustee contained in any thereof, except
that Trust Company represents, warrants and covenants to each Holder that this
Trust Agreement has been and each of the other Operative Agreements which
contemplates execution thereof by the Owner Trustee has been or will be executed
and delivered by its
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officers who are, or will be, duly authorized to execute and deliver documents
on its behalf.
SECTION 6.4 NO SEGREGATION OF MONEYS; NO INTEREST. Except as
otherwise provided herein or in any of the other Operative Agreements, moneys
received by the Owner Trustee hereunder need not be segregated in any manner
except to the extent required by law, and may be deposited under such general
conditions as may be prescribed by law, and neither Trust Company nor the Owner
Trustee shall be liable for any interest thereon, except as may be agreed to in
writing by Trust Company or the Owner Trustee.
SECTION 6.5 RELIANCE; ADVICE OF COUNSEL. Trust Company shall not
incur any liability to any Person in acting upon any signature, instrument,
notice, resolution, request, consent, order, certificate, report, opinion, bond
or other document or paper believed by it to be genuine and believed by it in
good faith to be signed by the proper party or parties. Trust Company may accept
and rely upon, a certified copy of a resolution of the board of directors or
other governing body of any corporate party as conclusive evidence that each
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the manner of ascertainment of which is not
specifically prescribed herein, Trust Company may for all purposes hereof rely
on an Officers' Certificate of the relevant party, as to such fact or matter,
and such certificate shall constitute full protection to Trust Company for any
action taken or omitted to be taken by it in good faith in reliance thereon. In
the administration of the trusts hereunder, the Owner Trustee may execute any of
the trusts or powers hereof and perform its powers and duties hereunder directly
or through agents or attorneys and may consult with counsel, accountants and
other skilled Persons to be selected and employed by it, and Trust Company shall
not be liable for anything done, suffered or omitted in good faith by it in
accordance with the advice or opinion of any such counsel, accountants or other
skilled Persons and not contrary to this Trust Agreement.
SECTION 6.6 LIABILITY WITH RESPECT TO DOCUMENTS. The Owner
Trustee, either in its trust or individual capacities, shall not incur any
liability to any Person for or in respect of (a) the recitals herein, (b) the
validity or sufficiency of this Trust Agreement, (c) the due execution hereof by
any Holder, (d) the form, character, genuineness, sufficiency, value or validity
of the Properties, or (e) the validity or sufficiency of 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.
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SECTION 6.7 NOT ACTING IN INDIVIDUAL CAPACITY. All Persons
having any claim against Trust Company by reason of the transactions
contemplated by the Operative Agreements shall look only to the Trust Estate (or
a part thereof, as the case may be) for payment or satisfaction thereof, except
as specifically provided in this Article VI and except to the extent that Trust
Company shall otherwise expressly agree in any Operative Agreement to which it
is a party.
SECTION 6.8 BOOKS AND RECORDS; TAX RETURNS.
(a) The Owner Trustee shall be responsible for the keeping of
all appropriate books and records relating to the receipt and
disbursement of all moneys that it may receive hereunder, or under any
other Operative Agreement. The Owner Trustee shall, at the expense of
the Owner Trustee, file an application with the Internal Revenue
Service for a taxpayer identification number with respect to the trust
created hereby. The Owner Trustee shall, at the expense of the Owner
Trustee, prepare or cause to be prepared and the Owner Trustee shall
sign or file the federal fiduciary tax return with respect to Taxes due
and payable by the trust created hereby in connection with the
transactions contemplated hereby and by any other Operative Agreement.
Each Holder shall furnish the Owner Trustee with all such information
as may be reasonably required from such Holder in connection with the
preparation of such tax returns. The Owner Trustee shall keep copies of
all returns delivered to or filed by it.
(b) The Owner Trustee, either in its trust or individual
capacities, shall be under no obligation to appear in, prosecute or
defend any action, which in its opinion may require it to incur any
out-of-pocket expense or any liability unless it shall be furnished
with such reasonable security and indemnity against such expense or
liability as it may require. The Owner Trustee may, but shall be under
no duty to, undertake such action as it may deem necessary at any and
all times, without any further action by the Administrative Agent or
any Holder to protect the Properties and the rights and interests of
the Holders pursuant to the terms of this Trust Agreement; provided,
however, that Trust Company may obtain reimbursement for the
out-of-pocket expenses and costs of such actions, undertakings or
proceedings from the Lessee.
ARTICLE VII
INDEMNIFICATION OF THE OWNER TRUSTEE
SECTION 7.1 INDEMNIFICATION GENERALLY. The Owner Trustee and
Trust Company are indemnified for matters related to the
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transactions described herein by the Lessee pursuant to Section 13 of the
Participation Agreement. Except as may be specifically provided from time to
time hereafter in writing by the Holders, neither the Owner Trustee nor Trust
Company shall have any right of indemnification from any Holder with respect to
the transactions described herein or in any of the other Operative Agreements.
SECTION 7.2 COMPENSATION AND EXPENSES. The Lessee has agreed to
pay the fees and reasonable expenses of the Owner Trustee and Trust Company as
provided in Section 9.3 of the Participation Agreement.
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
SECTION 8.1 TERMINATION OF TRUST AGREEMENT. This Trust
Agreement and the trusts created hereby shall terminate, and the Trust Estate
shall, subject to the provisions of the Participation Agreement, the other
Operative Agreements and Article IV hereof, be distributed pro rata to the
Holders, and this Trust Agreement shall be of no further force or effect, upon
the earliest to occur of (i) the joint written request of the Holders following
the sale or other final disposition by the Owner Trustee of all property
constituting part of the Trust Estate and the final distribution by the Owner
Trustee of all moneys or other property or proceeds constituting part of the
Trust Estate in accordance with the terms of Article IV; or (ii) the sale or
other final disposition by the Owner Trustee of all property constituting the
Trust Estate and the final disposition by the Owner Trustee of all moneys or
other property or proceeds constituting part of the Trust Estate in accordance
with the terms hereof; provided, however, that the Trust Estate shall not be
subject to sale or other final disposition by the Owner Trustee prior to the
payment in full and discharge of the Loans and all other indebtedness secured
by the Credit Documents, the release of the Credit Documents and the liens and
security interest granted thereby and the payment in full of the Holder Amount
and Holder Yield thereon and all other amounts owing to the Holders under any
of the Operative Agreements; and (iii) 110 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
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obligations of the Owner Trustee incurred by it as trustee hereunder; provided,
however, that each Holder agrees for the express benefit of the Administrative
Agent and the Lenders, that without the consent of the Administrative Agent, no
such election shall be effective until the Liens and security interests of the
Security Documents on the Collateral shall have been released and until full
payment of the principal of, and interest on the Loans and all other sums due to
the, Lenders shall have been made. Such written agreement shall be reasonably
satisfactory in form and substance to the Owner Trustee and shall release the
Owner Trustee from all further obligations of the Owner Trustee hereunder and
under the agreements and other instruments mentioned in the preceding sentence.
SECTION 8.3 TERMINATION AT OPTION OF THE OWNER TRUSTEE.
Notwithstanding any other section hereof, at any time that the Lease shall no
longer be in full force and effect, and the Administrative Agent shall have
confirmed in writing to the Owner Trustee that the Lenders have received payment
in full of the principal of and interest on the Loans and that all other sums
due to the Administrative Agent and the Lenders under the Operative Documents
shall have been paid, and the Holders shall have received payment in full of all
Holder Yield and other amounts due to the Holders under the Operative Documents,
then the Holders hereby authorize the Owner Trustee to: (a) terminate this Trust
Agreement and the trusts created hereby and (b) distribute and convey the Trust
Estate pro rata to the Holders by executing the necessary transfer documents as
contemplated by Section 8.4 hereof. The exercise of such option by the Owner
Trustee shall cause this Trust Agreement to be of no further force and effect
and shall release the Owner Trustee from all further obligations of the Owner
Trustee hereunder and under the agreements and other instruments mentioned in
the preceding sentence.
SECTION 8.4 ACTIONS BY THE OWNER TRUSTEE UPON TERMINATION. Upon
termination of this Trust Agreement and the trusts created hereby pursuant to
Section 8.1, Section 8.2 or Section 8.3, the Owner Trustee shall upon notice of
such event take such action as may be necessary or as may be requested by the
Holders to transfer the Trust Estate pro rata to the Holders, including, without
limitation, the execution of instruments of transfer or assignment with respect
to any of the Operative Agreements to which the Owner Trustee is a party.
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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 30 days' prior written notice to each Holder, the
Administrative Agent and the Lessee; provided, however that such
resignation shall not be effective until the acceptance of appointment
by a successor Owner Trustee under Section 9.1(b). The Owner Trustee
may be removed with or without cause at any time by the Holders upon
consent to such removal by the Administrative Agent and with 60 days'
prior written notice to the Owner Trustee, a copy of which notice shall
be concurrently delivered by the Holders to the Administrative Agent
and the Lessee. Any such removal shall be effective upon the acceptance
of appointment by a successor Owner Trustee under Section 9.1(b). In
case of the resignation or removal of the Owner Trustee, the Holders
may appoint a successor Owner Trustee by an instrument signed by each
Holder; provided, however, that such successor Owner Trustee must be
approved by the Administrative Agent. If a successor Owner Trustee
shall not have been appointed within 30 days after the giving of
written notice of such resignation or the delivery of the written
instrument with respect to such removal, the Owner Trustee or any
Holder may apply to any court of competent jurisdiction to appoint a
successor Owner Trustee to act until such time, if any, as a successor
shall have been appointed and shall have accepted its appointment as
above provided. Any successor Owner Trustee so appointed by such court
shall immediately and without further act be superseded by any
successor Owner Trustee appointed as above provided within one year
from the date of the appointment by such court.
(b) Any successor Owner Trustee, however appointed, shall
execute and deliver to the predecessor Owner Trustee an instrument
accepting such appointment, and thereupon such successor Owner Trustee,
without further act shall become vested with all the estates,
properties, rights, powers, duties and trusts of the predecessor Owner
Trustee in the trusts hereunder with like effect as if originally named
an Owner Trustee herein; but, the foregoing notwithstanding, upon the
written request of such successor Owner Trustee, such predecessor Owner
Trustee shall execute and deliver an instrument transferring to such
successor Owner Trustee, upon the trusts herein expressed, all the
estates, properties, rights, powers, duties and trusts of such
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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 Owner Trustee hereunder upon
reasonable or customary terms.
(d) Any corporation into which the Owner Trustee may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Owner Trustee shall be a party, or any corporation to which
substantially all the corporate trust business of the Owner Trustee may
be transferred, shall, subject to the terms of Section 9.1(c), be the
Owner Trustee under this Trust Agreement without further act.
SECTION 9.2 CO-TRUSTEES AND SEPARATE TRUSTEES. Whenever
(a) the Owner Trustee or the Holders (i) shall deem it necessary or prudent in
order to conform to any law of any jurisdiction in which all or any part of the
Trust Estate shall be situated or to which it may be subject, or to make any
claim or bring any suit with respect to the Trust Estate or any Operative
Agreement, or (ii) shall be advised by counsel satisfactory to the Trustee or
the Holders, as the case may be, that it is so necessary or prudent, or (b) the
Owner Trustee shall have been directed to do so by the Holders and the
Administrative Agent, then the Owner Trustee and the Holders shall execute and
deliver an agreement supplemental hereto and all other instruments and
agreements, and shall take all other action, necessary or proper to constitute
one or more Persons who need not meet the requirements of Section ------- 9.1(c)
(and the Owner Trustee may appoint one or more of its ------ officers) either as
co-trustee or co-trustees (the "Co-Owner Trustee"), jointly with the Owner
Trustee, of all or any part of the Trust Estate, or as separate trustee or
separate trustees of all or any part of the Trust Estate, and to vest in such
Persons, in such capacity, such title to the Trust Estate or any part thereof
and such rights or duties as may be necessary or desirable, all for such period
and under such terms and conditions as are satisfactory to the Owner Trustee and
the Holders. In accordance with the foregoing:
(a) Trust Company shall appoint a Co-Owner Trustee hereunder
in part so that if, under any present or future law of any State where
the Properties are located or of any jurisdiction in which it may be
necessary to perform any act in carrying out the trusts herein created,
Trust Company or
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any of its successors may be incompetent or unqualified or
incapacitated or unwilling to perform certain acts as such Owner
Trustee, then upon the written request of Trust Company of any of its
successors received by any Co-Owner Trustee, all of such acts required
to be performed in such jurisdiction in the execution of the trust
hereby created, shall and will be performed by such Co-Owner Trustee,
or any of his successors, in trust acting alone, as if he or such
successor had been specifically authorized to do so or had been the
sole Owner Trustee hereunder. Any Co-Owner Trustee shall continue to
perform such acts until otherwise directed in writing by Trust Company
or any of its successors. Any request in writing by Trust Company or
any of its successors to a Co-Owner Trustee shall be sufficient warrant
for him to take such action as may be so requested.
(b) Except to the extent it may be deemed necessary for any
Co-Owner Trustee or any of his successors solely or jointly to execute
the trusts herein created, Trust Company or any of its successors shall
alone possess and exercise the powers, and shall be solely charged with
the performance of the duties herein declared to be possessed,
exercised or performed by the Owner Trustee; and no Co-Owner Trustee
shall be liable therefor. Any Co-Owner Trustee or any of his successors
may delegate to Trust Company or its successor hereunder the exercise
of any power or discretion conferred by any provision of this Trust
Agreement.
(c) Any act of the Owner Trustee herein required or authorized
shall and will be jointly or separately performed by Trust Company or
its successors hereunder and by any Co- Owner Trustee or any of his
successors appointed hereunder, if such joint performance or separate
performance shall be necessary to the legality of such act and when so
acting all references herein to "First Security Bank, National
Association" shall be deemed to be references to such Co- Owner Trustee
in its individual capacity and all references to "Owner Trustee" shall
be deemed to be references to such Co-Owner Trustee, and such Co-Owner
Trustee shall be entitled to all the protection, indemnification,
immunity and compensation herein provided to Trust Company acting
singly in reference to such acts (subject to the limitations to such a
protection, indemnification, immunity and compensation set forth
herein).
(d) Trust Company or its successor in trust shall have and is
hereby given the power at any time by an instrument in writing duly
executed by a Vice President, and under its corporate seal, to remove
any Co-Owner Trustee or his successor, from his position as Co-Owner
Trustee hereunder. In the case of death, resignation, removal,
incapacity or inability to act hereunder of the Co-Owner Trustee, or
his successor as Co-Owner Trustee, (i) any adult citizen of the
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United States of America may be appointed Co-Owner Trustee hereunder by
a person who shall at the time be a Vice President of the corporation
then acting as Owner Trustee hereunder, by an instrument in writing
duly executed, and (ii) subject to its right to revoke such appointment
or to appoint another person, Trust Company shall appoint a successor
Co-Owner Trustee, such appointment to be immediately effective. In the
event a vacancy occurs in the office of the Co-Owner Trustee, either by
reason of resignation, removal, incapacity or inability to act and no
successor is appointed pursuant to the foregoing provisions within 30
days after such vacancy occurs, the Holders and the Administrative
Agent may jointly appoint a successor to the Co-Owner Trustee in the
same manner as is provided for the appointment of a successor to the
Co-Owner Trustee hereunder.
(e) At any time or times, for the purposes of meeting the
legal requirements of any jurisdiction in which any part of the Trust
Estate hereunder may at the time be located, or to avoid any violation
of law or imposition of taxes not otherwise imposed on the Owner
Trustee, or if the Owner Trustee shall deem it desirable for its own
protection, Trust Company shall have power to appoint one or more
persons (who may be officers of Trust Company) either to act as an
additional co-trustee, jointly with Trust Company, of all or any part
of the Trust Estate hereunder, or of any property constituting part
thereof, or to act as separate trustee of any part of the Trust Estate,
in either case with such powers as may be provided in the instrument of
appointment and are consistent with the terms hereof, and to vest in
such person or persons (in such capacity as co-trustee or separate
trustee), any property, title, right or power deemed necessary or
desirable, subject to the remaining provisions of this Section 9.2.
(f) Notwithstanding any provision of this Trust Agreement to
the contrary, any Co-Owner Trustee or co-trustee shall act upon and be
subject to the following terms and conditions:
All rights, powers, duties and obligations conferred
or imposed upon the Owner Trustee shall be conferred or
imposed solely upon and solely exercised and performed by
Trust Company except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be
performed Trust Company or the Owner Trustee shall be
incompetent or unqualified to perform such act or acts or to
avoid any violation of law or imposition of taxes not
otherwise imposed on the Owner Trustee, or if the Owner
Trustee shall deem it desirable for its own protection, in
which event such rights, powers, duties and obligations
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shall be exercised and performed by such co-trustee or Co-Owner
Trustee.
(g) No power granted by this Trust Agreement to, or which this
Trust Agreement provides may be exercised by, the Owner Trustee in
respect of the custody, control and management of moneys may be
exercised by any Co-Owner Trustee or any subsequently appointed
co-trustee except jointly with, or with the consent in writing of,
Trust Company for disbursement or application in accordance with the
terms hereof.
(h) All moneys which may be received or collected by any
Co-Owner Trustee or such subsequently appointed co-trustees shall be
paid over to Trust Company to be distributed in accordance with this
Trust Agreement and the other Operative Agreements.
(i) Any Co-Owner Trustee, or any subsequently appointed
co-trustee to the extent permitted by law, does hereby constitute Trust
Company or its successors hereunder his or her agent or attorney in
fact, with full power and authority to do any and all acts and things
and exercise any and all discretion authorized or permitted by the
Co-Owner Trustee or such subsequently appointed co-trustee, in its
behalf or in its name.
(j) No trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder.
SECTION 9.3 NOTICE. At all times that a successor Owner Trustee
is appointed pursuant to Section 9.1, an Owner Trustee resigns pursuant to
Section 9.1 or the Co-Owner Trustee, a co-trustee or separate trustee, is
appointed pursuant to Section 9.2, the Holders shall give joint notice of such
fact within 15 days of its occurrence to (x) the Lessee, if the Lease is then in
effect and (y) the Administrative Agent, if the Credit Agreement is in effect.
ARTICLE X
SUPPLEMENTS AND AMENDMENTS
SECTION 10.1 SUPPLEMENTS AND AMENDMENTS. Subject to Section 10.2
of this Trust Agreement, and Section 10.2 of the Participation Agreement, at the
written request of any Holder, this Trust Agreement shall be amended by a
written instrument signed by Trust Company and each Holder, but if in the
opinion of Trust Company or any non-requesting Holder, any instrument required
to be so executed adversely affects any right, duty or liability of, or immunity
or indemnity in favor of, such non-
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requesting Holder or the Owner Trustee under this Trust Agreement or any of the
other Operative Agreements to which the Owner Trustee is a party, or would cause
or result in any conflict with or breach of any terms, conditions or provisions
of, or default under, the charter documents or by-laws of such non-requesting
Holder or any document contemplated hereby to which it or the Owner Trustee is a
party, then Trust Company or such other Holder, as the case may be, may in its
sole discretion decline to execute such instrument, unless it shall have been
provided an indemnity satisfactory to it by the Holder so requesting the
amendment.
SECTION 10.2 LIMITATION ON AMENDMENTS. Notwithstanding Section
10.1, Trust Company shall not, without the consent of the Administrative Agent,
execute any amendment (i) that might result in the trusts created hereunder
being terminated prior to the satisfaction and discharge of the Lien and
security interest of the Security Documents on the Collateral or prior to the
payment in full of the principal of and interest on the Loans, and any other
amounts due to the Administrative Agent or any Lender under any Credit Document,
and (ii) other than in accordance with the terms of the Credit Agreement.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 NO LEGAL TITLE TO TRUST ESTATE IN THE HOLDERS. The
Holders shall not have legal title to any part of the Trust Estate; provided,
however, that each Holder has a pro rata beneficial interest in the Trust
Estate. No transfer, by operation of law or otherwise, of any right, title or
interest of a Holder in and to the Trust Estate or hereunder shall operate to
terminate this Trust Agreement or the Trust or the trusts hereunder or entitle
any successor or transferee to an accounting or to the transfer to it of legal
title to any part of the Trust Estate.
SECTION 11.2 SALE OF PROPERTIES BY THE OWNER TRUSTEE IS BINDING.
Any sale, transfer, or other conveyance of the Properties or any part thereof by
the Owner Trustee made pursuant to the terms of this Trust Agreement or any
other Operative Agreement shall bind the Holders and shall be effective to sell,
transfer and convey all right, title and interest of the Owner Trustee and the
Holders in and to the Properties or any part thereof. No purchaser or other
grantee shall be required to inquire as to the authorization, necessity,
expediency or regularity of such sale or conveyance or as to the application of
any sale or other proceeds with respect thereto by the Owner Trustee.
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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 Trust Company, the Owner Trustee and each Holder, any legal
or equitable right, remedy or claim under or in respect of this Trust Agreement,
any covenants, conditions or provisions contained herein or in the Trust Estate;
but this Trust Agreement shall be held for the sole and exclusive benefit of the
Owner Trustee and the Holders. The Administrative Agent shall have the right to
enforce the provisions of Sections 5.1, 5.2, 5.3, 5.4, 5.5, 6.2, 6.8, 8.1,
8.2, 8.3, 9.1, 9.2, 9.3, 10.1 and 10.2 hereof.
SECTION 11.4 NOTICES. Unless otherwise expressly specified or
permitted by the terms hereof, all notices hereunder shall be given as provided
in the Participation Agreement.
SECTION 11.5 SEVERABILITY. Any provision of this Trust Agreement
that may be determined by competent authority to be prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 11.6 LIMITATION ON THE HOLDERS' LIABILITY. No Holder
shall have any liability for the performance of this Trust Agreement except as
expressly set forth herein.
SECTION 11.7 SEPARATE COUNTERPARTS. This Trust Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 11.8 SUCCESSORS AND ASSIGNS.
(a) All covenants and agreements contained herein shall be
binding upon, and inure to the benefit of, Trust Company, the Owner
Trustee and its successors and assigns and each Holder and its
successors and assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by a Holder
shall bind the successors and assigns of such Holder.
(b) Subject to the terms of Section 12.1 of the Participation
Agreement, 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 pursuant to an assignment agreement in a
form acceptable to the Owner Trustee, which assignment agreement shall
provide, without limitation, that the assignee
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undertakes and assumes all obligations and covenants of a Holder under
this Trust Agreement and the other Operative Documents. The Holder
proposing the transfer or assignment shall notify the Owner Trustee in
writing of the effective date of the transfer or assignment, which
effective date shall be at least three (3) Business Days after the date
of such notification. The Owner Trustee, at its own expense, 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.
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 SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF FLORIDA, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF
CONFLICT OF LAWS.
SECTION 11.11 PERFORMANCE BY THE HOLDERS. Any obligation of the
Owner Trustee hereunder or under any Operative Document or other document
contemplated herein may be performed by the Holders (or by one of them with the
written consent of the other) and any such performance shall not be construed as
a revocation of the trusts created hereby.
SECTION 11.12 CONFLICT WITH OPERATIVE AGREEMENTS. If this Trust
Agreement (or any instructions given by a Holder pursuant hereto) shall require
that any action be taken with respect to any matter and any other Operative
Agreement (or any instructions duly given in accordance with the terms thereof)
shall require that a different action be taken with respect to such matter, and
such actions shall be mutually exclusive, the provisions of such other Operative
Agreement shall control in respect thereof.
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 any term hereof shall be effective only in the specific
instance and for the specific purpose given.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized, as of
the date set forth above.
OWNER TRUSTEE:
FIRST SECURITY BANK, NATIONAL
ASSOCIATION
By: /s/ Val T. Orton
------------------------
Name: Val T. Orton
Title: Vice President
(Wackenhut Corrections Trust 1997-1)
HOLDERS:
NATIONSBANK, N.A. (SOUTH)
as a Holder
By: /s/ Maria Conroy
------------------------
Name: Maria Conroy
Title: Senior Vice President
[ADD APPROPRIATE LANGUAGE RE
INDIVIDUAL TRUSTEE]
Signature Page 1 of 3
31
BARNETT BANK, N.A., as a Holder
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Address for Notices:
9000 Southside Boulevard
Building 600
Jacksonville, Florida 32256
Attention: Andrea Potts
Telephone No.: (904) 464-6502
Telecopy No.: (904) 464-5549
Signature Page 2 of 3
32
SCOTIABANC INC., as a Holder
By:
------------------------------
Name:
-----------------------------
Title:
----------------------------
Address for Notices:
600 Peachtree Streen, N.E.
Suite 2700
Atlanta, Georgia 30308
Attention: Dorothy Legista
Telephone No.: (404) 877-1535
Telecopy No.: (404) 888-8998
Signature Page 3 of 3
33
EXHIBIT A
FORM OF HOLDER CERTIFICATE
FIRST SECURITY BANK, NATIONAL ASSOCIATION
TRUSTEE UNDER
AMENDED AND RESTATED TRUST AGREEMENT DATED AS OF JUNE --, 1997
HOLDER CERTIFICATE
WACKENHUT CORRECTIONS TRUST 1997-1
$ , 199
------------------------- --------------- -
Holder:
-------------------
First Security Bank, National Association, as trustee (in such capacity
the "Trustee") under that certain Amended and Restated Trust Agreement (the
"Trust Agreement") dated as of June __, 1997, between NationsBank, N.A. (South)
and the other Holders party thereto, and the Trustee, hereby certifies as
follows: (i) this Holder Certificate is the Holder Certificate referred to in
the Section 3.1(d) of the Trust Agreement, which Holder Certificate has been
issued to the Holder named herein by the Trustee pursuant to the Trust Agreement
and (ii) subject to the prior payment of, and the assignment, pledge or mortgage
of the Trust Estate to secure the Notes as set forth in the applicable Operative
Agreements, the holder of this Holder Certificate has an undivided beneficial
interest in properties of the Trustee constituting part of the Trust Estate and
is entitled to receive as provided in the Trust Agreement, a portion of the Rent
received or to be received by the Trustee for the Properties, as well as a
portion of certain other payments which may be received by the Trustee pursuant
to the terms of the Operative Agreements as more particularly set forth therein.
(Capitalized terms not otherwise defined herein shall have the respective
meanings assigned to them in the Trust Agreement.)
All amounts payable hereunder and under the Trust Agreement shall be
paid only from the income and proceeds from the Trust Estate and only to the
extent that the Trustee shall have received sufficient income or proceeds from
the Trust Estate to make such payments in accordance with the terms of the Trust
Agreement, except as specifically provided in Section 6.1 of the Trust
Agreement; and the holder hereof, by its acceptance of this Holder Certificate,
agrees that it will look solely to the income and proceeds from the Trust Estate
to the extent available for distribution to the holder hereof as provided in the
Trust Agreement and the other Operative Agreements and that, except as
specifically provided in the Trust Agreement and the other Operative Agreements,
the Trustee is not personally liable to the
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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 one or more banking institutions with bank wire
transfer facilities for the account of such Holder or as otherwise instructed in
writing from time to time by such Holder.
This Holder Certificate shall mature, and all amounts payable to the
holder hereof pursuant to the Trust Agreement shall be due on, the Maturity
Date.
The Holder Fundings outstanding from time to time under this Holder
Certificate shall bear a yield on the unpaid amount hereof at the Holder Yield
as provided in the Trust Agreement. The Holder Yield on this Holder Certificate
shall be computed as provided in the Trust Agreement and shall be payable at the
rates, at the times and from the dates specified in the Trust Agreement.
From and after the execution of the Participation Agreement, the rights
of the holder of this Holder Certificate under the Trust Agreement as well as
the beneficial interest of the holder of this Holder Certificate in and to the
properties of the Trustee constituting part of the Trust Estate, are subject and
subordinate to the rights of the holders of the Notes to the extent provided in
the applicable Operative Agreements. The Trust Estate has been or will be
assigned, pledged and mortgaged to the Administrative Agent, on behalf of the
Lenders, as security for the Notes. Reference is hereby made to the Trust
Agreement, the Participation Agreement, the Credit Agreement, the Security
Agreement and the Notes for statements of the rights of the holder of this
Holder Certificate and of the rights of the holders of, and the nature and
extent of the security for, the Notes, as well as for a statement of the terms
and conditions of the trusts created by the Trust Agreement; and the holder
hereof, by its acceptance of this Holder Certificate, agrees to all such terms
and conditions.
The holder hereof, by its acceptance of this Holder Certificate, agrees
not to transfer this Holder Certificate except in accordance with the terms of
the Trust Agreement and the other Operative Agreements.
THIS HOLDER CERTIFICATE SHALL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE INTERNAL
LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) AND DECISIONS OF THE STATE OF
FLORIDA. WHENEVER POSSIBLE EACH PROVISION OF THIS HOLDER CERTIFICATE SHALL BE
INTERPRETED IN SUCH MANNER AS TO BE EFFECTIVE AND VALID UNDER
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APPLICABLE LAW, BUT IF ANY PROVISION OF THIS HOLDER CERTIFICATE SHALL BE
PROHIBITED BY OR INVALID UNDER APPLICABLE LAW, SUCH PROVISION SHALL BE
INEFFECTIVE TO THE EXTENT OF SUCH PROHIBITION OR INVALIDITY, WITHOUT
INVALIDATING THE REMAINDER OF SUCH PROVISION OR THE REMAINING PROVISIONS OF THIS
HOLDER CERTIFICATE.
IN WITNESS WHEREOF, the undersigned authorized officer of the Trustee
has executed this Holder Certificate as of the date first set forth above.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, as Trustee
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
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