Exhibit 99.f.4
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EXECUTION COPY
TRUST AGREEMENT
Between
MCG FINANCE CORPORATION II,
as Depositor
and
Wilmington Trust Company,
as Owner Trustee
Dated as of June 1, 2000
MCG MASTER TRUST
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TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions............................................................................ 1
SECTION 1.02. Rules of Construction.................................................................. 1
ARTICLE II
ORGANIZATION
SECTION 2.01. Name................................................................................... 2
SECTION 2.02. Office................................................................................. 2
SECTION 2.03. Purposes and Powers.................................................................... 2
SECTION 2.04. Appointment of Owner Trustee........................................................... 3
SECTION 2.05. Initial Capital Contribution of Owner Trust Estate..................................... 3
SECTION 2.06. Declaration of Trust................................................................... 3
SECTION 2.07. Liability of the Certificateholders.................................................... 4
SECTION 2.08. Title to Trust Property................................................................ 4
SECTION 2.09. Situs of Trust......................................................................... 4
SECTION 2.10. Representations and Warranties of the Depositor and the Sponsor........................ 4
SECTION 2.11. Federal Income Tax Allocations......................................................... 5
SECTION 2.12. Covenant of Certificateholders......................................................... 5
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.01. Initial Ownership...................................................................... 5
SECTION 3.02. The Certificates....................................................................... 5
SECTION 3.02A. The Transferor Interest............................................................... 6
SECTION 3.03. Authentication of Certificates......................................................... 6
SECTION 3.03A. Authentication of Transferor Interest................................................. 6
SECTION 3.04 Registration of Transfer and Exchange of Certificates and Transferor Interest.......... 7
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen Certificates and Transferor Interest.............. 8
SECTION 3.06. Persons Deemed Owners.................................................................. 8
SECTION 3.07. Access to List of Certificateholders' Names and Addresses.............................. 8
SECTION 3.08. Maintenance of Office or Agency........................................................ 9
SECTION 3.09. Appointment of Paying Agent.................................................................. 9
SECTION 3.10. Transfer Restrictions........................................................................ 10
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.01. Prior Notice to and Consent by Certificateholders with Respect to Certain Matters............ 11
SECTION 4.02. Action by Certificateholders with Respect to Certain Matters................................. 12
SECTION 4.03. Action by Certificateholders with Respect to Bankruptcy...................................... 12
SECTION 4.04. Restrictions on Certificateholders' Power.................................................... 13
SECTION 4.05. Majority Control............................................................................. 13
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.01. Establishment of Trust Account................................................................ 13
SECTION 5.02. Application of Trust Funds.................................................................... 13
SECTION 5.03. Method of Payment............................................................................ 14
SECTION 5.04. No Segregation of Moneys; No Interest........................................................ 14
SECTION 5.05. Accounting and Reports to the Certificateholders, the Internal
Revenue Service and Others............................................................... 14
SECTION 5.06. Signature on Returns; Tax Matters Partner.................................................... 14
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.01. General Authority............................................................................ 15
SECTION 6.02. General Duties............................................................................... 15
SECTION 6.03. Action upon Instruction...................................................................... 15
SECTION 6.04. No Duties Except as Specified in this Agreement or in Instructions........................... 16
SECTION 6.05. Restrictions................................................................................. 17
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.01. Acceptance of Trusts and Duties.............................................................. 17
SECTION 7.02. Furnishing of Documents...................................................................... 18
SECTION 7.03. Representations and Warranties............................................................... 18
SECTION 7.04. Reliance; Advice of Counsel................................................................. 18
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SECTION 7.05. Not Acting in Individual Capacity.................................................... 19
SECTION 7.06. Owner Trustee Not Liable for Certificates or Commercial Loans........................ 19
SECTION 7.07. Owner Trustee May Own Certificates and Notes......................................... 20
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.01. Owner Trustee's Fees and Expenses.................................................... 20
SECTION 8.02. Indemnification...................................................................... 20
SECTION 8.03. Payments to the Owner Trustee........................................................ 21
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.01. Termination of Trust Agreement....................................................... 21
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.01. Eligibility Requirements for Owner Trustee........................................... 22
SECTION 10.02. Resignation or Removal of Owner Trustee.............................................. 22
SECTION 10.03. Successor Owner Trustee.............................................................. 23
SECTION 10.04. Merger or Consolidation of Owner Trustee............................................. 23
SECTION 10.05. Appointment of Co-Trustee or Separate Trustee........................................ 23
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Supplements and Amendments........................................................... 25
SECTION 11.02. No Legal Title to Owner Trust Estate in Certificateholders........................... 26
SECTION 11.03. Limitations on Rights of Others...................................................... 26
SECTION 11.04. Notices.............................................................................. 26
SECTION 11.05. Severability......................................................................... 27
SECTION 11.06. Separate Counterparts................................................................ 27
SECTION 11.07. Successors and Assigns............................................................... 27
SECTION 11.08. No Petition.......................................................................... 27
SECTION 11.09. No Recourse.......................................................................... 27
SECTION 11.10. Headings............................................................................. 27
SECTION 11.11. Governing Law........................................................................ 27
SECTION 11.12. Third Party Rights................................................................... 28
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EXHIBIT A-1 Form of Certificate
EXHIBIT A-2 Form of Transferor Interest
EXHIBIT B Form of Certificate of Trust
EXHIBIT C Form of Purchaser's Representation Letter
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TRUST AGREEMENT (the "Trust Agreement" or this "Agreement") dated as
of June 1, 2000, between MCG FINANCE CORPORATION II, a Delaware
corporation, as depositor (the "Depositor"), and Wilmington Trust Company,
a Delaware banking corporation (in its individual capacity, together with
its successors and assigns, the "Trust Company"), as owner trustee (solely
in such capacity, the "Owner Trustee"). The Owner Trustee is executing this
Trust Agreement on June 16, 2000 and this Trust Agreement is effective vis-
a-vis the Trust as of such date.
In consideration of the premises and the mutual agreements herein
contained, the Depositor and the Owner Trustee hereby agree as follows:
ARTICLE I
Definitions
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SECTION 1.01. Definitions. For all purposes of the Trust Agreement, except
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as otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms used but not otherwise defined herein shall have the meanings
assigned to such terms in Appendix A to the Sale and Servicing Agreement dated
as of June 1, 2000 (the "Sale and Servicing Agreement") among MCG Finance
Corporation II, as Seller, MCG Credit Corporation, as an Originator and as the
Servicer, and MCG Master Trust, as amended or supplemented from time to time,
which capitalized terms are incorporated by reference herein. All other
capitalized terms used herein shall have the meanings specified herein.
SECTION 1.02. Rules of Construction. Unless the context otherwise
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requires:
(a) All terms defined in the Trust Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used in the Trust Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in the Trust Agreement or in any such certificate or other document, and
accounting terms partly defined in the Trust Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in the Trust
Agreement or in any such certificate or other document are inconsistent with the
meanings of such terms under generally accepted accounting principles, the
definitions contained in the Trust Agreement or in any such certificate or other
document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar import
when used in the Trust Agreement shall refer to the Trust Agreement as a whole
and not to any particular provision of this Trust Agreement; Section and Exhibit
references contained in the Trust
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Agreement are references to Sections and Exhibits in or to the Trust Agreement
unless otherwise specified; and the term "including" shall mean "including
without limitation".
(d) The definitions contained in the Trust Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
ARTICLE II
Organization
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SECTION 2.01. Name. The Trust shall be known as "MCG Master Trust," in
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which name the Trust shall have power and authority and is hereby authorized and
empowered, without the need for further action on the part of the Trust, and the
Owner Trustee shall have power and authority, and is hereby authorized and
empowered, to conduct the business of the Trust, make and execute contracts and
other instruments on behalf of the Trust and xxx and be sued.
SECTION 2.02. Office. The office of the Trust shall be in care of the
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Owner Trustee at the Corporate Trust Office or at such other address in Delaware
as the Owner Trustee may designate by written notice to the Certificateholders
and the Depositor. The Trust shall constitute a business trust within the
meaning of Section 3801(a) of the Delaware Business Trust Act for which the
Owner Trustee has filed a certificate of trust with the Secretary of State of
the State of Delaware pursuant to Section 3810(a) of the Delaware Business Trust
Act. The execution and filing of the certificate of trust by the Owner Trustee
is hereby ratified, authorized, and approved. The Owner Trustee shall have
power and authority, and is hereby authorized and empowered, to execute and file
with the Secretary of State of the State of Delaware (the "Secretary of State")
any other certificate required or permitted under the Delaware Business Trust
Act to be filed with the Secretary of State. It is the intention of the parties
hereto that the Trust Agreement constitute the governing instrument of such
business trust.
SECTION 2.03. Purposes and Powers. The purpose of the Trust is, and the
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Trust shall have the power and authority and is hereby authorized and empowered,
without the need for further action on the part of the Trust, and the Owner
Trustee shall have power and authority, and is hereby authorized and empowered,
in the name and on behalf of the Trust, to do or cause to be done all acts and
things necessary, appropriate, or convenient to cause the Trust, to engage in
the following activities:
(i) to execute (in the case of the Certificates and the Transferor
Interest), authenticate, deliver, and issue from time to time the Notes
pursuant to the Indenture and
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the Certificates and the Transferor Interest pursuant to this Trust
Agreement and, if applicable, a supplement hereto, and to sell the Notes
and to transfer the Certificates and the Transferor Interest pursuant to
such agreements and the other Basic Documents;
(ii) with the proceeds of the sale of the Notes to purchase the
Commercial Loans, to pay the organizational, start-up and transactional
expenses of the Trust and to pay the balance to the Depositor pursuant to
the Sale and Servicing Agreement;
(iii) to assign, grant, transfer, pledge, mortgage, convey, grant a
security interest in the Trust Fund pursuant to the Indenture and to hold,
manage, transfer and distribute to the Certificateholders and the holder of
the Transferor Interest pursuant to the terms of this Trust Agreement and
the Sale and Servicing Agreement any portion of the Trust Fund released
from the lien of, and remitted to the Trust pursuant to, the Indenture;
(iv) to enter into, execute, deliver and perform its obligations
under the Basic Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation of
the Owner Trust Estate and the making of distributions to the
Certificateholders, the Noteholders, the holder of the Transferor Interest
and others specified in the Basic Documents.
The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing or
other than as required or authorized by the terms of this Agreement or the other
Basic Documents.
SECTION 2.04. Appointment of Owner Trustee. The Depositor hereby appoints
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the Owner Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
SECTION 2.05. Initial Capital Contribution of Owner Trust Estate. The
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Depositor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $1.00. The Owner Trustee hereby
acknowledges receipt from the Depositor, as of the date hereof, of the foregoing
contribution, which shall constitute the initial Owner Trust Estate. The
Depositor shall pay organizational expenses of the Trust as they may arise or
shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
SECTION 2.06. Declaration of Trust. The Owner Trustee hereby declares that
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it will hold the Owner Trust Estate upon and subject to the conditions set forth
herein for the use and benefit of the Certificateholders, subject to the
obligations of the Trust under the Basic Documents. It is the intention of the
parties hereto that the Trust constitute a business trust under the Business
Trust Statute and that the Trust Agreement constitute the governing instrument
of such business trust. It
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is the intention of the parties hereto that, solely for federal income tax
purposes, the Trust shall be treated as a partnership for federal income tax
purposes. The parties agree that, unless otherwise required by appropriate tax
authorities, the Trust will file or cause to be filed annual or other necessary
returns, reports and other forms consistent with the characterization of the
Trust as a partnership for such tax purposes. Effective as of the date hereof,
the Owner Trustee shall have all rights, powers and authority set forth herein
and in the Business Trust Statute with respect to accomplishing the purposes of
the Trust.
SECTION 2.07. Liability of the Certificateholders. No Certificateholder
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or holder of the Transferor Interest, other than as set forth in Section 2.05,
shall have any personal liability for any liability or obligation of the Trust.
SECTION 2.08. Title to Trust Property. Legal title to all the Owner Trust
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Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Owner Trust Estate to be vested in a trustee or trustees, in which case
title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
SECTION 2.09. Situs of Trust. The Trust will be located and administered
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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 or the States of
Minnesota, North Carolina or Virginia. The Trust shall not have any employees
in any state other than Delaware; provided, however, that nothing herein shall
restrict or prohibit the Owner Trustee from having employees within or without
the State of Delaware. Payments will be received by the Trust only in Delaware,
Minnesota or North Carolina, and payments will be made by the Trust only from
Delaware, Minnesota or North Carolina. The only office of the Trust will be at
the Corporate Trust Office in Delaware.
SECTION 2.10. Representations and Warranties of the Depositor. The
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Depositor hereby represents and warrants to the Owner Trustee that:
(a) The Depositor is duly organized and validly existing as a
corporation in good standing under the laws of the State of Delaware, with
power and authority to own its properties and to conduct its business as
such properties are currently owned and such business is presently
conducted.
(b) The Depositor has the power and authority to execute and deliver
this Agreement and to carry out its terms; the Depositor has full power and
authority to sell and assign the property to be sold and assigned to and
deposited with the Trust and the Depositor has duly authorized such sale
and assignment and deposit to the Trust by all necessary corporate action;
and the execution, delivery and performance of this Agreement have been
duly authorized by the Depositor by all necessary corporate action.
(c) This Agreement constitutes a legal, valid and binding obligation
of the Depositor enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization and similar laws relating
to creditors' rights generally and creditors of national banking
associations and subject to general principles of equity.
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(d) The consummation of the transactions contemplated by this Trust
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time) a default under, the Certificate
of Incorporation or bylaws of the Depositor, or any material indenture,
agreement or other material instrument to which the Depositor is a party or
by which it is bound; nor result in the creation or imposition of any Lien
upon any of the properties of the Depositor pursuant to the terms of any
such indenture, agreement or other instrument (other than pursuant to the
Basic Documents); nor violate any law or, to the best of the Depositor's
knowledge, any order, rule or regulation applicable to the Depositor of any
court or of any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the Depositor
or its properties.
(e) To the Depositor's best knowledge, there are no proceedings or
investigations pending or threatened before any court, regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties: (A) asserting the
invalidity of the Trust Agreement, (B) seeking to prevent the consummation
of any of the transactions contemplated by the Trust Agreement or (C)
seeking any determination or ruling that might materially and adversely
affect the performance by the Depositor of its obligations under, or the
validity or enforceability of, the Trust Agreement.
SECTION 2.11. Federal Income Tax Allocations. Net income of the Trust for
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any month as determined for federal income tax purposes (and each item of
income, gain, loss, credit and deduction entering into the computation thereof)
shall be allocated to the Certificateholders, pro rata based upon their
Percentage Interests.
SECTION 2.12. Covenant of Certificateholders. Each Certificateholder
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agrees to be bound by the terms and conditions of the Certificates and of the
Trust Agreement, including any supplements or amendments hereto and to perform
the obligations of a Certificateholder as set forth therein or herein, in
respects as if it were a signatory hereto. This undertaking is made for the
benefit of the Trust, the Owner Trustee, the Trust Company, the Paying Agent and
all other Certificateholders present and future.
ARTICLE III
Certificates and Transfer of Interests
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SECTION 3.01. Initial Ownership. Upon the formation of the Trust by the
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contribution by the Depositor pursuant to Section 2.05 and until the issuance of
the Certificates, the Depositor shall be the sole beneficiary of the Trust.
SECTION 3.02. The Certificates. The Certificates shall be substantially
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in the form set forth in Exhibit A-1 hereto, with such charges as may be
specified in a supplement to this Trust Agreement. Except as otherwise set
forth in a supplement to this Trust Agreement, the Certificates shall be issued
from time to time in minimum Percentage Interests of 10% and integral multiples
of
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1% in excess thereof; provided, however, that one Certificate may be issued
in a different denomination. The Certificates shall be executed on behalf of
the Trust by manual or facsimile signature of an authorized officer of the Owner
Trustee or the Certificate Registrar. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefit of the Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of authentication and delivery of such
Certificates.
A transferee of a Certificate shall become a Certificateholder and shall be
entitled to the rights and subject to the obligations of a Certificateholder
hereunder upon such transferee's acceptance of a Certificate duly registered in
such transferee's name pursuant to Section 3.04.
SECTION 3.02A. The Transferor Interest. The Transferor Interest shall be
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substantially in the form set forth in Exhibit A-2 hereto. The Transferor
Interest shall be issued as, and shall at all times remain, a single certificate
representing the entire Transferor Interest. The Transferor Interest shall be
executed on behalf of the Trust by manual or facsimile signature of an
authorized officer of the Owner Trustee or the Certificate Registrar. The
Transferor Interest bearing the manual or facsimile signatures of individuals
who were, at the time when such signatures shall have been affixed, authorized
to sign on behalf of the Trust, shall be validly issued and entitled to the
benefit of the Trust Agreement, notwithstanding that such individuals or any of
them shall have ceased to be so authorized prior to the authentication and
delivery of such Transferor Interest or did not hold such offices at the date of
authentication and delivery of such Transferor Interest.
A transferee of a Transferor Interest shall become a holder of the
Transferor Interest and shall be entitled to the rights and subject to the
obligations of a holder of the Transferor Interest hereunder upon such
transferee's acceptance of a Transferor Interest duly registered in such
transferee's name pursuant to Section 3.04.
SECTION 3.03. Authentication of Certificates. Concurrently with the
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initial transfer of the Commercial Loans to the Trust pursuant to the Sale and
Servicing Agreement, the Trust shall issue the Certificates, in an aggregate
Percentage Interest equal to 100%, executed by the Owner Trustee or the
Certificate Registrar on behalf of the Trust, authenticated and delivered to or
upon the written order of the Depositor, signed by its chairman of the board,
its president, any vice president, secretary or any assistant treasurer, without
further corporate action by the Depositor, in authorized denominations. No
Certificate shall entitle its Holder to any benefit under this Agreement or be
valid for any purpose unless there shall appear on such Certificate a
certificate of authentication substantially in the form set forth in Xxxxxxx X-
0, executed by the Owner Trustee or the Certificate Registrar, by manual
signature; such authentication shall constitute conclusive evidence that such
Certificate has been duly and validly authorized, issued, authenticated and
delivered hereunder and, subject to the terms of this Agreement, fully paid and
non-assessable. All Certificates shall be dated the date of their
authentication.
SECTION 3.03A. Authentication of Transferor Interest. Concurrently with
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the initial transfer of the Commercial Loans to the Trust pursuant to the Sale
and Servicing Agreement, the
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Trust shall issue the Transferor Interest, executed by the Owner Trustee or the
Certificate Registrar on behalf of the Trust, authenticated and delivered to the
Depositor, signed by its chairman of the board, its president, any vice
president, secretary or any assistant treasurer, without further corporate
action by the Depositor. No Transferor Interest shall entitle its holder to any
benefit under this Agreement or be valid for any purpose unless there shall
appear on such Transferor Interest a certificate of authentication substantially
in the form set forth in Exhibit A-2, executed by the Owner Trustee or the
Certificate Registrar, by manual signature; such authentication shall constitute
conclusive evidence that such Transferor Interest has been duly and validly
authorized, issued, authenticated and delivered hereunder and, subject to the
terms of this Agreement, fully paid and non-assessable. The Transferor Interest
shall be dated the date of its authentication.
SECTION 3.04. Registration of Transfer and Exchange of Certificates and
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Transferor Interest. The Certificate Registrar shall keep or cause to be kept,
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at the office or agency maintained pursuant to Section 3.08, a Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Certificate Registrar shall provide for the registration of Certificates and
the Transferor Interest and, subject to Section 3.10 hereof, of transfers and
exchanges of Certificates and the Transferor Interest as herein provided. The
Indenture Trustee shall be the initial Certificate Registrar. Promptly upon
written request therefor from the Owner Trustee, the Certificate Registrar shall
provide to the Owner Trustee in writing such information regarding or contained
in the Certificate Register as the Owner Trustee may reasonably request. The
Owner Trustee shall be entitled to rely (and shall be fully protected in
relying) on such information.
Upon surrender for registration of transfer of any Certificate or the
Transferor Interest at the office or agency maintained pursuant to Section 3.08,
the Owner Trustee, or the Certificate Registrar on its behalf, shall execute,
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates or the Transferor Interest in
authorized denominations of a like aggregate amount dated the date of
authentication by the Owner Trustee or any authenticating agent. At the option
of a Certificateholder, Certificates may be exchanged for other Certificates of
authorized denominations of a like aggregate amount upon surrender of the
Certificates to be exchanged at the office or agency maintained pursuant to
Section 3.08.
Every Certificate or Transferor Interest presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the registered Certificateholder or
holder of the Transferor Interest or such registered Certificateholder's or
holder of the Transferor Interest's attorney duly authorized in writing. Each
Certificate or Transferor Interest surrendered for registration of transfer or
exchange shall be cancelled and subsequently disposed of by the Owner Trustee in
accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Certificates or the Transferor Interest, but the Owner Trustee or
the Certificate Registrar may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any transfer
or exchange of Certificates or the Transferor Interest.
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SECTION 3.05. Mutilated, Destroyed, Lost or Stolen Certificates and
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Transferor Interest. If (a) any mutilated Certificate or Transferor Interest
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shall be surrendered to the Certificate Registrar, or if the Certificate
Registrar and the Owner Trustee shall receive evidence to its satisfaction of
the destruction, loss or theft of any Certificate or Transferor Interest, and
(b) there shall be delivered to the Certificate Registrar, the Trust Company and
the Owner Trustee such security or indemnity as may be required by them to save
each of them harmless, then in the absence of notice to the Trust that such
Certificate or Transferor Interest has been acquired by a protected purchaser,
the Owner Trustee or the Certificate Registrar on behalf of the Trust shall
execute and the Owner Trustee or the Certificate Registrar shall authenticate
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate or Transferor Interest, a new Certificate or Transferor
Interest of like tenor and denomination. The Holder of such Certificate or
Transferor Interest shall pay the reasonable expenses and charges of the
Certificate Registrar, the Owner Trustee and Trust Company in connection
therewith. In connection with the issuance of any new Certificate or Transferor
Interest under this Section, the Owner Trustee or the Certificate Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith. Any duplicate Certificate
or Transferor Interest issued pursuant to this Section shall constitute
conclusive evidence of ownership of a beneficial interest in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Certificate or
Transferor Interest shall be found at any time.
SECTION 3.06. Persons Deemed Owners. Prior to due presentation of a
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Certificate or Transferor Interest for registration of transfer, the Owner
Trustee, the Certificate Registrar or any Paying Agent or other agent thereof
may treat the Person in whose name any Certificate or Transferor Interest is
registered in the Certificate Register as the owner of such Certificate or
Transferor Interest for the purpose of receiving distributions pursuant to
Section 5.02 and for all other purposes whatsoever, and none of the Owner
Trustee, the Certificate Registrar or any Paying Agent or other agent thereof
shall be bound by any notice to the contrary.
SECTION 3.07. Access to List of Certificateholders' Names and Addresses.
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The Certificate Registrar shall furnish or cause to be furnished to the Paying
Agent, the Owner Trustee, the Servicer and the Depositor, within 10 days after
receipt by the Certificate Registrar of a written request therefor from the
Paying Agent, the Owner Trustee, the Servicer or the Depositor, a list, in such
form as the Paying Agent, the Owner Trustee, the Servicer or the Depositor may
reasonably require, of the names and addresses of the Certificateholders and the
holder of the Transferor Interest as of the most recent Record Date. If three
or more Certificateholders or one or more Holders of Certificates evidencing not
less than 25% of the Percentage Interests apply in writing to the Certificate
Registrar, and such application states that the applicants desire to communicate
with other Certificateholders with respect to their rights under the Trust
Agreement or under the Certificates and such application is accompanied by a
copy of the communication that such applicants propose to transmit, then the
Certificate Registrar shall, within five Business Days after the receipt of such
application, afford such applicants access during normal business hours to the
current list of Certificateholders. Upon receipt of any such application, the
Certificate Registrar will promptly notify the Depositor by providing a copy of
such application and a copy of the list of Certificateholders produced in
response thereto. Each Certificateholder, by receiving and holding a
Certificate, shall be deemed to have agreed not to hold any of the Depositor,
the Certificate
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Registrar, the Trust Company or the Owner Trustee accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.
SECTION 3.08. Maintenance of Office or Agency. The Certificate Registrar
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shall maintain an office or offices or agency or agencies where Certificates or
the Transferor Interest may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Certificate Registrar in
respect of the Certificates, the Transferor Interest and the Basic Documents may
be served. The Certificate Registrar initially designates the office of the
Certificate Registrar at the Corporate Trust Office, as its office for such
purposes. The Certificate Registrar shall give prompt written notice to the
Depositor, any Paying Agent, the Owner Trustee, the Certificateholders and the
holder of the Transferor Interest of any change in the location of the
Certificate Register or any such office or agency.
SECTION 3.09. Appointment of Paying Agent. The Paying Agent shall make
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distributions to Certificateholders from the Certificate Account pursuant to
Section 5.02 and shall report the amounts of such distributions to the Owner
Trustee. Any Paying Agent shall have the revocable power to withdraw funds from
the Certificate Account for the purpose of making the distributions referred to
above. The Owner Trustee may revoke such power and remove the Paying Agent if
the Owner Trustee determines in its sole discretion that the Paying Agent shall
have failed to perform its obligations under the Trust Agreement in any material
respect. The Paying Agent initially shall be Norwest Bank Minnesota, National
Association. Norwest Bank Minnesota, National Association shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Owner Trustee and the
Servicer. In the event that Norwest Bank Minnesota, National Association shall
no longer be the Paying Agent, the Owner Trustee shall appoint a successor to
act as Paying Agent. The Owner Trustee shall cause the Paying Agent and such
successor Paying Agent or any additional Paying Agent appointed by the Owner
Trustee to execute and deliver to the Owner Trustee an instrument in which the
Paying Agent and such successor Paying Agent or additional Paying Agent shall
agree with the Owner Trustee that, as Paying Agent, the Paying Agent and such
successor Paying Agent or additional Paying Agent will hold all sums, if any,
held by it for payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto and the holder of the Transferor Interest
until such sums shall be paid to such Certificateholders. The Paying Agent
shall return all unclaimed funds to the Owner Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Owner Trustee. The provisions of Sections 7.01, 7.04, 7.05, 7.06, 8.01 and
8.02 shall apply to Norwest Bank Minnesota, National Association or the Owner
Trustee also in its role as Paying Agent and Certificate Registrar as if Norwest
Bank Minnesota, National Association and the Owner Trustee were named in such
Sections, for so long as Norwest Bank Minnesota, National Association or the
Owner Trustee shall act as Paying Agent or Certificate Registrar and, to the
extent applicable, to any other paying agent or certificate registrar appointed
hereunder. Any reference in this Agreement to the Paying Agent shall include
any co-paying agent unless the context requires otherwise. Payments to the
holder of the Transferor Interest shall be made pursuant to Section 5.07 of the
Sale and Servicing Agreement.
9
SECTION 3.10. Transfer Restrictions. The Certificates and the Transferor
---------------------
Interest may not be offered, transferred or sold except to the Depositor or an
Affiliate thereof or to institutional "accredited investors" (as defined in Rule
501(a)(1)-(3) or (7) under the Securities Act who are United States persons (as
defined in Section 7701(a)(30) of the Code) in reliance on an exemption from the
registration requirements of the Securities Act.
(a) Neither the Certificates nor the Transferor Interest have been
registered or qualified under the Securities Act, or any state securities law.
No transfer, sale, pledge or other disposition of any Certificate or Transferor
Interest shall be made unless such disposition is made pursuant to an effective
registration statement under the Securities Act and effective registration or
qualification under applicable state securities laws, or is made in a
transaction which does not require such registration or qualification. No
transfer of any Certificates or Transferor Interest shall be made if such
transfer would require the Issuer to register as an "investment company" under
the Investment Company Act. In the event that a transfer is to be made the
transferee shall execute and deliver to the Owner Trustee a certification
substantially in the form of Exhibit C hereto. In the event that such transfer
is to be made in reliance on the availability of an exemption under the
Securities Act, the Owner Trustee may require the prospective transferee to
provide an opinion of counsel satisfactory to it that such transfer may be made
pursuant to an exemption from the Securities Act, which opinion of counsel shall
not be an expense of the Owner Trustee or of the Trust.
(b) Neither the Certificates, the Transferor Interest nor any
beneficial interest in such Certificates or the Transferor Interest may be
acquired by or with the assets of (i) employee benefit plans, retirement
arrangements, individual retirement accounts or Xxxxx plans subject to either
Title I of the Employee Retirement Income Security Act of 1974, as amended, or
Section 4975 of the Code (a "Benefit Plan") or (ii) entities (including
insurance company general accounts) whose underlying assets include plan assets
by reason of the investment by any such plans, arrangements or accounts in such
entities (a "Benefit Plan Investor") and any such purported transfer shall not
be effective. Each transferee of a Certificate or the Transferor Interest shall
be required to represent (a) that it is not a Benefit Plan or Benefit Plan
Investor and is not acquiring such Certificate or the Transferor Interest with
the assets of a Benefit Plan or Benefit Plan Investor and (b) that if such
Certificate or the Transferor Interest is subsequently deemed to be a plan
asset, it will dispose of such Certificate or the Transferor Interest.
(c) Each Certificate and the Transferor Interest will bear the
legends set forth in paragraph 6 of Exhibit C hereto.
(d) The Certificates and the Transferor Interest may not be sold,
pledged, transferred, assigned, have a participation interest sold in such
Certificates and the Transferor Interest or otherwise conveyed, in whole or in
part, without the prior written approval of First Union Securities, Inc. A
legend to such effect shall be placed on the Certificates and the Transferor
Interest.
(e) Notwithstanding any other provision herein or elsewhere, other
than to determine that any certification delivered to the Owner Trustee pursuant
to Section 3.10(a) hereof is substantially in the form of Exhibit C hereto, the
Owner Trustee shall have no obligation to
10
determine whether or not any transfer or exchange or proposed or purported
transfer or exchange of a Certificate or the Transferor Interest is permitted
under or in accordance with this Agreement, and the Owner Trustee shall have no
personal liability to any Person in connection with any transfer or exchange or
proposed or purported transfer or exchange (and/or registration thereof).
ARTICLE IV
Actions by Owner Trustee
------------------------
SECTION 4.01. Prior Notice to and Consent by Certificateholders with
------------------------------------------------------
Respect to Certain Matters. With respect to the following matters, the Trust
--------------------------
shall not take action unless at least five days before the taking of such
action, the Owner Trustee shall have notified the Certificateholders in writing
of the proposed action and the Certificateholders holding a Percentage Interest
of not less than 66% shall not, prior to the fifth day after such notice is
given, have notified the Owner Trustee in writing that such Certificateholders
have withheld consent or provided alternative direction:
(a) the initiation of any material claim or lawsuit by the Trust and the
compromise of any material action, claim or lawsuit brought by or against the
Trust;
(b) the election by the Trust to file an amendment to the Certificate of
Trust (unless such amendment is required to be filed under the Business Trust
Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Certificateholders;
(e) the appointment pursuant to the Indenture of a successor Paying Agent
or Indenture Trustee or pursuant to the Trust Agreement of a successor
Certificate Registrar, or the consent to the assignment by the Paying Agent or
Indenture Trustee or Certificate Registrar of its obligations under the
Indenture or the Trust Agreement, as applicable;
(f) the consent to the calling or waiver of any Event of Default of any
Basic Document;
(g) the consent to the assignment of the Indenture Trustee or Servicer of
their respective obligations under any Basic Document;
(h) except as provided in Article IX hereof, the dissolution, termination
or liquidation of the Trust in whole or in part;
(i) the merger or consolidation of the Trust with or into any other entity,
or conveyance or transfer of all or substantially all of the Trust's assets to
any other entity;
11
(j) the incurrence, assumption or guaranty by the Trust of any indebtedness
other than as set forth in this Agreement or the Basic Documents;
(k) the doing of any act which would make it impossible to carry on the
ordinary business of the Trust as described in Section 2.03 hereof;
(l) the confession of a judgment against the Trust;
(m) the possession of Trust assets, or assignment of the Trust's right to
property, for other than a purpose permitted under Section 2.03;
(n) the lending by the Trust of any funds to any entity;
(o) the change in the Trust's purpose and powers from those set forth in
the Trust Agreement; or
(p) the removal or replacement of the Servicer or the Indenture Trustee.
In addition, the Trust shall not commingle its assets with those of any
other entity. The Trust shall maintain its financial and accounting books and
records separate from those of any other entity. Except as expressly set forth
herein, the Trust shall pay its indebtedness, operating expenses and liabilities
from its own funds, and the Trust shall not pay the indebtedness, operating
expenses and liabilities of any other entity.
SECTION 4.02. Action by Certificateholders with Respect to Certain
----------------------------------------------------
Matters. The Trust shall not have the power, (a) except upon the written
-------
direction of the Certificateholders and, so long as the Series 2000-1, Class A
Notes are Outstanding, with the written consent of First Union Securities, Inc.,
to remove the Servicer under the Sale and Servicing Agreement pursuant to 9.01
thereof or (b) except upon the written direction of the Certificateholders and
as expressly provided in the Basic Documents, to sell the Commercial Loans after
the termination of the Indenture. The Trust shall take the actions referred to
in the preceding sentence only upon written instructions signed by the
Certificateholders.
SECTION 4.03. Action by Certificateholders with Respect to Bankruptcy.
-------------------------------------------------------
The Trust shall not have the power, without the unanimous prior written approval
of the Certificateholders and, so long as the Series 2000-1, Class A Notes are
Outstanding, with the written consent of First Union Securities, Inc., and to
the extent otherwise consistent with the Basic Documents, to (i) institute
proceedings to have the Trust declared or adjudicated a bankruptcy or insolvent,
(ii) consent to the institution of bankruptcy or insolvency proceedings against
the Trust, (iii) file a petition or consent to a petition seeking reorganization
or relief on behalf of the Trust under any applicable federal or state law
relating to bankruptcy, (iv) consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or any similar official) of the
Trust or a substantial portion of the property of the Trust, (v) make any
assignment for the benefit of the Trust's creditors, (vi) cause the Trust to
admit in writing its inability to pay its debts generally as they become due,
(vii) take any action, or cause the Trust to take any action, in furtherance of
any of the foregoing (any of the above, a "Bankruptcy Action"). So long as the
Indenture remains in effect, no Certificateholder shall have
12
the power to take and shall not take, any Bankruptcy Action with respect to the
Trust or direct the Owner Trustee to take any Bankruptcy Action with respect to
the Trust.
SECTION 4.04. Restrictions on Certificateholders' Power. The
-----------------------------------------
Certificateholders shall not direct the Owner Trustee to take or to refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under the Trust Agreement or any of the Basic
Documents or would cause a violation of any of the Basic Documents or would be
contrary to or inconsistent with Section 2.03, nor shall the Owner Trustee be
obligated to follow any such direction, if given.
SECTION 4.05. Majority Control. Except as expressly provided herein or in
----------------
any supplement to this Trust Agreement, any action or direction that may be
taken or given by the Certificateholders under the Trust Agreement may not be
taken or given unless agreed to by the Holders of Certificates evidencing not
less than a majority of the aggregate Percentage Interest. Except as expressly
provided herein or in any supplement to this Trust Agreement, any written notice
of the Certificateholders delivered pursuant to the Trust Agreement shall be
effective if signed by Certificateholders holding Certificates evidencing not
less than a majority of the aggregate Percentage Interest at the time of the
delivery of such notice.
ARTICLE V
Application of Trust Funds; Certain Duties
------------------------------------------
SECTION 5.01. Establishment of Trust Account. For the benefit of the
------------------------------
Certificateholders, the Paying Agent shall establish and maintain in the name of
the Trust a segregated account with the Indenture Trustee (the "Certificate
Account"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Certificateholders.
SECTION 5.02. Application of Trust Funds. (a) On each Remittance Date,
--------------------------
the Paying Agent shall distribute to the Certificateholders, pro rata based on
their respective Percentage Interests, the amounts deposited in the Certificate
Account received from the Indenture Trustee pursuant to each Terms Supplement.
(b) On each Remittance Date, the Indenture Trustee shall, or shall cause
the Paying Agent to, send to each Certificateholder the statement or statements
provided to the Indenture Trustee by the Servicer pursuant to each Terms
Supplement with respect to such Remittance Date.
(c) In the event that any withholding tax is imposed on the Trust's payment
(or allocations of income) to a Certificateholder, such tax shall reduce the
amount otherwise distributable to the Certificateholder in accordance with this
Section. The Paying Agent is hereby authorized and directed to retain from
amounts otherwise distributable to the Certificateholders sufficient funds for
the payment of any tax that is legally owed by the Trust (but such authorization
shall not prevent the Owner Trustee or the Paying Agent from contesting any such
tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The amount of any
withholding tax imposed with respect to a
13
Certificateholder shall be treated as cash distributed to such Certificateholder
at the time it is withheld by the Trust and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is payable with
respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Paying Agent may in its sole discretion withhold such
amounts in accordance with this paragraph (c). In the event that a
Certificateholder wishes to apply for a refund of any such withholding tax, the
Owner Trustee or the Paying Agent shall reasonably cooperate with such
Certificateholder in making such claim so long as such Certificateholder agrees
to reimburse the Owner Trustee and the Trust Company for any out-of-pocket
expenses incurred.
SECTION 5.03. Method of Payment. Subject to Section 9.01(c),
-----------------
distributions required to be made to Certificateholders on any Remittance Date
shall be made to each Certificateholder of record on the preceding Record Date
either by wire transfer, in immediately available funds, to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided to the Certificate
Registrar and the Paying Agent appropriate written instructions at least five
Business Days prior to such Remittance Date or, if not, by check mailed to such
Certificateholder at the address of such holder appearing in the Certificate
Register.
SECTION 5.04. No Segregation of Moneys; No Interest. Subject to Sections
-------------------------------------
5.01 and 5.02, moneys received by the Owner Trustee or the Paying Agent
hereunder need not be segregated in any manner except to the extent required by
law or the Sale and Servicing Agreement and may be deposited under such general
conditions as may be prescribed by law, and neither the Paying Agent, nor the
Trust Company, nor the Owner Trustee shall be liable for any interest thereon.
SECTION 5.05. Accounting and Reports to the Certificateholders, the
-----------------------------------------------------
Internal Revenue Service and Others. The Depositor shall (a) maintain (or cause
-----------------------------------
to be maintained) the books of the Trust on a calendar year basis on the accrual
method of accounting, (b) deliver (or cause to be delivered) to each
Certificateholder, as may be required by the Code and applicable Treasury
Regulations, such information as may be required (including, if applicable,
Schedule K-1) to enable each Certificateholder to prepare its federal and state
income tax returns, (c) prepare or cause to be prepared, and file, or cause to
be filed, all tax returns, if any, relating to the Trust (including, if
applicable, a partnership information return, IRS Form 1065) and in writing
direct the Owner Trustee to make such elections as from time to time may be
required or appropriate under any applicable state or federal statute or any
rule or regulation thereunder so as to maintain the Trust's characterization as
a partnership for federal income tax purposes, and (d) collect or cause to be
collected any withholding tax as described in and in accordance with Section
5.02(c) with respect to income or distributions to Certificateholders. The
Owner Trustee shall make all elections pursuant to this Section 5.05 as directed
by the Depositor in writing.
SECTION 5.06. Signature on Returns; Tax Matters Partner. (a) The Owner
-----------------------------------------
Trustee shall sign on behalf of the Trust the tax returns of the Trust, and any
other returns as may be required by law if any, as the same shall be furnished
to it in execution form by the Depositor, unless applicable law requires a
Certificateholder to sign such documents, in which case such documents shall not
be furnished to the Owner Trustee, but shall be furnished to and signed by the
SPC so long as it is a Certificateholder, in its capacity as "tax matters
partner", or such other Certificateholder as may have been designated "tax
matters partner". In executing any such return, the Owner Trustee shall
14
rely entirely upon, and shall have no personal liability for, information or
calculations provided by the Depositor.
(b) In the event the SPC is a Certificateholder, the SPC shall be the
"tax matters partner" of the Trust pursuant to the Code.
ARTICLE VI
Authority and Duties of Owner Trustee
-------------------------------------
SECTION 6.01. General Authority. Each of the Owner Trustee, the Servicer
-----------------
and the Depositor shall have power and authority, and each is hereby authorized
and empowered, in the name and on behalf of the Trust, to execute and deliver
the Basic Documents to which the Trust is to be a party and each certificate or
other document attached as an exhibit to or contemplated by the Basic Documents
to which the Trust is to be a party and any amendment or other agreement or
instrument, in each case, in such form as the Owner Trustee, the Servicer or the
Depositor shall approve, as evidenced conclusively by the Owner Trustee's, the
Servicer's or the Depositor's execution thereof. In addition to the foregoing,
the Owner Trustee shall have power and authority and hereby is further
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Basic Documents. The Owner Trustee shall have power and
authority and hereby is further authorized from time to time to take such action
as the Servicer recommends with respect to the Basic Documents.
SECTION 6.02. General Duties. It shall be the duty of the Owner Trustee
--------------
to discharge (or cause to be discharged) all of the duties expressly required to
be performed by the Owner Trustee under the terms of this Agreement and the
Basic Documents to which the Trust is a party in the interest of the
Certificateholders, subject to the Basic Documents and in accordance with the
provisions of this Agreement. Notwithstanding the foregoing, the Owner Trustee
shall be deemed to have discharged its duties and responsibilities hereunder and
under the Basic Documents to the extent the Depositor has agreed hereunder or
the Servicer has agreed in the Sale and Servicing Agreement to perform any act
or to discharge any duty of the Owner Trustee or of the Trust under any Basic
Document, and the Owner Trustee shall not be held personally liable for the
default or failure of the Depositor or the Servicer to carry out its obligations
under the Sale and Servicing Agreement, or the Trust Agreement, as applicable.
SECTION 6.03. Action upon Instruction. (a) Subject to Article IV and
-----------------------
Section 7.01 and in accordance with the terms of the Basic Documents, the
Certificateholders may by written instruction direct the Owner Trustee in the
management of the Trust. Such direction may be exercised at any time by written
instruction of the Certificateholders pursuant to Article IV.
(b) The Owner Trustee shall not be required to take any action hereunder or
under any Basic Document if the Owner Trustee shall have reasonably determined,
or shall have been advised by counsel, that such action is likely to result in
personal liability on the part of the Owner Trustee or is contrary to the terms
hereof or of any Basic Document or is otherwise contrary to law.
15
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of the Trust Agreement or
under any Basic Document, the Owner Trustee shall promptly give notice (in such
form as shall be appropriate under the circumstances) to the Certificateholders
requesting instruction as to the course of action to be adopted, and to the
extent the Owner Trustee acts or refrains from acting in good faith in
accordance with any written instruction received from Holders of Certificates
evidencing not less than a majority of the aggregate Percentage Interest, the
Owner Trustee shall not be personally liable on account of such action or
inaction to any Person. If the Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action as it shall deem to be in the best interests of the
Certificateholders and shall have no personal liability to any Person for such
action or inaction.
(d) In the event that the Owner Trustee is unsure as to the application of
any provision of the Trust Agreement or any Basic Document or any such provision
is ambiguous as to its application, or is, or appears to be, in conflict with
any other applicable provision, or in the event that the Trust Agreement permits
any determination by the Owner Trustee or is silent or is incomplete as to the
course of action that the Owner Trustee is required or permitted to take with
respect to a particular set of facts, the Owner Trustee may give notice (in such
form as shall be appropriate under the circumstances) to the Certificateholders
requesting instruction and, to the extent that the Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received from holders of Certificates evidencing not less than a majority of the
aggregate Percentage Interest, the Owner Trustee shall not be personally liable,
on account of such action or inaction, to any Person. If the Owner Trustee
shall not have received appropriate instruction within 10 days of such notice
(or within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be under
no duty to, take or refrain from taking such action as it shall deem to be in
the best interests of the Certificateholders, and shall have no personal
liability to any Person for such action or inaction.
SECTION 6.04. No Duties Except as Specified in this Agreement or in
-----------------------------------------------------
Instructions. The Owner Trustee shall not have any duty or obligation to
------------
manage, make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, the Basic Documents or any
document contemplated hereby or thereby, except as expressly provided by the
terms of the Trust Agreement or in any document or written instruction received
by the Owner Trustee pursuant to Section 6.03; and no implied duties or
obligations shall be read into the Trust Agreement or any other Basic Document
against the Owner Trustee. The Owner Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any time
or to otherwise perfect or maintain the perfection of any security interest or
lien granted to it hereunder or to prepare or file any Securities and Exchange
Commission filing for the Trust or to record the Trust Agreement or any Basic
Document. The Trust Company nevertheless agrees that it will, at its own cost
and expense, promptly take all action as may be necessary to discharge any liens
on any part of the Owner Trust Estate that result from actions by, or claims
against, the Trust Company that are not related to the Trust, this Trust
Agreement, the Trust Company's serving as Owner Trustee or the ownership or the
administration of the Owner Trust Estate.
16
SECTION 6.05. Restrictions. The Owner Trustee shall not take any action
------------
that to the actual knowledge of a Responsible Officer of the Owner Trustee,
would result in the Trust's becoming taxable as a corporation for federal income
tax purposes. The Certificateholders shall not direct the Owner Trustee to take
action that would violate the provisions of this Section.
ARTICLE VII
Concerning the Owner Trustee
----------------------------
SECTION 7.01. Acceptance of Trusts and Duties. The Owner Trustee agrees
-------------------------------
to perform its duties hereunder but only upon the terms of the Trust Agreement.
The Owner Trustee also agrees to disburse all moneys actually received by it
constituting part of the Owner Trust Estate upon the terms of the Trust
Agreement and the other Basic Documents. The Owner Trustee shall not be
personally answerable or accountable hereunder or under any other Basic Document
under any circumstances, except to the Trust and the Certificateholders (i) for
its own willful misconduct, bad faith or gross negligence or (ii) in the case of
the inaccuracy of any representation or warranty contained in Section 7.03
expressly made by the Trust Company. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be personally liable for any error of
judgment made by the Owner Trustee;
(b) the Owner Trustee shall not be personally liable with respect to any
action taken or omitted to be taken by it in accordance with the instructions of
the Depositor, the Servicer or any Certificateholder;
(c) no provision of the Trust Agreement or any other Basic Document shall
require the Owner Trustee to expend or risk its own funds or otherwise incur any
personal financial liability in the performance of any of its rights or powers
hereunder or under any Basic Document if the Owner Trustee 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 circumstances shall the Owner Trustee be personally liable
for indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be personally responsible for or in
respect of the validity or sufficiency of the Trust Agreement or for the due
execution hereof by the Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate, or for or in
respect of the validity or sufficiency of the Basic Documents, other than the
Owner Trustee's due execution of the Certificate on behalf of the Trust and of
the certificate of authentication on the Certificates and the Transferor
Interest, as applicable, and the Owner Trustee shall in no event assume or incur
any personal liability, duty, or obligation to any Noteholder, any
Certificateholder or any holder of the Transferor Interest, other than as
expressly provided for herein or expressly agreed to in the Basic Documents;
17
(f) the Owner Trustee shall not be personally liable for the default or
misconduct of the Depositor, the Indenture Trustee or the Servicer or any other
Person under any of the Basic Documents or otherwise and the Owner Trustee shall
have no obligation or personal liability to perform the obligations of the Trust
under the Trust Agreement or the other Basic Documents that are required to be
performed by the Indenture Trustee under the Indenture or the Servicer or the
Depositor under the Sale and Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by the Trust Agreement, or to institute, conduct
or defend any litigation under the Trust Agreement or otherwise or in relation
to the Trust Agreement or any other Basic Document, at the request, order or
direction of any of the Certificateholders, unless such Certificateholders have
offered to the Owner Trustee and the Trust Company security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Owner Trustee or the Trust Company therein or thereby. The
right of the Owner Trustee to perform any discretionary act enumerated in the
Trust Agreement or in any other Basic Document shall not be construed as a duty,
and the Owner Trustee shall not be personally answerable other than to the Trust
and the Certificateholders for its willful misconduct, bad faith or gross
negligence in the performance of any such act.
SECTION 7.02. Furnishing of Documents. The Owner Trustee shall furnish to
-----------------------
the Certificateholders duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to the Owner Trustee under the Basic Documents.
SECTION 7.03. Representations and Warranties. The Trust Company hereby
------------------------------
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and validly existing in
good standing under the laws of the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its obligations
under the Trust Agreement.
(b) It has taken all corporate action necessary to authorize the execution
and delivery by it of the Trust Agreement, and the Trust Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver the Trust Agreement on its behalf.
(c) Neither the execution nor the delivery by it of the Trust Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene any
federal or Delaware law, governmental rule or regulation governing the banking
or trust powers of the Trust Company or any judgment or order binding on it, or
constitute any default under its charter documents or bylaws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound.
SECTION 7.04. Reliance; Advice of Counsel. (a) The Owner Trustee shall
----------------------------
incur no personal 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
18
genuine and believed by it to be signed by an appropriate Person or Persons. The
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any Person 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 method of determination of which is not
specifically prescribed herein, the Owner Trustee may for all purposes hereof
require and rely on a certificate, signed by the president or any vice president
or by the treasurer or other authorized officer or agent of an appropriate
Person or Persons, 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 the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under the Trust Agreement or the other
Basic Documents, the Owner Trustee may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be personally liable for the conduct or misconduct of such
agents or attorneys if such agents or attorneys shall have been selected by the
Owner Trustee in good faith, and may consult with counsel, accountants and other
skilled Persons to be selected with reasonable care and employed by it. The
Owner Trustee shall not be personally liable for anything done, suffered or
omitted in good faith by it in accordance with the written opinion or advice of
any such counsel, accountants or other such Persons. The Owner Trustee shall
have no duty to monitor or supervise any other trustee, the Certificate
Registrar, the Paying Agent, the Depositor, the Holders, the Servicer, any
Subservicer, the Indenture Trustee, any agent, independent contractor, officer,
employee, or manager of the Trust, any delegatee of any trustee, or any other
Person.
SECTION 7.05. Not Acting in Individual Capacity. Except as provided in
---------------------------------
this Article VII, in performing its duties hereunder, the Trust Company acts
solely as Owner Trustee hereunder and not in its individual capacity, and all
Persons having any claim against the Owner Trustee by reason of the transactions
contemplated by the Trust Agreement or any Basic Document shall look only to the
Owner Trust Estate for payment or satisfaction thereof.
SECTION 7.06. Owner Trustee Not Liable for Certificates or Commercial
-------------------------------------------------------
Loans. The recitals contained herein and in the Certificates and the Transferor
-----
Interest shall be taken as the statements of the Depositor and the Owner Trustee
assumes no personal responsibility for the correctness thereof. The Owner
Trustee makes no representations as to the validity or sufficiency of the Trust
Agreement, of any other Basic Document or of the Certificates or the Transferor
Interest (other than as to the due execution by the Owner Trustee of the
Certificates and the Transferor Interest on behalf of the Trust and the
certificate of authentication of the Owner Trustee on the Certificates and the
Transferor Interest as applicable) or the Notes, or of any Commercial Loan or
related documents. The Owner Trustee shall at no time have any personal
responsibility or liability for or with respect to the legality, validity and
enforceability of any Commercial Loan, or for or with respect to the sufficiency
of the Owner Trust Estate or its ability to generate the payments to be
distributed to Certificateholders and the holder of the Transferor Interest
under the Trust Agreement or the Noteholders under the Indenture, including,
without limitation: the existence, condition and ownership of any collateral
securing a Commercial Loan; the existence and enforceability of any insurance
thereon; the validity of the assignment of any Commercial Loan to the Trust or
of any intervening assignment; the performance or enforcement of any Commercial
Loan; the compliance by the Depositor or the Servicer with any warranty or
representation made
19
under any Basic Document or in any related document or the accuracy of any such
warranty or representation, or any action of the Depositor, the Indenture
Trustee or the Servicer or any subservicer taken in the name of the Owner
Trustee.
SECTION 7.07. Owner Trustee May Own Certificates and Notes. The Owner
--------------------------------------------
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates or Notes and may deal with the Depositor, the Indenture Trustee,
the Paying Agent and the Servicer in banking transactions with the same rights
as it would have if it were not Owner Trustee.
ARTICLE VIII
Compensation of Owner Trustee
-----------------------------
SECTION 8.01. Owner Trustee's Fees and Expenses. The Trust Company shall
---------------------------------
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Depositor and the
Trust Company, and the Trust Company shall be entitled to be reimbursed by the
Depositor for its other reasonable expenses hereunder, including, but not
limited to, the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as the Trust Company may employ in
connection with the exercise and performance of its rights and its duties
hereunder.
SECTION 8.02. Indemnification. The Depositor shall be liable as primary
---------------
obligor for, and shall indemnify, defend and hold harmless the Trust Company and
its successors, assigns, agents and servants (collectively, the "Indemnified
Parties") from and against, any and all liabilities, obligations, losses,
damages, taxes, claims, actions and suits, and any and all reasonable costs,
expenses and disbursements (including reasonable legal fees and expenses) of any
kind and nature whatsoever (collectively, "Expenses") which may at any time be
imposed on, incurred by, or asserted against the Trust Company, the Owner
Trustee or any Indemnified Party in any way relating to or arising out of the
Trust Agreement, the Basic Documents, the Owner Trust Estate, the administration
of the Owner Trust Estate or the action or inaction of the Owner Trustee
hereunder, except only that the Depositor shall not be liable for or required to
indemnify an Indemnified Party from and against Expenses arising or resulting
from any of the matters described in the third sentence of Section 7.01. The
indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee and the termination of the Trust Agreement.
Upon a Responsible Officer of the Owner Trustee determining that the Owner
Trustee will seek indemnification under this Section in regard to a claim of
which a Responsible Officer of the Owner Trustee has obtained actual knowledge
or received written notice, the Owner Trustee promptly shall notify the
Depositor of such claim. The Owner Trustee's failure to give, or delay in
giving, such notice shall not affect the Depositor's obligations under this
Section, except to the extent that such failure or delay results in material
prejudice to the Depositor. The Owner Trustee shall not settle any claim for
which it will seek indemnification under this Section without the prior written
consent of the Depositor, which consent shall not be unreasonably delayed or
withheld.
20
SECTION 8.03. Payments to the Owner Trustee. Any amounts paid to the
-----------------------------
Trust Company pursuant to this Article VIII shall be deemed not to be a part of
the Owner Trust Estate immediately after such payment.
ARTICLE IX
Termination of Trust Agreement
------------------------------
SECTION 9.01. Termination of Trust Agreement. (a) The Trust shall
------------------------------
dissolve, be wound up and terminate in accordance with Section 3808 of the
Delaware Business Trust Act upon (i) the final distribution by the Paying Agent
of all moneys or other property or proceeds of the Owner Trust Estate in
accordance with the terms of the Indenture, the Sale and Servicing Agreement and
Article V, upon which the Paying Agent shall notify the Owner Trustee and the
Depositor in writing and (ii) the written consent of the Certificateholders.
The bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder shall not (x) operate to dissolve or terminate the Trust
Agreement or the Trust or (y) entitle such Certificateholder'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 all or any part of the
Trust or Owner Trust Estate or (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Remittance Date
upon which the Certificateholders shall surrender their Certificates to the
Paying Agent for payment of the final distribution and cancellation, shall be
given by the Paying Agent by letter to Certificateholders mailed within five
Business Days of receipt of written notice of such termination from the Servicer
stating, as set forth in such notice from the Servicer, (i) the Remittance Date
upon or with respect to which final payment of the Certificates shall be made
upon presentation and surrender of the Certificates at the office of the Paying
Agent therein designated, (ii) the amount of any such final payment and (iii)
that the Record Date otherwise applicable to such Remittance Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Paying Agent therein specified. The Paying
Agent shall give such notice to the Certificate Registrar (if other than the
Owner Trustee) and the Owner Trustee at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates, the
Paying Agent shall cause to be distributed to Certificateholders amounts
distributable on such Remittance Date pursuant to Section 5.02.
In the event that all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the Paying Agent shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice all the Certificates shall not have been
surrendered for cancellation, the Paying Agent may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
21
thereof shall be paid out of the funds and other assets that shall remain
subject to the Trust Agreement. Any funds remaining in the Trust after
exhaustion of such remedies shall be distributed by the Paying Agent to the
Depositor. Certificateholders shall thereafter look solely to the Depositor as
general unsecured creditors.
(d) Upon the winding up of the Trust, the Owner Trustee shall cause the
Certificate of Trust to be cancelled by filing a certificate of cancellation
with the Secretary of State in accordance with the provisions of Section 3810 of
the Business Trust Statute. Thereupon, the Trust and the Trust Agreement (other
than the rights, benefits, protections, privileges and immunities of the Owner
Trustee and the Trust Company) shall terminate.
ARTICLE X
Successor Owner Trustees and Additional Owner Trustees
------------------------------------------------------
SECTION 10.01. Eligibility Requirements for Owner Trustee. The Owner
------------------------------------------
Trustee shall at all times be a Person satisfying the provisions of Section
3807(a) of the Business Trust Statute; authorized to exercise corporate trust
powers; having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authorities; and
having (or having a parent that has) a rating of at least BBB from Standard &
Poor's and Baa2 from Xxxxx'x. If such Person shall publish reports of condition
at least annually pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Owner Trustee shall resign
immediately in the manner and with the effect specified in Section 10.02.
SECTION 10.02. Resignation or Removal of Owner Trustee. The Owner Trustee
---------------------------------------
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Depositor. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor Owner Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and one copy to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 60 days after the giving of such notice of
resignation, the resigning Owner Trustee, at the expense of the Depositor, may
petition any court of competent jurisdiction for the appointment of a successor
Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 10.01 and shall fail to resign after written
request therefor by the Depositor, or if at any time the Owner Trustee shall be
legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver
of the Owner Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Owner Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Depositor may remove the Owner Trustee. If the Depositor shall remove the Owner
Trustee under the authority of the immediately preceding sentence, the Depositor
shall promptly appoint a successor Owner Trustee by written instrument, in
duplicate,
22
one copy of which instrument shall be delivered to the outgoing Owner Trustee so
removed, and one copy to the successor Owner Trustee, and shall pay all fees
owed to the outgoing Owner Trustee in its individual capacity.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.03 and, in the case of removal, payment of all
fees and expenses owed to the outgoing Owner Trustee in its individual capacity.
The Depositor shall provide notice of such resignation or removal of the Owner
Trustee to the Indenture Trustee and any Paying Agent.
SECTION 10.03. Successor Owner Trustee. Any successor Owner Trustee
-----------------------
appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to
the Depositor and to its predecessor Owner Trustee an instrument accepting such
appointment under the Trust Agreement, and thereupon the resignation or removal
of the predecessor Owner Trustee shall become effective, and such successor
Owner Trustee, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
under the Trust Agreement, with like effect as if originally named as Owner
Trustee. The predecessor Owner Trustee shall upon payment of fees and expenses
owing to it in its individual capacity deliver to the successor Owner Trustee
all documents and statements and monies held by it under the Trust Agreement;
and the Depositor and the predecessor Owner Trustee shall execute and deliver
such instruments and do such other things as may reasonably be required for
fully and certainly vesting and confirming in the successor Owner Trustee all
such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Depositor shall mail notice thereof to all Certificateholders,
the Indenture Trustee, the Administrative Agent and the Paying Agent. If the
Depositor shall fail to mail such notice within 10 days after acceptance of such
appointment by the successor Owner Trustee, the successor Owner Trustee shall
cause such notice to be mailed at the expense of the Depositor.
SECTION 10.04. Merger or Consolidation of Owner Trustee. Any Person into
----------------------------------------
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding;
provided, that such Person shall be eligible pursuant to Section 10.01 and,
provided, further, that the Owner Trustee shall mail notice of such merger or
consolidation to the Paying Agent and the Depositor.
SECTION 10.05. Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
Notwithstanding any other provisions of the Trust Agreement, at any time, for
the purpose of meeting any legal
23
requirements of any jurisdiction in which any part of the Owner Trust Estate may
at the time be located, the Depositor and the Owner Trustee acting jointly shall
have the power and authority to execute and deliver all instruments to appoint
one or more Persons approved by the Depositor and Owner Trustee to act as co-
trustee, jointly with the Owner Trustee, or as separate trustee or separate
trustees, of all or any part of the Owner Trust Estate, and to vest in such
Person, in such capacity, such title to the Owner Trust Estate or any part
thereof and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Depositor and the Owner Trustee
may consider necessary or desirable. If the Depositor shall not have joined in
such appointment within 15 days after the receipt by it of a request so to do,
the Owner Trustee alone shall have the power, authority and authorization to
make such appointment. No co-trustee or separate trustee under the Trust
Agreement shall be required to meet the terms of eligibility as a successor
Owner Trustee pursuant to Section 10.01 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provisions and conditions:
(a) all rights, powers, duties and obligations conferred or imposed upon
the Owner Trustee shall be conferred upon and exercised or performed by the
Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Owner Trust Estate or any
portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction of
the Owner Trustee;
(b) no separate trustee or co-trustee under the Trust Agreement or the
Owner Trustee shall be personally liable by reason of any act or omission of any
other trustee under the Trust Agreement; and
(c) the Depositor and the Owner Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to the Trust Agreement and the
conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of the Trust Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to each of the Depositor and the Servicer.
24
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of the
Trust Agreement on its behalf and in its name, and the Owner Trustee shall have
the full power and authority to delegate its responsibilities to the Servicer as
provided for herein and in the other Basic Documents. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor co-trustee or separate trustee.
ARTICLE XI
Miscellaneous
-------------
SECTION 11.01. Supplements and Amendments. The Trust Agreement may be
--------------------------
amended by the Depositor, the Trust Company, and the Owner Trustee, without the
consent of the Noteholders or the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions in the Trust Agreement or for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions in the Trust Agreement or of modifying in any manner the rights of
the Noteholders or the Certificateholders; provided, however, that such action
shall not, as evidenced by an opinion of counsel, adversely affect in any
material respect the interests of any Noteholder or Certificateholder.
The Trust Agreement may also be amended from time to time by the Depositor,
the Trust Company, and the Owner Trustee, with the consent of the Majority
Noteholders and, to the extent affected thereby, the consent of the Majority
Certificateholders, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of the Trust Agreement or of
modifying in any manner the rights of the Noteholders or the Certificateholders;
provided, however, that no such amendment shall (a) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on Commercial Loans or distributions that shall be required to be made
for the benefit of the Noteholders or the Certificateholders or (b) reduce the
aforesaid percentage of Noteholders and the aggregate Percentage Interest of
Certificateholders required to consent to any such amendment, without the
consent of the holders of all the outstanding Notes and Certificates.
Promptly after the execution of any such amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment or
consent to each Certificateholder and a copy of each such amendment or consent
to the Paying Agent and the Indenture Trustee.
It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of Certificateholders provided for in the Trust Agreement or in
any other Basic Document) and of evidencing the authorization of the execution
thereof by
25
Certificateholders shall be subject to such reasonable requirements as the Owner
Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of Trust,
the Owner Trustee shall cause the filing of such amendment with the Secretary of
State.
Prior to the execution of any amendment to the Trust Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an opinion of counsel stating that the execution of such amendment is
authorized or permitted by the Trust Agreement. The Owner Trustee and the Trust
Company may, but shall not be obligated to, enter into any such amendment that
affects the Owner Trustee's or the Trust Company's own rights, duties or
immunities under the Trust Agreement or otherwise. Notwithstanding any other
provision herein or elsewhere, no provision, amendment, supplement, waiver, or
consent of or with respect to any of the Basic Documents that affects any right,
power, authority, duty, benefit, protection, privilege, immunity, or indemnity
of the Owner Trustee or the Trust Company shall be binding on the Owner Trustee
or the Trust Company unless the Owner Trustee and the Trust Company shall have
expressly consented thereto in writing.
SECTION 11.02. No Legal Title to Owner Trust Estate in Certificateholders.
----------------------------------------------------------
The Certificateholders shall not have legal title to any part of the Owner Trust
Estate. The Certificateholders shall be entitled to receive distributions with
respect to their undivided beneficial ownership interest therein only in
accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title or interest of the Certificateholders to and in
their beneficial ownership interest in the Owner Trust Estate shall operate to
dissolve the Trust or terminate this Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of legal title
to any part of the Owner Trust Estate.
SECTION 11.03. Limitations on Rights of Others. The provisions of the
-------------------------------
Trust Agreement are solely for the benefit of the Owner Trustee, the Trust
Company, the Indemnified Parties, the Depositor, the Certificateholders and, to
the extent expressly provided herein, the Indenture Trustee and the Noteholders,
and nothing in the Trust Agreement, whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in the Owner Trust Estate or under or in respect of the Trust Agreement or
any covenants, conditions or provisions contained herein.
SECTION 11.04. Notices. (a) Unless otherwise expressly specified or
-------
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt by the intended recipient or three Business Days after
mailing if mailed by certified mail, postage prepaid (except that notice to the
Owner Trustee shall be deemed given only upon actual receipt by the Owner
Trustee), if to the Owner Trustee, addressed to its Corporate Trust Office; or
if to the Depositor, addressed to 0000 Xxxxxx Xxxx., Xxxxx 000, Xxxxxxxxx, XX
00000, Attention: Chief Financial Officer and General Counsel, Facsimile: (703)
247-7505, or, as to each party, at such other address as shall be designated by
such party in a written notice to each other party.
(b) Any notice required or permitted to be given to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Certificateholder as shown in the Certificate
26
Register. Any notice so mailed within the time prescribed in the Trust Agreement
shall be conclusively presumed to have been duly given when mailed, whether or
not the Certificateholder receives such notice.
SECTION 11.05. Severability. Any provision of the Trust Agreement that 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 11.06. Separate Counterparts. The Trust Agreement may be executed
---------------------
by the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.07. Successors and Assigns. All covenants and agreements
----------------------
contained herein shall be binding upon, and inure to the benefit of, each of the
Depositor, the Owner Trustee, the Trust Company, and its successors and each
Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument
or action by a Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 11.08. No Petition. (a) The Depositor will not, prior to the date
-----------
which is one year and one day after the termination of the Indenture, institute
against the Trust any bankruptcy proceedings under any United States Federal or
state bankruptcy or similar law in connection with any obligations relating to
the Certificates, the Notes, the Trust Agreement or any of the other Basic
Documents.
(b) The Owner Trustee, by entering into the Trust Agreement, each
Certificateholder, by accepting a Certificate, and the Indenture Trustee and
each Noteholder, by accepting the benefits of the Trust Agreement, hereby
covenant and agree that they will not, prior to the date which is one year and
one day after the termination of the Indenture, institute against the Trust, or
join in any institution against the Trust of, any bankruptcy proceedings under
any United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Certificates, the Notes, the Trust Agreement or
any of the other Basic Documents.
SECTION 11.09. No Recourse. Each Certificateholder by accepting a
-----------
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Depositor, the Servicer, the Owner Trustee, the Trust
Company, the Indenture Trustee or any Affiliate thereof and no recourse may be
had against such parties or their assets, except as may be expressly set forth
or contemplated in the Trust Agreement, the Certificates or the Basic Documents.
SECTION 11.10. Headings. The headings of the various Articles and
--------
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
27
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 11.12. Third Party Rights. The parties hereto agree that each of
------------------
the Indemnified Parties shall be deemed a third-party beneficiary of this Trust
Agreement entitled to the rights and benefits set forth herein as fully as if it
were a party hereto.
* * * * * *
28
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.
MCG FINANCE CORPORATION II, as Depositor
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: CFO & EVP
WILMINGTON TRUST COMPANY,
as Owner Trustee and as Trust Company
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, hereby accepts
the appointment as Certificate Registrar
and Certificate Paying Agent pursuant to
Sections 3.04 and 3.09 hereof.
By: /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Assistant Vice-President
29
EXHIBIT A-1
FORM OF CERTIFICATE
-------------------
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT") OR STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING
THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES
LAWS AND TO A PERSON WHO HAS FURNISHED TO THE OWNER TRUSTEE (A) AN INVESTMENT
LETTER TO THE EFFECT THAT SUCH PURCHASER IS THE DEPOSITOR OR AN AFFILIATE
THEREOF, OR AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE
501(a)(1)-(3) or (7) UNDER THE ACT AND (B) IF REQUIRED, AN OPINION OF COUNSEL
SATISFACTORY TO THE OWNER TRUSTEE.
THIS CERTIFICATE MAY NOT BE TRANSFERRED DIRECTLY OR INDIRECTLY TO (1) EMPLOYEE
BENEFIT PLANS, RETIREMENT ARRANGEMENTS, INDIVIDUAL RETIREMENT ACCOUNTS OR XXXXX
PLANS SUBJECT TO EITHER TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, OR (2) ENTITIES (INCLUDING INSURANCE COMPANY GENERAL ACCOUNTS) WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF ANY SUCH PLAN'S,
ARRANGEMENT'S OR ACCOUNT'S INVESTMENT IN SUCH ENTITIES. FURTHER, THIS
CERTIFICATE MAY BE TRANSFERRED ONLY TO A UNITED STATES PERSON WITHIN THE MEANING
OF SECTION 7701(a)(30) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THIS CERTIFICATE IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY.
SO LONG AS THE SERIES 2000-1, CLASS A NOTES ARE OUTSTANDING, THIS CERTIFICATE
MAY NOT BE SOLD, PLEDGED, TRANSFERRED, ASSIGNED, HAVE A PARTICIPATION INTEREST
SOLD IN THE CERTIFICATE OR OTHERWISE CONVEYED, IN WHOLE OR IN PART, WITHOUT THE
PRIOR WRITTEN APPROVAL OF FIRST UNION SECURITIES, INC., A COPY OF WHICH APPROVAL
SHALL BE FURNISHED TO THE OWNER TRUSTEE AND THE CERTIFICATE REGISTRAR.
NUMBER
___________
CUSIP NO. _________ PERCENTAGE INTEREST: ______
A-1-1
MCG MASTER TRUST
CERTIFICATE
evidencing a beneficial ownership interest in the Trust, as defined below, the
property of which includes primarily the Commercial Loans transferred to the
Trust by MCG Finance Corporation II.
(This Certificate does not represent an interest in or obligation of MCG Finance
Corporation II, the Servicer (as defined below) or the Owner Trustee (as defined
below) (as such or in its individual capacity) or any of their respective
affiliates, except to the extent described below.)
THIS CERTIFIES THAT MCG FINANCE CORPORATION II is the registered owner of
the nonassessable, fully paid, beneficial ownership interest in MCG MASTER TRUST
(the "Trust") formed by MCG Finance Corporation II, in the Percentage Interest
evidenced hereby.
The Trust was created pursuant to a Trust Agreement, dated as of June 1,
2000 (the "Trust Agreement"), between MCG Finance Corporation II, as depositor
(the "Depositor"), and Wilmington Trust Company, as owner trustee (the "Owner
Trustee"), a summary of certain of the pertinent provisions of which is set
forth below. To the extent not otherwise defined herein, the capitalized terms
used herein have the meanings assigned to them in the Trust Agreement.
This Certificate is one of a duly authorized issue of MCG Master Trust
Certificates (herein called the "Certificates"). This Certificate is issued
under and is subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the holder of this Certificate by virtue of
its acceptance hereof assents and by which such holder is bound.
Under the Trust Agreement, there will be distributed on the _________ day
of each month or, if such ________ day is not a Business Day, the next Business
Day (each, a "Remittance Date"), commencing in ____________ 2000, to the Person
in whose name this Certificate is registered at the close of business on the
last day of the calendar month immediately preceding the Remittance Date (the
"Record Date"), such Certificateholder's Percentage Interest in the amount to be
distributed to Certificateholders on such Remittance Date pursuant to the terms
of the Sale and Servicing Agreement and the Indenture.
The holder of this Certificate acknowledges and agrees that its rights to
receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the Sale and Servicing Agreement and
the Indenture.
Each Certificateholder, by its acceptance of a Certificate, covenants and
agrees that such Certificateholder, will not prior to the date which is one year
and one day after the termination of the Indenture, institute against the Trust,
or join in any institution against the Trust of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Certificates, the Notes, the Trust Agreement or
any of the other Basic Documents.
A-1-2
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Paying Agent by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Certificate or the making of any notation hereon. Except
as otherwise provided in the Trust Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Paying Agent of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Paying Agent.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee or the Certificate Registrar, by
manual signature, this Certificate shall not entitle the Holder hereof to any
benefit under the Trust Agreement or the Sale and Servicing Agreement or be
valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
A-1-3
IN WITNESS WHEREOF, the Owner Trustee or the Certificate Registrar, on
behalf of the Trust and not in its individual capacity, has caused this
Certificate to be duly executed.
Date:
MCG MASTER TRUST
By: WILMINGTON TRUST COMPANY,
solely as Owner Trustee and not in its
individual capacity
By:_____________________________________
Authorized Signatory
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates of MCG Master Trust referred to in the
within-mentioned Trust Agreement.
Date:
WILMINGTON TRUST COMPANY,
solely as Owner Trustee and not in its
individual capacity
By:_____________________________________
Authorized Signatory
or
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Certificate Registrar
By:_____________________________________
Authorized Signatory
A-1-4
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest in, the
Depositor, the Servicer, the Owner Trustee or any affiliates of any of them and
no recourse may be had against such parties or their assets, except as expressly
set forth or contemplated herein or in the Trust Agreement, the Indenture or the
Basic Documents. In addition, this Certificate is not guaranteed by any
governmental agency or instrumentality and is limited in right of payment to
certain collections and recoveries with respect to the Commercial Loans (and
certain other amounts), all as more specifically set forth herein and in the
Basic Documents. A copy of each of the Basic Documents may be examined by any
Certificateholder upon written request during normal business hours at the
principal office of the Depositor and at such other places, if any, designated
by the Depositor.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Trust Agreement at
any time, by the Depositor and the Owner Trustee with the consent of the holders
of the Certificates evidencing not less than a majority of the outstanding
Percentage Interest and of the holders of the Majority Noteholders, each voting
as a class. Any such consent by the holder of this Certificate shall be
conclusive and binding on such holder and on all future holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent is
made upon this Certificate. The Trust Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the holders of
any of the Certificates.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar, accompanied by
a written instrument of transfer in form satisfactory to the Owner Trustee and
the Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of authorized denominations evidencing the same aggregate interest in the Trust
will be issued to the designated transferee. The initial Certificate Registrar
appointed under the Trust Agreement is Norwest Bank Minnesota, National
Association.
The Certificates are issuable only as registered Certificates without
coupons in minimum Percentage Interests of 10% and integral multiples of 1% in
excess thereof; PROVIDED, HOWEVER, that one Certificate may be issued in a
different denomination. As provided in the Trust Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but the
Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
A-1-5
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Owner Trustee, the Certificate Registrar or any such agent shall be affected by
any notice to the contrary.
This Certificate may not be transferred directly or indirectly to (1)
employee benefit plans, retirement arrangements, individual retirement accounts
or Xxxxx plans subject to either Title I of the Employee Retirement Income
Security Act of 1974, as amended, or Section 4975 of the Internal Revenue Code
of 1986, as amended, or (2) entities (including insurance company general
accounts) whose underlying assets include plan assets by reason of the
investment by such plans, arrangements or accounts in such entities. By
accepting and holding this Certificate, the Holder hereof shall be deemed to
have represented and warranted that it is not any of the foregoing entities.
This Certificate may not be transferred to any person who is not a U.S.
Person, as such term is defined in Section 7701(a)(30) of the Internal Revenue
Code, as amended.
Each purchaser of the Certificates shall be required, prior to purchasing a
Certificate, to execute the Purchaser's Representation and Warranty Letter in
the form attached to the Trust Agreement as Exhibit C.
The obligations and responsibilities created by the Trust Agreement and the
Trust created thereby shall terminate upon the payment to Certificateholders of
all amounts required to be paid to them pursuant to the Trust Agreement and the
Sale and Servicing Agreement and the disposition of all property held as part of
the Trust. The Servicer on behalf of the Indenture Trustee has the option to
cause the sale of the corpus of the Trust at a price and pursuant to auction
procedures specified in the Indenture and the Sale and Servicing Agreement, and
such sale of the receivables and other property of the Trust will effect early
retirement of the Certificates.
A-1-6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
_______________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
_______________________________________________________________________________
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:
___________________________________________*
Signature Guaranteed:
____________________________*
_________________
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
X-0-0
XXXXXXX X-0
FORM OF TRANSFEROR INTEREST
NO. ______ PERCENTAGE INTEREST: 100%
----
THIS TRANSFER INTEREST HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT") OR STATE SECURITIES LAWS. THE HOLDER HEREOF
AGREES THAT THIS TRANSFER INTEREST MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS AND TO
A PERSON WHO HAS FURNISHED TO THE OWNER TRUSTEE (A) AN INVESTMENT LETTER TO THE
EFFECT THAT SUCH PURCHASER IS THE DEPOSITOR OR AN AFFILIATE THEREOF, OR AN
INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1)-(3) or
(7) UNDER THE ACT AND (B) IF REQUIRED, AN OPINION OF COUNSEL SATISFACTORY TO THE
OWNER TRUSTEE.
THIS TRANSFER INTEREST MAY NOT BE TRANSFERRED DIRECTLY OR INDIRECTLY
TO (1) EMPLOYEE BENEFIT PLANS, RETIREMENT ARRANGEMENTS, INDIVIDUAL RETIREMENT
ACCOUNTS OR XXXXX PLANS SUBJECT TO EITHER TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, OR (2) ENTITIES (INCLUDING INSURANCE COMPANY GENERAL
ACCOUNTS) WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF ANY SUCH
PLAN'S, ARRANGEMENT'S OR ACCOUNT'S INVESTMENT IN SUCH ENTITIES. FURTHER, THIS
TRANSFER INTEREST MAY BE TRANSFERRED ONLY TO A UNITED STATES PERSON WITHIN THE
MEANING OF SECTION 7701(a)(30) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THIS TRANSFER INTEREST IS NOT GUARANTEED OR INSURED BY ANY
GOVERNMENTAL AGENCY.
SO LONG AS THE SERIES 2000-1, CLASS A NOTES ARE OUTSTANDING, THIS
TRANSFER INTEREST MAY NOT BE SOLD, PLEDGED, TRANSFERRED, ASSIGNED, HAVE A
PARTICIPATION INTEREST SOLD IN THE TRANSFER INTEREST OR OTHERWISE CONVEYED, IN
WHOLE OR IN PART, WITHOUT THE PRIOR WRITTEN APPROVAL OF FIRST UNION SECURITIES,
INC., A COPY OF WHICH APPROVAL SHALL BE FURNISHED TO THE OWNER TRUSTEE AND THE
CERTIFICATE REGISTRAR.
This Transferor Interest evidences a fractional undivided interest in
assets of the
MCG MASTER TRUST
the corpus of which consists of commercial loans, which have been purchased by
MCG Finance Corporation II, a Delaware corporation, which in turn transferred
and assigned such commercial loans to MCG Master Trust.
A-2-1
(Not an interest in or obligation of
MCG Finance Corporation II, MCG Credit Corporation
or any Affiliate thereof)
This certifies that
MCG FINANCE CORPORATION II
(the "holder of the Transferor Interest") is the registered owner of
the Transferor Interest in MCG Master Trust (the "Trust"), created pursuant to
the Trust Agreement, dated as of June 1, 2000 (as amended, supplemented or
otherwise modified from time to time, the "Trust Agreement"), by and between MCG
Finance Corporation II ("Xxxxx II") and Wilmington Trust Company (the "Owner
Trustee"). The corpus of the Trust consists of the Trust Fund as described in
the Sale and Servicing Agreement dated as of June 1, 2000 (the "Sale and
Servicing Agreement") among the Trust, Xxxxx II, as Seller and MCG Finance
Corporation as Servicer ("MCG"). Capitalized terms not defined herein shall have
the meanings ascribed to them in Appendix A to the Sale and Servicing Agreement
or the Basic Documents (as such term is defined in Appendix A to the Sale and
Servicing Agreement).
Although a summary of certain provisions of the Basic Documents is set
forth below, this Transfer Interest does not purport to summarize the Trust
Agreement or the Basic Documents, is qualified in its entirety by the terms and
provisions of the Trust Agreement, the Basic Documents and reference is made to
the Trust Agreement and the Basic Documents for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and obligations of the Owner Trustee.
This Transferor Interest is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement, as
amended from time to time, the holder hereof by virtue of the acceptance hereof
assents and by which such holder is bound.
The Transferor Interest shall represent the interest in the Trust not
represented by any Notes or Certificates then outstanding including the right to
receive Available Funds and other amounts at the times and in the amounts
specified in the Sale and Servicing Agreement and the other Basic Documents to
be paid to the holder of the Transferor Interest.
All distributions made to the holder of the Transferor Interest will
be by wire transfer of immediately available funds to the account of such holder
at a bank or other entity having appropriate facilities therefor.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the Person in whose name this
Transferor Interest is registered as the owner hereof for all purposes, and none
of the Owner Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
This Transferor Interest may not be transferred directly or indirectly to
(1) employee benefit plans, retirement arrangements, individual retirement
accounts or Xxxxx plans subject to either Title I of the Employee Retirement
Income Security Act of 1974, as amended, or Section 4975 of the Internal Revenue
Code of 1986, as amended, or (2) entities (including insurance company general
accounts) whose underlying assets include plan assets by reason of the
investment by such plans, arrangements or accounts in
A-2-2
such entities. By accepting and holding this Transferor Interest, the holder
hereof shall be deemed to have represented and warranted that it is not any of
the foregoing entities.
This Transferor Interest may not be transferred to any person who is not a
U.S. Person, as such term is defined in Section 7701(a)(30) of the Internal
Revenue Code, as amended.
Each purchaser of the Transferor Interest shall be required, prior to
purchasing the Transferor Interest, to execute the Purchaser's Representation
and Warranty Letter in the form attached to the Trust Agreement as Exhibit C.
This Transferor Interest shall be construed in accordance with and
governed by the laws of the State of Delaware, without giving effect to
principles of conflicts of law.
Unless the certificate of authentication hereon has been executed by
an authorized officer of the Owner Trustee or the Certificate Registrar, by
manual signature, this Transferor Interest shall not entitle the holder hereof
to any benefit under the Trust Agreement or the Sale and Servicing Agreement, or
be valid for any purpose.
A-2-3
IN WITNESS WHEREOF, the Owner Trustee or the Certificate Registrar, on
behalf of the Trust and not in its individual capacity, has caused this
Transferor Interest to be duly executed.
Date:
MCG MASTER TRUST
By: WILMINGTON TRUST COMPANY,
solely as Owner Trustee and not in its individual
capacity
By: _________________________________
Authorized Signatory
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Transferor Interest of MCG Master Trust referred to in the
within-mentioned Trust Agreement.
Date:
WILMINGTON TRUST COMPANY,
solely as Owner Trustee and not in its individual
capacity
By: ___________________________________
Authorized Signatory
or
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Certificate Registrar
By: ___________________________________
Authorized Signatory
A-2-4
EXHIBIT B
CERTIFICATE OF TRUST OF
MCG MASTER TRUST
----------------
This Certificate of Trust of MCG MASTER TRUST (the "Trust"), is being duly
executed and filed by the undersigned, as trustee, to form a business trust
under the Delaware Business Trust Act (12 Del. Code, (S) 3801 et seq.) (the
---------
"Act").
1. Name. The name of the business trust formed hereby is MCG MASTER
----
TRUST.
2. Delaware Trustee. The name and business address of a trustee of the
----------------
Trust having its principal place of business in the State of Delaware is
Wilmington Trust Company, Xxx Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall be effective upon its
--------------
filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
Wilmington Trust Company,
not in its individual capacity but solely as
owner trustee of the Trust.
By: _____________________________
Name:
Title:
B-1
EXHIBIT C
[Form of Purchaser's Representation and Warranty Letter]
MCG Master Trust
c/o Wilmington Trust Company, as Owner Trustee
Re: MCG Master Trust
----------------
Ladies and Gentlemen:
In connection with our proposed acquisition of [Certificates (the
"Certificates")] [Transferor Interest (the "Transferor Interest")] issued under
the Trust Agreement dated as of June 1, 2000 (the "Agreement"), between MCG
Finance Corporation II, as Depositor (the "Depositor"), and Wilmington Trust
Company, as Owner Trustee, the undersigned (the "Purchaser") represents,
warrants and agrees that:
1. It is the Depositor or an Affiliate thereof, or an institutional
"accredited investor" as defined in Rule 501(a)(1)-(3) or (7) under the
Securities Act and is acquiring the [Certificates] [Transferor Interest] for its
own institutional account or for the account of an institutional accredited
investor.
2. It is not (i) an employee benefit plan, retirement arrangement,
individual retirement account or Xxxxx plan subject to either Title I of the
Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of
the Internal Revenue Code of 1986, as amended, or (2) an entity (including an
insurance company general account) whose underlying assets include plan assets
by reason of the investment by such plans, arrangements or accounts in any such
entity.
3. It is a U.S. Person as defined in Section 7701(a)(30) of the Code.
4. It has such knowledge and experience in evaluating business and
financial matters so that it is capable of evaluating the merits and risks of an
investment in the [Certificates] [Transferor Interest]. It understands the full
nature and risks of an investment in the [Certificates] [Transferor Interest]
and based upon its present and projected net income and net worth, it believes
that it can bear the economic risk of an immediate or future loss of its entire
investment in the [Certificates] [Transferor Interest].
C-1
5. It understands that the [Certificates] [Transferor Interest] will be
offered in a transaction not involving any public offering within the meaning of
the Securities Act, and that, if in the future it decides to resell, pledge or
otherwise transfer any [Certificates] [Transferor Interest], such [Certificates]
[Transferor Interest] may be resold, pledged or transferred only (a) to a person
who the seller reasonably believes is an institutional "accredited investor" as
defined in Rule 501(a)(1)-(3) or (7) under the Securities Act that purchases for
its own account or for the account of another institutional accredited investor
or (b) pursuant to an effective registration statement under the Securities Act.
6. It understands that each [Certificate] [Transferor Interest] will bear
legends substantially to the following effect:
THIS [CERTIFICATE] [TRANSFEROR INTEREST] HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY PURCHASING THIS [CERTIFICATE] [TRANSFEROR INTEREST], AGREES
THAT THIS [CERTIFICATE] [TRANSFEROR INTEREST] MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES
LAWS AND TO A PERSON WHO HAS FURNISHED TO THE OWNER TRUSTEE (A) AN INVESTMENT
LETTER TO THE EFFECT THAT SUCH PURCHASER IS THE DEPOSITOR OR AN AFFILIATE
THEREOF, OR AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE
501(a)(1)-(3) OR (7) UNDER THE ACT AND (B) IF REQUIRED, AN OPINION OF COUNSEL
SATISFACTORY TO THE OWNER TRUSTEE.
THIS [CERTIFICATE] [TRANSFEROR INTEREST] MAY NOT BE TRANSFERRED DIRECTLY OR
INDIRECTLY TO (1) EMPLOYEE BENEFIT PLANS, RETIREMENT ARRANGEMENTS, INDIVIDUAL
RETIREMENT ACCOUNTS OR XXXXX PLANS SUBJECT TO EITHER TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR (2) ENTITIES (INCLUDING INSURANCE
COMPANY GENERAL ACCOUNTS) WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF ANY SUCH PLAN'S, ARRANGEMENT'S OR ACCOUNT'S INVESTMENT IN SUCH ENTITIES.
FURTHER, THIS [CERTIFICATE] [TRANSFEROR INTEREST] MAY BE TRANSFERRED ONLY TO A
UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THIS [CERTIFICATE] [TRANSFEROR INTEREST] IS NOT GUARANTEED OR INSURED BY ANY
GOVERNMENTAL AGENCY.
SO LONG AS THE SERIES 2000-1, CLASS A NOTES ARE OUTSTANDING, THIS [CERTIFICATE]
[TRANSFEROR INTEREST] MAY NOT BE SOLD, PLEDGED,
C-2
TRANSFERRED, ASSIGNED, HAVE A PARTICIPATION INTEREST SOLD IN THE
[CERTIFICATE][TRANSFEROR INTEREST] OR OTHERWISE CONVEYED, IN WHOLE OR IN PART,
WITHOUT THE PRIOR WRITTEN APPROVAL OF FIRST UNION SECURITIES, INC., A COPY OF
WHICH APPROVAL SHALL BE FURNISHED TO THE OWNER TRUSTEE AND THE CERTIFICATE
REGISTRAR.
7. It is acquiring the [Certificates] [Transferor Interest] for its own
account and not with a view to the public offering thereof in violation of the
Securities Act (subject, nevertheless, to the understanding that disposition of
its property shall at all times be and remain within its control).
8. It has been furnished with all information regarding the Trust and
[Certificates] [Transferor Interest] which it has requested from the Trust and
the Depositor.
9. Neither it nor anyone acting on its behalf has offered, transferred,
pledged, sold or otherwise disposed of any [Certificate] [Transferor Interest],
any interest in any [Certificate] [Transferor Interest] or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of any [Certificate] [Transferor Interest], any interest in any
[Certificate] [Transferor Interest] or any other similar security from, or
otherwise approached or negotiated with respect to any [Certificate] [Transferor
Interest], any interest in any [Certificate] [Transferor Interest] or any other
similar security with, any person in any manner or made any general solicitation
by means of general advertising or in any other manner, which would constitute a
distribution of the [Certificates] [Transferor Interest] under the Securities
Act or which would require registration pursuant to the Securities Act nor will
the it act, nor has it authorized or will authorize any person to act, in such
manner with respect to any [Certificate] [Transferor Interest].
C-3
Dated:____________
Very truly yours,
_____________________________
NAME OF PURCHASER
By: _________________________
Name:________________________
Title:_______________________
NOTE: To be executed by an
----
executive officer
C-4
