Exhibit 9.1
MID-STATE TRUST 199 -
TRUST AGREEMENT
Between
MID-STATE HOMES, INC.,
as Depositor
and
------------------------,
as Owner Trustee
Dated as of ___________, 199_
-8-
Table of Contents
ARTICLE I...................................................................3
DEFINITIONS..............................................................3
ARTICLE II..................................................................6
ORGANIZATION.............................................................6
ARTICLE III.................................................................8
ISSUANCE, OWNERSHIP AND TRANSFER OF CERTIFICATES.........................9
ARTICLE IV.................................................................12
PAYMENTS AND DISTRIBUTIONS..............................................12
ARTICLE V..................................................................13
DUTIES OF THE OWNER TRUSTEE.............................................13
ARTICLE VI.................................................................14
THE OWNER TRUSTEE.......................................................15
ARTICLE VII................................................................20
INDEMNIFICATION BY OWNERS...............................................20
ARTICLE VIII...............................................................21
TERMINATION OF TRUST AGREEMENT..........................................21
ARTICLE IX.................................................................21
SUCCESSOR OWNER TRUSTEE AND ADDITIONAL TRUSTEES.........................22
ARTICLE X..................................................................24
MISCELLANEOUS...........................................................25
Exhibit A..................................................................28
TRUST AGREEMENT dated as of __________, 199_ (herein, as
amended or supplemented from time to time as permitted hereby, called this
"Trust Agreement") between Mid-State Homes, Inc., a Florida corporation, as
Depositor (the "Depositor"), and _____________, a ____________, as Owner Trustee
(the "Owner Trustee").
WHEREAS, the parties hereto desire to establish this Trust (as
defined herein) for the purposes set forth in Section 2.03 hereof and in
furtherance of such purposes the Depositor desires to sell to the Trust all of
its right, title and interest in and to the Trust Property (as defined herein)
pursuant to a purchase and sale agreement.
NOW, THEREFORE:
ARTICLE I
DEFINITIONS
1.01. Definitions. For all purposes of this Agreement, the following
terms shall have the meanings set forth below:
"Accession" means the completion of the process by which a proposed
transferee becomes an Owner as provided in Section 3.02 hereof.
"Accession Agreement" means the instrument in which a proposed
transferee makes certain representations and agrees to be bound by the terms of
this Agreement, substantially in the form annexed hereto as Exhibit A.
"Agreement" means this Trust Agreement, as supplemented or amended
pursuant to Section 10.01 hereof.
"Bank" means ________________, in its individual capacity and not as
Owner Trustee.
"Business Trust Statute" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. ss. 3801 et seq.
"Certificate" means a certificate duly executed by the Owner Trustee
representing an undivided beneficial ownership interest in the Trust
substantially in the form annexed hereto as Exhibit B.
"Certificate of Trust" means the Certificate of Business Trust to be
filed by the Owner Trustee for the Trust pursuant to Section 3810(a) of the
Business Trust Statute.
"Closing Date" has the meaning assigned to it in the Indenture.
"Collateral" means that portion of the Trust Property that may from
time to time be pledged by the Trust under the Indenture.
"Delaware Secretary of State" means the Secretary of State of the State
of Delaware.
"Depositor" means Mid-State Homes, Inc., in its capacity as grantor of
the Trust. The Depositor may also be referred to as the "Grantor".
"Eligible Investments" has the meaning specified in the Indenture.
"Holding Account Agreement" means the agreement, dated as of ______,
199_, among the Trust, _______________, as custodian for the benefit of itself
as Trustee (in such capacity, the "Custodian") and Mid-State Homes, Inc., as
servicer under the Servicing Agreement.
"Indebtedness" means (i) indebtedness or liability for borrowed money,
or for the deferred purchase price of property or services (including trade
obligations); (ii) obligations as lessee under leases which should have been or
should be, in accordance with generally accepted accounting principles, recorded
as capital leases; (iii) current liabilities in respect of unfunded vested
benefits under plans covered by Title IV of the Employee Retirement Income
Security Act of 1974; (iv) obligations issued for the account of any Person; (v)
all obligations arising under acceptance facilities; (vi) all guarantees,
endorsements (other than for collection or deposit in the ordinary course of
business) and other contingent obligations to purchase, to provide funds for
payment, to supply funds to invest in any person or otherwise to assure a
creditor against loss; (vii) obligations secured by any lien, whether or not the
obligations have been assumed and (viii) obligations under any interest rate or
currency exchange agreement.
"Indenture" means the Indenture dated as of _____, 199_ between the
Trust and the Note Trustee, providing for the issuance of the Notes.
"Note Agreements" means the Indenture, the Notes, the Servicing
Agreement, the Purchase and Sale Agreement, the Holding Account Agreement, the
Underwriting Agreement and all other documents, agreements and instruments
related thereto.
"Noteholders" has the meaning assigned to it in the Indenture.
"Notes" means the [ ]% Asset Backed Notes, Class A-1; [ ]% Asset Backed
Notes, Class A-2; [ ]% Asset Backed Notes, Class A-3; and [ ]% Asset Backed
Notes, Class A-4 issued by the Trust under the Indenture.
"Note Trustee" means ___________________, as trustee under the
Indenture.
"Owner" means the holder of a Certificate duly registered and entered
on the books and records of the Owner Trustee.
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"Owner Trustee" means ________________, not in its individual capacity
but solely as trustee under this Agreement, and any successor trustee hereunder.
"Ownership Percentage", with respect to any Owner, means the proportion
(expressed as a percentage) of the entire beneficial ownership interest in the
Trust that is held by such Owner.
"Payment Date" has the meaning specified in the Indenture.
"Periodic Filings" means any filings or submissions that the Trust is
required to make with respect to the Notes.
"Purchase and Sale Agreement" means the agreement dated as of
_________, 199_ between the Depositor and the Trust which provides for, among
other things, the purchase by the Trust of all of the interest, right and title
of the Depositor in the Accounts.
"Qualified Owner" is an Owner that is none of the proposed Transferor,
the Transferee, an affiliate of either the Transferor or Transferee, or an Owner
which proposes to transfer any part of its Ownership Percentage in a related
transaction.
"Record Date" with respect to any distribution pursuant to Article IV
hereof means the Payment Date prior to the date of such distribution.
"Servicing Agreement" means the agreement to be entered into by the
Owner Trustee on behalf of the Trust and Mid-State Homes, Inc. in its capacity
as Servicer.
"Transferor" and "Transferee" shall have the meanings set forth in
Section 3.02 of this Agreement.
"Trust" means Mid-State Trust 199 - , the Delaware business trust
established and governed by this Agreement.
"Trust Estate" has the meaning specified in the Indenture.
"Trust Property" means all right, title and interest of the Trust in
and to any and all property sold by the Depositor to the Trust or otherwise
acquired by the Trust including, without limitation, (i) the Trust Estate,
subject to the lien of the Indenture, including any Accounts, all distributions,
payments, proceeds, insurance proceeds, or requisition and indemnity payments
with respect thereto, the Software Rights and (ii) all other property not
subject to, or released from, the lien of the Indenture. The Trust Property
shall not include any compensation or indemnity paid to the Bank pursuant to
Article VIII hereof.
"Underwriting Agreement" means the underwriting agreement dated
_______, 199_ relating to the public offering of the Notes, between the
Depositor and the Underwriter named therein.
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Capitalized terms used herein and not otherwise defined have the
meanings assigned thereto in the Indenture.
ARTICLE II
ORGANIZATION
2.01. Name. The name of the Trust shall be Mid-State Trust 199 - .
2.02. Office. The office of the Trust shall be in care of the Owner
Trustee, at the address set forth in Section 10.05 hereof or at such other
address as the Owner Trustee may designate by notice to the Owners. The office
shall be separate from any office maintained by any Owner.
2.03. Purpose and Powers. The purposes for which the Trust is created
and established are (i) to acquire, hold and manage the Trust Property,
including instituting foreclosure actions, acquiring title to real estate
securing Accounts and reselling such property, and in connection with the
management of the Trust Estate, to delegate to the Servicer the authority to act
on behalf of the Issuer as contemplated by the Servicing Agreement, (ii) to
issue and sell the Notes, (iii) to administer the Trust (including without
limitation administering and distributing the Trust Property and consenting to
the transfer of the Certificates) and (iv) to enter into and perform under the
Note Agreements and transactions contemplated thereby, all for the benefit of
the Owners. The Trust shall not have power to perform any act or engage in any
business whatsoever except for the foregoing and any activity that is both
necessary to the foregoing and within the contemplation of the Indenture and the
Note Agreements. The operations of the Trust will be conducted in accordance
with the following standards:
(a) The Trust will act solely in its own name through the
Owner Trustee or any co-trustee or through other agents
selected in accordance with this Agreement;
(b) The Trust shall not incur any Indebtedness other than
the Notes and Indebtedness arising under the Note Agreement;
(c) The Trust's funds and assets shall at all times
be maintained separately from those of the Depositor, the
Owners or any of their affiliates;
(d) The Trust shall maintain complete and correct
books and records of account and shall prepare financial
statements separately stating the Trust's income, assets and
liabilities which in each case shall be separate from those of
the Owner Trustee, the Depositor, the Owners or any of their
affiliates;
(e) The Trust shall conduct its business through the
office of the Owner Trustee and will use stationery and other
business forms (which may be
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stationery and forms of the Owner Trustee) under its own name
and not that of the Depositor, any Owner or any of their
affiliates;
(f) Except as contemplated by Section 2.01 of the
Servicing Agreement, new Accounts originated in connection
with the resale of repossessed property shall be originated in
the Trust's name;
(g) The Trust's operating expenses shall be paid out of its
own funds;
(h) The Trust shall file all reports required to be
filed by it under the Securities Exchange Act of 1934, as
amended;
(i) The Trust shall not hold itself out as liable for
the debts of the Depositor or any Owner or their respective
affiliates; and
(j) The Trust shall not engage in any transaction
with the Depositor or any Owner or any of their respective
affiliates unless such transaction is on terms not more nor
less favorable than the terms and conditions available at the
time to the Trust for comparable transactions with other
persons.
2.04. Appointment of the Owner Trustee. The Depositor hereby appoints
the Bank as Owner Trustee of the Trust effective as of the date hereof, to have
all the rights, powers and duties set forth herein and, upon the filing of the
Certificate of Trust, in the Business Trust Statute with respect to
accomplishing the purposes of the Trust. The Owner Trustee accepts the
appointment as Owner Trustee of the Trust and acknowledges receipt in trust from
the Depositor, as of the date hereof, of the sum of $[________] constituting the
initial Trust Property. The Depositor acknowledges receipt from the Owner
Trustee of a Certificate representing an Ownership Percentage of 100% in
exchange for the Trust Property.
2.05. Declaration of Trust. The Owner Trustee hereby declares that it
will hold the Trust Property upon the trusts set forth herein and for the use
and benefit of the Owners. It is the intention of the parties hereto that the
Trust constitute a business trust under the Business Trust Statute and that this
Agreement constitute the governing instrument of such business trust. No later
than the Closing Date, the Owner Trustee shall cause the filing of the
Certificate of Trust with the Delaware Secretary of State.
2.06. Situs of Trust. The Trust will be located and administered in the
State of Delaware. All bank accounts maintained by the Owner Trustee on behalf
of the Trust shall be located in the State of Delaware. The Trust shall not have
any employees in any state other than the State of Delaware. Payments will be
received by the Owner Trustee only in the State of Delaware, and payments will
be made by the Owner Trustee only from the State of Delaware. The only office of
the Trust will be at the principal office of the Owner Trustee within the State
of Delaware.
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2.07. Title to Trust Property. Title to all of the Trust Property shall
be vested in the Trust as a separate legal entity until this Agreement
terminates pursuant to Article IX hereof; provided, however, that if the laws of
any jurisdiction require that title to any part of the Trust Property be vested
in the trustee of the Trust, then title to that part of the Trust Property shall
be deemed to be vested in the Owner Trustee or any co-trustee or separate
trustee, as the case may be, appointed pursuant to Article IX of this Agreement.
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ARTICLE III
ISSUANCE, OWNERSHIP AND TRANSFER OF CERTIFICATES
3.01. Ownership Prior to Closing Date. The Depositor shall be the sole
Owner of the Trust prior to the Closing Date. The Owner Trustee acknowledges
that the Depositor is the Owner and holds on the date hereof a Certificate
evidencing an Ownership Percentage of 100%. The Depositor shall pay
organizational expenses of the Trust as they may arise prior to the Closing Date
and shall direct the Owner Trustee in the acquisition of the Collateral.
3.02. Accession.
(a) On or after the Closing Date, an Owner (hereinafter in this Section
3.02, a "Transferor") may transfer all or any portion of its Ownership
Percentage to such person or persons (hereinafter in this Section 3.02, a
"Transferee"), and on such terms as the Transferor shall determine and subject
to the following conditions:
(i) prior to the proposed transfer, the Transferor shall
advise the Owner Trustee of the proposed transfer, and shall cause the
Transferee to deliver to the Owner Trustee an executed Accession
Agreement together with such Transferee's audited financial statements
for the most recent fiscal year or, if such Transferee has been in
existence for less than a full fiscal year, such Transferee's unaudited
financial statements for a shorter period or, if such Transferee is a
trust, a certification by such Transferee as to its net worth;
(ii) unless the Owner Trustee and the nontransferring Owners,
if any, shall have otherwise consented (which consent may be given
without the consent of the Noteholders or Note Trustee), the Transferee
shall have a net worth as shown by the financial statements or
certifications delivered to the Owner Trustee pursuant to Section
3.02(a)(i) hereof that is not less than net worth requirements, if any,
imposed by state or federal regulations applicable to such Transferee,
if any;
(iii) the Owner Trustee shall have received an opinion of
counsel that such transfer is exempt from registration, or the related
Certificate is registered under, the Securities Act of 1933, as
amended, and any applicable state securities laws, which opinion of
counsel shall not be an expense of the Owner Trustee, and the
Transferor shall, and does hereby agree to, indemnify the Bank and the
Owner Trustee against any liability that may result if the transfer is
not so exempt or is not made in accordance with such federal and state
laws; and
(iv) if the Transferee is an employee benefit plan subject to
ERISA or is using the funds of such a plan to acquire the Certificate,
the Owner Trustee shall have received an opinion of counsel that as a
result of such transfer (i) the
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Owner Trustee will not be deemed to be an ERISA fiduciary with respect
to such plan and (ii) the Transferee's acquisition and holding of a
Certificate will not involve a "prohibited transaction" for which an
exemption is not available which opinion of counsel shall not be an
expense of the Owner Trustee, and the Transferor shall, and does hereby
agree to, indemnify the Bank and the Owner Trustee against any
liability that may result if the transfer is not so exempt or is not
made in accordance with such laws.
(b) Upon satisfaction of the conditions listed in Section
3.02(a) hereof and receipt by the Owner Trustee of the Transferor's Certificate,
the Owner Trustee shall cancel the Transferor's Certificate, accept the
Accession Agreement, deliver a copy thereof to the Transferee, record the name
of such Transferee as an Owner on its books and records, record its Ownership
Percentage and issue, execute and deliver to such new Owner a Certificate
evidencing such Ownership Percentage.
(c) The Owner Trustee may require, as a condition precedent to any
transfer, the payment by the Transferor of a sum sufficient to pay, or to
reimburse the Owner Trustee for the payment of, any tax or taxes or other
governmental charge required to be paid in connection with such transfer, and
such charge for any such transfer as the Owner Trustee may deem proper not
exceeding $25.00 for each new Certificate issued upon such transfer.
3.03. Ownership; Limited Transfer of Ownership Rights.
(a) The Owner Trustee shall maintain a register showing the name and
address of each Owner and its respective Ownership Percentages and shall treat
such register as definitive and binding for all purposes hereunder, and only
those persons so registered as Owners shall have the rights of Owners hereunder.
In the event an Owner transfers only a portion of its Ownership Percentage, the
Owner Trustee shall enter such Owner's new Ownership Percentage in such register
and issue, execute and deliver to such Owner a new Certificate evidencing such
Owner's new Ownership Percentage.
(b) Each Owner may transfer all or any portion of its Ownership
Percentage only in compliance with the provisions of Section 3.02 hereof and any
attempted transfer not in compliance therewith shall be null and void.
(c) Subsequent to a transfer, and upon the issuance of the new
Certificate or Certificates, the Owner Trustee shall cancel and dispose of the
Certificate surrendered to it in connection with the transfer in a manner deemed
acceptable to the Owner Trustee.
3.04. Legend on Certificates. Each Certificate shall bear a legend
setting forth restrictions on transferability substantially as follows: "THE
BENEFICIAL INTEREST IN THE TRUST REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN
AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAWS, IN A MANNER THAT WILL NOT PERMIT A
DISTRIBUTION THEREOF WITHOUT FURTHER COMPLIANCE WITH THE REGISTRATION PROVISIONS
OF THE ACT, AND MAY NOT BE DIRECTLY OR
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INDIRECTLY OFFERED OR SOLD OR OTHERWISE TRANSFERRED (INCLUDING PLEDGED BY THE
HOLDER HEREOF) EXCEPT IN COMPLIANCE WITH THE ACT. THE TRANSFER OF THIS
CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS AND CONDITIONS SET FORTH IN THE
TRUST AGREEMENT UNDER WHICH THIS CERTIFICATE WAS ISSUED, INCLUDING RECEIPT BY
THE OWNER TRUSTEE OF AN OPINION OF COUNSEL SATISFACTORY TO THE OWNER TRUSTEE, TO
THE EFFECT THAT THE TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE ACT OR IS IN
COMPLIANCE WITH THE REGISTRATION PROVISIONS UNDER THE ACT. IN ADDITION, THIS
CERTIFICATE MAY NOT BE TRANSFERRED UNLESS THE OWNER TRUSTEE AND, IF APPLICABLE,
OTHER HOLDERS OF CERTIFICATES OF BENEFICIAL INTEREST IN THE TRUST CONSENT TO
SUCH TRANSFER AND UNLESS OTHERWISE TRANSFERRED IN THE MANNER PROVIDED IN ARTICLE
III OF THE TRUST AGREEMENT AND IN ACCORDANCE WITH THE REQUIREMENTS THEREOF,
INCLUDING WITHOUT LIMITATION THE REQUIREMENT THAT THE TRANSFEREE SIGN AND
DELIVER TO THE OWNER TRUSTEE AN ACCESSION AGREEMENT IN WHICH THE TRANSFEREE
MAKES CERTAIN REPRESENTATIONS AND AGREES TO BE BOUND BY ALL THE TERMS AND
CONDITIONS OF THE TRUST AGREEMENT, AND THAT THE TRANSFEREE DELIVER TO THE OWNER
TRUSTEE CERTAIN FINANCIAL STATEMENTS OR CERTIFICATIONS."
3.05. Lost, Stolen, Mutilated or Destroyed Certificates. Upon
receipt of evidence satisfactory to the Owner Trustee that any Certificate has
been lost, stolen, mutilated or destroyed, and upon proof of ownership and
receipt of indemnity or a bond satisfactory to the Owner Trustee, and upon
payment of all reasonable expenses incurred by the Owner Trustee for any
investigation relating thereto and an amount not to exceed $25.00 for each new
Certificate, the Owner Trustee shall execute and deliver a new Certificate, of
like tenor and bearing an issue number, with such notations, if any, as the
Trustee shall determine, upon surrender and cancellation of, and in exchange and
substitution for, such mutilated Certificate or in lieu of and in substitution
for the Certificate so lost, stolen or destroyed. Any duplicate Certificate
issued pursuant to this Section 3.05 shall constitute complete and indefeasible
evidence of ownership of the Trust to the extent of the Ownership Percentage
represented by such Certificate, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
3.06. No Petition. By its acceptance of a Certificate each Owner agrees
not to cause or consent to the filing of a petition in bankruptcy against the
Trust for any reason until at least one year after payment in full of all the
Notes.
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ARTICLE IV
PAYMENTS AND DISTRIBUTIONS
4.01. Payments. Any amounts payable as expenses of the Trust shall be
paid solely pursuant to Section 8.02 of the Indenture until such time as the
Indenture has been satisfied and discharged pursuant to Section 4.01 of the
Indenture. After such time, any amounts paid to the Owner Trustee by the Note
Trustee, the Servicer or otherwise in respect of the property of the Trust shall
be applied in the following order:
(a) to pay fees and reimburse expenses of the Note
Trustee (to the extent the Owner Trustee has received an invoice for
such expenses from the Note Trustee) and to pay other fees and expenses
as then due under the Indenture, in each case to the extent, if any,
not previously paid by the Note Trustee out of amounts not otherwise
payable to the Owner Trustee;
(b) to pay any amounts due to the Owner Trustee or
the Bank, as the case may be, as then due under this Agreement; and
(c) to pay any other current operating expenses of the Trust.
Any sums remaining after such application shall be distributed on the
second business day after the day on which the Owner Trustee receives any such
amounts (or on such other day as the Owners may specify in writing) to the
Owners (or their designees specified in writing to the Owner Trustee on or
before such Record Date) as of the relevant Record Date, in proportion to their
Ownership Percentages free and clear of the lien of the Indenture. All payments
to be made under this Agreement by the Owner Trustee shall be made only from the
income and proceeds of the Trust Property and only to the extent that the Owner
Trustee has received such income or proceeds and in no event shall the Bank be
liable to make any such payments.
4.02. Method of Payment. All amounts payable to an Owner pursuant to
this Agreement shall be paid by the Owner Trustee to the Owner, or a nominee
therefor, by crediting the amount to be distributed to the Owner to an account
maintained by such Owner with the Bank in immediately available funds or by
transferring such amount in immediately available funds to a banking institution
with bank wire transfer facilities for the account of the Owner, as instructed
from time to time by the Owner.
4.03. Reports. Each payment pursuant to Section 4.01 hereof shall be
accompanied by a report setting forth, for each payment and cumulatively for the
current reporting year, the amounts received by the Owner Trustee together with
their application.
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ARTICLE V
DUTIES OF THE OWNER TRUSTEE
5.01. Issuance of the Notes. The Owner Trustee is hereby directed:
(a) to execute and deliver the Note Agreements;
(b) to acquire the Collateral and to pledge the Collateral as
security for the Notes;
(c) to issue the Notes pursuant to the Indenture; and
(d) to take whatever action shall be required to be taken by
the Owner Trustee by, and subject to, the terms of this Agreement.
5.02. In General. It shall be the duty of the Owner Trustee:
(i) to discharge (or cause to be discharged) all
responsibilities assigned to it pursuant to the terms of this
Agreement;
(ii) to execute any Periodic Filings; and
(iii) to furnish to the Owners and any designees of the Owners
specified in writing to the Owner Trustee, promptly upon
receipt thereof, duplicates or copies of all reports, notices,
requests, demands, certificates, financial statements and any
other instruments furnished to the Owner Trustee hereunder or
under the Note Agreements.
5.03. No Duties Except as Specified in Agreement or Instructions. The
Owner Trustee shall not have any duty or obligation to manage, service, perfect
or maintain any security interest in, make any payment or collection in respect
of, register, record, sell, dispose of or otherwise deal with the Collateral or
any other part of the Trust Property, prepare or file any report or other
document or to otherwise take or refrain from taking any action under, or in
connection with, any document contemplated hereby to which the Trust is a party,
except as expressly provided by the terms of this Agreement; and no implied
duties or obligations shall be read into this Agreement against the Owner
Trustee. The Bank nevertheless agrees that it shall, at its own cost and
expense, promptly take any action necessary to discharge any liens on any part
of the Trust Property or the Collateral which result from actions by or claims
against the Bank that are not related to the ownership of the Collateral or any
other part of the Trust Property or the administration of the Trust Property or
the transactions contemplated by the Note Agreements.
5.04. 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
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with the Collateral or any other part of the Trust Property except (i) as
required by the terms of the Note Agreements or (ii) in accordance with the
powers granted to, or the authority conferred upon, the Owner Trustee pursuant
to this Agreement.
5.05. Further Assurances. The Owner Trustee shall execute and deliver
all such other instruments, documents or certificates as the Owners may deem
necessary or advisable, in order to give effect to the transactions contemplated
hereby including the provisions of the Note Agreements, the taking of any such
action by the Owner Trustee in the presence of the Owners or their counsel to
evidence, conclusively, the direction of the Owners.
5.06. Restrictions. The Owner Trustee shall take no action (a) that is
inconsistent with Section 2.03 hereof or any Note Agreement and the Bank shall
be entitled to obtain an Opinion of Counsel at no expense to the Bank to the
effect that any contemplated action is not inconsistent with Section 2.03
hereof, (b) if the Owner Trustee has been notified that such action would cause
or threaten to cause any nationally recognized statistical rating agency or
agencies which rated the Notes to downgrade its or their rating of the Notes or
(c) to cause or to affirmatively consent to the filing of a petition in
bankruptcy against the Trust for any reason until at least 367 days after
payment in full of all the Notes and any indebtedness that is secured by or
based upon a Certificate. The Owners shall not direct the Owner Trustee to take
action that would violate the provisions of this Section 5.06. The Owner Trustee
may refrain from taking any action hereunder or under the Note Agreements (other
than the giving of notices) if the Bank reasonably concludes that the security
and indemnity referred to in Article VII of this Trust Agreement is not, at such
time, adequate to cover all liabilities, fees, costs, expenses (including
attorneys' fees) and related charges which are likely to be incurred in
connection with the taking of such action; provided, however, that the decision
of the Owner Trustee to refrain from taking any such action shall not be
construed to relieve the Trust of any of its obligations under the Note
Agreements.
5.07. Majority Control. Any instruction, direction or consent which is
required to be given by the Owners under this agreement shall mean such
instruction, direction or consent given in accordance with Section 10.05 hereof
by the Owners holding, in the aggregate, a majority of the Ownership Percentage
in the Trust.
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ARTICLE VI
THE OWNER TRUSTEE
6.01. Acceptance of Trusts and Duties. The Owner Trustee accepts the
trust hereby created and agrees to perform the same but only upon the terms of
this Agreement. The Bank shall not be answerable or accountable under any
circumstances, except (i) for its own willful misconduct or gross negligence,
(ii) for the inaccuracy of any representation or warranty contained in Section
6.02 hereof, (iii) for liabilities arising from the failure by the Bank to
perform obligations expressly undertaken by it in the last sentence of Section
5.03 hereof, (iv) for any investments made by the Owner Trustee with the Bank in
its commercial capacity, or (v) for federal or Delaware taxes, fees or other
charges on, based on or measured by any fees, commissions or compensation
received by the Bank in connection with any of the transactions contemplated by
this Agreement or the Note Agreements. In particular, but not by way of
limitation:
(a) The Bank shall not be liable for an error of judgment made
in good faith by a responsible officer of the Owner Trustee;
(b) The Bank shall not be liable with respect to any action
taken or omitted to be taken by the Owner Trustee in good faith in
accordance with the instructions of the Owners;
(c) No provision of this Agreement shall require the Bank to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of the Owner Trustee's rights or powers
hereunder, if the Bank shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it;
(d) Under no circumstance shall the Bank be liable for any
representation, warranty or covenant of the Trust, including, without
limitation, any Indebtedness evidenced by any Note, or be obligated to
perform any servicing duties with respect to the Trust Property;
(e) The Bank shall not be responsible for or in respect of the
validity or sufficiency of this Agreement or for the due execution
hereof by the Depositor or for the form, character, genuineness,
sufficiency, value or validity of any Collateral or for or in respect
of the validity or sufficiency of the Note Agreements, and the Bank
shall in no event assume or incur any liability, duty or obligation to
any Noteholder, the Depositor or any Owner, other than as expressly
provided for herein;
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(f) The Bank shall not be liable or responsible for performing
any duties or obligations under this Agreement or the Note Agreements
which are not expressly required to be performed by the Owner Trustee
under this Agreement; and
(g) Notwithstanding anything contained herein or in the Note
Agreements to the contrary, neither the Bank nor the Owner Trustee
shall be required to take any action in any jurisdiction other than in
the State of Delaware if the taking of such action will (i) require the
consent or approval or authorization or order of or the giving of
notice to, or the registration with or taking of any action in respect
of, any state or other governmental authority or agency of any
jurisdiction other than the State of Delaware; (ii) result in any fee,
tax or other governmental charge under the laws of any jurisdiction or
any political subdivisions thereof in existence on the date hereof
other than the State of Delaware becoming payable by the Bank; or (iii)
subject the Bank to personal jurisdiction in any jurisdiction other
than the State of Delaware for causes of action arising from acts
unrelated to the consummation of the transactions by the Bank or the
Owner Trustee, as the case may be, contemplated hereby.
6.02. Representations and Warranties.
(a) The Bank hereby represents and warrants to the Depositor, for the
benefit of the Owners, that:
(i) it has been duly incorporated and is validly existing as a
banking corporation in good standing under the laws of the State of
Delaware and it holds all corporate power and all material franchises,
grants, authorizations, consents, orders and approvals from all
governmental authorities necessary under the laws of the State of
Delaware to carry on its trust business as now conducted;
(ii) the execution, delivery and performance by the Bank of
this Agreement, and by the Owner Trustee on behalf of the Trust of the
Note Agreements, and the acceptance of the Accession Agreement and the
issuance of the Notes and the Certificates by the Owner Trustee
pursuant to this Agreement are within the corporate power of the Bank,
have been or will have been duly authorized by all necessary corporate
action on the part of the Bank (no action by its shareholders being
required) and do not and will not (A) violate or contravene any
statute, law, rule or regulation or any judgment, decree or order
binding on the Bank, or (B) conflict with or result in a breach of, or
constitute a default under, any provision of the charter or by-laws of
the Bank or of any material agreement, contract, mortgage or other
instrument binding on the Bank or (C) result in the creation or
imposition of any lien, charge or encumbrance on the Trust Property
resulting from actions by or claims against the Bank except as
expressly contemplated by this Agreement or the Indenture;
16
(iii) no consent, approval, authorization or order of, or
filing with, any court or regulatory, supervisory or governmental
agency or body is required by the Bank under Delaware law in connection
with (A) the execution, delivery and performance by the Bank of this
Agreement or by the Owner Trustee of the Note Agreements, or (B) the
acceptance of the Accession Agreement and the issuance of the Notes or
the Certificates by the Owner Trustee pursuant to this Agreement, or
(C) the consummation by the Owner Trustee of the transactions
contemplated hereby (except as may be required by state or federal
securities laws);
(iv) this Agreement has been executed and delivered by its
officers who are duly authorized to execute and deliver such document
in such capacity on its behalf; and
(v) it has no present intent to cause a voluntary bankruptcy
of the Trust.
(b) The Depositor hereby represents, warrants and covenants to the
Owner Trustee that:
(i) it has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Florida and
it holds all corporate power and all material franchises, grants,
authorizations, consents, orders and approvals to carry on its business
as now conducted except in those jurisdictions where failure to so
qualify would not in the aggregate have a material adverse effect on
the financial condition or results of operations of the company;
(ii) the execution, delivery and performance by the Depositor
of this Agreement, acceptance of the Accession Agreement and the
issuance of the Notes and the Certificates by and the Grant of the
Trust Property to the Owner Trustee pursuant to this Agreement are
within the corporate power of the Depositor, have been or will have
been duly authorized by all necessary corporate action on the part of
the Depositor and do not and will not (A) violate or contravene any
judgment, decree or order binding on the Depositor, or (B) conflict
with or result in a breach of, or constitute a default under, any
provision of the articles of incorporation or by-laws of the Depositor
or of any material agreement, contract, mortgage or other instrument
binding on the Depositor (or if such a conflict with, breach of or
default under any such material agreement, contract, mortgage or other
instrument exists or will exist, the enforcement of remedies in respect
thereof has been or will be stayed under Title 11 of the United States
Code) or (C) result in the creation or imposition of any lien, charge
or encumbrance on the Trust Property except as expressly contemplated
by this Agreement or the Indenture;
17
(iii) this Agreement has been duly executed and delivered by
the Depositor and constitutes a legal, valid and binding agreement of
the Depositor;
(iv) upon the sale, assignment or other transfer of any of the
Trust Property by the Depositor to the Owner Trustee under this
Agreement, the Depositor will have conveyed to the Owner Trustee good
title, free and clear of any lien, encumbrance or other interests of
others (including without limitation any claim of any creditor of the
Depositor or any of its affiliates) of any nature, and the Owner
Trustee will have the right to Grant and deliver the Collateral to the
Note Trustee in accordance with the Indenture and this Agreement and
upon the Grant and delivery of the Collateral by the Owner Trustee to
the Note Trustee in the manner contemplated by this Agreement and the
Indenture, and assuming the validity and binding effect of the
Indenture, the Note Trustee will have obtained a valid first priority
security interest therein, prior to all other liens;
(v) immediately upon the sale or other delivery of any Trust
Property to the Trust pursuant to this Agreement and the Purchase and
Sale Agreement, the Depositor will make any appropriate notations on
its records to indicate that the Trust Property has been transferred to
the Trust pursuant to this Agreement, and, to the extent it constitutes
Collateral, has been pledged by the Trust to the Note Trustee to secure
payment of the Notes issued under the Indenture;
(vi) it has no present intention to cause a voluntary
bankruptcy of the Trust;
(vii) it will hold itself out to the public under its own name
as a separate and distinct entity and will conduct its business so as
not to mislead others as to the identity of the entity under which
those others are concerned. Without limiting the generality of the
foregoing, all oral and written communications, including without
limitation, all letters, invoices, contracts, statements and
applications will be made solely in the name of the Trust if they are
made on behalf of the Trust and solely in the name of the Depositor if
they are made on behalf of the Depositor;
(viii) it will prepare and cause the filing of all Periodic
Filings, tax returns and reports of the Trust in accordance with this
Agreement and the Note Agreements, and maintain the books and records
of the Trust in accordance with Section 2.03 of this Agreement; and
(ix) it will disclose in all financial statements that the
assets of the Trust are not available to the Depositor's creditors.
18
6.03. No Segregation of Moneys; No Interest. Except as
otherwise provided herein or in the Indenture or as otherwise directed in
writing by the Owners, 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
the Owner Trustee nor the Bank shall be liable to pay the Owners any interest
thereon.
6.04. Reliance; Employment of Agents and Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone 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 to be signed by the proper party or parties.
The Owner Trustee may accept a certified copy of a resolution of the Board of
Directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the manner of ascertainment of
which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president, treasurer, assistant treasurer, secretary or assistant secretary 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.
(b) In its exercise or administration of the trusts and powers
hereunder, including any duties or obligations of the Trust under the Note
Agreements, the Owner Trustee may, at the expense of the Trust, employ agents
and attorneys and enter into agreements with any of them, and the Owner Trustee
may delegate to the Servicer the authority to act on its behalf as contemplated
by the Servicing Agreement, and the Owner Trustee shall not be answerable for
the default or misconduct of any such agents or attorneys if such agents or
attorneys shall have been selected by the Owner Trustee in good faith.
(c) In the administration of the trusts hereunder or in the
performance of the Trust's duties and obligations under any of the Note
Agreements, the Owner Trustee may, at the expense of the Trust, 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 selected by the Owner Trustee in
good faith.
6.05. Not Acting in Individual Capacity. Except as expressly
provided in this Article VI, in accepting the trusts hereby created, the Owner
Trustee acts solely as trustee hereunder and not in the Bank's individual
capacity, and all persons having any claim against the Owner Trustee by reason
of the transactions contemplated by the Note Agreements shall look only to the
Trust Property for payment or satisfaction thereof.
19
ARTICLE VII
INDEMNIFICATION BY OWNERS
7.01. Trust Expenses. The Owners shall pay (or reimburse the Bank for)
all reasonable expenses of the Owner Trustee hereunder, including, without
limitation, the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and duties under this
Agreement.
7.02. Indemnification. As between the Owners and the Bank, the Owners
shall be liable for, and shall indemnify the Bank and its successors, assigns,
agents and servants, against and from, any and all liabilities, obligations,
losses, damages, taxes, claims, actions, suits, costs, expenses and
disbursements (including legal fees and expenses) of any kind and nature
whatsoever (collectively, "Expenses") which may be imposed on, incurred by or
asserted at any time against the Owner Trustee or the Bank (whether or not
indemnified against by other parties) in any way relating to or arising out of
this Agreement, any Note Agreement, the Collateral, the administration of the
Trust Property or the action or inaction of the Owner Trustee hereunder, except
only that the Owners shall not be required to indemnify the Bank for expenses
arising or resulting from any of the matters described in the second sentence of
Section 6.01 hereof. The indemnities contained in this Section 7.02 shall
constitute additional Indebtedness hereunder and shall survive the termination
of this Agreement. The obligations of the Owners pursuant to this Section 7.02
shall be joint and several (with rights of contribution inter se in proportion
to their respective Ownership Percentages)
7.03. Compensation. The Bank shall receive as compensation for the
Owner Trustee's services hereunder a yearly fee equal to $________. The Bank
shall be compensated reasonably for any extraordinary services rendered by the
Owner Trustee hereunder. The Bank shall also be entitled to reimbursement for
all reasonable out-of-pocket expenses, disbursements and advances incurred or
made in connection with the Owner Trustee's administration of the Trust,
including the reasonable compensation and the reasonable expenses and
disbursements of its legal counsel and of other persons not regularly in its
employ. The compensation and expense reimbursement provided for herein shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust.
7.04. Lien on Trust Property. The Bank shall have a lien on and right
of set-off against the Trust Property for all compensation, expense
reimbursement and indemnity due hereunder, such lien to be subordinate only to
liens created by the Indenture; provided, however, that, except with respect to
any Trust Property that has been released from the lien of the Indenture, the
Bank may not enforce such lien on or right of set-off against the Trust Property
until after the satisfaction and discharge of the Indenture pursuant to Section
4.01 of the Indenture.
20
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
8.01. Termination of Trust Agreement.
(a) This Agreement and the Trust created hereby shall terminate and the
Trust Property shall, subject to the Indenture and Section 4.01 hereof, be
distributed to the Owners in accordance with their respective Ownership
Percentages, and this Agreement shall be of no further force or effect, upon the
earlier of (i) the sale or other final disposition by the Note Trustee or the
Owner Trustee, as the case may be, of all of the Trust Estate and the Trust
Property, as the case may be, and the final distribution by the Note Trustee or
the Owner Trustee, as the case may be, of all moneys or other property or
proceeds of the Trust Estate and the Trust Property, as the case may be, in
accordance with the terms of the Indenture and Section 4.01 hereof and (ii) 21
years less one day after the death of the survivor of the descendants living on
the date of this Agreement of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of St. Xxxxx; provided that this Agreement shall
terminate no later than ________, 20__. The bankruptcy, death or incapacity of
any Owner shall not operate to terminate this Agreement, nor entitle such
Owner's legal representatives or heirs to claim an accounting or to take any
action or proceeding in any court for a partition or winding up of the Trust
Property, nor otherwise affect the rights, obligations and liabilities of the
parties hereto.
(b) Neither the Depositor nor any Owner shall be entitled to revoke the
Trust established hereunder.
(c) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Delaware Secretary of State in accordance
with the provisions of Section 3810 of the Business Trust Statute.
21
ARTICLE IX
SUCCESSOR OWNER TRUSTEE AND ADDITIONAL TRUSTEES
9.01. Resignation of Owner Trustee; Appointment of Successor.
(a) The Owner Trustee may resign at any time without cause by giving at
least 60 days' prior notice to the Owners, such resignation to be effective on
the acceptance of appointment by a successor Owner Trustee under Section 9.01(b)
hereof. In addition, the Owners holding in the aggregate a majority Ownership
Percentage, may, with the consent of the Note Trustee, at any time remove the
Owner Trustee without cause by an instrument in writing delivered to the Owner
Trustee, such removal to be effective upon the acceptance of appointment by a
successor Owner Trustee under Section 9.01(b) hereof. Subject to the approval of
the Note Trustee, in case of the resignation or removal of the Owner Trustee,
the Owners shall use their best efforts to appoint a successor Owner Trustee by
an instrument signed by Owners holding in the aggregate a majority Ownership
Percentage in the Trust. 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 the Owners 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 by the Owners 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 by the Owners 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 the 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 or
subsequently received 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 combined capital and surplus of at least $[50,000,000], if
there be such an institution willing, able and legally qualified to perform the
duties of the Owner Trustee hereunder upon reasonable or customary terms;
provided, however, that any successor Owner Trustee may not be an affiliate of
any Owner.
22
(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 9.01(c) hereof, be the Owner Trustee under this Agreement without
further act.
(e) Upon the happening of any of the events described in this Section
9.01, the successor Owner Trustee shall cause an amendment to the Certificate of
Trust to be filed with the Delaware Secretary of State, in accordance with the
provisions of Section 3810 of the Business Trust Statute, indicating the change
with respect to the Owner Trustee's identity.
9.02. Appointment of Additional Trustees.
(a) At any time or times, for the purpose of meeting any legal
requirements of any jurisdiction in which any of the Trust Property may at the
time be located, the Owners and the Owner Trustee shall have the power to
appoint one or more individuals or corporations either to act as co-trustee, or
co-trustees, jointly with the Owner Trustee of all or any part of the Trust
Property or to act as separate trustee or separate trustees of all or any part
of the Trust Property and to vest in such person or persons, in such capacity,
such title to the Trust Property or any part thereof, and such rights, powers,
duties, trusts or obligations as the Owner Trustee may consider necessary or
desirable, subject to the remaining provisions of this Section 9.02.
(b) Unless otherwise provided in the instrument appointing such
co-trustee or separate trustee, every co-trustee or separate trustee shall, to
the extent permitted by law, be appointed subject to the following terms,
namely:
(i) The Certificates, the Notes and the Note
Agreements shall be executed and delivered, and all rights, powers,
trusts, duties and obligations by this Agreement conferred upon the
Owner Trustee in respect of the custody, control or management of
moneys, papers, securities and other personal property, shall be
exercised, solely by the Owner Trustee;
(ii) All rights, powers, trusts, duties and obligations
conferred or imposed upon the trustees shall be conferred or imposed
upon and exercised or performed by the Owner Trustee, or by the Owner
Trustee and such co-trustee or co-trustees, or separate trustee or
separate trustees jointly, except to the extent that, under the law of
any jurisdiction in which any particular act or acts are to be
performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such act or acts shall be
performed by such co-trustee or co-trustees or separate trustee or
separate trustees;
(iii) Any request in writing by the Owner Trustee to any
co-trustee or separate trustee to take or to refrain from taking any
action hereunder shall be
23
sufficient warrant for the taking, or the refraining from taking, of
such action by such co-trustee or separate trustee;
(iv) Any co-trustee or separate trustee to the extent
permitted by law may delegate to the Owner Trustee the exercise of any
right, power, trust, duty or obligation, discretionary or otherwise;
(v) The Owner Trustee at any time, by an instrument in
writing, with the concurrence of the Owners, may accept the resignation
of, or remove, any co-trustee or separate trustee appointed under this
Section 9.02. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this
Section 9.02;
(vi) No trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder;
(vii) Any demand, request, direction, appointment, removal,
notice, consent, waiver or other action in writing executed by the
Owners and delivered to the Owner Trustee shall be deemed to have been
delivered to each such co-trustee or separate trustee; and
(viii) Any moneys, papers, securities or other items of
personal property received by any such co-trustee or separate trustee
hereunder shall forthwith, so far as may be permitted by law, be turned
over to the Owner Trustee to be held pursuant to the terms hereof.
(c) Upon the acceptance in writing of such appointment by any such
co-trustee or separate trustee, it or he shall be vested with the estate, right,
title and interest in the Trust Property, or portion thereof, and with such
rights, powers, duties, trusts or obligations, jointly or separately with the
Owner Trustee, all as shall be specified in the instrument of appointment,
subject to all the terms hereof. Every such acceptance shall be filed with the
Owner Trustee.
(d) In case any co-trustee or separate trustee shall die, become
incapable of acting, resign or be removed, the estate, right, title and interest
in the Trust Property and all rights, powers, trusts, duties and obligations of
said co-trustee or separate trustee shall, so far as permitted by law, vest in
and be exercised by the Owner Trustee unless and until a successor co-trustee or
separate trustee shall be appointed pursuant to this Section 9.02.
24
ARTICLE X
MISCELLANEOUS
10.01. Supplements and Amendments . Until such time as the Indenture
has been terminated pursuant to its terms, Section 2.03 of this Agreement may
not be amended. Subject to the terms of the Note Agreements, at the unanimous
written request of the Owners, this Agreement (other than Section 2.03, Section
8.01 and Section 10.02 hereof and this Section 10.01 which may in no event be
supplemented or amended until the Notes have been retired and the Indenture
terminated) shall be supplemented and amended by a written instrument signed by
the Owner Trustee and the Owners, with the written consent of the Note Trustee,
but if in the opinion of the Owner Trustee, any instrument required to be so
executed adversely affects any right, duty or liability of, or immunity or
indemnity in favor of, the Owner Trustee under this Agreement or any of the
documents contemplated hereby 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 the Owner
Trustee or any document contemplated hereby to which the Owner Trustee is a
party, the Owner Trustee may in its sole discretion decline to execute such
instrument. Notwithstanding anything to the contrary in this Section, until the
time when the Indenture has been executed and delivered, this Agreement may be
supplemented and amended by a written instrument signed by the Depositor and
_______________, without the consent of any other person.
10.02. No Legal Title to Trust Property in Owners. The Owners shall not
have legal title to any part of the Trust Property and shall only be entitled to
receive distributions with respect to their undivided beneficial interest
therein in proportion to their Ownership Percentage pursuant to Section 4.01
hereof. No transfer, by operation of law or otherwise, of any right, title and
interest of the Owners in and to their undivided beneficial interests in the
Trust Property or hereunder shall operate to terminate this Agreement or the
trusts hereunder or entitle any successor transferee to an accounting or to the
transfer to it of legal title to any part of the Trust Property.
10.03. Pledge of Collateral by Owner Trustee Is Binding. The pledge of
the Collateral to the Note Trustee by the Owner Trustee made under the Indenture
and pursuant to the terms of this Agreement shall bind the Owners and shall be
effective to transfer and convey the rights of the Owner Trustee and the Owners
in and to such Collateral to the extent set forth in the Indenture. Other than
as required by the Indenture, no purchaser or other grantee of the Collateral
shall be required to inquire as to the authorization, necessity, expediency or
regularity of such pledge or as to the application of any proceeds with respect
thereto by the Owner Trustee.
10.04. Limitations on Rights of Others. Nothing in this Agreement,
whether express or implied, shall be construed to give to any person, other than
the Bank, Owner Trustee, the Owners and the Note Trustee to the extent expressly
provided herein, any legal or
25
equitable right, remedy or claim in the Trust Property or under or in respect of
this Agreement or any covenants, conditions or provisions contained herein.
10.05. Notices. Unless otherwise expressly specified or permitted by
the terms hereof, all notices shall be in writing and delivered by hand or
mailed by certified mail, postage prepaid, if to the Owner Trustee, addressed to
__________________________________________, Attention:________________________,
or to such other address as the Owner Trustee may have set forth in a written
notice to the Owners; and if to an Owner, addressed to it at the address set
forth for such Owner in the register maintained by the Owner Trustee. Whenever
any notice in writing is required to be given by the Owner Trustee, such notice
shall be deemed given and such requirement satisfied if such notice is mailed
by certified mail, postage prepaid, addressed as provided above.
10.06. Severability. Any provision of this Agreement which is
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.
10.07. Separate Counterparts. This 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.
10.08. Successors and Assigns. All covenants and agreements contained
herein shall be binding upon, and inure to the benefit of, the Owner Trustee and
its successors and assigns and each Owner and its successors, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument or
action by an Owner shall bind the successors and assigns of such Owner.
10.09. Headings. Table of Contents and 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.
10.10. Governing Law. This Agreement shall in all respects be governed
by, and construed in accordance with, the laws of the State of Delaware,
including all matters of construction, validity and performance.
10.11. Entire Agreement. This Agreement contains the entire agreement
and understanding of the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings relating to the
subject matter hereof.
10.12. Memorandum of Trust. The Owner Trustee is hereby authorized and
empowered from time to time to prepare and to execute on behalf of the Trust a
memorandum of trust in such form and summarizing such provisions of this
Agreement as may be required by the laws of any jurisdiction and to file and/or
record such memorandum of trust in such manner as may be required by the laws of
such jurisdiction.
26
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 day and year first above written.
----------------------------
By:
-----------------------------
Name:
Title:
MID-STATE HOMES, INC.
By:
-----------------------------
Name:
Title:
27
Exhibit A
28
[Letterhead of Proposed Transferee]
, 199
------------- -
Dear Sirs:
This letter shall constitute our Accession Agreement, as that term is used in
the Trust Agreement dated as of _______ __, 199_ as further amended and restated
from time to time (the "Trust Agreement"), between Mid-State Homes, Inc., a
Florida corporation, as Depositor, and _________, a _______________, as owner
trustee (the "Owner Trustee"). We propose to acquire from [transferor] a ___%
Ownership Percentage (as defined in the Trust Agreement) evidencing an undivided
ownership interest in Mid-State Trust 199 - (the "Trust"), a business trust
under the laws of the State of Delaware, and to thereby become an Owner of the
Trust in accordance with the Trust Agreement.
The terms capitalized herein shall have the same meanings as in the Trust
Agreement unless otherwise defined herein or the context shall otherwise
require.
We hereby represent and warrant to you that:
1. [the [audited] financial statements, together with the related notes and
schedules, if any, enclosed herewith, are our most recent [audited] financial
statements and fairly present our financial condition as of the periods
specified in conformity with generally accepted accounting principles applied on
a consistent basis during such periods, except as may be indicated therein] [our
net worth is $__________];
2. [since the date as of which the [audited] financial statements referred to in
the preceding paragraph are given, there has been neither any material adverse
change in our net worth determined in accordance with generally accepted
accounting principles;] nor any development involving a prospective material
adverse change in our net worth;
3. we have read and are familiar with the terms and conditions of the Trust
Agreement, and we understand the rights and obligations of an Owner of the
Trust;
4. we understand that the Certificates [have not been and will not be]
registered under the Securities Act of 1933, as amended (the "Securities Act")
[for the purpose of a distribution thereof], and are being transferred to us in
a transaction that is [exempt from] the registration requirements of the
Securities Act;
29
5. we have received a copy of the ________________ dated ____________, relating
to the Certificates, and we confirm that any documents annexed thereto or
incorporated by reference, and any information we desire concerning the
Certificates, the Trust or any other matter relevant to our decision to acquire
the Certificate, is or has been made available to us;
6. we are knowledgeable and experienced in financial and business matters
generally and are capable of evaluating the merits and risks of an investment in
an Ownership Percentage; we are able to bear the economic risks of an investment
in an Ownership Percentage; and [we are an accredited investor as defined in
Regulation D under the Securities Act];
7. the acquisition of an Ownership Percentage by us will not result in any
violation of any law, rule or regulation applicable to us, has been duly
authorized by all necessary action on our part, will not conflict or result in a
breach of or default under any agreement, document or instrument to which we are
a party, and does not require any consent, order, approval or authorization,
other than those obtained by us;
8. we are acquiring the Ownership Percentage for our own account or for accounts
as to which we exercise sole investment discretion and not with a view to a
distribution of our Ownership Percentage; provided, however, that it is
understood that we shall retain control over disposition of the Ownership
Percentage if such disposition is not in contravention of the Trust Agreement;
9. we are [not] an employee benefit plan subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") and are [not] using funds of
such a plan to acquire a Certificate, and if we are such a plan or are using
funds of such a plan to acquire a Certificate, we understand that, prior to the
transfer of an Ownership Percentage to us, the Owner Trustee must receive an
opinion of counsel that (i) our acquisition of an Ownership Percentage and
holding of a Certificate will not involve a "prohibited transaction", as defined
in ERISA, for which an exemption is not available and (ii) such transfer will
not cause the Owner Trustee to become an ERISA fiduciary with respect to such
plan; and
10. we understand that each Certificate bears and, unless subsequently
registered, shall continue to bear, a legend that reads substantially as
follows:
"THE BENEFICIAL INTEREST IN THE TRUST REPRESENTED BY THIS CERTIFICATE HAS NOT
BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR ANY STATE SECURITIES LAWS, IN A MANNER THAT WILL NOT PERMIT THE
FURTHER DISTRIBUTION THEREOF WITHOUT FURTHER COMPLIANCE WITH THE REGISTRATION
PROVISIONS OF THE ACT AND MAY NOT BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR
OTHERWISE TRANSFERRED (INCLUDING PLEDGED BY THE HOLDER HEREOF) EXCEPT IN
COMPLIANCE WITH THE ACT. THE TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN
RESTRICTIONS
30
AND CONDITIONS SET FORTH IN THE TRUST AGREEMENT UNDER WHICH THIS CERTIFICATE WAS
ISSUED, INCLUDING RECEIPT BY THE OWNER TRUSTEE OF AN OPINION OF COUNSEL
SATISFACTORY TO THE OWNER TRUSTEE, TO THE EFFECT THAT THE TRANSFER IS EXEMPT
FROM REGISTRATION UNDER THE ACT OR IS IN COMPLIANCE WITH THE REGISTRATION
PROVISIONS OF THE ACT. IN ADDITION, THIS CERTIFICATE MAY NOT BE TRANSFERRED
UNLESS THE OWNER TRUSTEE AND, IF APPLICABLE, OTHER HOLDERS OF CERTIFICATES OF
BENEFICIAL INTEREST IN THE TRUST CONSENT TO SUCH TRANSFER AND UNLESS OTHERWISE
TRANSFERRED IN THE MANNER PROVIDED IN ARTICLE III OF THE TRUST AGREEMENT, AND IN
ACCORDANCE WITH THE REQUIREMENTS THEREOF, INCLUDING WITHOUT LIMITATION THE
REQUIREMENT THAT THE TRANSFEREE SIGN AND DELIVER TO THE OWNER TRUSTEE AN
ACCESSION AGREEMENT IN WHICH THE TRANSFEREE MAKES CERTAIN REPRESENTATIONS AND
AGREES TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THE TRUST AGREEMENT, AND
THAT THE TRANSFEREE DELIVER TO THE OWNER TRUSTEE CERTAIN FINANCIAL STATEMENTS OR
CERTIFICATIONS."
We hereby also agree that:
11. the Certificate may be required to be held indefinitely by us unless an
exemption from the registration requirements of the Securities Act is available
or the registration requirements of the Securities Act are complied with (the
Trust not being obligated to register the Certificates under the Securities
Act);
12. we will not transfer or exchange the Certificate unless:
(a) the Owner Trustee shall have consented to such transfer or exchange as
provided in Section 3.02 of the Trust Agreement and the other conditions to
transfer in the Trust Agreement have been satisfied; and (b) either (i) (A) if
such transfer or exchange is a sale, the sales price is at least $[250,000]; (B)
we do not know and have no reasonable grounds to believe that the transfer or
exchange is made to a transferee that cannot truthfully make representations and
warranties with respect to itself to substantially the same effect as those set
forth herein; and (C) all offers or solicitations in connection with the sale
(if a sale), whether directly or through any agent working on our behalf, are
limited to transferees that we reasonably believe can make representations and
warranties with respect to itself to substantially the same effect as those set
forth herein; or (ii) the Certificate is transferred or exchanged pursuant to
Rule 144 under the Securities Act after we have held it for more than three
years; or (iii) the Certificate is transferred or exchanged in any other
transaction exempt from registration under, or in a transaction in compliance
with the registration provisions of, the Securities Act;
13. we will pay to the Owner Trustee all reasonable expenses incurred by the
Owner Trustee in connection with the transfer of the Certificate, other than
those expenses paid by the transferor including those fees and expenses incurred
pursuant to Section 3.02(c) of the Trust
31
Agreement and those fees and expenses of counsel giving any required opinion to
the Owner Trustee;
14. we will not cause or consent to the filing of a petition in bankruptcy
against the Trust for any reason until at least one year after payment in full
of all the Notes;
15. we understand that we will not become an Owner until all conditions
precedent to Accession have been met and all actions precedent to Accession have
been taken pursuant to Section 3.02 of the Trust Agreement; and
16. we hereby agree to be bound by all of the terms and conditions of the Trust
Agreement, including any supplements or amendments thereto, and the Certificate.
This Agreement shall in all respects be governed by, and construed in accordance
with, the laws of the State of Delaware.
Very truly yours,
[Seal] [Name of Transferee]
Attest:
By
-----------------------------
Name:
Authorized Officer Title:
Accepted and Acknowledged this day of , 1997.
--- --------
--------------------------------,
not in its individual capacity
but solely as Owner Trustee
of Mid-State Trust 199 -
By
-----------------------------------
Name:
Title:
32
THE BENEFICIAL INTEREST IN THE TRUST REPRESENTED BY THIS CERTIFICATE HAS NOT
BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR ANY STATE SECURITIES LAWS IN A MANNER THAT WILL NOT PERMIT A
DISTRIBUTION THEREOF WITHOUT FURTHER COMPLIANCE WITH THE REGISTRATION PROVISIONS
OF THE ACT, AND MAY NOT BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE
TRANSFERRED (INCLUDING PLEDGED BY THE HOLDER HEREOF) EXCEPT IN COMPLIANCE WITH
THE ACT. THE TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS AND
CONDITIONS SET FORTH IN THE TRUST AGREEMENT UNDER WHICH THIS CERTIFICATE WAS
ISSUED, INCLUDING RECEIPT BY THE OWNER TRUSTEE OF AN OPINION OF COUNSEL
SATISFACTORY TO THE OWNER TRUSTEE, TO THE EFFECT THAT THE TRANSFER IS EXEMPT
FROM REGISTRATION UNDER THE ACT OR IS IN COMPLIANCE WITH THE REGISTRATION
PROVISIONS OF THE ACT. IN ADDITION, THIS CERTIFICATE MAY NOT BE TRANSFERRED
UNLESS THE OWNER TRUSTEE AND, IF APPLICABLE, OTHER HOLDERS OF CERTIFICATES OF
BENEFICIAL INTEREST IN THE TRUST CONSENT TO SUCH TRANSFER AND UNLESS OTHERWISE
TRANSFERRED IN THE MANNER PROVIDED IN ARTICLE III OF THE TRUST AGREEMENT
(REFERENCED BELOW) AND IN ACCORDANCE WITH THE REQUIREMENTS THEREOF, INCLUDING
WITHOUT LIMITATION THE REQUIREMENT THAT THE TRANSFEREE SIGN AND DELIVER TO THE
OWNER TRUSTEE AN ACCESSION AGREEMENT IN WHICH THE TRANSFEREE MAKES CERTAIN
REPRESENTATIONS AND AGREES TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THE
TRUST AGREEMENT, AND THAT THE TRANSFEREE DELIVER TO THE OWNER TRUSTEE CERTAIN
FINANCIAL STATEMENTS OR CERTIFICATIONS.
33
CERTIFICATE OF BENEFICIAL INTEREST
MID-STATE TRUST 199 -
________________, a Delaware banking corporation, solely in its fiduciary
capacity as trustee (the "Owner Trustee") under the Trust Agreement referenced
below and not in its individual capacity, certifies that Mid-State Homes, Inc.
is the registered owner (an "Owner") of a 100% undivided ownership interest in a
business trust (the "Trust") existing under the laws of the State of Delaware
pursuant to a trust agreement dated as of _________, 199_ as further amended and
restated from time to time (the "Trust Agreement"), between Mid-State Homes,
Inc. and
---------------.
The terms capitalized herein shall have the same meaning as in the Trust
Agreement unless otherwise defined herein or the context shall otherwise
require.
This Certificate is one of the Certificates referred to in the Trust Agreement
and is issued under and subject to the terms and conditions of the Trust
Agreement. Reference is hereby made to the Trust Agreement for a statement of
the rights and obligations of the holder of this Certificate, as well as for a
statement of the terms and conditions of the Trust created by the Trust
Agreement.
This Certificate and each of the other Certificates issued under the Trust
Agreement evidence an undivided beneficial ownership interest and participation
in the Trust Property. The holder hereof is entitled to receive, ratably with
the holders of the other Certificates, a proportional share (for each Owner, its
"Ownership Percentage") of the sums required to be distributed by the Owner
Trustee to the Owners pursuant to the terms of the Trust Agreement. The first
paragraph of this Certificate indicates the Ownership Percentage of the holder
hereof.
The holder of this Certificate through the execution of the Accession Agreement
and by the acceptance hereof, assents to and agrees to be bound by all of the
terms and conditions of the Trust Agreement. Without limiting the generality of
the foregoing, the holder hereof agrees (i) that it shall be liable, in the
manner and amount specified in the Trust Agreement, for all fees, expenses,
taxes, indemnity payments and other obligations of the Trust (to the extent not
paid out of the Trust Property) other than the Notes and (ii) not to transfer
this Certificate except with the requisite consents and otherwise in the manner
provided in the Trust Agreement.
IN WITNESS HEREOF, the Owner Trustee has caused this Certificate to be executed
manually on the date hereof by one of its authorized officers.
Dated: _____________________, not in its individual capacity, but solely as
Owner Trustee of Mid-State Trust 199-
By:
---------------------------
Name:
Title:
34
35
SUPPLEMENTAL TRUST AGREEMENT (CORPORATE)
SUPPLEMENTAL TRUST AGREEMENT (CORPORATE) dated as of _____ __, 199_, by and
among MID-STATE HOMES, INC., a corporation duly organized and existing under the
laws of the State of Florida ("Beneficiary"), _________________, a corporation
duly organized and existing under the laws of the State of Delaware, not in its
individual capacity but solely as trustee under the Trust Agreement referred to
below, having its principal offices at _____________________ (hereinafter called
the "Trustee"), and ____________________, a __________________________ having
its principal offices at _____________________ (hereinafter called the
"Corporate Trustee");
W I T N E S S E T H :
WHEREAS, the Beneficiary and the Trustee have entered into a Trust Agreement
dated as of the date hereof (as the same may be amended or restated from time to
time, the "Trust Agreement") creating Mid-State Trust 199 - , a business trust
formed under the laws of the State of Delaware (the "Trust"); terms used herein
and not otherwise defined shall have the meanings ascribed to them in the Trust
Agreement; and
WHEREAS, pursuant to the Trust Agreement, the Purchase and Sale Agreement,
security agreements, mortgages, deeds of trust, assignments, pledge agreements
and similar documents entered into and to be entered into in connection
therewith (such agreements, mortgages, deeds of trust, assignments, pledge
agreements and similar documents being hereinafter collectively referred to as
the "Trust Documents"), title to certain property will be transferred and
conveyed to the Trust, to be held as part of the trust estate of the Trust and
certain security interests have been or will be granted by the Trust in property
lying, situate and being in numerous jurisdictions throughout the United States,
all as more fully described in the Trust Agreement and the Trust Documents; and
WHEREAS, a corporation having its principal place of business in Florida must be
named as a co-trustee to permit the Trustee or such co-trustee to act as such
with respect to property located in Florida;
NOW, THEREFORE, the parties hereto hereby agree as follows:
FOR AND IN CONSIDERATION OF THE PREMISES, it is mutually covenanted and agreed
pursuant to the terms of Section 9.02 of the Trust Agreement, that
___________________ has been, and by these presents is, appointed to serve as a
co-trustee to act jointly with the Trustee with respect to all of the property
from time to time subject to the Trust Agreement and the Trust Documents and
located within the territorial jurisdictions of the State of Florida. It is
understood and agreed that (a) the liabilities, duties and responsibilities of
the Corporate Trustee shall be limited to the property with respect to which it
has been appointed and shall, in every respect, be governed by the terms,
provisions, conditions and limitations in the Trust Agreement and the Trust
Documents, and (b) the Corporate Trustee shall be entitled to the benefits and
protections provided to the Trustee in the Trust Agreement and the Trust
36
Documents. By its execution hereof, the Corporate Trustee accepts the trusts
created hereinabove and in the Trust Agreement and the Trust Documents, subject,
however, to all the terms, conditions, provisions and limitations herein or
therein contained.
The Beneficiary, its successors and assigns, shall be liable for, and shall
indemnify the Corporate Trustee against and from, any and all liabilities,
obligations, losses, damages, taxes, claims, actions, suits, costs, expenses and
disbursements (including legal fees and expenses) of any kind and nature
whatsoever which may be imposed on, incurred by or asserted at any time against
the Corporate Trustee (whether or not indemnified against by other parties) in
any way relating to or arising out of this Supplemental Trust Agreement
(Corporate), the Trust Documents, the administration of the trust estate or the
action or inaction of the Corporate Trustee hereunder, except only that the
Beneficiary shall not be required to indemnify the Corporate Trustee for any of
the foregoing arising or resulting from the gross negligence or willful
misconduct of the Corporate Trustee in carrying out its obligations hereunder.
Every power given hereby to, or which it is provided hereby may be exercised by,
the Corporate Trustee shall be exercised hereunder by the Corporate Trustee
jointly with, or with the consent in writing of, the Trustee, anything herein or
in the Trust Agreement contained to the contrary notwithstanding.
This Supplemental Trust Agreement (Corporate) may be executed in separate
counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same instrument.
37
IN WITNESS WHEREOF, the parties have executed this
Supplemental Trust Agreement (Corporate) on the day and year first above
written.
------------------------,
not in its individual capacity
but solely as Trustee
By:
---------------------------
Title:
MID-STATE HOMES, INC.
By:
---------------------------
Title:
------------------------------
By:
---------------------------
Title:
38
SUPPLEMENTAL TRUST AGREEMENT (INDIVIDUAL)
SUPPLEMENTAL TRUST AGREEMENT (INDIVIDUAL) dated as of _______ __, 199_, by and
among Mid-State Homes, Inc., a corporation duly organized and existing under the
laws of the State of Florida ("Beneficiary"), __________________, a corporation
duly organized and existing under the laws of the State of _______, not in its
individual capacity but solely as trustee under the Trust Agreement referred to
below, having its principal offices at ___________________ (hereinafter called
the "Trustee"), and ___________, an individual having an office at
______________________ (hereinafter called the "Individual Trustee");
W I T N E S S E T H :
WHEREAS, the Beneficiary and the Trustee have entered into a Trust Agreement
dated as of the date hereof (as the same may be amended or restated from time to
time, the "Trust Agreement") creating Mid-State Trust 199 - , a business trust
formed under the laws of the State of Delaware (the "Trust"); terms used herein
and not otherwise defined shall have the meanings ascribed to them in the Trust
Agreement; and
WHEREAS, pursuant to the Trust Agreement, the Purchase and Sale Agreement,
security agreements, mortgages, deeds of trust, assignments, pledge agreements
and similar documents entered into and to be entered into in connection
therewith (such agreements, mortgages, deeds of trust, assignments, pledge
agreements and similar documents being hereinafter collectively referred to as
the "Trust Documents"), title to certain property will be transferred and
conveyed to the Trust, to be held as part of the trust estate of the Trust and
certain security interests have been or will be granted by the Trust in property
lying, situate and being in numerous jurisdictions throughout the United States,
all as more fully described in the Trust Agreement and the Trust Documents; and
WHEREAS, an individual must be named as a co-trustee to permit the Trustee or
such co-trustee to act as such with respect to property located in several of
such jurisdictions;
NOW, THEREFORE, the parties hereto hereby agree as follows:
FOR AND IN CONSIDERATION OF THE PREMISES, it is mutually covenanted and agreed
pursuant to the terms of Section 9.02 of the Trust Agreement, that
____________________ has been, and by these presents is, appointed to serve as a
co-trustee to act jointly with the Trustee with respect to all of the property
from time to time subject to the Trust Agreement and the Trust Documents and
located within the territorial jurisdictions of the States of [Alabama, Georgia,
Kentucky, Illinois, Louisiana, Mississippi, Missouri, Oklahoma and Virginia]. It
is understood and agreed that (a) the liabilities, duties and responsibilities
of the Individual Trustee shall be limited to the property with respect to which
it has been appointed and shall, in every respect, be governed by the terms,
provisions, conditions and limitations in the Trust Agreement and the Trust
Documents, and (b) the Individual Trustee shall be entitled
39
to the benefits and protections provided to the Trustee in the Trust Agreement
and the Trust Documents. By its execution hereof, the Individual Trustee accepts
the trusts created hereinabove and in the Trust Agreement and the Trust
Documents, subject, however, to all the terms, conditions, provisions and
limitations herein or therein contained.
The Beneficiary, its successors and assigns, shall be liable for, and shall
indemnify the Individual Trustee against and from, any and all liabilities,
obligations, losses, damages, taxes, claims, actions, suits, costs, expenses and
disbursements (including legal fees and expenses) of any kind and nature
whatsoever which may be imposed on, incurred by or asserted at any time against
the Individual Trustee (whether or not indemnified against by other parties) in
any way relating to or arising out of this Supplemental Trust Agreement
(Individual), the Trust Documents, the administration of the trust estate or the
action or inaction of the Individual Trustee hereunder, except only that the
Beneficiary shall not be required to indemnify the Individual Trustee for any of
the foregoing arising or resulting from the gross negligence or willful
misconduct of the Individual Trustee in carrying out his obligations hereunder.
Every power given hereby to, or which it is provided hereby may be exercised by,
the Individual Trustee may be exercised hereunder by the Individual Trustee
jointly with, or with the consent in writing of, the Trustee, anything herein or
in the Trust Agreement contained to the contrary notwithstanding.
This Supplemental Trust Agreement (Individual) may be executed in separate
counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same instrument.
40
IN WITNESS WHEREOF, the parties have executed this Supplemental Trust
Agreement (Individual) on the day and year first above written.
-----------------------,
not in its individual capacity
but solely as Trustee
By:
---------------------------
Title:
MID-STATE HOMES, INC.
By:
---------------------------
Title:
[INDIVIDUAL]
--------------------------------
41
PAGE 1
STATE OF DELAWARE
[LOGO]
OFFICE OF SECRETARY OF STATE
I, XXXXXXX XXXXXXXXX, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF BUSINESS
TRUST OF "MID-STATE TRUST 199 - " FILED IN THIS OFFICE ON THE
________________________, A. D. 199_, AT 9 O'CLOCK A.M.
* * * * * *
--------------------------
Secretary of State
AUTHENTICATION:
DATE:
CERTIFICATE OF TRUST OF MID-STATE TRUST VI
THIS Certificate of Trust of Mid-State Trust 199 - (the "Trust"), dated _____
__, 199_, is being duly executed and filed by _______________, a
__________________, as trustee, to form a business trust under the Delaware
Business Trust Act (12 Del.C. ss.3801 et seq.).
1. Name. The name of the business trust formed hereby is Mid-State Trust 199 - .
2. Delaware Trustee. The name and business address of the trustee of the Trust
in the State of Delaware is
------------------------------------------.
42
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first-above
written.
-----------------,
as Trustee
By:
---------------------------
Name:
Title:
43
