TRUST AGREEMENT
OF
MAIN PLACE TRUST
by and among
NATIONSBANK, N.A.
a national banking association
(as the "Owner")
and
WILMINGTON TRUST COMPANY
a Delaware corporation
(as the "Delaware Trustee" and as the "Independent
Trustee")
and
XXXXX X. XXXXXX
an individual
(as the "Special Trustee")
and
XXXX X. XXXX
an individual
(as the "Business Trustee")
Dated as of December 14, 1998
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND TERMS
Section 1.1 Certain Definitions..........................................1
Section 1.2. Usage of Terms...............................................4
Section 1.3. Section References...........................................4
ARTICLE 2
FORMATION OF TRUST; AUTHORITY TO EXECUTE
DOCUMENTS; DECLARATION OF TRUST
Section 2.1. Name.........................................................4
Section 2.2. Office.......................................................4
Section 2.3. Purposes.....................................................4
Section 2.4. Declaration of Trust.........................................5
Section 2.5. Restrictions on Trust Action.................................6
Section 2.6. Subchapter K Election........................................8
Section 2.7. Authority to Execute and Perform
Various Documents.........................................................8
Section 2.8. Title to the Trust Estate....................................8
ARTICLE 3
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST ESTATE
Section 3.1. Distribution of Payments......................................9
Section 3.2. Method of Payments...........................................9
ARTICLE 4
DUTIES OF THE TRUSTEE
Section 4.1. Notices; Furnishing of Documents.............................9
Section 4.2. Action Upon Instructions....................................10
Section 4.3. Right to Indemnity Before Acting............................10
Section 4.4. No Duties Except as Specified...............................11
Section 4.5. No Action Except Under Specified Documents or Instructions..11
ARTICLE 5
THE TRUSTEE
Section 5.1. Acceptance of Trusts and Duties.............................12
Section 5.2. Absence of Certain Duties...................................12
Section 5.4. Segregation of Funds........................................13
Section 5.5. Reliance Upon Certificates and Counsel .....................13
Section 5.6. Not Acting in Individual Capacity...........................13
Section 5.7. Compensation and Expenses...................................13
Section 5.8. Tax Returns.................................................14
Section 5.9. Trustee Status..............................................14
Section 5.10.Doing Business in Other Jurisdictions ......................14
ARTICLE 6
INDEMNIFICATION OF AND REPRESENTATIONS TO THE
TRUSTEE BY THE OWNER
Section 6.1. Indemnification of the Trustee...............................15
Section 6.2. Representations..............................................16
ARTICLE 7
TRANSFER OF THE OWNER'S INTEREST
Section 7.1. Transfer of Interest of the Owner............................16
ARTICLE 8
SUCCESSOR TRUSTEE; CO-TRUSTEE
Section 8.1. Resignation or Removal of a Trustee:
Appointment of Successor..................................17
Section 8.2. Independent Trustee.........................................18
ARTICLE 9
SUPPLEMENTS AND AMENDMENTS TO TRUST
AGREEMENT AND OTHER DOCUMENTS
Section 9.1. Supplements and Amendments..................................19
Section 9.2. Discretion as to Execution of Documents.....................19
Section 9.3. Absence of Requirements as to Form..........................20
Section 9.4. Distribution of Documents...................................20
Section 9.5. Condition to Successor Trustee..............................20
ARTICLE 10
MISCELLANEOUS
Section 10.1. Termination................................................21
Section 10.2. The Owner Has No Legal Title...............................21
Section 10.3. Assignment, Sale, etc. of Trust Estate.....................22
Section 10.4. Trust Agreement for Benefit of Parties Only................22
Section 10.5. Notices....................................................22
Section 10.6. Severability...............................................23
Section 10.7. Waivers....................................................24
Section 10.8. Counterparts...............................................24
Section 10.9. Binding Effect.............................................24
Section 10.10.Headings ..................................................24
Section 10.11.Governing Law..............................................24
Section 10.12.Amendment..................................................24
Section 10.13.Assignment.................................................24
EXHIBIT
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EXHIBIT A = Form of Assignment and Assumption Agreement.
TRUST AGREEMENT
OF
MAIN PLACE TRUST
TRUST AGREEMENT OF MAIN PLACE TRUST dated as of December 14, 1998 (the
"Agreement"), by and among NATIONSBANK, N.A., a national banking association
(together with its successors and permitted assigns, the "Owner"), WILMINGTON
TRUST COMPANY, a Delaware corporation (in its individual capacity only as
expressly stated herein, the "Delaware Trustee" and the "Independent Trustee"),
XXXXX X. XXXXXX, an individual (in his individual capacity only as expressly
stated herein, the "Special Trustee"), and XXXX X. XXXX, an individual (in his
individual capacity only as expressly stated herein, the "Business Trustee").
W I T N E S S E T H:
WHEREAS, the Owner and the Trustees have agreed to create a "business
trust" in accordance with Chapter 38 of Title 12 of the Delaware Code, 12 Del.C.
ss. 3801, et. seq., which shall be named the "Main Place Trust" (the "Trust").
WHEREAS, the parties desire for the Trust to acquire from the Owner and
hold a one percent (1%) interest ("LLC Interest"), in Main Place Funding, LLC, a
Delaware limited liability company ("MP-LLC"), and to serve as a co-managing
member of MP-LLC solely to act on matters relating to the bankruptcy or
insolvency of MP-LLC.
WHEREAS, the Owner and the Trustees intend that this Agreement constitute
the "governing instrument" of the Trust.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Owner and the Trustees hereby
agree as follows:
ARTICLE 1
DEFINITIONS AND TERMS
SECTION 1.1 CERTAIN DEFINITIONS.
(a) For all purposes of this Agreement, the capitalized terms set forth
below shall have the following meanings:
"Affiliate" of any specified Person (as hereinafter defined) means any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to a specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through ownership of voting securities or other beneficial
interests, by
contract or otherwise; and the terms "controlling" and "controlled" have the
meanings correlative to the foregoing.
"Assignment Agreement" means that certain Assignment and Assumption
Agreement entered into by the Trust and the Owner on or about the date hereof,
pursuant to which the Owner transfers the LLC Interest to the Trust.
"Bankruptcy Event" means, with respect to the Trust or MP-LLC, (i) the
institution of proceedings to be adjudicated bankrupt or insolvent, or consent
to the institution of bankruptcy or insolvency proceedings against it, or (ii)
the filing of, or consent to, a petition seeking reorganization or relief under
any applicable federal or state law relating to bankruptcy or insolvency, or
(iii) the seeking of, or consent to, the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of such entity or
any substantial part of its property, or (iv) the making of, or consent to, an
assignment for the benefit of creditors, or (v) the admission, in writing, of
its inability to pay its debts generally as they became due, or (vi) the taking
of any action that will cause such entity to become insolvent, or the taking of
corporate action in furtherance of any such action.
"Bonds" means the certain mortgage-backed bonds issued pursuant to the
Indentures.
"Business Trustee" has the meaning given to it in the preamble to this
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended and as the same
may be further amended from time to time.
"Delaware Trustee" has the meaning given to it in the preamble to this
Agreement.
"Indentures" means, collectively, (i) that certain Indenture of Trust dated
as of October 31, 1995, between Main Place Real Estate Investment Trust (as
successor in interest to Main Place Funding Corporation), and U.S. Bank Trust
National Association (formerly known as First Trust National Association), as
amended, and (ii) that certain Indenture of Trust dated as of March 18, 1997,
between Main Place Real Estate Investment Trust and U.S. Bank Trust National
Association (formerly known as First Trust National Association), as amended.
"Independent Trustee" means Wilmington Trust Company, a Delaware
corporation, or any other Person appointed as such pursuant to this Agreement
who is not at the time of appointment and has not been at any time during the
preceding five (5) years: (i) a direct or indirect legal or beneficial owner
(beyond a nominal amount) in the Trust or any of its Affiliates; (ii) a
creditor, supplier, employee, officer, director, family member, manager, or
contractor of the Trust or any of its Affiliates; or a Person who controls
(whether directly, indirectly, or otherwise) the Trust or its Affiliates or any
creditor, supplier, employee, officer, director, manager, or contractor of the
Trust or its Affiliates. Notwithstanding the foregoing, an Independent Trustee
may serve in similar capacities for other "special purpose" entities formed by
the Owner or any Affiliate thereof. (For purposes of this definition, the term
"control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management, policies or activities of a Person, whether through ownership of
voting securities, by contract or otherwise.)
"Lien" means any mortgage, deed of trust, pledge, security interest,
encumbrance, lien, easement, restriction, servitude or charge of any kind,
including, without limitation, any irrevocable license, conditional sale or
other title retention agreement, any lease in the nature thereof or the filing
of, or agreement to execute as "debtor", any financing or continuation statement
under the Uniform Commercial Code of any jurisdiction or any federal, state or
local lien imposed pursuant to any applicable law.
"LLC Interest" has the meaning given to it in the recitals to this
Agreement.
"MP-LLC" has the meaning given to it in the recitals to this Agreement.
"Operative Documents" means the Assignment Agreement, the Amended and
Restated Limited Liability Company Agreement of MP-LLC dated as of December
_____, 1998, and any other documents executed from time to time by the Trust in
connection with the acquisition or ownership of the LLC Interest.
"Owner" means NationsBank, N.A., and each of its successors in interest as
beneficiaries of the Trust hereunder.
"Owner Creditor" has the meaning ascribed thereto in Section 9.5(b).
"Person" means a natural person, corporation, limited partnership, limited
liability company, general partnership, joint stock company, joint venture,
association, company, trust, bank trust company, land trust, business trust,
national association or other organization, whether or not a legal entity, and a
government or agency, instrumentality, or political subdivision thereof.
"Rating Agency" means each nationally-recognized statistical rating agency
rating any of the Bonds.
"Rating Agency Confirmation" means, with respect to any action or event,
the written confirmation of each Rating Agency that such action or event will
not result in the qualification, downgrade or withdrawal of the ratings then
assigned to any of the Bonds.
"Relevant State" has the meaning ascribed thereto in Section 9.5.
"Responsible Officer" means the president, the chief financial officer or
the treasurer.
"Special Trustee" has the meaning given to it in the preamble of this
Agreement.
"Trust" means the trust formed by this Agreement, as described in the
recitals to this Agreement.
"Trustees" means one or more of any of the Delaware Trustee, the
Independent Trustee, the Special Trustee, or the Business Trustee, together with
their respective successors and permitted assigns, where the distinction between
each such trustee is not relevant.
"Trust Estate" means all right, title and interest of the Trust in and to
any property contributed to the Trust by the Owner or otherwise acquired by the
Trust, including the LLC Interest and all distributions, payments or proceeds
therefrom.
(b) Capitalized terms used herein but not otherwise defined herein shall
have the meaning assigned to them in the Operative Documents.
SECTION 1.2. USAGE OF TERMS. With respect to all terms in this Agreement,
the singular includes the plural and the plural includes the singular, words
importing any gender include the other gender; references to "writing" include
printing, typing, lithography and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement; references to
Person include their successors and permitted assigns, and the term "including"
means including without limitation.
SECTION 1.3. SECTION REFERENCES. All section references, unless otherwise
indicated, shall be to sections of this Agreement.
ARTICLE 2
FORMATION OF TRUST;
AUTHORITY TO EXECUTE DOCUMENTS;
DECLARATION OF TRUST
SECTION 2.1. NAME. The Trust created hereby shall be known as "Main Place
Trust".
SECTION 2.2. OFFICE. The office of the Trust shall be in care of the
Business Trustee, at the address set forth in Section 10.5 or at such other
address as the Business Trustee may designate by notice to the Owner and the
other Trustees. The business address of the Delaware Trustee shall be the
address set forth in Section 10.5 or at such other address as the Delaware
Trustee may designate by notice to the Owner and the other Trustees.
SECTION 2.3. PURPOSES. The Trust is a special purpose entity that has been
organized as a business trust and, subject to Section 2.5 of this Agreement,
will be operated for the following sole and exclusive purposes at the direction
of the Owner:
(a) To acquire, own, and hold the LLC Interest;
(b) To exercise exclusive control, by exercising veto power as a
co-manager of MP-LLC, over the ability of MP-LLC to file, consent to the
filing of, or join in any filing of, a bankruptcy or insolvency petition,
or otherwise institute insolvency proceedings;
(c) To otherwise dispose of the Trust Estate in accordance with the
terms and conditions of this Agreement;
(d) To take any and all actions necessary to maintain the existence of
the Trust as a business trust in good standing under the laws of the State
of Delaware and, if necessary, to qualify the Trust to do business as a
business trust in any other state in which such qualification, in the
opinion of the Business Trustee or the Owner, is required; and
(e) To elect to be organized as a Delaware business trust pursuant to
12 Del.C. ss. 3801 et seq.
The Trust shall hold the Trust Estate for investment purposes only and not for
the active conduct of a trade or business. The Trust shall conduct no business
nor, except as provided herein, acquire any property other than as specifically
set forth in this Section 2.3.
SECTION 2.4. DECLARATION OF TRUST. As of the date of the Assignment
Agreement, the Owner has granted to the Trust and its successors and assigns,
forever, all right, title and interest of the Owner in and to the LLC Interest,
constituting the initial Trust Estate, and the Trustees acknowledge, by their
execution and delivery of the Assignment Agreement, their receipt of the LLC
Interest on behalf of the Trust, to have and to hold, together with any other
part of the Trust Estate, until this Agreement terminates pursuant to the terms
hereof. The Trust shall hold the Trust Estate upon the terms and subject to the
conditions set forth herein for the use and benefit of the Owner, and in
accordance with the obligations of the Trust under the Operative Documents. It
is the intention of the parties hereto that the Trust constitute a "business
trust" under Chapter 38 of Title 12 of the Delaware Code. The Trustees shall
have caused the filing of a Certificate of Trust (the "Certificate of Trust")
with the Secretary of the State of Delaware (the "Secretary of State") pursuant
to Section 3810 of Title 12 of the Delaware Code. It is the intention of the
parties hereto that the Trust shall be a grantor trust for Federal income tax
purposes. The Owner agrees to report its interest in the Trust in a manner
consistent with the foregoing and the Owner and the Trustees agree otherwise not
to take any action that would be inconsistent with the foregoing and the
provisions of this Agreement shall be construed to further the foregoing.
SECTION 2.5. RESTRICTIONS ON TRUST ACTION. Notwithstanding any other
provision of this Agreement, the Operative Documents or any provision of law
that would so empower the Trust, the Trust shall:
(a) Not engage in any business or activity other than those set forth
in Section 2.3 above;
(b) Not take any action, in its role as co-manager of MP-LLC, with
respect to exercising its veto power over the ability of MP-LLC to file,
consent to the filing of, or join in any filing of, a bankruptcy or
insolvency petition, or otherwise institute insolvency proceedings or any
other Bankruptcy Event, without the prior written consent of both the
Independent Trustee and the Special Trustee, for as long as any Bonds are
outstanding
and until all of the obligations of MP-LLC under the Indentures or the
Bonds have been indefeasibly and fully satisfied;
(c) Not acquire or own any assets other than the LLC Interest and any
proceeds therefrom and any contribution by the Owner and any earnings on
any of the foregoing;
(d) Do all things necessary to preserve its existence and not (x)
engage in, seek or consent to any dissolution, winding up, liquidation,
consolidation or merger, (y) engage in, seek or consent to any sale or
transfer of the LLC Interest or of any other part of the Trust Estate, or
(z) amend, modify or change the Certificate of Trust for this Trust or this
Agreement or permit a constituent party to cause the amendment or
modification thereof without, in each case, under clause (x), (y) or (z),
the prior written consent of both the Independent Trustee and the Special
Trustee;
(e) Have at least one Independent Trustee;
(f) Not take any action requiring the consent of both the Independent
Trustee and the Special Trustee unless both the Independent Trustee and the
Special Trustee shall have consented thereto;
(g) Not fail to correct any known misunderstanding regarding the
Trust's separate identity;
(h) Not, without the prior written consent of both the Independent
Trustee and the Special Trustee, either for itself or for MP-LLC or as a
managing member of MP-LLC, take any action whatsoever to initiate, consent
to, or join in causing, a Bankruptcy Event; provided, however, that if the
Trust shall not have an Independent Trustee, then no such action shall be
taken unless and until such an Independent Trustee shall have been duly
elected and shall consent in writing thereto;
(i) Maintain its books, records, resolutions and agreements as
official records;
(j) Not commingle its funds or assets with those of any other Person;
(k) Hold its assets in its own name and maintain its assets in such a
manner that it will not be costly or difficult to segregate, ascertain or
identify its individual assets from those of any Affiliate of any other
Person;
(l) Conduct its business in its own name;
(m) Maintain its books, records, financial statements, accounting
records, bank accounts and other entity documents separate from those of
any other Person and file its own tax returns when necessary;
(n) Pay its own liabilities out of its own funds and assets;
(o) Observe all trust formalities;
(p) Maintain an arms-length relationship with its Affiliates;
(q) Not incur any indebtedness, secured or unsecured, direct or
indirect, absolute or contingent (including guaranteeing any obligation),
other than (i) indebtedness permitted under the Operative Documents, and
(ii) unsecured trade payables incurred in the ordinary course of business
relating to the ownership of the LLC Interest and payable within thirty
(30) days after the date incurred;
(r) Not assume or guaranty or become obligated for the debts of any
other Person or hold itself out to be responsible for the debts or
obligations of any other Person;
(s) Not (i) except for the LLC Interest, acquire any obligations or
securities of the Owner, any Trustee, or any Affiliates of the foregoing,
and (ii) hold out as being available, or make available, its credit for use
to satisfy the obligations of any of the foregoing;
(t) Allocate fairly and reasonably shared expenses, including, without
limitation, shared office space, and use separate stationary, invoices and
checks;
(u) Except as permitted by the Operative Documents, not pledge its
assets for the benefit of any other Person;
(v) Hold and identify itself out as a separate and distinct entity
under its own name and not as a division or part of any other Person;
(w) Not make or permit to remain outstanding any loans or advances to
any Person, except as may be expressly permitted by the Operative
Documents;
(x) Not identify the Owner, the Independent Trustee or any other
Trustee, or any Affiliates of any of them, as a division or part of it;
(y) Except for the Advisory Services Agreement dated on or about the
date hereof between the Trust and NationsBank, N.A., not enter into or be a
party to, any transaction, contract or agreement with the Owner, the
Independent Trustee or any other Trustee, or their respective Affiliates,
except in the ordinary course of business and on terms which are
intrinsically fair and no less favorable to it than would be obtained in a
comparable arms-length transaction with an unrelated third party;
(z) Pay the salaries of its own employees, if any, from its own funds;
(aa) Maintain adequate capital for the normal obligations reasonably
foreseeable in a business of its character and in light of its contemplated
business operations;
(bb) Not dissolve as a result of the dissolution or insolvency of the
Owner, the Independent Trustee, or any other Trustee; and
(cc) Not be organized as other than a Delaware business trust pursuant
to 12 Del.C. ss. 3801 et seq.
SECTION 2.6. SUBCHAPTER K ELECTION. The Owner intends to be excluded from
Subchapter K of the Code and shall have the right to direct the Business Trustee
to specifically elect out of Subchapter K of the Code.
SECTION 2.7. AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENTS. The Owner
hereby authorizes and directs the Business Trustee to execute and deliver on
behalf of the Trust each Operative Document to which the Trust is or is to be a
party, and such other documents, agreements, instruments and certificates
relating to the Operative Documents, in each case in the respective forms in
which the same may be delivered by or on behalf of the Owner to the Business
Trustee from time to time for execution and delivery. In addition, the Owner
hereby empowers and authorizes the Business Trustee to execute and deliver any
and all documents, agreements and instruments necessary for the operation of the
Trust Estate, to the full extent allowed by law. Notwithstanding any of the
foregoing, the Owner hereby authorizes and empowers only the Independent Trustee
and the Special Trustee, acting in unison, with sole authority to execute and
deliver any and all documents relating to the Trust's acting to fulfill its
purpose set forth in Section 2.3(b) in its role as a co-managing member of
MP-LLC.
SECTION 2.8. TITLE TO THE TRUST ESTATE. Title to all of the Trust Estate
shall be vested in the Trust as a separate legal entity; provided, however, that
if the laws of any jurisdiction in which any of the Trust Estate is located
require that title to any part of the Trust Estate be vested in a Trustee of the
Trust, then title to that part of the Trust Estate shall be deemed to be vested
in the Business Trustee.
ARTICLE 3
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE TRUST ESTATE
SECTION 3.1. DISTRIBUTION OF PAYMENTS.
(a) Payments. If any funds shall be received by the Trust, then the
Business Trustee shall disburse, or not disburse, such amounts as it deems
reasonable in the ordinary course of business or, if requested by the Owner, in
accordance with the written instructions of the Owner.
(b) Liability for Payments. The Business Trustee shall not be liable for
any amounts payable under this Agreement or any document executed by the Trust
except to the extent that the Business Trustee has actually received the funds
required to make such payment.
SECTION 3.2. METHOD OF PAYMENTS. The Business Trustee shall make
distributions or cause distributions to be made to the Owner pursuant to this
Article 3 by transferring by wire
transfer of immediately available funds (or by such other manner as is
acceptable to, or requested by, the Owner) the amount to be distributed to such
account or accounts as the Owner may designate from time to time by written
notice to the Business Trustee (and the Business Trustee shall use reasonable
and diligent efforts to cause such funds to be transferred by wire transfer (or
by such other manner as is acceptable to, or requested by, the Owner) by such
date as the Owner reasonably requests).
ARTICLE 4
DUTIES OF THE TRUSTEE
SECTION 4.1. NOTICES; FURNISHING OF DOCUMENTS.
(a) If any Trustee shall have actual knowledge of any event or notice
relating to the LLC Interest, other than a Bankruptcy Event or a notice related
thereto, then such Trustee shall give to the Owner and the Business Trustee
prompt telecopier notice thereof, followed by prompt confirmation thereof by
U.S. mail, postage prepaid. Subject to Section 4.3, the Business Trustee shall
take such action, or shall refrain from taking such action, with respect to the
LLC Interest as the Business Trustee shall be directed in writing by the Owner.
If the Business Trustee shall not have received instructions as above provided
within twenty (20) days after the delivery of notice of such event or notice to
the Owner, then the Business Trustee may, subject to instructions received
pursuant to the preceding sentence, take such action, or refrain from taking
such action, but shall be under no duty and shall have no liability for its
failure or refusal to take or refrain from taking any action, with respect to
such event or notice not inconsistent with the provisions of the Operative
Documents, as the Business Trustee shall deem in its sole and absolute
discretion to be in the best interests of the Owner.
(b) If any Trustee shall have actual knowledge of any Bankruptcy Event or a
notice related thereto, then such Trustee shall give to the Owner, the
Independent Trustee, and the Special Trustee prompt telecopier notice thereof,
followed by prompt confirmation thereof by U.S. mail, postage prepaid. The
Independent Trustee and the Special Trustee shall unanimously take such action,
or shall unanimously refrain from taking such action, with respect to such
Bankruptcy Event or related matter as is keeping in compliance with the terms
and intent of this Agreement, such that the ability of MP-LLC and of the Trust
to proceed with such Bankruptcy Event is eliminated or reduced to the greatest
extent possible.
(c) The Business Trustee will furnish to the Owner, promptly upon receipt
thereof, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instrument furnished to the
Business Trustee hereunder or with respect to the LLC Interest.
SECTION 4.2. ACTION UPON INSTRUCTIONS. Subject to the provisions of Section
4.3 and the last two sentences of this Section 4.2, upon the written
instructions at any time and form time to time of the Owner, the Business
Trustee shall take such of the following actions as may be specified in such
instructions: (i) give such notice or direction or exercise such right, remedy
or
power hereunder or under any Operative Document to which the Trust is a party,
or in respect of all or any part of the Trust Estate, as shall be specified in
such instructions; (ii) take such action to preserve or protect the Trust Estate
(including the discharge of any liens) as shall be specified in such
instructions; (iii) approve as satisfactory to the Business Trustee all matters
required by the terms of any Operative Document to be satisfactory to the
Business Trustee or the Trust, it being understood that, without written
instructions of the Owner, the Business Trustee shall not approve any such
matter as satisfactory to the Business Trustee or the Trust; (iv) provided that
there are no Bonds outstanding, convey and deliver the LLC Interest to the Owner
in accordance with such instructions; and (v) any other action required to be
taken by the Business Trustee pursuant to the Operative Documents. In the event
that any Trustee is unsure as to the application of any provision of this
Agreement or of any other agreement relating to the transactions contemplated
hereby, such Trustee may request and rely upon written instructions of the
Owner. The Owner shall not instruct such Trustee to take any action which is
inconsistent with this Agreement or which the Owner has actual knowledge is
inconsistent with the provisions of the Operative Documents or other legal
requirements or laws. Without limiting the foregoing, under no circumstance
shall the Owner give instructions which would require or instruct such Trustee
to violate any of the provisions of Sections 2.3, 2.5, 4.2, 8.2, 9.1(c) or 10.1,
and such Trustee shall not obey, without incurring any liability, any such
instructions if given.
SECTION 4.3. RIGHT TO INDEMNITY BEFORE Acting. A Trustee shall not be
required to take or refrain from taking action under this Agreement or any
Operative Document (other than to give the notices required of the Trustees
therein) unless such Trustee shall have been indemnified by the Owner, in manner
and form reasonably satisfactory to such Trustee, against any liability, cost or
expense (including reasonable counsel fees and disbursements) which may be
incurred in connection therewith; and if the Owner shall have directed such
Trustee to take or refrain from taking any such action, then the Owner agrees to
furnish such indemnity as shall be required and, in addition, to pay the
reasonable fees and charges of such Trustee for the services performed or to be
performed by them pursuant to such direction. Such Trustee shall not be required
to take any action under this Agreement or any Operative Document if such
Trustee shall reasonably determine, or shall have been advised by counsel, that
such action is contrary to the terms of any Operative Document to which the
Trust is a party or is contrary to law.
SECTION 4.4. NO DUTIES EXCEPT AS SPECIFIED.
(a) The Trustees shall not have any duty or obligation to manage, control,
use, sell, dispose of or otherwise deal with any of the LLC Interest or any
other part of the Trust Estate, to perform any obligation of the Trust under any
of the Operative Documents or otherwise to take or refrain from taking any
action under, or in connection with, any Operative Document to which the Trust
is a party, except as expressly required by the terms hereof or in written
instructions received pursuant to Section 4.1 or 4.2 from the Owner; and no
implied duties or obligations shall be read into this Agreement or any other
Operative Document to which the Trust is a party against any of the Trustees.
(b) Notwithstanding the provisions of Section 4.4(a), each Trustee agrees
that it will, at its own cost and expense (without any right of indemnity in
respect of any such cost or
expense under Section 6.1), promptly take such action as may be necessary duly
to discharge and satisfy in full: (i) all Liens against the Trust Estate
attributable to such Trustee in its individual capacity; (ii) any Liens created
as a result of a breach by such Trustee of its individual obligations under this
Agreement (subject to the limitations on liability set forth in Section 5.9) on
any part of the Trust Estate, or on any properties of the Trust assigned,
pledged or mortgaged as part of the Trust Estate, which arise from acts of such
Trustee in its individual capacity, and (iii) any other Liens attributable to
such Trustee in its individual capacity on any part of the Trust Estate which
result from claims against such Trustee in its individual capacity unrelated to
the ownership of the LLC Interest, the administration of the Trust Estate or the
transactions contemplated by the Operative Documents.
SECTION 4.5. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR INSTRUCTIONS.
The Trust shall have no power or authority to, and each Trustee agrees that it
will not, manage, control, use, sell, dispose of or otherwise deal with the LLC
Interest or any other part of the Trust Estate except (i) as expressly required
by the terms of any Operative Document to which the Trust is a party, (ii) as
expressly required by the terms hereof, or (iii) as expressly provided in
written instructions from the Owner pursuant to Section 4.1 or 4.2, but subject
always to the provisions of this Agreement.
ARTICLE 5
THE TRUSTEES
SECTION 5.1. ACCEPTANCE OF TRUSTS AND DUTIES. Each Trustee hereby accepts
the trusts hereby created and agrees to perform the same but only upon the terms
of this Agreement. The Business Trustee also agrees to receive and disburse all
monies paid to it constituting part of the Trust Estate upon the terms hereof.
Each Trustee shall not incur any liability under any circumstances, except for
liability incurred as a result of (i) its own willful misconduct or gross
negligence; (ii) its failure to comply with the provisions of Section 4.4(b);
(iii) its failure to use ordinary care in receiving or disbursing funds; (iv)
the inaccuracy of any of its representations or warranties made in its
individual capacity (or from its failure to perform any covenant made in its
individual capacity) in Section 5.3 or in any other Operative Document to which
the Trust is now or hereafter a party; and (v) all taxes, fees or other charges
on, based on or measured by any fees, commissions or other compensation received
by the Trustee on account of its services as Trustee; provided, however, that
the Trustee's failure to act or perform in the absence of instructions, after
the Trustee shall have requested instructions from the Owner pursuant to the
last sentence of Section 4.2, shall not constitute willful misconduct or gross
negligence for purposes of clause (i) of this sentence. The Delaware Trustee
further agrees to perform all of its administrative functions and duties as a
Trustee hereunder within the State of Delaware. The Independent Trustee and the
Special Trustee each recognize that the bankruptcy remoteness of the Trust is an
integral requirement of the Trust, and that, so long as the Trust remains
solvent, the Independent Trustee's and the Special Trustee's intention is not to
file or cause the filing of a bankruptcy petition on behalf of the Trust,
consent to the filing of an involuntary bankruptcy petition against the Trust,
or seek, or consent to, the consolidation of the Trust and any Affiliate in a
bankruptcy proceeding involving the Trust or any Affiliate thereof. In no event
shall the Independent
Trustee or the Special Trustee be liable to the Owner, the Trust or any other
Person for any act or omission taken or made in good faith in accordance with
the immediately preceding sentence.
SECTION 5.2. ABSENCE OF CERTAIN DUTIES. Except in accordance with written
instructions furnished pursuant to Section 4.1 or 4.2, and except as provided
in, and without limiting the generality of, Section 4.4, no Trustee shall have
any duty (i) to see to any recording or filing of this Agreement or any other
documents or to see to the maintenance of any such recordation or filing or to
any necessary rerecording or refiling thereof; (ii) to see to the payment or
discharge of any tax, assessment or other governmental charge on, or any Lien of
any kind owing with respect to, or assessed or levied against, any part of the
Trust Estate; or (iii) to inspect MP-LLC or its books and records with respect
thereto.
SECTION 5.3. NO REPRESENTATION OR WARRANTIES AS TO CERTAIN MATTERS. Each
Trustee hereby represents and warrants that this Agreement has been, and
(assuming the due authorization, execution and delivery of this Agreement by the
Owner) the other Operative Documents to which the Trust is a party have been, or
at the time of execution and delivery thereof by the Trust pursuant hereto will
be, as the case may be, duly authorized and delivered by a Responsible Officer
of such Trustee (with respect to such Trustee), who is or will be, as the case
may be, duly authorized to execute and deliver the same on behalf of such
Trustee and that this Agreement has been duly authorized, executed and delivered
by such Trustee and constitutes the legal, valid and binding obligation of such
Trustee enforceable against such Trustee in accordance with its terms, except as
such terms may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the rights or creditors generally and by general
principles of equity. Except for Liens attributable to such Trustee in its
individual capacity, such Trustee shall not be individually liable for any
indebtedness of the Trust. In addition, such Trustee shall not be liable or
responsible for or in respect of the validity or sufficiency of this Agreement
or for the due execution hereof by the Owner.
SECTION 5.4. SEGREGATION OF FUNDS. Monies received by any Trustee hereunder
for on or behalf of the Trust shall be segregated and not commingled with the
funds of any other Person.
SECTION 5.5. RELIANCE UPON CERTIFICATES AND COUNSEL. No Trustee shall incur
any liability to any Person by reason of acting in reliance upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper reasonably believed by it to be genuine
and reasonably believed by it to be signed by the proper party or parties.
Unless other evidence in respect thereof is specifically prescribed herein, any
request, direction, order or demand of the Owner mentioned herein or in any
other Operative Document to which the Trust is now or hereafter a party shall be
sufficiently evidenced by a written instrument signed by a person purporting to
be an officer of the Owner. As to any fact or matter the manner of ascertainment
of which is not specifically provided herein, any Trustee may for all purposes
hereof rely on a certificate signed by an officer of the Owner as to such fact
or matter, and such certificate shall constitute full protection to such Trustee
for any action taken or omitted to be taken by it in good faith in reliance
thereon. In the administration of the Trust Estate as provided herein and in the
Operative Documents, each Trustee may execute any of the
powers hereof and perform its powers and duties hereunder and under the
Operative Documents directly or through agents or counsel and may consult with
counsel, accountants and other persons selected and employed by it, and such
Trustee shall not be liable for anything done, suffered or omitted in good faith
by them in accordance with the advice of any such counsel or accountants
appointed by it with due care.
SECTION 5.6. NOT ACTING IN INDIVIDUAL Capacity. Each Trustee is acting
hereunder solely as a Trustee and not in its individual capacity except as
otherwise expressly provided herein; and, except as may be otherwise expressly
provided in this Agreement, all Persons, other than the Owner, having any claim
against the Trust by reason of the transactions contemplated hereby shall look
only to the Trust Estate for payment or satisfaction thereof.
SECTION 5.7. COMPENSATION AND EXPENSES. Each Trustee shall be entitled to
receive as compensation for its services hereunder such ordinary fees as are
fair, reasonable and customary for the performance of such services and as any
heretofore and from time to time hereafter be agreed upon between the Owner and
such Trustee and/or pursuant to a written agreement between the Owner and such
Trustee. Such Trustee shall be entitled to be reimbursed for its reasonable
expenses incurred in the performance of its duties as a Trustee, including but
not limited to the reasonable fees and expenses of any counsel or accountants
hired by such Trustee pursuant to Section 5.5 of this Agreement.
SECTION 5.8. TAX RETURNS. The Business Trustee shall be responsible for the
keeping of all appropriate books and records relating to the receipt and
disbursement by it of all monies under this Agreement and each other agreement
(including the Operative Documents to which the Trust is now or hereafter a
party) contemplated hereby. The Owner shall be responsible for causing to be
prepared and filed, at its expense, all income tax returns required to be filed
by the Owner and for causing to be prepared all income tax returns (if any)
required to be filed with respect to the trust created hereby. The Business
Trustee, upon request and upon adequate assurance of reimbursement by the Owner
for the costs and expenses associated therewith, shall furnish to the Owner all
such information as may be reasonably required from such Trustee in connection
with the preparation of such income tax returns. Upon request of the Owner, the
Business Trustee shall sign and file the trust's tax returns prepared by the
Owner. The Owner hereby instructs and directs Business the Trustee to apply for
and obtain a Federal Tax Identification Number for the Trust.
SECTION 5.9. TRUSTEE STATUS . It is expressly understood and agreed that
(a) any Operative Document entered into or to be entered into by the Trust is
executed and delivered by a Trustee, not individually or personally but solely
as a Trustee of the Trust, in the exercise of the powers and authority conferred
and vested in it under this Agreement, (b) each of the representations,
undertakings and agreements made in any Operative Document on the part of the
Trust is made and intended not as personal representations, undertakings, and
agreements by the Trustee but is made and intended for the purpose of binding
only the Trust, and (c) under no circumstances shall any Trustee be personally
liable for the payment of any indebtedness or other obligations of the Trust or
be liable for the breach or failure of any obligation, representation, warranty
or covenant made or undertaken by the Trust under any such Operative Document.
SECTION 5.10. DOING BUSINESS IN OTHER JURISDICTIONS. Notwithstanding
anything contained herein to the contrary, the Delaware Trustee (and, if the
same Person is acting as both the Delaware Trustee and the Independent Trustee,
then also the Independent Trustee) shall not 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 the taking of any other
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 Delaware Trustee (or, if the same Person is
acting as both the Delaware Trustee and the Independent Trustee, then also the
Independent Trustee); or (iii) subject the Delaware Trustee (or, if the same
Person is acting as both the Delaware Trustee and the Independent Trustee, then
also the Independent Trustee) 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 Delaware Trustee (or, if the same
Person is acting as both the Delaware Trustee and the Independent Trustee, then
also the Independent Trustee) contemplated hereby. The Delaware Trustee (and, if
the same Person is acting as both the Delaware Trustee and the Independent
Trustee, then also the Independent Trustee) shall be entitled to obtain advice
of counsel (which advice shall be an expense of the Owner) to determine whether
any action required to be taken results in the consequences described in clauses
(i), (ii) and (iii) of the preceding sentence. If said counsel advises the
Delaware Trustee (or, if the same Person is acting as both the Delaware Trustee
and the Independent Trustee, then also the Independent Trustee) that such action
will result in such consequences, then the Delaware Trustee will direct the
Business Trustee to proceed with such action in its place and the Independent
Trustee will direct the Special Trustee to proceed with such action in its
place.
ARTICLE 6
INDEMNIFICATION OF AND REPRESENTATIONS TO
THE TRUSTEES BY THE OWNER
SECTION 6.1. INDEMNIFICATION OF THE TRUSTEES. To the fullest extent
permitted by law, the Owner hereby agrees, whether or not any of the
transactions contemplated hereby shall be consummated, to assume liability for,
and does hereby indemnify, protect, save and keep harmless the Trustees and
their respective successors, permitted assigns, agents and servants from and
against, any and all liabilities, obligations, losses, damages, penalties, taxes
(excluding any taxes payable by the Trustees on or measured by any fees or other
compensation received by the Trustees for their services hereunder), claims,
action, suits, costs, expenses or disbursements (including, without limitation,
reasonable legal fees and expenses) of any kind and nature whatsoever which may
be imposed on, incurred by or asserted against any of the Trustees in any way
relating to or arising out of this Agreement or any other Operative Document or
the enforcement of the terms of any thereof, or in any way relating to or
arising out of the acquisition, ownership, possession, use, sale or other
disposition of any of the Trust Estate, or in any way relating to or arising out
of the administration of the Trust Estate or the action or inaction of any of
the Trustees hereunder, except: (i) in the case of willful misconduct or gross
negligence on the part of any of the Trustees or in any Trustee's individual
capacity in the performance or nonperformance of its obligations and duties
hereunder; (ii) those resulting from the inaccuracy of any representation or
warranty of any Trustee in its individual capacity (or from the failure of any
Trustee to perform any covenant in its individual capacity) in this Agreement;
(iii) those arising or resulting from any of the matters described in clauses
(i) through (v) of Section 5.1; or (iv) those resulting from any Trustee's
failure to perform the terms of Section 4.4(b) or from the failure to use
ordinary care in the receipt or disbursement of funds. The indemnities contained
in this Section 6.1 extend to the Trustees only and shall not be construed as
indemnities of the Trust Estate. The indemnities contained in this Section 6.1
shall survive the termination of this Agreement. Any claim by any Trustee shall
be against the interest of the Owner in the Trust Estate as security for any
amounts owning to it hereunder.
SECTION 6.2. REPRESENTATIONS. The Owner represents, warrants and agrees as
follows:
(a) The Owner has observed and will observe all applicable corporate
procedures including, where applicable, the holding of regular periodic and
special meetings, the recording and maintenance of minutes of such meetings, and
the recording of resolutions, if any, adopted at such meetings.
(b) The Owner has paid and will pay its liabilities (including liability in
respect of guaranties) and losses from its own separate funds.
(c) The Owner has and will have at all times sufficient officers and
employees to run its business and operations. The Owner will manage its own
assets and liabilities.
(d) The Owner has not taken and will not take any action that would give
any creditor of the Owner cause to believe that indebtedness previously incurred
by the Owner is now or will be an obligation of the Trust or any Trustee or that
the Owner is not or will not remain an entity separate and distinct from the
Trust and each Trustee.
(e) The Owner has not taken and will not take any action that is
inconsistent with any of the representations, warranties and agreements set
forth in this Agreement or that would give (i) any future creditor of the Owner
cause to believe mistakenly that any such future obligation incurred by the
Owner would be not only the obligation of the Owner, but also of the Trust or
any Trustee, or (ii) any future creditor of the Owner cause to believe
mistakenly that the Owner was not or would not continue to remain an entity
separate and distinct from the Trust and each Trustee.
(f) No transaction relating to this Agreement is being or will be entered
into by the Owner (i) in bad faith or with the intent to delay, hinder or
defraud any of its creditors, or (ii) with the intent of removing assets from
the Owner to the detriment of the Owner's creditors.
(g) So long as the Bonds are outstanding, the Owner will not consensually
merge or consolidate with the Trust, the Independent Trustee, or the Delaware
Trustee.
ARTICLE 7
TRANSFER OF THE OWNER'S INTEREST
SECTION 7.1. TRANSFER OF INTEREST OF THE OWNER.
(a) The Owner may assign, convey or otherwise transfer all or any of its
right, title and interest in and to this Agreement and the Trust Estate by
giving written notice to the Business Trustee specifying (i) the name and
address of the proposed transferee, (ii) the effective date of the proposed
transfer, and (iii) the percentage of the interest of the Owner to be
transferred. Upon any assignment, conveyance or transfer of all of the interest
of the Owner, the transferor Owner shall, upon such assignment, conveyance or
transfer, be released and discharged without further act or formality whatsoever
from the indemnification obligations imposed under Section 6.1 arising after
such transfer date, except to the extent that any such transferee shall not have
assumed the obligations of the Owner hereunder with respect to such interest so
transferred. No such assignment, conveyance or transfer shall violate any legal
requirement or laws or create a relationship which would be in violation
thereof. The Business Trustee shall not be on notice of or otherwise be bound by
any such assignment, conveyance or transfer until the Business Trustee shall
have received an executed counterpart of the instrument of such assignment,
conveyance or transfer.
(b) No assignment, conveyance or other transfer pursuant to Section 7.1(a)
shall be effective unless (i) the transferee shall have executed and delivered
to the Business Trustee an instrument containing the transferee's agreement to
be bound by the terms of this Agreement, and (ii) if such assignment, conveyance
or other transfer shall result in the Owner owning less than 51% of the
aggregate beneficial interests in the Trust, then the Trust shall have received
Rating Agency Confirmation.
ARTICLE 8
SUCCESSOR TRUSTEE; CO-TRUSTEE
SECTION 8.1. RESIGNATION OR REMOVAL OF A TRUSTEE: APPOINTMENT OF SUCCESSOR.
(a) Resignation or Removal. Subject to Section 2.5(d) hereof, any Trustee
or any successor trustee may resign at any time without cause by giving at least
sixty (60) days' prior written notice to the Owner and, during the period while
any Bonds are outstanding and until all of the obligations of MP-LLC under the
Indentures or the Bonds have been indefeasibly and fully satisfied, to MP-LLC,
such resignation to be effective upon the acceptance of appointment by the
successor trustee under Section 8.1(b). In addition, subject to Section 2.5(d)
hereof, the Owner may at any time remove the Business Trustee without cause by a
notice in writing delivered to the Business Trustee and, during the period while
any Bonds are outstanding and until all of the obligations of MP-LLC under the
Indentures or the Bonds have been indefeasibly and fully satisfied, to MP-LLC,
such removal to be effective upon the acceptance of appointment by the successor
trustee under Section 8.1(b), but in no event shall such removal cause a
termination of the Trust. In the case of the resignation or removal of the
Business Trustee or the Delaware Trustee, the Owner may appoint a successor
trustee by an instrument in writing signed by the Owner. If a successor trustee
shall not have been appointed within thirty (30) days after notice of
resignation or removal of such Trustee, then such Trustee or, during the period
while any Bonds are outstanding and until all of the obligations of MP-LLC under
the Indentures or the Bonds have been indefeasibly and fully satisfied, MP-LLC
may apply to any court of competent jurisdiction to appoint a successor trustee
to act until such time, if any, as a successor trustee shall have been appointed
by the Owner as above provided. Any successor trustee so appointed by such court
shall immediately, and without further act, be superseded by any successor
trustee appointed by the Owner as above provided.
(b) Execution and Delivery of Certain Documents. Any successor trustee,
however appointed, shall execute and deliver to the predecessor Trustee an
instrument accepting such appointment, and thereupon such successor trustee,
without further act, shall become vested with all the estates, properties,
rights, powers and duties of the predecessor Trustee in the Trust with like
effect as if originally named a Trustee herein and shall for the purpose of this
Agreement, thereafter be referred to as a Trustee; but nevertheless, upon the
written request of such successor trustee, such predecessor Trustee shall
execute and deliver an instrument transferring to such successor trustee, the
Trust herein expressed, all the estates, properties, rights, powers and duties
of such predecessor Trustee in and to the Trust, and such predecessor Trustee
shall duly assign, transfer, deliver and pay over to such successor trustee all
monies or other property then held by such predecessor Trustee in and to the
Trust, and such predecessor Trustee shall duly assign, transfer, deliver and pay
over to such successor trustee all monies or other property then held by such
predecessor Trustee in and to the Trust with respect to the Trust.
(c) Qualification. Any successor Delaware Trustee, however appointed, shall
be either a natural person who is a resident of the State of Delaware, or any
entity which has its principal place of business in the State of Delaware.
(d) Merger, Etc. Any corporation which any 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 any Trustee shall be a
party, or any corporation to which substantially all the corporate trust
business of any Trustee may be transferred, shall, subject to Section 8.1(c), be
such Trustee hereunder without further act.
SECTION 8.2. INDEPENDENT TRUSTEE. During the period while any Bonds are
outstanding and until all of the obligations of MP-LLC under the Indentures or
the Bonds are indefeasibly and fully satisfied, the Trust shall at all times
have at least one (1) Independent Trustee. A single Person may serve as both the
Delaware Trustee and the Independent Trustee.
ARTICLE 9
SUPPLEMENTS AND AMENDMENTS TO TRUST AGREEMENT
AND OTHER DOCUMENTS
SECTION 9.1. SUPPLEMENTS AND AMENDMENTS.
(a) Execution. Subject to the other provisions of this Agreement,
including, without limitation, Section 2.5, 8.2 and 9.1(c), at any time and from
time to time upon the written request of the Owner: (i) the Trustees, together
with the Owner, shall execute a supplement to this Agreement for the purpose of
adding provisions to, or changing or eliminating provisions of, this Agreement
(except Section 10.11) as specified in such request; and (ii) each Trustee
shall, subject to the consent of MP-LLC during the period while any Bonds are
outstanding and until all of the obligations of MP-LLC under the Indentures or
the Bonds have been indefeasible and fully satisfied, enter into such written
amendment of or supplement to any other Operative Document to which such Trustee
is a party as may be specified in such request, or execute and deliver such
written waiver or modification of or consent under the terms of any such
Operative Document as may be specified in such request.
(b) Delivery of Amendments and Supplements to Certain Parties. Until the
Bonds shall have been repaid in full, a signed copy of each amendment or
supplement shall be delivered by each Trustee to MP-LLC and shall not in any way
affect the Bonds and shall not impose any duty on MP-LLC with respect to such
amendment or supplement.
(c) Amendments. Notwithstanding any other provision of this Agreement or
any provision of law, during the period while any Bonds are outstanding and
until all of the obligations of MP-LLC under the Indentures or the Bonds have
been indefeasibly and fully satisfied, no amendment of or supplement, waiver or
modification to this Agreement shall, without the prior written consent of
MP-LLC and the receipt by the Trust of Rating Agency Confirmation, (i) modify
the terms of Section 2.3, 2.5, 4.2, Article 5, Sections 7.1, 8.2, 9.1, 10.1, and
the definitions of Independent Trustee and Bankruptcy Event contained in this
Agreement, or (ii) result in the Trust being terminated until after all of the
obligations of MP-LLC under the Indentures or the Bonds have been indefeasibly
and fully satisfied.
SECTION 9.2. DISCRETION AS TO EXECUTION OF DOCUMENTS. If in the reasonable
opinion of any Trustee any document required to be executed by it pursuant to
the terms of Section 9.1 materially and adversely affects any right, duty,
immunity or indemnity in favor of such Trustee hereunder or under any other
Operative Document to which such Trustee is a party, then such Trustee may in
its discretion decline to execute such document. If, in the reasonable opinion
of any Trustee any instrument required to be so executed adversely affects any
right, duty or liability of, or immunity or indemnity in favor of such Trustee
under this Agreement or any of the other Operative Documents to which the Trust
is now or hereafter a party, or would cause or result in any conflict with or
breach of any terms, conditions or provisions of, or default under, such
Trustee's charter documents or by-laws or any document contemplated hereby to
which such Trustee is a party, then such Trustee may decline to execute such
instrument, unless such Trustee shall have been provided by the Owner an
indemnity satisfactory to such Trustee.
SECTION 9.3. ABSENCE OF REQUIREMENTS AS TO FORM. It shall not be necessary
for any written request furnished pursuant to Section 9.1 to specify the
particular form of the proposed document to be executed pursuant to such
request, but it shall be sufficient if such request shall indicate the substance
thereof.
SECTION 9.4. DISTRIBUTION OF DOCUMENTS. Promptly after the execution by any
Trustee of any document entered into pursuant to Section 9.1, such Trustee shall
deliver, in accordance with the notice provisions of this Agreement, a conformed
copy thereof to the Owner.
SECTION 9.5. CONDITION TO SUCCESSOR TRUSTEE. No person shall become a
successor Trustee hereunder unless such successor Trustee shall deliver an
opinion of counsel, with respect to the laws of the jurisdiction of such
proposed successor Trustee (the "Relevant State"), to the following effect:
(a) Neither a Relevant State court nor a Federal court applying Relevant
State law, if properly presented with the issue and after having properly
considered each issue, would permit the Owner to terminate this Agreement,
except as otherwise provided herein or, during the period while any Bonds are
then outstanding, if any, and until all of the obligations of MP-LLC under the
Indentures or the Bonds have been indefeasible and fully satisfied, with the
consent of MP-LLC, as the case may be, until payment in full of the Bonds has
occurred; and
(b) Under the laws of the Relevant State, as long as this Agreement has not
been terminated in accordance with its terms or, during the period while any
Bonds are then outstanding and until all of the obligations of MP-LLC under the
Indentures or the Bonds have been indefeasible and fully satisfied, with the
express prior written consent of MP-LLC, creditors of any Person that is an
Owner, holders of a lien against the assets of such Person, and representatives
of creditors of any such Person, such as trustees, receivers or liquidators
(whether or not any insolvency proceeding had been commenced) (collectively, the
"Owner Creditors"), may acquire legal, valid and enforceable claims and liens,
as to the Trust Estate, only against the beneficial interest of such person in
the Trust Estate, and do not have, and may not through the enforcement of such
Owner Creditors' rights, acquire any greater rights than the Owner with respect
to the Trust Estate.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1. TERMINATION. This Agreement and the trusts, rights,
privileges and options created hereby shall terminate and this Agreement shall
be of no further force or effect upon the earliest of (i) provided the then
outstanding Bonds, if any, and all obligations of MP-LLC under the Bonds and the
related Indentures have been indefeasibly and fully satisfied, the sale or other
final disposition by the Business Trustee of all property constituting part of
the Trust Estate and the final distribution by the Business Trustee of all
monies or other property or proceeds constituting part of the Trust Estate in
accordance with Article 4, or (ii) twenty-one (21) years less one (1) day after
the death of the last survivor of the descendants living on the date of
this Agreement of Xxxxxx X. Xxxxxxx, father of President Xxxx X. Xxxxxxx, but if
any trusts, rights, privileges or options shall be or become valid under
applicable law for a period subsequent to the twenty-first anniversary of the
death of the last such survivor (or, without limiting the generality of the
foregoing, if legislation shall become effective providing for the validity or
permitting the effective grant of such trusts, rights, privileges and options
for a period in gross exceeding the period for which such trusts, rights,
privileges and options are hereinabove stated to extend and be valid), then such
trusts, rights, privileges and options shall not terminate as aforesaid but
shall extend to and continue in effect, but only if such non-termination and
extension shall then be valid under applicable law, until such time as the same
shall under applicable law cease to be valid, or (iii) the election of the Owner
by notice to the Business Trustee to revoke the trusts created hereby, if such
notice shall be accompanied by the written agreement of the Owner assuming all
the obligations of the Trust under or contemplated by the Operative Documents
and all other obligations of the Trust incurred by the Business Trustee as a
trustee hereunder. Notwithstanding the foregoing or any other provision hereof,
to the fullest extent permitted by law, no such election shall be effective and
this Agreement shall not be terminated (A) if such election or termination is
made in contravention of the Operative Documents, or (B) until payment in full
of all the obligations of MP-LLC under the Bonds and related Indentures;
otherwise this Agreement and the trusts created hereby shall continue in full
force and effect in accordance with the terms hereof. Upon such termination, all
monies or other property or proceeds constituting part of the Trust Estate shall
be distributed in accordance with the terms of Article 4. Upon the termination
of the Trust pursuant to this Article 10, the Business Trustee shall cause a
Certificate of Cancellation to be filed with the Secretary of State of the State
of Delaware.
SECTION 10.2. THE OWNER HAS NO LEGAL TITLE. The Owner shall not have legal
title to any part of the Trust Estate. No transfer, by operation of law or
otherwise, of any right, title or interest of the Owner in and to the Trust
Estate shall operate to terminate this Agreement or the trusts created hereunder
or entitle any successors or transferees of the Owner to an accounting or to the
transfer of legal title to any part of the Trust Estate. The bankruptcy, death
or incapacity of the Owner (or any other beneficiary hereunder, if any) will not
terminate this Agreement, nor entitle such person'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 Estate, nor otherwise effect the
rights, obligations and liabilities of the parties hereto. No Owner Creditor
shall obtain legal title to or exercise legal or equitable remedies with respect
the Trust Estate as a result of the Owner's holding of the beneficial interest
hereunder. No transfer, by operation of law or otherwise, of any right, title
and interest of the beneficial interest hereunder shall operate to terminate
this Agreement or the Trust created hereby.
SECTION 10.3. ASSIGNMENT, SALE, ETC. OF TRUST ESTATE. Any assignment, sale,
transfer or other conveyance of any portion of the Trust Estate by the Business
Trustee pursuant to the terms hereof shall bind the Owner and shall be effective
to transfer or convey all right, title and interest of the Trust and the Owner
in and to such property. No purchaser or other grantee shall be required to
inquire as to the authorization, necessity, expediency or regularity of such
assignment, sale, transfer or conveyance or as to the application of any sale or
other proceeds with respect thereto by the Business Trustee.
SECTION 10.4. TRUST AGREEMENT FOR BENEFIT OF PARTIES ONLY. Nothing herein,
whether express or implied, shall be construed to give any other Person other
than the Trustee and the Owner any legal or equitable right, remedy or claim
under or in respect of this Agreement; but this Agreement shall be held to be
for the sole and exclusive benefit of the Trustee and the Owner.
SECTION 10.5. NOTICES. Unless otherwise expressly specified or permitted by
the terms hereof, any notice, request, demand, or other communications to be
delivered under or in connection with this Agreement shall be given in writing
and delivered by either (a) personal delivery, (b) facsimile transmission (with
a copy to follow in the manner set forth in the following clause (c)), (c)
certified or registered mail, with postage prepaid and return receipt requested,
or (d) an overnight delivery service of general commercial use (such as UPS,
Federal Express, DHL, U.S.P.S. Express Mail, or Airborne) addressed as follows:
(i) if to the Delaware Trustee or the Independent Trustee, addressed
to it at its office at:
Wilmington Trust Company
One Xxxxxx Square
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust
Administration
Telephone Number: (302) ________
Facsimile Number: (302) ________
(ii) if to the Special Trustee, addressed to it at:
Xxxxx X. Xxxxxx
0000 Xxx Xxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone Number: (000) 000-0000
Facsimile Number: (704) ________
(iii) if to the Business Trustee, addressed to it at:
Xxxx X. Xxxx
c/o NationsBank, N.A.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000-0000
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
(iv) if to the Owner, addressed to it at:
NationsBank, N.A., 000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: _______________ Telephone
Number: (704) _________
Facsimile Number: (704) _________
with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: A. Xxxxxx Xxxxx XX, Esq.
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
or to such other address or facsimile number as such party may hereafter specify
for such purposes by notice to the other party. Each such notice, request,
demand, or other communication shall be deemed to have been duly given and be
effective (i) if given by personal delivery, then when actually delivered to the
party to whom it is addressed, (ii) if given by facsimile, then when such
facsimile is transmitted, without error, to the facsimile number specified in
this Section, or (iii) if given by any other means, then when actually delivered
to the address specified in accordance with this Section.
SECTION 10.6. SEVERABILITY. Any provision hereof 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.
SECTION 10.7. WAIVERS. No term or provision hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing entered
into in compliance with the terms of Article 10; and any waiver of the terms
hereof shall be effective only in the specified instance and for the specific
purpose given. No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights and remedies
provided by law.
SECTION 10.8. COUNTERPARTS. This Agreement may be executed by the parties
hereto in any number of separate counterparts, each of which when so executed
and delivered shall be an original, but all of such counterparts together shall
constitute but one and the same instrument.
SECTION 10.9. BINDING EFFECT. All covenants and agreements contained herein
shall be binding upon, and inure to the benefit of, the Trustees, and their
respective successors and permitted assigns, and the Owner, and its successors
and its permitted assigns. Any request, notice, direction, consent, waiver or
other instrument or action by the Owner shall bind its successors and permitted
assigns.
SECTION 10.10. HEADINGS. The headings of the various Articles, Sections and
paragraphs herein are for convenience of reference only and shall not alter,
modify, define or limit, or be used in construing or interpreting, any of the
terms or provisions hereof.
SECTION 10.11. GOVERNING LAW. This Agreement and the rights and obligations
of the parties hereunder shall in all respects be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, including all
matters of construction, validity and performance, with giving effect to such
state's principles of conflicts of law.
SECTION 10.12. AMENDMENT. Except as otherwise set forth herein, this
Agreement may not be amended, changed or modified except pursuant to a writing
duly executed by both parties.
SECTION 10.13. ASSIGNMENT. Except as otherwise set forth herein, this
Agreement and its rights and obligations may not be assigned by any party hereto
without the prior written consent of the other parties hereto.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK - SIGNATURE PAGE FOLLOWS)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective duly authorized officers as of the day and
year first written above.
OWNER:
NATIONSBANK, N.A.
By: /s/ Xxxxx X. Xxxxx
--------------------------
Name:
Title:
DELAWARE TRUSTEE & INDEPENDENT TRUSTEE:
WILMINGTON TRUST COMPANY
By: /s/ Xxxxx Xxxxxx
--------------------------
Name: Xxxxx Xxxxxx
Title: Administrative
Account Manager
SPECIAL TRUSTEE:
/s/ Xxxxx X. Xxxxxx
-----------------------------
XXXXX X. XXXXXX
BUSINESS TRUSTEE:
/s/ Xxxx X. Xxxx
-----------------------------
XXXX X. XXXX
EXHIBIT A
TO THE
TRUST AGREEMENT
OF
MAIN PLACE TRUST
(DATED AS OF DECEMBER 14, 1998)
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement") is dated as of
December __, 1998, by NATIONSBANK, N.A (the "Assignor") and MAIN PLACE Trust, a
Delaware business trust (the "Assignee").
WHEREAS, Assignor is the sole member of Main Place Funding, LLC, a Delaware
limited liability company formerly known as Main Place Holdings, LLC (the
"LLC"), and, in accordance with the Limited Liability Company Agreement of the
LLC dated as of October 15, 1998 (the "LLC Agreement"), Assignor holds a 100%
membership interest in the LLC (the "LLC Interest").
WHEREAS, Assignee is a newly-formed Delaware business trust and has not
conducted any business or operations, or acquired any assets.
WHEREAS, Assignor desires to transfer, as a capital contribution, in
exchange for all of the equity interests in Assignee one percent (1%) of its LLC
Interest (the "Transferred Interest") to Assignee, and Assignee desires to
accept the Transferred Interest on the terms set forth below.
NOW THEREFORE, in consideration of the premises and covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, each of the parties hereto hereby agrees as
follows:
1. Assignor hereby transfers, assigns, sells, grants and conveys unto
Assignee, its successors and assigns, all of the rights, title and interest of
Assignor in, to and under the Transferred Interest. This transfer and assignment
is made without representation or warranty except as set forth in this
Agreement.
2. Assignee hereby affirms and accepts all the terms, conditions and
provisions of the LLC Agreement and agrees to be bound by and to the same, and
Assignee's execution of this Agreement shall be deemed to constitute Assignee's
execution of a counterpart signature page to the LLC Agreement.
3. Assignor represents and warrants that (a) it is the sole owner of
the Transferred Interest, and owns the Transferred Interest free and clear of
any lien, encumbrance or security interest, and (b) it has not assigned any or
all of its rights, title or interest in the Transferred Interest to any other
person or entity.
4. The terms of this Agreement shall be binding upon and shall inure to
the benefit of the Assignor, the Assignee and their respective successors and
assigns. All representations and warranties made herein shall survive the
execution and delivery of this Agreement.
5. This Agreement constitutes the complete agreement of the parties
hereto with respect to the subject matter referred to herein and supersedes all
prior or contemporaneous negotiations, promises, covenants, agreements or
representations of every nature whatsoever with respect thereto, all of which
have become merged and finally integrated into this Agreement. This Agreement
may not be amended, modified or supplemented except by an instrument in writing
executed by both parties hereto.
6. This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware, without giving effect to the
conflicts of law provisions thereof.
7. This Agreement may be executed in multiple counterparts, each one of
which shall constitute an original executed copy of this Agreement.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK - SIGNATURE PAGE FOLLOWS)
IN WITNESS WHEREOF, each of the undersigned has executed and delivered this
Agreement as of the date first above written.
NATIONSBANK, N.A.
By:__________________________
Name:
Title:
MAIN PLACE TRUST
By:__________________________
Name:
Title:
The undersigned, being the sole member and sole manager of Main Place
Funding, LLC (the "LLC"), hereby admits Main Place Trust as a member of the LLC.
Dated: December __, 1998 NATIONSBANK, N.A.
By:__________________________
Name:
