As filed with the Securities and Exchange Commission on January 6, 1999
Registration No. 33-82040
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 3
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933
MAIN PLACE FUNDING, LLC
(Exact name of registrant as specified in its charter)
Delaware 56-2110071
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
100 North Tryon Street
Charlotte, North Carolina 28255
(704) 388-7436
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Copy to:
JOHN E. MACK A. CURTIS GREER II
President Cadwalader, Wickersham & Taft
Main Place Funding, LLC 100 Maiden Lane
100 North Tryon Street New York, New York 10038-4892
Charlotte, North Carolina 28255 (212) 504-6660
(704) 386-5972
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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No further sales will take place.
(Approximate date of commencement of proposed sale to the public)
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [ ]
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If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
---------------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<PAGE>
THE REGISTRANT HEREBY AMENDS THE REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE>
EXPLANATORY NOTE
On November 1, 1996, following a series of transactions, NationsBank, N.A.,
a national banking association, became the sole shareholder of Main Place
Funding Corporation, a Delaware corporation ("Main Place"). NationsBank, N.A.
contributed its shares of Main Place to its wholly-owned subsidiary, Main Place
Holdings Corporation ("MP Holdings"). On November 1, 1996, Main Place merged
with and into a newly formed, wholly-owned subsidiary of MP Holdings, Main Place
Real Estate Investment Trust, a Maryland real estate investment trust ("MP
REIT"), with MP REIT as the surviving entity.
On October 15, 1998, MP Holdings merged with and into Main Place Holdings,
LLC ("MP LLC"), a Delaware limited liability company wholly-owned by
NationsBank, N.A., with MP LLC as the surviving entity (the "Merger"). The
Merger resulted in the succession of MP LLC to MP Holdings, with MP LLC as the
holder of all of the voting securities of MP REIT. On December 10, 1998, MP LLC
was renamed "Main Place Funding, LLC" ("Funding LLC"). On December 14, 1998,
Main Place Trust, a Delaware business trust ("Main Place Trust"), whose sole
purpose is holding exclusive control over the exercise of a bankruptcy veto with
respect to Funding LLC, was admitted as an additional member of Funding LLC and
holds a 1% membership interest in Funding LLC. Main Place Trust was formed on
December 14, 1998 and is a wholly-owned subsidiary of NationsBank, N.A., which
continues to hold the remaining 99% membership interest in Funding LLC.
On December 23, 1998, MP REIT merged with and into Funding LLC, with
Funding LLC as the surviving entity.
In accordance with paragraph (d) of Rule 414 of the Securities Act, except
as modified by this Post-Effective Amendment No. 3, Funding LLC, as successor to
MP REIT, expressly adopts Registration Statement No. 33-82040 on Form S-3 as its
own registration statement for all purposes of the Securities Act of 1933, as
amended (the "Securities Act") and the Securities Exchange Act of 1934, as
amended. Funding LLC is a Delaware limited liability company and a direct
subsidiary of NationsBank, N.A., which is itself a wholly-owned, indirect
subsidiary of BankAmerica Corporation.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 15. Indemnification of Members.
Section 18-108 of the Delaware Limited Liability Company Act (the "DLLCA")
empowers a limited liability company to indemnify and hold harmless any member
or manager or person from and against any and all claims and demands whatsoever.
The Amended and Restated Limited Liability Company Agreement of Funding LLC
(the "Agreement") prevents the recovery by Funding LLC of monetary damages
against its members ("Indemnified Persons") to the fullest extent permitted by
the DLLCA. In accordance with the provisions of the DLLCA, the Agreement
provides that Funding LLC shall indemnify and hold harmless each Indemnified
Person against any losses, claims, damages or liabilities (including reasonable
attorneys fees) to which such Indemnified Person may become subject in
connection with any matter arising from, related to, or in connection with the
Agreement or Funding LLC's business or affairs, except for such losses, claims,
damages or liabilities as are determined by final judgment of a court of
competent jurisdiction to have resulted from such Indemnified Person's gross
negligence or willful misconduct.
Notwithstanding anything else in the Agreement, the indemnity obligations
of Funding LLC shall (a) be in addition to any liability that Funding LLC may
otherwise have; (b) extend upon the same terms and conditions to the directors,
committee members, officers, stockholders, partners, members, control person,
employees, agents and representatives of each Indemnified Person; (c) be binding
upon and inure to the benefit of any successors, assigns, heirs and personal
representatives of each Indemnified Person and any such person; (d) be limited
to the assets of Funding LLC; and (e) be subordinate to Funding LLC's
obligations in respect of Bonds (as defined in Section 3.1(a)(vii) of the
Agreement) as set forth in Section 11.1(b)(xii) of the Agreement.
The foregoing is only a general summary of certain aspects of Delaware law
dealing with indemnification of members and managers and does not purport to be
complete. It is qualified in its entirety by reference to the relevant statutes.
Item 16. Exhibits.
The following exhibits are filed with this Registration Statement.*
Exhibit No. Description of Exhibit
- ----------- ----------------------
2.1 Agreement of Merger merging Main Place Holdings
Corporation into Main Place Holdings, LLC, dated as of
October 15, 1998
2.2 Agreement and Plan of Merger between Main Place Real
Estate Investment Trust and Main Place Funding, LLC,
dated as of December 22, 1998
3.1 Limited Liability Company Agreement of Main Place
Holdings, LLC, dated as of October 15, 1998
3.2 Amended and Restated Limited Liability Company
Agreement of Main Place Funding, LLC, dated as of
December 14, 1998
4.1 First Supplemental Indenture, dated as of December 23,
1998, between Main Place Funding, LLC and U.S. Bank
Trust National Association
<PAGE>
4.2 Second Supplemental Indenture, dated as of December 23,
1998, between Main Place Funding, LLC, and U.S. Bank
Trust National Association
4.3 Assignment and Assumption Agreement between
NationsBank, N.A., and Main Place Trust, dated as of
December 14, 1998
4.4 Trust Agreement of Main Place Trust dated as of
December 14, 1998
23 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included on signature page)
- --------------------
* All other required exhibits were previously filed as exhibits to, and are
listed in, the Registration Statement on Form S-3, as amended, to which
this is Post-Effective Amendment No. 3.
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to the Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
<PAGE>
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below on this Post-Effective Amendment
to a Registration Statement hereby constitutes and appoints John E. Mack and
Gary S. Williams, and each of them, with full power to act without the other,
his true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities (until revoked in writing) to sign any and all amendments to this
Registration Statement (including post-effective amendments and amendments
thereto), and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing ratifying and
confirming all that said attorneys-in-fact and agents or any of them, of their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 3 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Charlotte, State of North
Carolina, on January 6, 1999.
MAIN PLACE FUNDING, LLC
By: /s/ John E. Mack
----------------
John E. Mack
President
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 3 to the Registration Statement has been signed on
January 6, 1999 by the following persons in the capacities and on the dates
indicated.
Signature Title
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/s/ John E. Mack President (Principle Executive Officer)
- -----------------------------
John E. Mack
Treasurer and Senior Vice President/
/s/ Neil A. Cotty Principle Financial and Accounting
- ------------------------------ Officer (Principal Financial and
Neil A. Cotty Accounting Officer)
NATIONSBANK, N.A. Managing Member
By: /s/ John E. Mack
- ------------------------------
John E. Mack
MAIN PLACE TRUST Special Managing Member
By: /s/ John E. Mack
- ------------------------------
John E. Mack
Business Trustee
<PAGE>
EXHIBIT INDEX*
--------------
Exhibit No. Description of Exhibit
2.1 Agreement of Merger merging Main Place Holdings
Corporation into Main Place Holdings, LLC, dated as of
October 15, 1998
2.2 Agreement and Plan of Merger between Main Place Real
Estate Investment Trust and Main Place Funding, LLC,
dated as of December 22, 1998
3.1 Limited Liability Company Agreement of Main Place
Holdings, LLC, dated as of October 15, 1998
3.2 Amended and Restated Limited Liability Company
Agreement of Main Place Funding, LLC, dated as of
December 14, 1998
4.1 First Supplemental Indenture, dated as of December 23,
1998, between Main Place Funding, LLC and U.S. Bank
Trust National Association
4.2 Second Supplemental Indenture, dated as of December 23,
1998, between Main Place Funding, LLC, and U.S. Bank
Trust National Association
4.3 Assignment and Assumption Agreement between
NationsBank, N.A., and Main Place Trust, dated as of
December 14, 1998
4.4 Trust Agreement of Main Place Trust dated as of
December 14, 1998
23 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included on signature page)
- ------------------------
* All other required exhibits were previously filed as exhibits to, and are
listed in, the Registration Statement on Form S-3, as amended, to which
this is Post-Effective Amendment No. 3.
AGREEMENT OF MERGER
MERGING
MAIN PLACE HOLDINGS CORPORATION
INTO
MAIN PLACE HOLDINGS, LLC
Pursuant to this Agreement of Merger, Main Place Holdings Corporation, a
corporation organized and existing under the laws of Delaware, shall be merged
with and into Main Place Holdings, LLC, a limited liability company organized
and existing under the laws of Delaware (the "Merger").
The Merger shall be in accordance with the following terms and conditions:
FIRST: Upon the Merger becoming effective, Main Place Holdings Corporation shall
be merged into Main Place Holdings, LLC, which shall continue to exist as a
Delaware limited liability company.
SECOND: The Certificate of Formation of Main Place Holdings, LLC in effect at
the time of the Merger shall continue in full force and effect as the
Certificate of Formation of the surviving entity.
THIRD: Additional terms and conditions of the Merger are as follows:
(a) The Limited Liability Company Agreement of Main Place Holdings, LLC in
effect at the time of the Merger shall be and remain the Limited Liability
Company Agreement of the surviving entity until the same shall be altered,
amended or repealed as therein provided.
(b) The officers of Main Place Holdings, LLC shall continue in office upon
and after the time of the Merger.
(c) The Merger shall become effective on such date and time as the officers
of the surviving entity shall deem appropriate.
FOURTH: The manner of converting the outstanding shares of the capital stock of
the constituent corporation is as follows:
Each share of capital stock of the Main Place Holdings Corporation issued
and outstanding at the effective time of the Merger shall be canceled and
no consideration shall be issued or paid with respect thereto.
<PAGE>
FIFTH: This Agreement of Merger may be terminated and abandoned by action of the
Member of Main Place Holdings, LLC at any time prior to the effective date of
the Agreement of Merger. To the extent permitted by applicable law, this
Agreement of Merger may be amended by action of the Board of Directors of the
merging corporation and the Member of the limited liability company at any time
prior to the effective date of the certificate of merger issued by the State
Corporation Commission of Delaware.
<PAGE>
Dated as of the 15th day of October, 1998
MAIN PLACE HOLDINGS CORPORATION
By: /s/ John E. Mack
-------------------------------
John E. Mack
President
MAIN PLACE HOLDINGS, LLC
By: /s/ John E. Mack
-------------------------------
John E. Mack
President
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of December 22, 1998 (this
"Agreement"), is between Main Place Real Estate Investment Trust, a Maryland
real estate investment trust (the "Trust"), and Main Place Funding, LLC, a
Delaware limited liability company (the "Company").
W I T N E S S E T H:
WHEREAS, the Company desires to acquire the properties and other assets,
and to assume all of the liabilities and obligations, of the Trust by means of a
merger of the Trust with and into the Company;
WHEREAS, Section 18-209 of the Delaware Limited Liability Company Act, 6
Del. C. ss.ss. 18-101 et seq. (the "Delaware Act"), and Section 8-501.1 of the
Corporations and Associations Article of the Annotated Code of the Public
General Laws of Maryland (the "Maryland Act"), authorize the merger of a
Maryland real estate investment trust with and into a Delaware limited liability
company;
WHEREAS, the Trust and the Company now desire to merge the Trust with and
into the Company (the "Merger"), following which the Company shall be the
surviving entity;
WHEREAS, the Board of Trustees of the Trust has approved this Agreement and
the Merger, and the sole shareholder of the Trust entitled to vote on the Merger
has approved of the Merger; and
WHEREAS, the member of the Company holding 99% of the Company's membership
interests has approved this Agreement and the Merger.
NOW THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
THE MERGER
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SECTION 1.01. THE MERGER.
(a) After satisfaction or, to the extent permitted hereunder, waiver of all
conditions to the Merger, as the Trust and the Company shall determine, the
Company, which shall be the surviving entity, shall file a certificate of merger
(the "Certificate of Merger")
<PAGE>
with the Secretary of State of the State of Delaware and make all other filings
or recordings required by the Delaware Act and the Maryland Act in connection
with the Merger. The Merger shall become effective in accordance with applicable
law (the "Effective Time").
(b) At the Effective Time, the Trust shall be merged with and into the
Company, whereupon the separate existence of the Trust shall cease, and the
Company shall be the surviving entity of the Merger (the "Survivor") in
accordance with Section 18-209 of the Delaware Act and Section 8-501.1 of the
Maryland Act.
SECTION 1.02 CANCELLATION OF STOCK; CONVERSION OF INTERESTS. At the
Effective Time:
(a) Each issued and outstanding Class A Trust Share of the Trust owned by
the Company shall be canceled and cease to exist;
(b) Each issued and outstanding Class B Trust Share of the Trust will be
converted into the right to receive $10,800 in cash; and
(c) Each limited liability company interest in the Company outstanding
immediately prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of the Company or the holder thereof, remain
unchanged and continue to remain outstanding as a limited liability company
interest in the Survivor.
ARTICLE II
THE SURVIVING LIMITED LIABILITY COMPANY
---------------------------------------
SECTION 2.01. CERTIFICATE OF FORMATION AND LIMITED LIABILITY COMPANY
AGREEMENT. The certificate of formation and limited liability company agreement
of the Company in effect immediately prior to the Effective Time shall be the
certificate of formation and limited liability company agreement of the Survivor
unless and until amended in accordance with their terms and applicable law. The
name of the Survivor shall remain unchanged as Main Place Funding, LLC.
ARTICLE III
TRANSFER AND CONVEYANCE OF
ASSETS AND ASSUMPTION OF LIABILITIES
------------------------------------
SECTION 3.01. TRANSFER, CONVEYANCE AND ASSUMPTION. At the Effective Time
the Company shall continue in existence as the Survivor, and shall, without
further transfer or other action, succeed to and possess all of the rights,
privileges and powers of the Trust, and all of the assets and property of
whatever kind and character of the Trust shall vest in the Survivor without
further act or deed; thereafter, the Survivor shall be liable for all of the
liabilities and obligations of the Trust, and any claim or judgment against the
Trust may be
<PAGE>
enforced against the Survivor in accordance with Section 18-209 of the Delaware
Act and Section 8-501.1 of the Maryland Act.
ARTICLE IV
CONDITIONS TO THE MERGER
------------------------
SECTION 4.01 CONDITIONS TO THE OBLIGATIONS OF EACH PARTY. The obligations
of the Company and the Trust to consummate the Merger are subject to the
satisfaction of the following conditions as of the Effective Time:
(i) no provision of any applicable law or regulation and no judgment,
injunction, order or decree shall prohibit the consummation of the Merger;
and
(ii) all actions by or in respect of or filings with any governmental
body, agency, official or authority required to permit the consummation of
the Merger shall have been obtained; and
(iii) this Agreement shall have been adopted by the appropriate action
of, or on behalf of, each of the parties in accordance with applicable law.
ARTICLE V
TERMINATION
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SECTION 5.01. TERMINATION. This Agreement may be terminated and the Merger
may be abandoned at any time prior to the Effective Time by the aforementioned
member of the Company or the Board of Trustees of the Trust.
SECTION 5.02 EFFECT OF TERMINATION. If this Agreement is terminated
pursuant to Section 5.01, then this Agreement shall become void and of no effect
with no liability on the part of any party hereto.
ARTICLE VI
MISCELLANEOUS
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SECTION 6.01 AMENDMENTS; NO WAIVERS.
(a) Any provision of this Agreement may, subject to applicable law, be
amended or waived prior to the Effective Time if, and only if, such amendment or
waiver is in writing and signed by the Company and by the Trust.
(b) No failure or delay by any party hereto in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power
<PAGE>
or privilege. The rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by law.
SECTION 6.02. INTEGRATION. All prior or contemporaneous agreements,
contracts, promises, representations, and statements, if any, among the Trust
and the Company, or their representatives, are merged into this Agreement, and
this Agreement shall constitute the entire understanding between the Trust and
the Company with respect to the subject matter hereof.
SECTION 6.03. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns; provided, however, that no party
may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the consent of the other parties hereto.
SECTION 6.04. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware,
without regard to principles of conflict of laws.
SECTION 6.05 COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, but all of which, taken
together, shall constitute one and the same instrument, with the same effect as
if the signatures thereto were upon the same instrument.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK - SIGNATURE PAGE FOLLOWS)
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized representatives as of the day and
year first above written.
MAIN PLACE REAL ESTATE INVESTMENT TRUST
By: /s/ John E. Mack
-------------------------------------
Name:
Title:
MAIN PLACE FUNDING, LLC
By: NATIONSBANK, N.A.
Managing Member
By: /s/ James W. Kiser
-------------------------------------
Name:
Title:
LIMITED LIABILITY COMPANY AGREEMENT
OF
MAIN PLACE HOLDINGS, LLC
The undersigned (the "Initial Member") does hereby enter into this Limited
Liability Company Agreement of Main Place Holdings, LLC, a Delaware limited
liability company (the "Company"), effective this 15th day of October, 1998.
ARTICLE I
OFFICE
The principal place of business of the Company is 100 North Tryon Street,
Charlotte, North Carolina 28255. The Company may have such offices as the
members may designate or as the business of the Company may require. The
registered office of the Company is located at 1209 Orange Street, City of
Wilmington, County of New Castle, Delaware 19801.
ARTICLE II
PURPOSE
The purposes of the Company shall be to conduct any lawful business purpose or
activity with the exception of the business of granting policies of insurance,
or assuming insurance risks or banking as defined in Section 126 of Title 8 of
the Delaware Code Annotated. The Company shall have the power to do any and all
acts and things necessary, appropriate, proper, advisable, incidental to or
convenient for the furtherance and accomplishment of such purposes, and for the
protection and benefit of its business.
ARTICLE III
DURATION OF THE COMPANY
The Company shall commence upon the filing of its Certificate of Formation with
the Secretary of State of Delaware and shall continue for a term of twenty (20)
years unless (a) extended by the Manager, (b) sooner dissolved by the Manager or
(c) dissolved by a statutory event of dissolution. The right to continue after
the stated term or after statutory event of dissolution is reserved and may be
exercised by the remaining members(s).
ARTICLE IV
MANAGEMENT
The management, control and operation of the Company shall be vested exclusively
in its Manager. The Initial Member is hereby designated as the Manager. The
Manager shall have the exclusive power on behalf and in the name of the Company,
including without limitation to
<PAGE>
appoint officers of the Company, to carry out any and all of the purposes of the
Company and to perform all of the acts and enter into and perform all of the
contracts and other undertakings that it may deem necessary or advisable or
incidental thereto. The initial officers of the Company are as follows:
John E. Mack President and Treasurer
Gary S. Williams Senior Vice President/Tax Officer
Johnny E. Graves Vice President/Assistant Treasurer
Mary-Ann Lucas Secretary
ARTICLE V
CAPITAL CONTRIBUTIONS
The Initial Member hereby agrees to make an initial contribution of capital to
the Company in the amount of one thousand dollars ($1,000). Additional capital
contributions may be received at such times and in such amounts as may be
determined and permitted by the Manager.
ARTICLE VI
ADMISSION OF NEW MEMBERS
Any other person who acquires an interest in the Company, whether directly from
the Company or by assignment, shall thereafter be admitted to membership by the
Manager. As a condition to membership, a new owner shall execute a document in
which such owner affirms and accepts all the terms, conditions and provisions of
this Operating Agreement and agrees to be bound to the same. A "person" shall
include any individual, corporation, partnership, association, trust,
institution or other entity or organization.
ARTICLE VII
DISTRIBUTIONS AND ALLOCATIONS
The members shall share in all post-formation profits and surplus of the Company
according to their respective interests as represented by the shares (or as
herein otherwise provided). The members agree for themselves and their
successors, assigns and heirs, that their participation is considered a
long-term investment, and that any return of capital prior to the termination
and winding up of the Company is in the dole discretion of the Manager. Prior to
dissolution, and at least annually, as income has been received by the Company,
the Manager shall determine funds available for distribution.
ARTICLE VIII
RESTRICTIONS
No member, without the written authorization of the Manager, shall (i) endorse
any note or act as an accommodation party, or otherwise become surety for any
person in any transaction involving the Company; (ii) on behalf of the Company
borrow or lend money, or make,
<PAGE>
deliver or accept any commercial paper, or execute any mortgage, security
agreement, bond, or lease, or purchase or contract to purchase, or sell or
contract to sell any property for or of the Company, or do any act detrimental
to the best interests of the Company, or which would make it impossible to carry
on the ordinary purpose of the Company. Each member shall be reimbursed by the
Company for all expenses incurred on behalf of the Company.
ARTICLE IX
BANKING
All funds of the Company shall be deposited in its name in such bank account or
accounts as shall be designated by the Manager. All withdrawals therefrom are to
be made upon the authority of such person or persons as may be authorized by the
Manager from time to time.
ARTICLE X
BOOKS
The Company books shall be maintained at the offices of Main Place Holdings, LLC
and each member shall have access thereto. The fiscal year of the Company shall
be the calendar year, and the books shall be closed and balanced at the end of
each fiscal year. The Company will furnish annual financial statements to the
members, and prepare tax returns as required in a timely manner.
ARTICLE XI
EXECUTION OF INSTRUMENTS
All agreements, indentures, mortgages, deeds, conveyances, transfers, contracts,
checks, notes, drafts, loan documents, letters of credit, master agreements,
swap agreements, guarantees, certificates, declarations, receipts, discharges,
releases, satisfactions, settlements, petitions, schedules, accounts,
affidavits, bonds, undertakings, proxies and other instruments or documents may
be signed, executed, acknowledged, verified, attested, delivered or accepted on
behalf of the Company by the President, any Senior Vice President, any Vice
President, or any individual who is appointed by the Manager to a position equal
to any of the aforementioned officer positions, or such other officers,
employees or agents as the members of any of such designated officers or
individuals may direct. The provisions of this Article are supplementary to any
other provision of this Agreement and shall not be construed to authorize
execution of instruments otherwise dictated by law.
ARTICLE XII
VOLUNTARY TERMINATION
The Company may be dissolved at any time by resolution passed by the Manager, in
which event the members shall proceed with reasonable promptness to liquidate
the Company. The assets of the Company shall be distributed in the following
order:
<PAGE>
1. To pay or provide for the payment of all Company liabilities other than
members, and liquidating expenses and obligations;
2. To pay debts owing to members other than for capital and profits;
3. To pay the remaining funds to the members in proportion to their share
ownership.
ARTICLE XIII
CONTINUATION
Upon the occurrence of a statutory event of termination, the remaining owners of
the Company have the right to continue the Company by a majority in interest
voted unless a higher vote is required by the state statute or by the IRS
classification regulations allowing avoidance of the corporate characteristic of
continuity of interest.
ARTICLE XIV
AMENDMENT
This Agreement is a written contract of the members of the Company. Amendments
must be written and executed by all members.
ARTICLE XV
VIOLATION OF THIS AGREEMENT
Any member who shall violate any of the terms, conditions, and provisions of
this agreement shall keep and save harmless the Company property and shall also
indemnify the other then members from any and all claims, demands and actions of
every kind and nature whatsoever which may arise out of or by reason of such
violation of any of the terms and conditions of this agreement.
IN WITNESS WHEREOF, the undersigned has hereunto set its hand effective as of
the day first above written.
NATIONSBANK, N.A.
Member
By: /s/ John E. Mack
---------------------------
John E. Mack
Senior Vice President
AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
OF
MAIN PLACE FUNDING, LLC
A Delaware Limited Liability Company
(formerly Main Place Holdings, LLC)
Dated as December 14, 1998
<PAGE>
TABLE OF CONTENTS
ARTICLE I......................................................................6
DEFINITIONS.................................................................6
Section 1.1 Definitions.................................................6
ARTICLE II.....................................................................8
ORGANIZATION................................................................8
Section 2.1 Formation...................................................8
Section 2.2 Certificate of Formation; Foreign Qualification.............8
Section 2.3 No State Law Partnership; Liability to Third Parties........9
ARTICLE III....................................................................9
PURPOSES AND POWERS, PRINCIPAL OFFICE, REGISTERED...........................9
Section 3.1 Purposes and Powers.........................................9
Section 3.2 Principal Office...........................................10
Section 3.3 Registered Agent and Office................................10
Section 3.4 Period of Duration.........................................10
ARTICLE IV....................................................................10
MEMBERSHIP AND DISPOSITIONS OF INTERESTS...................................10
Section 4.1 Members....................................................10
Section 4.2 Elimination of Preemptive Rights...........................10
Section 4.3 Resignation................................................10
Section 4.4 Restriction on the Disposition of the Membership Interest..10
-
Section 4.5 Bankrupt Member; Continuation.............................11
Section 4.6 Two Members Required.......................................12
Section 4.7 Other Activities of the Members and their Affiliates.......12
ARTICLE V.....................................................................12
CAPITAL CONTRIBUTIONS......................................................12
Section 5.1 Initial Capital............................................12
-
Section 5.2 Additional Capital.........................................12
-
Section 5.3 Return of Contributions....................................12
ARTICLE VI....................................................................13
PROFITS, LOSSES, ACCOUNTING, TAXES AND DISTRIBUTION........................13
Section 6.1 Allocation of Profits and Losses...........................13
Section 6.2 Books; Fiscal Year; Accounting Terms.......................13
Section 6.3 Capital Accounts...........................................13
Section 6.4 Distributions..............................................13
Section 6.5 Tax Returns................................................13
Section 6.6 Tax Matters Partner........................................13
Section 6.7 Withdrawals................................................14
Section 6.8 Banking....................................................14
Section 6.9. Tax Classification........................................14
ARTICLE VII...................................................................14
MANAGEMENT, LIABILITY OF MEMBERS,..........................................14
Section 7.1 Managing Member............................................14
Section 7.2 Powers of the Managing Member..............................14
Section 7.3 Actions Requiring Consent..................................15
Section 7.4 Officers...................................................17
Section 7.5 Indemnification............................................18
Section 7.6 Exculpation; Duties........................................18
Section 7.7 Violation of this Agreement................................19
Section 7.8 Execution of Instruments...................................19
Section 7.9 Scheduled Duties and Compensation..........................19
ARTICLE VIII..................................................................20
DISSOLUTION, LIQUIDATION AND TERMINATION OF THE COMPANY....................20
Section 8.1 Dissolution................................................20
Section 8.2 Liquidation and Termination................................20
Section 8.3 Payment of Debts..........................................20
Section 8.4 Remaining Distribution.....................................20
Section 8.5 Reserve....................................................20
Section 8.6 Final Accounting...........................................21
ARTICLE IX....................................................................21
AMENDMENTS.................................................................21
Section 9.1 Authority to Amend.........................................21
ARTICLE X.....................................................................21
POWER OF ATTORNEY..........................................................21
Section 10.1 Power.....................................................21
Section 10.2 Survival of Power.........................................22
ARTICLE XI....................................................................22
SEPARATE LEGAL ENTITY......................................................22
Section 11.1 Separate Legal Entity.....................................22
ARTICLE XII...................................................................23
MISCELLANEOUS..............................................................23
Section 12.1 Method of Giving Consent..................................23
Section 12.2 Governing Law.............................................23
Section 12.3 Agreement for Further Execution...........................24
Section 12.4 Entire Agreement..........................................24
Section 12.5 Severability..............................................24
Section 12.6 Notices...................................................24
Section 12.7 Counterparts..............................................24
Section 12.8 Waiver of Partition.......................................24
Section 12.9 Pronouns..................................................24
Section 12.10 Titles and Captions......................................24
<PAGE>
AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
OF
MAIN PLACE FUNDING, LLC
A Delaware Limited Liability Company
(formerly Main Place Holdings, LLC)
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this
"Agreement") is executed as of the 14th day of December, 1998 by the
undersigned, the sole members, to continue a limited liability company under the
laws of the State of Delaware for the purposes and upon the terms and conditions
hereinafter set forth.
RECITALS
1. WHEREAS, NationsBank, N.A. ("NationsBank" or the "Managing Member") has
heretofore been the sole member of the Company pursuant to the original Limited
Liability Agreement of the Company (the "Original Agreement");
2. WHEREAS, Main Place Trust (the "Trust" or the "Special Managing Member")
has on the date hereof acquired a Membership Interest and been admitted as a
Member of the Company pursuant to an Assignment and Assumption Agreement between
NationsBank and the Trust;
3. WHEREAS, NationsBank and the Trust, as the sole members of the Company,
desire to amend and restate the Original Agreement in order to reflect the
admission of the Trust as a Member of the Company, to reflect the new name of
the Company as "Main Place Funding, LLC," and to make certain other changes in
connection with the merger of Main Place Real Estate Investment Trust with and
into the Company; and
4. WHEREAS, each of NationsBank and the Trust desire that this Agreement
be, and it hereby is, the sole governing document of the Company, superseding
all prior agreements.
<PAGE>
ARTICLE I
DEFINITIONS
-----------
Section 1.1 Definitions. Whenever used in this Agreement the following
terms shall have the meanings respectively assigned to them in this Article I
unless otherwise expressly provided herein or unless the context otherwise
requires:
Act: "Act" shall mean the Delaware Limited Liability Company Act, 6
Del.C.ss.ss. 18-101 et seq., as amended from time to time.
Affiliate: "Affiliate" of another Person shall mean any Person directly or
indirectly controlling, controlled by, or under common control with, such other
person.
Agreement: "Agreement" shall mean this Amended and Restated Limited
Liability Company Agreement of the Company as the same may be amended or
restated from time to time in accordance with its terms.
Assignee: "Assignee" shall mean a Person who has acquired a share of the
Company's profits and losses and such rights to receive distributions from the
Company as are assigned to that Person, but who is not a Substitute Member.
Bankrupt Member: "Bankrupt Member" shall mean any Member (a) that (i) makes
an assignment for the benefit of creditors; (ii) files a voluntary petition in
bankruptcy; (iii) is adjudged a bankrupt or insolvent, or has entered against
such Member an order for relief, in any bankruptcy or insolvency proceedings;
(iv) files a petition or answer seeking for such Member any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any statute, law or regulation; (v) files an answer or other
pleading admitting or failing to contest the material allegations of a petition
filed against such Member in any proceeding of the type described in subclauses
(i) through (iv) of this clause (a); or (vi) seeks, consents to, or acquiesces
in the appointment of a trustee, receiver or liquidator of such Member or of all
or any substantial part of such Member's properties; or (b) against which, a
proceeding seeking reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under any statute, law or regulation
has been commenced and one hundred twenty (120) days have expired without
dismissal thereof or with respect to which, without such Member's consent or
acquiescence, a trustee, receiver or liquidator of such Member or of all or any
substantial part of such Member's properties has been appointed and ninety (90)
days have expired without the appointment having been vacated or stayed, or
ninety (90) days have expired after the date of expiration of a stay, if the
appointment has not previously been vacated. The foregoing is intended to and
shall supersede and replace the events of bankruptcy described in Sections
18-304(a) and (b) of the Act.
Bonds: "Bonds" shall have the meaning specified in Section 3.1(a)(vii).
<PAGE>
Bond Documents: "Bond Documents" shall mean any outstanding Bonds, the
indentures pursuant to which such Bonds were issued and the related agreements
contemplated thereby.
Capital Account: "Capital Account" shall mean, as to the Member, the
account established and maintained for such Member pursuant to Article VI
hereof.
Capital Contribution: "Capital Contribution" shall mean the amount in cash
or property contributed by each Member (or its predecessors in interest) to the
capital of the Company for such Member's Membership Interest.
Code: "Code" shall mean the Internal Revenue Code of 1986, as amended.
Company: "Company" shall mean Main Place Funding, LLC, the Delaware limited
liability company (formerly known as Main Place Holdings, LLC) continued
pursuant to the Act and this Agreement.
Dispose, Disposing or Disposition: "Dispose," "Disposing" or "Disposition"
shall mean a sale, assignment, transfer, exchange, mortgage, pledge, grant of a
security interest, or other disposition or encumbrance (including, without
limitation, by operation of law), or any act thereof.
Independent Representative: "Independent Representative" shall mean a
trustee of the Trust who is not at the time of appointment and has not been at
any time during the preceding five (5) years: (i) a direct or indirect legal or
beneficial owner (beyond a nominal amount) in the Trust or any of its
affiliates; (ii) a creditor, supplier, employee, officer, director, family
member, manager, or contractor of the Trust or any of its affiliates; or a
person who controls (whether directly, indirectly, or otherwise) the Trust or
its affiliates or any creditor, supplier, employee, officer, director, manager,
or contractor of the Trust or its affiliates. As used herein, the following
terms shall have the following meanings: "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of
management, policies or activities of a person or entity, whether through
ownership of voting securities, by contract or otherwise; "person" means a
natural person, corporation or other entity, government, or political
subdivision, agency, or instrumentality of a government; and an "affiliate" of a
person is a person that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with,
the person specified. Notwithstanding the foregoing, an Independent
Representative may serve in similar capacities for other "special purpose"
corporations formed by NationsBank or any affiliate thereof.
IRS: "IRS" shall mean the Internal Revenue Service.
Managing Member: "Managing Member" shall mean NationsBank and any successor
Managing Member appointed pursuant to this Agreement, each in its capacity as
the managing member of the Company.
<PAGE>
Member: "Member" shall mean each of NationsBank and the Trust, and any
Person hereafter admitted to the Company as a member as provided in this
Agreement, each in its capacity as a member of the Company.
Membership Interest: "Membership Interest" shall mean the limited liability
company interest of each Member in the Company, including, without limitation,
rights in the capital of the Company, rights to receive distributions
(liquidating or otherwise) and allocations of profits and losses. For purposes
of this Agreement, NationsBank's Membership Interest is ninety-nine percent
(99%) and the Trust's Membership Interest is one percent (1%).
Person: "Person" shall have the meaning given that term in Section
18-102(12) of the Act.
Substitute Member: "Substitute Member" shall mean any Person to whom a
Membership Interest in the Company has been transferred and who was not a Member
immediately prior to such transfer and who has been admitted to the Company as a
Member pursuant to and in accordance with the provisions of Article IV of this
Agreement.
ARTICLE II
ORGANIZATION
------------
Section 2.1 Formation. Each of NationsBank and the Trust hereby execute
this Agreement for the purpose of setting forth the rights and obligations of
the Members.
Section 2.2 Certificate of Formation; Foreign Qualification. The
Certificate of Formation of the Company was filed for record in the office of
the Secretary of State of the State of Delaware on October 15, 1998, in
accordance with the Act. A Certificate of Amendment to the Certificate of
Formation of the Company was filed for record in the office of the Secretary of
State of the State of Delaware on December 10, 1998, in accordance with the Act,
for the purpose of renaming the Company. Prior to the Company's conducting
business in any jurisdiction other than the State of Delaware, the Managing
Member of the Company shall cause the Company to comply, to the extent
procedures are available and those matters are reasonably within the control of
the Managing Member, with all requirements necessary to qualify the Company as a
foreign limited liability company in that jurisdiction. At the request of the
Managing Member of the Company, each Member shall execute, acknowledge, swear
to, and deliver all certificates and other instruments conforming with this
Agreement that are necessary or appropriate to qualify, continue and terminate
the qualifications of the Company as a foreign limited liability company in all
such jurisdictions in which the Company may conduct business. The Managing
Member is hereby designated as an authorized person, with the meaning of the
Act, to execute, deliver and file, to cause the execution, delivery and filing
of, all certificates (and any amendments and/or restatements thereof) required
or permitted by the Act to be filed in the office of the Secretary of State of
the State of Delaware.
<PAGE>
Section 2.3 No State Law Partnership; Liability to Third Parties. The
Members intend that the Company not be a partnership (including, without
limitation, a limited partnership) or joint venture, and that no Member be a
partner or joint venturer of any other Member, for state law purposes, and that
this Agreement not be construed to suggest otherwise. This provision does not
reflect the federal or state tax classification of the Company. Except as
otherwise specifically provided in the Act, no Member shall be liable for the
debts, obligations or liabilities of the Company or any other Member, including
under a judgment, decree or order of a court.
ARTICLE III
PURPOSES AND POWERS, PRINCIPAL OFFICE, REGISTERED
-------------------------------------------------
AGENT, PERIOD OF DURATION AND MEMBER LIST
-----------------------------------------
Section 3.1 Purposes and Powers. The Company has been formed for the
following purposes: (a) to purchase or otherwise acquire, own, hold, sell,
transfer, assign, pledge, finance, refinance and otherwise deal with (i)
mortgage loans, certificates or other securities guaranteed by the Government
National Mortgage Association, (ii) mortgage loans, certificates or other
securities issued or guaranteed by the Federal National Mortgage Association,
(iii) mortgage loans, certificates or other securities issued or guaranteed by
the Federal Home Loan Mortgage Corporation, (iv) deeds of trust, mortgage loans,
mortgage pass-through certificates or collateralized mortgage obligations issued
by any person or entity or other types of mortgage-related securities including
residual interest, (v) direct obligations of, and obligations fully guaranteed
by, the United States of America or any agency or instrumentality of the United
States the obligations of which are backed by the full faith and credit of the
United States of America, (vi) certificates representing interests in the
principal and/or interest payable on any of the foregoing and (vii) such other
securities and investments as may be permitted by or acceptable to the
applicable nationally-recognized statistical rating agency or agencies in
connection with issuance, offer and sale by the Company of one or more series of
Mortgage-Backed Bonds (the "Bonds") collateralized by any of the foregoing,
related property and/or collections and proceeds in respect thereof; (b) to
issue debt subordinated to the Bonds in connection with the acquisition of
collateral for the Bonds; provided, however, that the acts and activities and
exercise of any powers permitted in subsections (a) and (b) of this Section 3.1
require the prior written affirmation of the nationally-recognized statistical
rating agency or agencies which rate any outstanding series of Bonds that any
such activities will not result in a downgrade, qualification or withdrawal of
rating or ratings assigned to such Bonds; and (c) to engage in any activity and
to exercise any powers permitted to limited liability companies under the laws
of the State of Delaware that are incident to foregoing and necessary or
convenient to accomplish the foregoing. The Company shall not engage in any
activities other than as permitted by this Section 3.1.
Notwithstanding any other provision of this Agreement to the contrary, the
Company and the Managing Member, on behalf of the Company, shall have the power
to
<PAGE>
merge the Company with and into Main Place Real Estate Investment Trust with the
Company as the surviving entity.
Section 3.2 Principal Office. The initial principal office of the Company
is located at 100 North Tryon Street, Charlotte, North Carolina 28255. The
principal office of the Company may be relocated from time to time by
determination of the Managing Member.
Section 3.3 Registered Agent and Office. The registered agent for service
of process on the Company in the State of Delaware shall be the Corporation
Trust Company, and the address of such agent and the registered office of the
Company, 1209 Orange Street in the City of Wilmington, County of New Castle,
State of Delaware 19801.
Section 3.4 Period of Duration. The term of the Company shall continue in
perpetuity, unless the Company is earlier dissolved pursuant to law or the
provisions of this Agreement.
ARTICLE IV
MEMBERSHIP AND DISPOSITIONS OF INTERESTS
----------------------------------------
Section 4.1 Members. NationsBank and the Trust are the sole members of the
Company as of the date hereof. NationsBank was admitted to the Company effective
as of the formation of the Company, and the Trust has been admitted to the
Company effective as of the date hereof pursuant to an Assignment and Assumption
Agreement between NationsBank and the Trust.
Section 4.2 Elimination of Preemptive Rights. No Member shall be entitled
as such, as a matter of right, to subscribe for or purchase interests in the
Company of any class, now or hereafter authorized.
Section 4.3 Resignation. Except as otherwise provided in this Agreement, a
Member does not have the right or power to resign from the Company as a Member.
Section 4.4 Restriction on the Disposition of the Membership Interest.
(a) Subject to compliance with all applicable provisions of this Section
4.4, any Member may Dispose of all or any part of its Membership Interest. The
Person to whom such Disposition is made shall be an Assignee of such interest
but shall not be a Substitute Member unless admitted as a Substitute Member in
accordance with Section 4.4(b).
(b) The Person to whom a Disposition is made as described in Section 4.4(a)
shall have the right to become a Substitute Member only if (i) the Member making
such Disposition grants the transferee the right to be a Substitute Member
(which grant (subject to the following clause (ii)) is hereby permitted) and
(ii) such admission as a Substitute Member is consented to by all of the
Members.
<PAGE>
(c) The Company shall not recognize for any purpose any purported
Disposition of all or part of the Member's Membership Interest or any right or
interest appertaining thereto unless and until the Company has received a
document (i) executed by both the Member effecting the Disposition and the
Person acquiring such Membership Interest or part thereof, (ii) including the
notice address of any Person to be admitted to the Company as a Substitute
Member and such Person's agreement to be bound by this Agreement in respect of
the Membership Interest or part thereof being obtained, (iii) setting forth the
Membership Interest of the parties to the Disposition after the Disposition, and
(iv) containing a warranty and representation that the Disposition was made in
accordance with this Agreement and all applicable laws and regulations. Each
Disposition and, if applicable, admission complying with the provisions of this
Section 4.4 is effective as of the date of the document described in this
Section 4.4(c), but only if the other requirements of this Section 4.4 have been
met.
(d) Notwithstanding any other provision of this Agreement, the Disposition
of the Membership Interest, or any right, title or interest therein or thereto,
will not be permitted if the Membership Interest sought to be Disposed of, when
added to the total of all other Membership Interests Disposed of within the
period of twelve (12) consecutive months ending with the proposed date of the
Disposition, results in a termination of the Company under Section 708 of the
Code.
(e) Notwithstanding any other provision of this Agreement, no Disposition
shall be effected while any Bonds are outstanding without the prior written
affirmation of the nationally-recognized statistical rating agency or agencies
rating such Bonds that such Disposition will not result in a downgrade,
qualification or withdrawal of the ratings then assigned to such Bonds, if as a
result of such Disposition an entity that beneficially or constructively owned
less than 49% of the Membership Interests in the Company would as a result of
the contemplated Disposition beneficially or constructively own greater than 49%
of the Membership Interests in the Company.
Section 4.5 Bankrupt Member; Continuation. Notwithstanding any other
provision of this Agreement, a Member shall not cease to be a Member as a result
of such Member becoming a Bankrupt Member and, upon the occurrence of such
event, the Company shall continue without dissolution. Notwithstanding any other
provision of this Agreement, a Member waives any right that it might have under
Section 18-801(b) of the Act to agree in writing to dissolve the Company upon
such Member becoming a Bankrupt Member or the occurrence of any event that
causes such Member to cease to be a Member of the Company. Upon the occurrence
of any other statutory event of termination, the remaining owners of the Company
have the right to continue the Company by a majority in interest voted unless a
higher vote is required by the state statute or by the IRS classification
regulations allowing avoidance of the corporate characteristic of continuity of
interest.
Section 4.6 Two Members Required. For so long as any Bonds are outstanding,
the Company shall have not less than two Members, one of which shall be either
the Trust or another special purpose entity as to which the vote of an
Independent Representative is required for such entity to take certain actions
as a Member hereunder.
<PAGE>
Section 4.7 Other Activities of the Members and their Affiliates. Except as
expressly provided in this Agreement, the Members and their Affiliates may
engage in other business ventures of every nature, independently or with others,
whether or not competitive with the business of the Company, and neither the
Company nor any of the other Members shall have any right in such independent
ventures or to the income and profits derived therefrom.
ARTICLE V
CAPITAL CONTRIBUTIONS
---------------------
Section 5.1 Initial Capital. Each of the Managing Member and the Special
Managing Member has contributed cash totaling $990 and $10, respectively. Each
Member may contribute in the future any additional capital deemed necessary by
the Managing Member, in its sole discretion, for the operation of the Company.
Section 5.2 Additional Capital. Except as specifically set forth elsewhere
in this Agreement, no Member shall be required to contribute capital to the
Company in excess of such Member's initial Capital Contribution, and the
Membership Interests of the Members shall remain fixed at the percentages
indicated in the definition of "Membership Interest". The value of any property
contributed to the Company shall be determined by any reasonable method as the
Managing Member, in its discretion, shall decide.
Section 5.3 Return of Contributions. A Member is not entitled to demand the
return of any part of its Capital Contribution or to payment of interest in
respect of either its Capital Account or its Capital Contribution. Except as
otherwise expressly set forth in this Agreement, neither the Company nor any
Member has any obligation to return the Capital Contribution of a Member.
ARTICLE VI
PROFITS, LOSSES, ACCOUNTING, TAXES AND DISTRIBUTION
---------------------------------------------------
Section 6.1 Allocation of Profits and Losses. Except as otherwise provided
herein, net profits from the operation of the business of the Company (including
gain from the sale, exchange or other disposition of all or any significant
portion of the assets of the Company) and net losses incurred by the Company
shall be allocated among and borne by the Members in accordance with their
Membership Interests.
Section 6.2 Books; Fiscal Year; Accounting Terms. The Company books shall
be maintained at the offices of Main Place Funding, LLC, and each member shall
have access thereto. The fiscal year of the Company shall be the calendar year,
and the books shall be closed and balanced at the end of each fiscal year. The
Company will furnish annual financial statements to the members upon request,
and prepare tax returns as required in a timely manner.
<PAGE>
Section 6.3 Capital Accounts. The Company shall maintain a capital account
for each of the Members in such manner as the Managing Member shall determine in
its sole discretion.
Section 6.4 Distributions. The Members shall share in all post-formation
profits and surplus of the Company according to their Membership Interest. The
Members agree for themselves and their successors, assigns and heirs, that their
participation is considered a long-term investment, and that any return of
capital prior to the termination and winding up of the Company is in the sole
discretion of the Managing Member, subject to Section 18-607 of the Act.
Section 6.5 Tax Returns. The Managing Member shall cause to be prepared and
filed all necessary federal, state and local income tax returns and all other
tax returns required of the Company.
Section 6.6 Tax Matters Partner. To the extent that such a "tax matters
partner" is required for the Company, the Managing Member shall be the "tax
matters partner" of the Company pursuant to Section 6231(a)(7) of the Code. The
"tax matters partner" shall inform each Member of all significant matters that
may come to its attention in its capacity as "tax matters partner" by giving
notice thereof on or before the tenth business day after becoming aware thereof
and, within that time, shall forward to each Member copies of all significant
written communications it may receive in that capacity. The "tax matters
partner" may not take any action contemplated by Sections 6222 through 6232 of
the Code without the consent of every Member affected by such action.
Section 6.7 Withdrawals. No Member shall be entitled to make withdrawals
from its Capital Account.
Section 6.8 Banking. All funds of the Company shall be deposited in its
name in such bank account or accounts as shall be designated by the Managing
Member. All withdrawals therefrom are to be made upon the authority of such
person or persons as may be authorized by the Managing Member from time to time.
Section 6.9. Tax Classification. The Members intend that the Company be
disregarded as an entity separate from its owner for federal income tax
purposes.
ARTICLE VII
MANAGEMENT, LIABILITY OF MEMBERS,
---------------------------------
RIGHTS TO OBTAIN INFORMATION
----------------------------
Section 7.1 Managing Member. Except as otherwise specifically provided in
this Agreement, the Managing Member shall have the authority to, and shall,
conduct the affairs of the Company.
<PAGE>
Section 7.2 Powers of the Managing Member.
(a) Without limiting the generality of the foregoing Section 7.1, the
Managing Member shall have the power and authority to:
(1) establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including with respect to
allocations and distributions;
(2) bring and defend on behalf of the Company actions and proceedings
at law or in equity before any court or governmental, administrative or other
regulatory agency, body or commission or arbiter or otherwise; and
(3) execute all documents or instruments, perform all duties and powers
and do all things for and on behalf of the Company in all matters necessary,
desirable, convenient or incidental to the purpose of the Company, including,
without limitation, all documents, agreements and instruments related to the
making of investments of Company funds, the borrowing of money by the Company,
the taking of actions in the name of or on behalf of the Company and the
execution of Member consents with respect thereto.
In managing the business and affairs of the Company, the Managing Member
may act as Managing Member or agent or attorney-in-fact, as the case may
require, and any action taken by the Managing Member in such capacity and in
accordance with this Agreement shall be binding upon the Company. The expression
of any power or authority of the Managing Member in this Agreement shall not in
any way limit or exclude any other power or authority of the Managing Member
which is not specifically or expressly set forth in this Agreement.
(a) No Management by Other Persons or Entities. Except for the Special
Managing Member to the extent provided in this Agreement, no person or entity
other than the Managing Member (including without limitation the other Members)
shall be an agent or attorney of the Company or have any right, power or
authority to transact any business in the name of the Company or to act for or
on behalf of or to bind the Company, except as (and only to the extent)
expressly delegated by the Managing Member.
(b) Reliance by Third Parties. Any person or entity dealing with the
Company, the Managing Member or the Special Managing Member may rely upon a
certificate signed by the Managing Member as to:
(1) the identity of the Managing Member, the Special Managing Member or
other Members (if any);
(2) the existence or non-existence of any fact or facts which
constitute a condition precedent to acts by the Managing Member, the Special
Managing Member or the Company or are in any other manner germane to the affairs
of the Company;
<PAGE>
(3) the persons who or entities which are authorized to execute and
deliver any instrument or document of or on behalf of the Company; or
(4) any act or failure to act by the Company or as to any other matter
whatsoever involving the Company, the Managing Member or the Special Managing
Member.
(c) Interests of Creditors. When making decisions on behalf of the Company,
the Managing Member shall consider the interests of creditors of the Company as
well as the interests of the Members, to the extent permitted by law.
Section 7.3 Actions Requiring Consent.
(a) For so long as any Bonds are outstanding and until all of the
obligations of the Company under the indentures or the Bonds have been
indefeasibly and fully satisfied, notwithstanding any other provision of law
that otherwise so empowers the Company, the Company shall not, without the
unanimous consent of all of the Members (which consent on behalf of the Trust
shall have been approved and authorized by the Independent Representative);
(i) commence any case, proceeding or other action on behalf of the
Company under any existing or future law of any jurisdiction relating to
bankruptcy, insolvency, reorganization or relief of debtors;
(ii) institute proceedings, including filing a voluntary petition, to
have the Company adjudicated as bankrupt or insolvent;
(iii) consent to the institution of bankruptcy or insolvency
proceedings against the Company;
(iv) file a petition or consent to a petition seeking reorganization,
arrangement, adjustment, winding-up, dissolution, composition, liquidation
or other relief on behalf of the Company of its debts on behalf of its
debts under any federal or state law relating to bankruptcy;
(v) seek or consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator, custodian or any similar official for the
Company or a substantial portion of its properties or a substantial portion
of its properties;
(vi) make any assignment for the benefit of the Company's creditors;
or
(vii) take any action or cause any other Person to take any action in
furtherance of any of the foregoing.
(b) For so long as any Bonds are outstanding and until all of the
obligations of the Company under the indentures or the Bonds have been
indefeasibly and fully satisfied,
<PAGE>
without the prior written affirmation of each nationally-recognized statistical
rating agency or agencies rating such Bonds that the taking, by the Company, of
the desired action or actions provided below in subparagraphs (i) through (v) of
this paragraph (b) will not result in a downgrade, qualification or withdrawal
of rating or ratings assigned to such Bonds, the Company shall not:
(i) to the fullest extent permitted by law, dissolve or liquidate, in
whole or in part;
(ii) merge or consolidate with any other entity other than with an
entity wholly owned, directly or indirectly, by an entity owning 100% of
the membership interests of the Company and having a certificate of
incorporation or other organizational document containing provisions
substantially identical to the provisions of Sections 3.1, 3.3, 4.4(e),
4.5, 4.6, 8.1, Article IX, Article XI and this Section 7.3;
(iii) sell all or substantially all of its assets;
(iv) amend this Agreement to alter in any manner or delete Sections
3.1, 3.3, 4.4(e), 4.5, 4.6, 8.1, Article IX, Article XI or this Section
7.3; or
(v) engage in any business activity other than that provided for in
Section 3.1.
(c) To the fullest extent permitted by applicable law, no Member shall be guilty
of breaching any fiduciary duty to any other Member by refusing to consent to
any of the above listed actions.
Section 7.4 Officers.
(a) The Company shall have an officer designated as the Company's President
who shall be appointed from time to time by the Managing Member. The President
shall be the chief operating officer of the Company. The President of the
Company is hereby delegated the power, authority and responsibility of the
day-to-day management, administrative, financial and implementive acts of the
Company's business. The President of the Company shall have the right and power
to bind the Company and to make the final determination on questions relative to
the usual and customary daily business decisions, affairs and acts of the
Company. Other primary management functions of the Company shall be assigned by
the Managing Member.
(b) The Company shall also have officers designated as vice presidents who
shall be appointed from time to time by the Managing Member. The vice presidents
shall have such powers and duties as may from time to time be assigned to them
by the Managing Member or the president. At the request of the president, or in
the case of his absence or disability, the vice president designated by the
president (or in the absence of such designation, the vice president designated
by the Managing Member) shall perform all the duties of the president and when
so acting, shall have all the powers of the president.
<PAGE>
(c) The Managing Member may appoint such other officers as it may deem
advisable from time to time. Each officer of the Company shall hold office at
the pleasure of the Managing Member, and the Managing Member may remove any
officer at any time, with or without cause. If appointed by the Managing Member,
the officers shall have the duties assigned to them by the Managing Member.
(d) The present officers of the Company are as follows:
John E. Mack President/Principle Executive Officer
Neil A. Cotty Treasurer and Senior Vice President/Principle
Financial and Accounting Officer
Gary S. Williams Senior Vice President/Tax Officer
Charles S. Brummitt Executive Vice President
Daniel F. Hellams Executive Vice President
Elise D. Boucher Vice President
Janet G. Locke Vice President/Tax Officer
Mary-Ann Lucas Secretary
Section 7.5 Indemnification.
(a) The Members shall not have any liability for the obligations or
liabilities of the Company, except to the extent, if any, expressly provided in
the Act. The Company shall, to the fullest extent permitted by applicable law,
indemnify and hold harmless each Member (an "Indemnified Person") against any
obligations or liabilities of the Company which may be imposed upon (or which
any person may seek to impose upon) such Member (including the costs of
defending against such a claim) in contravention of this Section 7.5.
(b) The Company shall, to the fullest extent permitted by applicable law,
indemnify and hold harmless each Indemnified Person against any losses, claims,
damages or liabilities (including without limitation reasonable attorney's fees)
to which such Indemnified Person may become subject in connection with any
matter arising from, related to, or in connection with, this Agreement or the
Company's business or affairs, except for such losses, claims, damages or
liabilities as are determined by final judgment of a court of competent
jurisdiction to have resulted from such Indemnified Person's gross negligence or
willful misconduct.
(c) Notwithstanding anything else contained in this Agreement, the
indemnity obligations of the Company under paragraph (b) above shall:
(i) be in addition to any liability that the Company may otherwise
have;
(ii) extend upon the same terms and conditions to the directors,
committee members, officers, stockholders, partners, members, control
persons, employees, agents and representatives of each Indemnified Person;
<PAGE>
(iii) be binding upon and inure to the benefit of any successors,
assigns, heirs and personal representatives of each Indemnified Person and
any such persons;
(iv) be limited to the assets of the Company; and
(v) be subordinate to the Company's obligations in respect of Bonds as
set forth in Section 11.1(b)(xii) of this Agreement.
Section 7.6 Exculpation; Duties.
(a) No Member or officer of the Company shall be liable to the Company or
any other Person who has an interest in the Company for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Member or officer in good faith on behalf of the Company and in a manner
reasonably believed to be within the scope of the authority conferred on such
Member or officer by this Agreement, except that a Member or officer shall be
liable for any such loss, damage or claim incurred by reason of such Member's or
officer's willful misconduct or gross negligence.
(b) To the extent that at law or in equity, the Managing Member or an
officer, employee or agent of the Company has duties (including fiduciary
duties) and liabilities relating thereto to the Company or to any Member, any
such Member, officer, employee or agent acting under this Agreement shall not be
liable to the Company or to any Member for its good faith reliance on the
provisions of this Agreement. The provisions of this Agreement, to the extent
that they restrict the duties and liabilities of an Indemnified Person otherwise
existing at law or in equity, are agreed by the Members to replace such other
duties and liabilities of such Member, officer, employee or agent.
(c) Whenever in this Agreement the Managing Member is permitted or required
to make a decision (i) in its "sole discretion", or "discretion" or under a
grant of similar authority or latitude, the Managing Member shall be entitled to
consider only such interest and factors as it desires, including its own
interests, and shall have no duty or obligation to give any consideration to any
interest of or factors affecting the Company or any other Member, or (ii) in its
"good faith" or under another expressed standard, the Managing Member shall act
under such express standard and shall not be subject to any other or different
standards imposed by this Agreement or any other agreement contemplated herein
or by relevant provisions of law or in equity or otherwise.
Section 7.7 Violation of this Agreement. Any member who shall violate any
of the terms, conditions, and provisions of this agreement shall keep and save
harmless the Company property and shall also indemnify the other then members
from any and all claims, demands and actions of every kind and nature whatsoever
which may arise out of or by reason of such violation of any of the terms and
conditions of this agreement.
Section 7.8 Execution of Instruments. All agreements, indentures,
mortgages, deeds, conveyances transfers, contracts, checks, notes, drafts, loan
documents,
<PAGE>
letters of credit, master agreements, swap agreements, guarantees, certificates,
declarations, receipts, discharges, releases, satisfactions, settlements,
petitions, schedules, accounts, affidavits, bonds, undertakings, proxies and
other instruments or documents may be signed, executed, acknowledged, verified,
attested, delivered or accepted on behalf of the Company by the President, any
Senior Vice President, any Vice President, or any individual who is appointed by
the Managing Member to a position equal to any of the aforementioned officer
positions, or such other officers, employees or agents as the members or any of
such designated officers or individuals may direct. The provisions of this
Article are supplementary to any other provision of this Agreement and shall not
be construed to authorize execution of instruments otherwise dictated by law.
Section 7.9 Scheduled Duties and Compensation. Without limiting the
generality of Section 7.2, the Managing Member shall perform the duties listed
in Exhibit A hereto, and shall be entitled to receive the compensation and
reimbursement for certain expenses with respect to the performance of such
duties as set forth on Exhibit A. The Managing Member may also employ
subcontractors with respect to such duties in accordance with Exhibit A.
ARTICLE VIII
DISSOLUTION, LIQUIDATION AND TERMINATION OF THE COMPANY
-------------------------------------------------------
Section 8.1 Dissolution. The Company shall be dissolved and its affairs
wound up only upon (i) the written consent of all the Members (including the
Independent Representative) and (ii) the entry of a decree of judicial
dissolution under Section 18-802 of the Act. The Company shall not be dissolved
as a result of there no longer being any Members of the Company if the Company
is continued in accordance with Section 18-801(a)(4) of the Act. Notwithstanding
anything in this Agreement to the contrary, to the fullest extent permitted by
applicable law, the Company shall not be dissolved as long as any Bonds are
outstanding.
Section 8.2 Liquidation and Termination. On dissolution of the Company, the
Managing Member shall appoint one or more Persons, which appointee or appointees
may include itself, to act as a liquidator. The liquidator shall proceed
diligently to wind up the affairs of the Company and make final distributions as
provided herein and in the Act. The costs of liquidation shall be borne as a
Company expense. Until final distribution, the liquidator shall continue to
operate the Company properties with all of the power and authority of the
Managing Member. A reasonable time shall be allowed for the orderly liquidation
of the assets of the Company and the discharge of liabilities to creditors so as
to enable the liquidator to minimize any losses resulting from liquidation.
Section 8.3 Payment of Debts. The assets shall first be applied to the
satisfaction of all liabilities of the Company other than to its Members and the
expenses of liquidation and to second to any loans or advances that may have
been made by Members to the Company.
<PAGE>
Section 8.4 Remaining Distribution. The remaining assets shall then be
distributed to the Members according to their Membership Interests.
Section 8.5 Reserve. Notwithstanding anything to the contrary in Section
8.4, the liquidator may retain such amount as it deems necessary as a reserve
for any contingent, conditional or unmatured liabilities or obligations of the
Company, which reserve, after the passage of a reasonable period of time as
determined by the liquidator, shall be distributed in accordance with this
Article VIII.
Section 8.6 Final Accounting. Each of the Members shall be furnished with a
statement that sets forth the assets and liabilities of the Company as of the
date of the complete liquidation. Upon compliance by the liquidator with the
foregoing distribution plan, the liquidator shall execute and cause to be filed
a Certificate of Cancellation and any and all other documents necessary with
respect to termination and cancellation of the Company under the Act. The
existence of the Company as a separate legal entity shall continue until the
cancellation of its Certificate of Formation.
ARTICLE IX
AMENDMENTS
----------
Section 9.1 Authority to Amend. This Agreement may only be amended with
approval of all the Members. Notwithstanding anything in this Agreement to the
contrary, the following provisions of this Agreement may not be amended as long
as any Bonds are outstanding without the prior written affirmation of each
nationally-recognized statistical rating agency or agencies rating such Bonds
that such amendment or amendments will not result in a downgrade, qualification
or withdrawal of the rating or ratings assigned to such Bonds: Sections 3.1,
4.4(e), 4.5, 4.6, 7.1, 7.2, 7.3 and 8.1 and this Article IX and Article XI.
ARTICLE X
POWER OF ATTORNEY
-----------------
Section 10.1 Power. Each member irrevocably constitutes and appoints the
Managing Member as his true and lawful attorney in his name, place and stead to
make, execute, swear to, acknowledge, deliver and file:
(a) Any certificates or other instruments which may be required to be filed
by the Company under the laws of the State of Delaware or of any other state or
jurisdiction in which the Managing Member shall deem it advisable;
(b) Any documents, certificates or other instruments, including but not
limited to, any and all amendments and modifications of this Agreement or of the
instruments described in Subsection 10.1(a) which may be required or deemed
desirable by the Managing Member to effectuate the provisions of any part of
this Agreement, and, by way of extension
<PAGE>
and not in limitation, to do all such other things as shall be necessary to
continue and to carry on the business of the Company; and
(c) All documents, certificates or other instruments which may be required
to effectuate the dissolution and termination of the Company, to the extent such
dissolution and termination is authorized hereby. The power of attorney granted
hereby shall not constitute a waiver of, or be used to avoid, the rights of the
Members to approve certain amendments to this Agreement pursuant to Subsection
9.1 or be used in any other manner inconsistent with the statutes of the Company
as a limited liability company or inconsistent with the provisions of this
Agreement.
Section 10.2 Survival of Power. It is expressly intended by each Member
that the foregoing power of attorney is coupled with an interest, is irrevocable
and shall survive the death, retirement or adjudication of incompetency of such
Member. The foregoing power of attorney shall survive the delivery of an
assignment by the Member of its entire interest in the Company, except that
where an assignee of such entire interest has become a Substitute Member, then
the foregoing power of attorney of the assignor Member shall survive the
delivery of such assignment for the sole purpose of enabling the Managing Member
to execute, acknowledge and file any and all instruments necessary to effectuate
such substitution.
ARTICLE XI
SEPARATE LEGAL ENTITY
---------------------
Section 11.1 Separate Legal Entity.
(a) The Company shall respect and appropriately document the separate and
independent nature of its activities, as compared with those of any other
Person, take all reasonable steps to continue its identity as a separate legal
entity, and make it apparent to third Persons that the Company is an entity with
assets and liabilities distinct from those of any other Person. Without limiting
the foregoing, the Company shall:
(i) maintain books and records separate from any other Person or
entity;
(ii) maintain its accounts separate from those of any other Person or
entity;
(iii) conduct its own business in its own name;
(iv) maintain separate financial statements;
(v) pay its own liabilities out of its own funds;
<PAGE>
(vi) observe all limited liability company formalities and other
formalities required by the organic documents;
(vii) maintain an arm's-length relationship with its Affiliates;
(viii) pay the salaries of its own employees and maintain a sufficient
number of employees in light of its contemplated business operations;
(ix) allocate fairly and reasonably any overhead for shared office
space;
(x) use separate stationery, invoices, and checks;
(xi) hold itself out as a separate entity;
(xii) correct any known misunderstanding regarding its separate
identity; and
(xiii) maintain adequate capital in light of its contemplated business
operations.
Failure to comply with any of the foregoing covenants shall not affect the
status of the Company as a separate legal entity.
(b) The Company shall not:
(i) commingle assets with those of any other entity;
(ii) guarantee or become obligated for the debts of any other entity
or hold out its credit as being available to satisfy the obligations of
others;
(iii) acquire obligations or securities of its members (other than in the
ordinary course of its business); and
(iv) pledge its assets for the benefit of any other entity or make any
loans or advances to any entity (other than in the ordinary course of its
business).
Failure to comply with any of the foregoing covenants shall not affect the
status of the Company as a separate legal entity.
ARTICLE XII
MISCELLANEOUS
-------------
Section 12.1 Method of Giving Consent. Any consent of the Member required
by this Agreement may be given by a written consent, given by the consenting
Member and received by the Person soliciting such consent.
<PAGE>
Section 12.2 Governing Law. This Agreement and the rights and duties of the
Members shall be governed by and construed in accordance with the laws of the
State of Delaware, without regard to principles of conflict of laws.
Section 12.3 Agreement for Further Execution. At any time or times upon the
request of the Managing Member, each Member agrees to sign and swear to any
certificate, any amendment to or cancellation of such certificate, acknowledge
similar certificates or affidavits or certificates of fictitious firm name or
the like (and any amendments or cancellations thereof) required by the laws of
the State of Delaware, or any other jurisdiction in which the Company does, or
proposes to do, business. This Section 12.3 shall not prejudice or affect the
rights of the Members to approve amendments to this Agreement pursuant to
Section 9.1.
Section 12.4 Entire Agreement. This Agreement contains the entire
understanding between the parties and supersedes any prior understandings or
agreements between them respecting the within subject matter. There are no
representations, agreements, arrangements or understandings, oral or written,
between the parties hereto relating to the subject matter of this Agreement
which are not fully expressed.
Section 12.5 Severability. This Agreement is intended to be performed in
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules and regulations of the jurisdictions in which the Company does
business. If any provision of this Agreement or the application thereof to any
Person or circumstance shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Agreement and the application of such
provision to other Persons or circumstances shall not be affected thereby, but
rather shall be enforced to the greatest extent permitted by law.
Section 12.6 Notices. Notices to Members or to the company shall be deemed
to have been given when personally delivered or mailed, by prepaid registered or
certified mail, addressed as set forth in this Agreement, unless a notice of
change of address has previously been given in writing by the addressee to the
addressor, in which case such notice shall be addressed to the address set forth
in such notice of change of address.
Section 12.7 Counterparts. This Agreement may be executed in multiple
counterparts, each one of which shall constitute an original executed copy of
this Agreement.
Section 12.8 Waiver of Partition. Each Member hereby waives any right to
partition of the Company property.
Section 12.9 Pronouns. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural, as the
identity of the person or persons may require.
Section 12.10 Titles and Captions. All titles and captions are for
convenience only, do not form a substantive part of this Agreement, and shall
not restrict or enlarge any substantive provisions of this Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties have hereunto set their hands as of the day
and year first above written.
NATIONSBANK, N.A.
By: /s/ John E. Mack
--------------------------------
Name: John E. Mack
Title: Senior Vice President
MAIN PLACE TRUST
By: /s/ John E. Mack
--------------------------------
Name: John E. Mack
Title: Trustee
<PAGE>
EXHIBIT A
Scheduled Duties and Compensation of
Managing Member
Without limiting the generality of Section 7.1, but subject to Section 7.3,
the Managing Member shall:
(a) administer the day-to-day operations and affairs of the Company,
including without limitation, the performance or supervision of the
functions described in this Exhibit A;
(b) monitor the credit quality of the mortgage loans and other real
estate mortgage assets held by the Company;
(c) manage the affairs of the Company with respect to the acquisition,
management, financing and disposition of the Company's mortgage loans and
other real estate mortgage assets;
(d) represent the Company in its day-to-day dealings with Persons with
whom the Company interacts, including without limitation, securityholders
of the Company, transfer agents, consultants, accountants, attorneys,
servicers of the Company's mortgage loans, custodians, insurers and banks;
(e) establish and provide necessary services for the Company,
including executive, administrative, accounting, shareholder relations,
secretarial, recordkeeping, copying, telephone, mailing and distribution
facilities;
(f) provide the Company with office space, conference room facilities,
office equipment and personnel necessary for the services to be performed
by the Managing Member hereunder at a reasonable market price;
(g) maintain communications and relations with the members of the
Company, including but not limited to, responding to inquiries, proxy and
consent solicitations, providing reports to securityholders and arranging
and coordinating all meetings of members;
(h) arrange for the investment and management of any short-term
investments of the Company;
(i) arrange for the services of third parties, including but not
limited to mortgage loan servicers who may be the Managing Member or
affiliates of the Managing Member, to collect and distribute funds of the
Company;
<PAGE>
(j) monitor and supervise the performance of all parties who have
contracts to perform services for the Company, provided that the Managing
Member shall have no duty to assume the obligations or guarantee the
performance of such parties under such contracts;
(k) establish and maintain such bank accounts in the name of the
Company as may be required by the Company and ensure that all funds
collected by the Managing Member in the name or on behalf of the Company
shall be held in trust and shall not be commingled with the Managing
Member's own funds or accounts;
(l) arrange for the execution and delivery of such documents and
instruments by the officers of the Company as may be required in order to
perform the functions herein described and to take any other required
action;
(m) arrange for insurance for the Company to be paid for by the
Company, including liability insurance, errors and omissions policies and
officers and directors policies which shall cover and insure the Company,
and the members (in such amounts as the Managing Member may deem advisable)
and officers of the Company;
(n) maintain proper books and records of the Company's affairs;
(o) consult and work with legal counsel for the Company to implement
Company decisions and undertake measures consistent with all pertinent
Federal, state and local laws and rules or regulations of governmental or
quasi-governmental agencies, including, but not limited to, Federal and
state securities laws, the Code, and the regulations promulgated under each
of the foregoing;
(p) consult with work with accountants for the Company in connection
with the preparation of financial statements, annual reports and tax
returns;
(q) arrange for an annual audit of the books and records of the
Company by an accounting firm;
(r) prepare and distribute in consultation with the accountants for
the Company, annual reports to members, the trustee under any indenture of
the Company to which the Company is a party or the Securities and Exchange
Commission, which will contain audited financial statements,
(s) furnish reports to the members and provide research, economical
and statistical data in connection with the Company's investments;
(t) as reasonably requested by the members, make reports to the
Company of its performance of the foregoing services and furnish advice and
recommendations with respect to other aspects of the business of the
Company; and
<PAGE>
(u) maintain appropriate books of account and records relating to
services performed hereunder, and such books of account and records shall
be accessible for inspection by any member at all times.
Compensation. The Company shall pay to the Managing Member, for services
rendered by the Managing Member hereunder, a management fee payable annually in
an amount equal to $500,000 per year, subject to adjustment upon 90 days' notice
by the Managing Member to the Company of the proposed change and to the
Company's consent thereto.
Expenses. (a) Without regard to the compensation received pursuant to
Section 3, the Managing Member will bear the following expenses:
(i) employment expenses of the personnel employed by the Managing
Member, including without limitation, salaries, wages, payroll taxes and
the cost of employee benefit plans; and
(ii) rent, telephone equipment, utilities, office furniture and
equipment and machinery and other office expenses of the Managing Member
incurred in connection with the maintenance of any office facility of the
Managing Member.
(b) The Company shall reimburse the Managing Member within 30 days of a
written request by the Managing Member for any expenses referenced in (a) above.
All other expenses shall be paid by the party receiving the benefit of the
services rendered.
Subcontracting. The Managing Member may at any time subcontract all or a
portion of its obligations under this Agreement to any Affiliate of the Managing
Member. The Managing Member shall not subcontract, and shall not permit any of
its Affiliates to subcontract, any of its obligations under this Agreement to
Persons who are not Affiliates of the Managing Member. Notwithstanding the
foregoing, the Managing Member will not, in connection with subcontracting any
of its obligations under this Agreement, be relieved or discharged in any
respect from its obligations under this Agreement.
FIRST SUPPLEMENTAL INDENTURE
(dated as of December 23, 1998)
to the
INDENTURE OF TRUST
(dated as of March 18, 1997)
between
MAIN PLACE REAL ESTATE INVESTMENT TRUST
and
FIRST TRUST NATIONAL ASSOCIATION
------------------------------
$1,000,000,000
Mortgage-Backed Bonds, Series 1997-1 Due 2000
------------------------------
<PAGE>
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of December 23, 1998, between
Main Place Funding, LLC, a Delaware limited liability company formerly known as
Main Place Holdings, LLC (the "Company"), as successor in interest to Main Place
Real Estate Investment Trust, a Maryland real estate investment trust (the
"Issuer"), and U.S. Bank Trust National Association (the "Trustee"), formerly
known as First Trust National Association ("First Trust") and the trustee under
that certain Indenture of Trust dated as of March 18, 1997, between the Issuer
and First Trust (the "Indenture").
WHEREAS, the Issuer and First Trust previously entered into the
Indenture, pursuant to which the Issuer issued $1,000,000,000 aggregate
principal amount of Mortgage-Backed Bonds, Series 1997-1 Due 2000; and
WHEREAS, pursuant to that certain Agreement of Merger dated as of
October 15, 1998, Main Place Holdings Corporation, a Delaware corporation,
merged with and into the Company, with the Company as the surviving entity of
the merger; and
WHEREAS, pursuant to that certain Agreement and Plan of Merger dated
as of December 22, 1998, by and among the Company and the Issuer, the Issuer
merged with and into the Company, with the Company as the surviving entity of
the merger; and
WHEREAS, the Company, as successor in interest to the Issuer, wishes
to enter into this First Supplemental Indenture pursuant to Sections 7.01(1),
(2) and 8.01(1) of the Indenture to evidence the succession of the Company to
the Issuer and the assumption by the Company of the covenants of the Issuer
under the Indenture and the Securities (as defined in the Indenture) issued
pursuant to the Indenture; and
WHEREAS, all acts necessary to cause this First Supplemental Indenture
to constitute a valid, binding and legal obligation of the Company have been
done and performed.
NOW, THEREFORE, witnesseth that, in consideration of the premises and
of the covenants contained herein, it is hereby agreed as follows:
1. All references to the Issuer in the Indenture shall hereinafter refer to
the Company, as successor in interest to the Issuer.
2. The Company hereby expressly assumes all rights and obligations of the
Issuer under the Indenture in respect of the Securities and the Collateral (as
defined in the Indenture) and expressly assumes every covenant of the Indenture
on the part of the Issuer to be performed or observed.
<PAGE>
3. The Company hereby expressly confirms that the Collateral shall secure
its obligations under the Securities and the Indenture.
4. Except as expressly set forth herein, the Indenture shall remain
unchanged and in full force and effect.
5. The First Supplemental Indenture shall be governed by and construed and
enforced in accordance with, the laws of the State of New York, without giving
effect to principles of conflicts of law.
6. This First Supplemental Indenture may be executed in any number of
counterparts, each of which may be an original, but all of which, taken
together, shall constitute one and the same instrument.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK - SIGNATURE PAGE FOLLOWS)
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the date first written
above.
MAIN PLACE FUNDING, LLC
By: /s/ John E. Mack
--------------------------------
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION
as Trustee
By: /s/ S. Christopherson
--------------------------------
Authorized Signatory
Name: S. Christopherson
Title: Vice President
SECOND SUPPLEMENTAL INDENTURE
(dated as of December 23, 1998)
to the
INDENTURE OF TRUST
(dated as of October 31, 1995)
between
MAIN PLACE REAL ESTATE INVESTMENT TRUST
(as successor in interest to
MAIN PLACE FUNDING CORPORATION)
and
FIRST TRUST NATIONAL ASSOCIATION
------------------------------
$1,500,000,000
Mortgage-Backed Bonds, Series 1995-2 Due 2000
------------------------------
<PAGE>
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of December 23, 1998, between
Main Place Funding, LLC, a Delaware limited liability company formerly known as
Main Place Holdings, LLC (the "Company"), as successor in interest to Main Place
Real Estate Investment Trust, a Maryland real estate investment trust (the
"Issuer"), and U.S. Bank Trust National Association (the "Trustee"), formerly
known as First Trust National Association ("First Trust") and the trustee under
that certain Indenture of Trust, dated as of October 31, 1995, between the
Issuer and First Trust (the "Indenture").
WHEREAS, Main Place Funding Corporation, a Delaware Corporation (the
"Predecessor Issuer") and First Trust previously entered into the Indenture,
pursuant to which the Predecessor Issuer issued $1,500,000,000 aggregate
principal amount of Mortgage-Backed Bonds, Series 1995-2 Due 2000; and
WHEREAS, pursuant to that certain Agreement of Merger dated October
31, 1996, by and among the Issuer, the Predecessor Issuer and Main Place
Holdings Corporation, a Delaware corporation (the "Parent"), the Predecessor
Issuer was merged by the Parent with and into the Issuer, with the Issuer as the
surviving entity of the merger; and
WHEREAS, pursuant to the First Supplemental Indenture, dated as of
November 1, 1996, between the Issuer and First Trust (the "First Supplemental
Indenture"), the Issuer, as successor in interest to the Predecessor Issuer,
evidenced, pursuant to Sections 7.01(1), (2) and 8.01(1) of the Indenture, the
succession of the Issuer to the Predecessor Issuer and the assumption by the
Issuer of the covenants of the Predecessor Issuer under the Indenture and the
Securities (as defined in the Indenture) issued pursuant to the Indenture; and
WHEREAS, pursuant to that certain Agreement of Merger, dated as of
October 15, 1998, the Parent merged with and into the Company, with the Company
as the surviving entity of the merger; and
WHEREAS, pursuant to that certain Agreement and Plan of Merger dated
as of December 22, 1998, by and among the Company and the Issuer, the Issuer
merged with and into the Company, with the Company as the surviving entity of
the merger; and
WHEREAS, the Company, as successor in interest to the Issuer, wishes
to enter into this Second Supplemental Indenture pursuant to Sections 7.01(1),
(2) and 8.01(1) of the Indenture to evidence the succession of the Company to
the Issuer and the assumption by the Company of the covenants of the Issuer
under the Indenture and the Securities (as defined in the Indenture) issued
pursuant to the Indenture; and
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WHEREAS, all acts necessary to cause this Second Supplemental
Indenture to constitute a valid, binding and legal obligation of the Company
have been done and performed.
NOW, THEREFORE, witnesseth that, in consideration of the premises and
of the covenants contained herein, it is hereby agreed as follows:
1. All references to the Issuer in the Indenture shall hereinafter refer to
the Company, as successor in interest to the Issuer.
2. The Company hereby expressly assumes all rights and obligations of the
Issuer under the Indenture in respect of the Securities and the Collateral (as
defined in the Indenture) and expressly assumes every covenant of the Indenture
on the part of the Issuer to be performed or observed.
3. The Company hereby expressly confirms that the Collateral shall secure
its obligations under the Securities and the Indenture.
4. Except as expressly set forth herein, the Indenture shall remain
unchanged and in full force and effect.
5. This Second Supplemental Indenture shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York, without
giving effect to principles of conflicts of law.
6. This Second Supplemental Indenture may be executed in any number of
counterparts, each of which may be an original, but all of which, taken
together, shall constitute one and the same instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, all as of the date first written
above.
MAIN PLACE FUNDING, LLC
By: /s/ John E. Mack
------------------------------
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION
as Trustee
By: /s/ S. Christopherson
------------------------------
Authorized Signatory
Name: S. Christopherson
Title: Vice President
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement") is dated as
of December 14, 1998, by NATIONSBANK, N.A (the "Assignor") and MAIN PLACE TRUST,
a Delaware business trust (the "Assignee").
WHEREAS, Assignor is the sole member of Main Place Funding, LLC, a
Delaware limited liability company formerly known as Main Place Holdings, LLC
(the "LLC"), and, in accordance with the Limited Liability Company Agreement of
the LLC dated as of October 15, 1998 (the "LLC Agreement"), Assignor holds a
100% membership interest in the LLC (the "LLC Interest").
WHEREAS, Assignee is a newly-formed Delaware business trust and has
not conducted any business or operations, or acquired any assets.
WHEREAS, Assignor desires to transfer, as a capital contribution, in
exchange for all of the equity interests in Assignee one percent (1%) of its LLC
Interest (the "Transferred Interest") to Assignee, and Assignee desires to
accept the Transferred Interest on the terms set forth below.
NOW THEREFORE, in consideration of the premises and covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the parties hereto hereby
agrees as follows:
1. Assignor hereby transfers, assigns, sells, grants and conveys unto
Assignee, its successors and assigns, all of the rights, title and interest of
Assignor in, to and under the Transferred Interest. This transfer and assignment
is made without representation or warranty except as set forth in this
Agreement.
2. Assignee hereby affirms and accepts all the terms, conditions and
provisions of the LLC Agreement and agrees to be bound by and to the same, and
Assignee's execution of this Agreement shall be deemed to constitute Assignee's
execution of a counterpart signature page to the LLC Agreement.
3. Assignor represents and warrants that (a) it is the sole owner of the
Transferred Interest, and owns the Transferred Interest free and clear of any
lien, encumbrance or security interest, and (b) it has not assigned any or all
of its rights, title or interest in the Transferred Interest to any other person
or entity.
4. The terms of this Agreement shall be binding upon and shall inure to the
benefit of the Assignor, the Assignee and their respective successors and
assigns. All representations and warranties made herein shall survive the
execution and delivery of this Agreement.
<PAGE>
5. This Agreement constitutes the complete agreement of the parties hereto
with respect to the subject matter referred to herein and supersedes all prior
or contemporaneous negotiations, promises, covenants, agreements or
representations of every nature whatsoever with respect thereto, all of which
have become merged and finally integrated into this Agreement. This Agreement
may not be amended, modified or supplemented except by an instrument in writing
executed by both parties hereto.
6. This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware, without giving effect to the
conflicts of law provisions thereof.
7. This Agreement may be executed in multiple counterparts, each one of
which shall constitute an original executed copy of this Agreement.
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<PAGE>
IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this Agreement as of the date first above written.
NATIONSBANK, N.A.
By: /s/ James W. Kiser
--------------------------
Name:
Title:
MAIN PLACE TRUST
By: /s/ John E. Mack
--------------------------
Name:
Title:
The undersigned, being the sole member and sole manager of Main Place
Funding, LLC (the "LLC"), hereby admits Main Place Trust as a member of the LLC.
Dated: December 14, 1998 NATIONSBANK, N.A.
By: /s/ James W. Kiser
--------------------------
Name:
Title:
TRUST AGREEMENT
OF
MAIN PLACE TRUST
by and among
NATIONSBANK, N.A.
a national banking association
(as the "Owner")
and
WILMINGTON TRUST COMPANY
a Delaware corporation
(as the "Delaware Trustee" and as the "Independent
Trustee")
and
JAMES H. LUTHER
an individual
(as the "Special Trustee")
and
JOHN E. MACK
an individual
(as the "Business Trustee")
Dated as of December 14, 1998
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND TERMS
Section 1.1 Certain Definitions..........................................1
Section 1.2. Usage of Terms...............................................4
Section 1.3. Section References...........................................4
ARTICLE 2
FORMATION OF TRUST; AUTHORITY TO EXECUTE
DOCUMENTS; DECLARATION OF TRUST
Section 2.1. Name.........................................................4
Section 2.2. Office.......................................................4
Section 2.3. Purposes.....................................................4
Section 2.4. Declaration of Trust.........................................5
Section 2.5. Restrictions on Trust Action.................................6
Section 2.6. Subchapter K Election........................................8
Section 2.7. Authority to Execute and Perform
Various Documents.........................................................8
Section 2.8. Title to the Trust Estate....................................8
ARTICLE 3
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST ESTATE
Section 3.1. Distribution of Payments......................................9
Section 3.2. Method of Payments...........................................9
ARTICLE 4
DUTIES OF THE TRUSTEE
Section 4.1. Notices; Furnishing of Documents.............................9
Section 4.2. Action Upon Instructions....................................10
Section 4.3. Right to Indemnity Before Acting............................10
Section 4.4. No Duties Except as Specified...............................11
Section 4.5. No Action Except Under Specified Documents or Instructions..11
ARTICLE 5
THE TRUSTEE
Section 5.1. Acceptance of Trusts and Duties.............................12
Section 5.2. Absence of Certain Duties...................................12
<PAGE>
Section 5.4. Segregation of Funds........................................13
Section 5.5. Reliance Upon Certificates and Counsel .....................13
Section 5.6. Not Acting in Individual Capacity...........................13
Section 5.7. Compensation and Expenses...................................13
Section 5.8. Tax Returns.................................................14
Section 5.9. Trustee Status..............................................14
Section 5.10.Doing Business in Other Jurisdictions ......................14
ARTICLE 6
INDEMNIFICATION OF AND REPRESENTATIONS TO THE
TRUSTEE BY THE OWNER
Section 6.1. Indemnification of the Trustee...............................15
Section 6.2. Representations..............................................16
ARTICLE 7
TRANSFER OF THE OWNER'S INTEREST
Section 7.1. Transfer of Interest of the Owner............................16
ARTICLE 8
SUCCESSOR TRUSTEE; CO-TRUSTEE
Section 8.1. Resignation or Removal of a Trustee:
Appointment of Successor..................................17
Section 8.2. Independent Trustee.........................................18
ARTICLE 9
SUPPLEMENTS AND AMENDMENTS TO TRUST
AGREEMENT AND OTHER DOCUMENTS
Section 9.1. Supplements and Amendments..................................19
Section 9.2. Discretion as to Execution of Documents.....................19
Section 9.3. Absence of Requirements as to Form..........................20
Section 9.4. Distribution of Documents...................................20
Section 9.5. Condition to Successor Trustee..............................20
ARTICLE 10
MISCELLANEOUS
Section 10.1. Termination................................................21
Section 10.2. The Owner Has No Legal Title...............................21
Section 10.3. Assignment, Sale, etc. of Trust Estate.....................22
Section 10.4. Trust Agreement for Benefit of Parties Only................22
Section 10.5. Notices....................................................22
Section 10.6. Severability...............................................23
<PAGE>
Section 10.7. Waivers....................................................24
Section 10.8. Counterparts...............................................24
Section 10.9. Binding Effect.............................................24
Section 10.10.Headings ..................................................24
Section 10.11.Governing Law..............................................24
Section 10.12.Amendment..................................................24
Section 10.13.Assignment.................................................24
EXHIBIT
-------
EXHIBIT A = Form of Assignment and Assumption Agreement.
<PAGE>
TRUST AGREEMENT
OF
MAIN PLACE TRUST
TRUST AGREEMENT OF MAIN PLACE TRUST dated as of December 14, 1998 (the
"Agreement"), by and among NATIONSBANK, N.A., a national banking association
(together with its successors and permitted assigns, the "Owner"), WILMINGTON
TRUST COMPANY, a Delaware corporation (in its individual capacity only as
expressly stated herein, the "Delaware Trustee" and the "Independent Trustee"),
JAMES H. LUTHER, an individual (in his individual capacity only as expressly
stated herein, the "Special Trustee"), and JOHN E. MACK, an individual (in his
individual capacity only as expressly stated herein, the "Business Trustee").
W I T N E S S E T H:
WHEREAS, the Owner and the Trustees have agreed to create a "business
trust" in accordance with Chapter 38 of Title 12 of the Delaware Code, 12 Del.C.
ss. 3801, et. seq., which shall be named the "Main Place Trust" (the "Trust").
WHEREAS, the parties desire for the Trust to acquire from the Owner and
hold a one percent (1%) interest ("LLC Interest"), in Main Place Funding, LLC, a
Delaware limited liability company ("MP-LLC"), and to serve as a co-managing
member of MP-LLC solely to act on matters relating to the bankruptcy or
insolvency of MP-LLC.
WHEREAS, the Owner and the Trustees intend that this Agreement constitute
the "governing instrument" of the Trust.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Owner and the Trustees hereby
agree as follows:
ARTICLE 1
DEFINITIONS AND TERMS
SECTION 1.1 CERTAIN DEFINITIONS.
(a) For all purposes of this Agreement, the capitalized terms set forth
below shall have the following meanings:
"Affiliate" of any specified Person (as hereinafter defined) means any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to a specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through ownership of voting securities or other beneficial
interests, by
<PAGE>
contract or otherwise; and the terms "controlling" and "controlled" have the
meanings correlative to the foregoing.
"Assignment Agreement" means that certain Assignment and Assumption
Agreement entered into by the Trust and the Owner on or about the date hereof,
pursuant to which the Owner transfers the LLC Interest to the Trust.
"Bankruptcy Event" means, with respect to the Trust or MP-LLC, (i) the
institution of proceedings to be adjudicated bankrupt or insolvent, or consent
to the institution of bankruptcy or insolvency proceedings against it, or (ii)
the filing of, or consent to, a petition seeking reorganization or relief under
any applicable federal or state law relating to bankruptcy or insolvency, or
(iii) the seeking of, or consent to, the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of such entity or
any substantial part of its property, or (iv) the making of, or consent to, an
assignment for the benefit of creditors, or (v) the admission, in writing, of
its inability to pay its debts generally as they became due, or (vi) the taking
of any action that will cause such entity to become insolvent, or the taking of
corporate action in furtherance of any such action.
"Bonds" means the certain mortgage-backed bonds issued pursuant to the
Indentures.
"Business Trustee" has the meaning given to it in the preamble to this
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended and as the same
may be further amended from time to time.
"Delaware Trustee" has the meaning given to it in the preamble to this
Agreement.
"Indentures" means, collectively, (i) that certain Indenture of Trust dated
as of October 31, 1995, between Main Place Real Estate Investment Trust (as
successor in interest to Main Place Funding Corporation), and U.S. Bank Trust
National Association (formerly known as First Trust National Association), as
amended, and (ii) that certain Indenture of Trust dated as of March 18, 1997,
between Main Place Real Estate Investment Trust and U.S. Bank Trust National
Association (formerly known as First Trust National Association), as amended.
"Independent Trustee" means Wilmington Trust Company, a Delaware
corporation, or any other Person appointed as such pursuant to this Agreement
who is not at the time of appointment and has not been at any time during the
preceding five (5) years: (i) a direct or indirect legal or beneficial owner
(beyond a nominal amount) in the Trust or any of its Affiliates; (ii) a
creditor, supplier, employee, officer, director, family member, manager, or
contractor of the Trust or any of its Affiliates; or a Person who controls
(whether directly, indirectly, or otherwise) the Trust or its Affiliates or any
creditor, supplier, employee, officer, director, manager, or contractor of the
Trust or its Affiliates. Notwithstanding the foregoing, an Independent Trustee
may serve in similar capacities for other "special purpose" entities formed by
the Owner or any Affiliate thereof. (For purposes of this definition, the term
"control" means the possession,
<PAGE>
directly or indirectly, of the power to direct or cause the direction of the
management, policies or activities of a Person, whether through ownership of
voting securities, by contract or otherwise.)
"Lien" means any mortgage, deed of trust, pledge, security interest,
encumbrance, lien, easement, restriction, servitude or charge of any kind,
including, without limitation, any irrevocable license, conditional sale or
other title retention agreement, any lease in the nature thereof or the filing
of, or agreement to execute as "debtor", any financing or continuation statement
under the Uniform Commercial Code of any jurisdiction or any federal, state or
local lien imposed pursuant to any applicable law.
"LLC Interest" has the meaning given to it in the recitals to this
Agreement.
"MP-LLC" has the meaning given to it in the recitals to this Agreement.
"Operative Documents" means the Assignment Agreement, the Amended and
Restated Limited Liability Company Agreement of MP-LLC dated as of December
_____, 1998, and any other documents executed from time to time by the Trust in
connection with the acquisition or ownership of the LLC Interest.
"Owner" means NationsBank, N.A., and each of its successors in interest as
beneficiaries of the Trust hereunder.
"Owner Creditor" has the meaning ascribed thereto in Section 9.5(b).
"Person" means a natural person, corporation, limited partnership, limited
liability company, general partnership, joint stock company, joint venture,
association, company, trust, bank trust company, land trust, business trust,
national association or other organization, whether or not a legal entity, and a
government or agency, instrumentality, or political subdivision thereof.
"Rating Agency" means each nationally-recognized statistical rating agency
rating any of the Bonds.
"Rating Agency Confirmation" means, with respect to any action or event,
the written confirmation of each Rating Agency that such action or event will
not result in the qualification, downgrade or withdrawal of the ratings then
assigned to any of the Bonds.
"Relevant State" has the meaning ascribed thereto in Section 9.5.
"Responsible Officer" means the president, the chief financial officer or
the treasurer.
"Special Trustee" has the meaning given to it in the preamble of this
Agreement.
"Trust" means the trust formed by this Agreement, as described in the
recitals to this Agreement.
<PAGE>
"Trustees" means one or more of any of the Delaware Trustee, the
Independent Trustee, the Special Trustee, or the Business Trustee, together with
their respective successors and permitted assigns, where the distinction between
each such trustee is not relevant.
"Trust Estate" means all right, title and interest of the Trust in and to
any property contributed to the Trust by the Owner or otherwise acquired by the
Trust, including the LLC Interest and all distributions, payments or proceeds
therefrom.
(b) Capitalized terms used herein but not otherwise defined herein shall
have the meaning assigned to them in the Operative Documents.
SECTION 1.2. USAGE OF TERMS. With respect to all terms in this Agreement,
the singular includes the plural and the plural includes the singular, words
importing any gender include the other gender; references to "writing" include
printing, typing, lithography and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement; references to
Person include their successors and permitted assigns, and the term "including"
means including without limitation.
SECTION 1.3. SECTION REFERENCES. All section references, unless otherwise
indicated, shall be to sections of this Agreement.
ARTICLE 2
FORMATION OF TRUST;
AUTHORITY TO EXECUTE DOCUMENTS;
DECLARATION OF TRUST
SECTION 2.1. NAME. The Trust created hereby shall be known as "Main Place
Trust".
SECTION 2.2. OFFICE. The office of the Trust shall be in care of the
Business Trustee, at the address set forth in Section 10.5 or at such other
address as the Business Trustee may designate by notice to the Owner and the
other Trustees. The business address of the Delaware Trustee shall be the
address set forth in Section 10.5 or at such other address as the Delaware
Trustee may designate by notice to the Owner and the other Trustees.
SECTION 2.3. PURPOSES. The Trust is a special purpose entity that has been
organized as a business trust and, subject to Section 2.5 of this Agreement,
will be operated for the following sole and exclusive purposes at the direction
of the Owner:
(a) To acquire, own, and hold the LLC Interest;
(b) To exercise exclusive control, by exercising veto power as a
co-manager of MP-LLC, over the ability of MP-LLC to file, consent to the
filing of, or join in any filing of, a bankruptcy or insolvency petition,
or otherwise institute insolvency proceedings;
<PAGE>
(c) To otherwise dispose of the Trust Estate in accordance with the
terms and conditions of this Agreement;
(d) To take any and all actions necessary to maintain the existence of
the Trust as a business trust in good standing under the laws of the State
of Delaware and, if necessary, to qualify the Trust to do business as a
business trust in any other state in which such qualification, in the
opinion of the Business Trustee or the Owner, is required; and
(e) To elect to be organized as a Delaware business trust pursuant to
12 Del.C. ss. 3801 et seq.
The Trust shall hold the Trust Estate for investment purposes only and not for
the active conduct of a trade or business. The Trust shall conduct no business
nor, except as provided herein, acquire any property other than as specifically
set forth in this Section 2.3.
SECTION 2.4. DECLARATION OF TRUST. As of the date of the Assignment
Agreement, the Owner has granted to the Trust and its successors and assigns,
forever, all right, title and interest of the Owner in and to the LLC Interest,
constituting the initial Trust Estate, and the Trustees acknowledge, by their
execution and delivery of the Assignment Agreement, their receipt of the LLC
Interest on behalf of the Trust, to have and to hold, together with any other
part of the Trust Estate, until this Agreement terminates pursuant to the terms
hereof. The Trust shall hold the Trust Estate upon the terms and subject to the
conditions set forth herein for the use and benefit of the Owner, and in
accordance with the obligations of the Trust under the Operative Documents. It
is the intention of the parties hereto that the Trust constitute a "business
trust" under Chapter 38 of Title 12 of the Delaware Code. The Trustees shall
have caused the filing of a Certificate of Trust (the "Certificate of Trust")
with the Secretary of the State of Delaware (the "Secretary of State") pursuant
to Section 3810 of Title 12 of the Delaware Code. It is the intention of the
parties hereto that the Trust shall be a grantor trust for Federal income tax
purposes. The Owner agrees to report its interest in the Trust in a manner
consistent with the foregoing and the Owner and the Trustees agree otherwise not
to take any action that would be inconsistent with the foregoing and the
provisions of this Agreement shall be construed to further the foregoing.
SECTION 2.5. RESTRICTIONS ON TRUST ACTION. Notwithstanding any other
provision of this Agreement, the Operative Documents or any provision of law
that would so empower the Trust, the Trust shall:
(a) Not engage in any business or activity other than those set forth
in Section 2.3 above;
(b) Not take any action, in its role as co-manager of MP-LLC, with
respect to exercising its veto power over the ability of MP-LLC to file,
consent to the filing of, or join in any filing of, a bankruptcy or
insolvency petition, or otherwise institute insolvency proceedings or any
other Bankruptcy Event, without the prior written consent of both the
Independent Trustee and the Special Trustee, for as long as any Bonds are
outstanding
<PAGE>
and until all of the obligations of MP-LLC under the Indentures or the
Bonds have been indefeasibly and fully satisfied;
(c) Not acquire or own any assets other than the LLC Interest and any
proceeds therefrom and any contribution by the Owner and any earnings on
any of the foregoing;
(d) Do all things necessary to preserve its existence and not (x)
engage in, seek or consent to any dissolution, winding up, liquidation,
consolidation or merger, (y) engage in, seek or consent to any sale or
transfer of the LLC Interest or of any other part of the Trust Estate, or
(z) amend, modify or change the Certificate of Trust for this Trust or this
Agreement or permit a constituent party to cause the amendment or
modification thereof without, in each case, under clause (x), (y) or (z),
the prior written consent of both the Independent Trustee and the Special
Trustee;
(e) Have at least one Independent Trustee;
(f) Not take any action requiring the consent of both the Independent
Trustee and the Special Trustee unless both the Independent Trustee and the
Special Trustee shall have consented thereto;
(g) Not fail to correct any known misunderstanding regarding the
Trust's separate identity;
(h) Not, without the prior written consent of both the Independent
Trustee and the Special Trustee, either for itself or for MP-LLC or as a
managing member of MP-LLC, take any action whatsoever to initiate, consent
to, or join in causing, a Bankruptcy Event; provided, however, that if the
Trust shall not have an Independent Trustee, then no such action shall be
taken unless and until such an Independent Trustee shall have been duly
elected and shall consent in writing thereto;
(i) Maintain its books, records, resolutions and agreements as
official records;
(j) Not commingle its funds or assets with those of any other Person;
(k) Hold its assets in its own name and maintain its assets in such a
manner that it will not be costly or difficult to segregate, ascertain or
identify its individual assets from those of any Affiliate of any other
Person;
(l) Conduct its business in its own name;
(m) Maintain its books, records, financial statements, accounting
records, bank accounts and other entity documents separate from those of
any other Person and file its own tax returns when necessary;
(n) Pay its own liabilities out of its own funds and assets;
<PAGE>
(o) Observe all trust formalities;
(p) Maintain an arms-length relationship with its Affiliates;
(q) Not incur any indebtedness, secured or unsecured, direct or
indirect, absolute or contingent (including guaranteeing any obligation),
other than (i) indebtedness permitted under the Operative Documents, and
(ii) unsecured trade payables incurred in the ordinary course of business
relating to the ownership of the LLC Interest and payable within thirty
(30) days after the date incurred;
(r) Not assume or guaranty or become obligated for the debts of any
other Person or hold itself out to be responsible for the debts or
obligations of any other Person;
(s) Not (i) except for the LLC Interest, acquire any obligations or
securities of the Owner, any Trustee, or any Affiliates of the foregoing,
and (ii) hold out as being available, or make available, its credit for use
to satisfy the obligations of any of the foregoing;
(t) Allocate fairly and reasonably shared expenses, including, without
limitation, shared office space, and use separate stationary, invoices and
checks;
(u) Except as permitted by the Operative Documents, not pledge its
assets for the benefit of any other Person;
(v) Hold and identify itself out as a separate and distinct entity
under its own name and not as a division or part of any other Person;
(w) Not make or permit to remain outstanding any loans or advances to
any Person, except as may be expressly permitted by the Operative
Documents;
(x) Not identify the Owner, the Independent Trustee or any other
Trustee, or any Affiliates of any of them, as a division or part of it;
(y) Except for the Advisory Services Agreement dated on or about the
date hereof between the Trust and NationsBank, N.A., not enter into or be a
party to, any transaction, contract or agreement with the Owner, the
Independent Trustee or any other Trustee, or their respective Affiliates,
except in the ordinary course of business and on terms which are
intrinsically fair and no less favorable to it than would be obtained in a
comparable arms-length transaction with an unrelated third party;
(z) Pay the salaries of its own employees, if any, from its own funds;
(aa) Maintain adequate capital for the normal obligations reasonably
foreseeable in a business of its character and in light of its contemplated
business operations;
<PAGE>
(bb) Not dissolve as a result of the dissolution or insolvency of the
Owner, the Independent Trustee, or any other Trustee; and
(cc) Not be organized as other than a Delaware business trust pursuant
to 12 Del.C. ss. 3801 et seq.
SECTION 2.6. SUBCHAPTER K ELECTION. The Owner intends to be excluded from
Subchapter K of the Code and shall have the right to direct the Business Trustee
to specifically elect out of Subchapter K of the Code.
SECTION 2.7. AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENTS. The Owner
hereby authorizes and directs the Business Trustee to execute and deliver on
behalf of the Trust each Operative Document to which the Trust is or is to be a
party, and such other documents, agreements, instruments and certificates
relating to the Operative Documents, in each case in the respective forms in
which the same may be delivered by or on behalf of the Owner to the Business
Trustee from time to time for execution and delivery. In addition, the Owner
hereby empowers and authorizes the Business Trustee to execute and deliver any
and all documents, agreements and instruments necessary for the operation of the
Trust Estate, to the full extent allowed by law. Notwithstanding any of the
foregoing, the Owner hereby authorizes and empowers only the Independent Trustee
and the Special Trustee, acting in unison, with sole authority to execute and
deliver any and all documents relating to the Trust's acting to fulfill its
purpose set forth in Section 2.3(b) in its role as a co-managing member of
MP-LLC.
SECTION 2.8. TITLE TO THE TRUST ESTATE. Title to all of the Trust Estate
shall be vested in the Trust as a separate legal entity; provided, however, that
if the laws of any jurisdiction in which any of the Trust Estate is located
require that title to any part of the Trust Estate be vested in a Trustee of the
Trust, then title to that part of the Trust Estate shall be deemed to be vested
in the Business Trustee.
ARTICLE 3
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE TRUST ESTATE
SECTION 3.1. DISTRIBUTION OF PAYMENTS.
(a) Payments. If any funds shall be received by the Trust, then the
Business Trustee shall disburse, or not disburse, such amounts as it deems
reasonable in the ordinary course of business or, if requested by the Owner, in
accordance with the written instructions of the Owner.
(b) Liability for Payments. The Business Trustee shall not be liable for
any amounts payable under this Agreement or any document executed by the Trust
except to the extent that the Business Trustee has actually received the funds
required to make such payment.
SECTION 3.2. METHOD OF PAYMENTS. The Business Trustee shall make
distributions or cause distributions to be made to the Owner pursuant to this
Article 3 by transferring by wire
<PAGE>
transfer of immediately available funds (or by such other manner as is
acceptable to, or requested by, the Owner) the amount to be distributed to such
account or accounts as the Owner may designate from time to time by written
notice to the Business Trustee (and the Business Trustee shall use reasonable
and diligent efforts to cause such funds to be transferred by wire transfer (or
by such other manner as is acceptable to, or requested by, the Owner) by such
date as the Owner reasonably requests).
ARTICLE 4
DUTIES OF THE TRUSTEE
SECTION 4.1. NOTICES; FURNISHING OF DOCUMENTS.
(a) If any Trustee shall have actual knowledge of any event or notice
relating to the LLC Interest, other than a Bankruptcy Event or a notice related
thereto, then such Trustee shall give to the Owner and the Business Trustee
prompt telecopier notice thereof, followed by prompt confirmation thereof by
U.S. mail, postage prepaid. Subject to Section 4.3, the Business Trustee shall
take such action, or shall refrain from taking such action, with respect to the
LLC Interest as the Business Trustee shall be directed in writing by the Owner.
If the Business Trustee shall not have received instructions as above provided
within twenty (20) days after the delivery of notice of such event or notice to
the Owner, then the Business Trustee may, subject to instructions received
pursuant to the preceding sentence, take such action, or refrain from taking
such action, but shall be under no duty and shall have no liability for its
failure or refusal to take or refrain from taking any action, with respect to
such event or notice not inconsistent with the provisions of the Operative
Documents, as the Business Trustee shall deem in its sole and absolute
discretion to be in the best interests of the Owner.
(b) If any Trustee shall have actual knowledge of any Bankruptcy Event or a
notice related thereto, then such Trustee shall give to the Owner, the
Independent Trustee, and the Special Trustee prompt telecopier notice thereof,
followed by prompt confirmation thereof by U.S. mail, postage prepaid. The
Independent Trustee and the Special Trustee shall unanimously take such action,
or shall unanimously refrain from taking such action, with respect to such
Bankruptcy Event or related matter as is keeping in compliance with the terms
and intent of this Agreement, such that the ability of MP-LLC and of the Trust
to proceed with such Bankruptcy Event is eliminated or reduced to the greatest
extent possible.
(c) The Business Trustee will furnish to the Owner, promptly upon receipt
thereof, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instrument furnished to the
Business Trustee hereunder or with respect to the LLC Interest.
SECTION 4.2. ACTION UPON INSTRUCTIONS. Subject to the provisions of Section
4.3 and the last two sentences of this Section 4.2, upon the written
instructions at any time and form time to time of the Owner, the Business
Trustee shall take such of the following actions as may be specified in such
instructions: (i) give such notice or direction or exercise such right, remedy
or
<PAGE>
power hereunder or under any Operative Document to which the Trust is a party,
or in respect of all or any part of the Trust Estate, as shall be specified in
such instructions; (ii) take such action to preserve or protect the Trust Estate
(including the discharge of any liens) as shall be specified in such
instructions; (iii) approve as satisfactory to the Business Trustee all matters
required by the terms of any Operative Document to be satisfactory to the
Business Trustee or the Trust, it being understood that, without written
instructions of the Owner, the Business Trustee shall not approve any such
matter as satisfactory to the Business Trustee or the Trust; (iv) provided that
there are no Bonds outstanding, convey and deliver the LLC Interest to the Owner
in accordance with such instructions; and (v) any other action required to be
taken by the Business Trustee pursuant to the Operative Documents. In the event
that any Trustee is unsure as to the application of any provision of this
Agreement or of any other agreement relating to the transactions contemplated
hereby, such Trustee may request and rely upon written instructions of the
Owner. The Owner shall not instruct such Trustee to take any action which is
inconsistent with this Agreement or which the Owner has actual knowledge is
inconsistent with the provisions of the Operative Documents or other legal
requirements or laws. Without limiting the foregoing, under no circumstance
shall the Owner give instructions which would require or instruct such Trustee
to violate any of the provisions of Sections 2.3, 2.5, 4.2, 8.2, 9.1(c) or 10.1,
and such Trustee shall not obey, without incurring any liability, any such
instructions if given.
SECTION 4.3. RIGHT TO INDEMNITY BEFORE Acting. A Trustee shall not be
required to take or refrain from taking action under this Agreement or any
Operative Document (other than to give the notices required of the Trustees
therein) unless such Trustee shall have been indemnified by the Owner, in manner
and form reasonably satisfactory to such Trustee, against any liability, cost or
expense (including reasonable counsel fees and disbursements) which may be
incurred in connection therewith; and if the Owner shall have directed such
Trustee to take or refrain from taking any such action, then the Owner agrees to
furnish such indemnity as shall be required and, in addition, to pay the
reasonable fees and charges of such Trustee for the services performed or to be
performed by them pursuant to such direction. Such Trustee shall not be required
to take any action under this Agreement or any Operative Document if such
Trustee shall reasonably determine, or shall have been advised by counsel, that
such action is contrary to the terms of any Operative Document to which the
Trust is a party or is contrary to law.
SECTION 4.4. NO DUTIES EXCEPT AS SPECIFIED.
(a) The Trustees shall not have any duty or obligation to manage, control,
use, sell, dispose of or otherwise deal with any of the LLC Interest or any
other part of the Trust Estate, to perform any obligation of the Trust under any
of the Operative Documents or otherwise to take or refrain from taking any
action under, or in connection with, any Operative Document to which the Trust
is a party, except as expressly required by the terms hereof or in written
instructions received pursuant to Section 4.1 or 4.2 from the Owner; and no
implied duties or obligations shall be read into this Agreement or any other
Operative Document to which the Trust is a party against any of the Trustees.
(b) Notwithstanding the provisions of Section 4.4(a), each Trustee agrees
that it will, at its own cost and expense (without any right of indemnity in
respect of any such cost or
<PAGE>
expense under Section 6.1), promptly take such action as may be necessary duly
to discharge and satisfy in full: (i) all Liens against the Trust Estate
attributable to such Trustee in its individual capacity; (ii) any Liens created
as a result of a breach by such Trustee of its individual obligations under this
Agreement (subject to the limitations on liability set forth in Section 5.9) on
any part of the Trust Estate, or on any properties of the Trust assigned,
pledged or mortgaged as part of the Trust Estate, which arise from acts of such
Trustee in its individual capacity, and (iii) any other Liens attributable to
such Trustee in its individual capacity on any part of the Trust Estate which
result from claims against such Trustee in its individual capacity unrelated to
the ownership of the LLC Interest, the administration of the Trust Estate or the
transactions contemplated by the Operative Documents.
SECTION 4.5. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR INSTRUCTIONS.
The Trust shall have no power or authority to, and each Trustee agrees that it
will not, manage, control, use, sell, dispose of or otherwise deal with the LLC
Interest or any other part of the Trust Estate except (i) as expressly required
by the terms of any Operative Document to which the Trust is a party, (ii) as
expressly required by the terms hereof, or (iii) as expressly provided in
written instructions from the Owner pursuant to Section 4.1 or 4.2, but subject
always to the provisions of this Agreement.
ARTICLE 5
THE TRUSTEES
SECTION 5.1. ACCEPTANCE OF TRUSTS AND DUTIES. Each Trustee hereby accepts
the trusts hereby created and agrees to perform the same but only upon the terms
of this Agreement. The Business Trustee also agrees to receive and disburse all
monies paid to it constituting part of the Trust Estate upon the terms hereof.
Each Trustee shall not incur any liability under any circumstances, except for
liability incurred as a result of (i) its own willful misconduct or gross
negligence; (ii) its failure to comply with the provisions of Section 4.4(b);
(iii) its failure to use ordinary care in receiving or disbursing funds; (iv)
the inaccuracy of any of its representations or warranties made in its
individual capacity (or from its failure to perform any covenant made in its
individual capacity) in Section 5.3 or in any other Operative Document to which
the Trust is now or hereafter a party; and (v) all taxes, fees or other charges
on, based on or measured by any fees, commissions or other compensation received
by the Trustee on account of its services as Trustee; provided, however, that
the Trustee's failure to act or perform in the absence of instructions, after
the Trustee shall have requested instructions from the Owner pursuant to the
last sentence of Section 4.2, shall not constitute willful misconduct or gross
negligence for purposes of clause (i) of this sentence. The Delaware Trustee
further agrees to perform all of its administrative functions and duties as a
Trustee hereunder within the State of Delaware. The Independent Trustee and the
Special Trustee each recognize that the bankruptcy remoteness of the Trust is an
integral requirement of the Trust, and that, so long as the Trust remains
solvent, the Independent Trustee's and the Special Trustee's intention is not to
file or cause the filing of a bankruptcy petition on behalf of the Trust,
consent to the filing of an involuntary bankruptcy petition against the Trust,
or seek, or consent to, the consolidation of the Trust and any Affiliate in a
bankruptcy proceeding involving the Trust or any Affiliate thereof. In no event
shall the Independent
<PAGE>
Trustee or the Special Trustee be liable to the Owner, the Trust or any other
Person for any act or omission taken or made in good faith in accordance with
the immediately preceding sentence.
SECTION 5.2. ABSENCE OF CERTAIN DUTIES. Except in accordance with written
instructions furnished pursuant to Section 4.1 or 4.2, and except as provided
in, and without limiting the generality of, Section 4.4, no Trustee shall have
any duty (i) to see to any recording or filing of this Agreement or any other
documents or to see to the maintenance of any such recordation or filing or to
any necessary rerecording or refiling thereof; (ii) to see to the payment or
discharge of any tax, assessment or other governmental charge on, or any Lien of
any kind owing with respect to, or assessed or levied against, any part of the
Trust Estate; or (iii) to inspect MP-LLC or its books and records with respect
thereto.
SECTION 5.3. NO REPRESENTATION OR WARRANTIES AS TO CERTAIN MATTERS. Each
Trustee hereby represents and warrants that this Agreement has been, and
(assuming the due authorization, execution and delivery of this Agreement by the
Owner) the other Operative Documents to which the Trust is a party have been, or
at the time of execution and delivery thereof by the Trust pursuant hereto will
be, as the case may be, duly authorized and delivered by a Responsible Officer
of such Trustee (with respect to such Trustee), who is or will be, as the case
may be, duly authorized to execute and deliver the same on behalf of such
Trustee and that this Agreement has been duly authorized, executed and delivered
by such Trustee and constitutes the legal, valid and binding obligation of such
Trustee enforceable against such Trustee in accordance with its terms, except as
such terms may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the rights or creditors generally and by general
principles of equity. Except for Liens attributable to such Trustee in its
individual capacity, such Trustee shall not be individually liable for any
indebtedness of the Trust. In addition, such Trustee shall not be liable or
responsible for or in respect of the validity or sufficiency of this Agreement
or for the due execution hereof by the Owner.
SECTION 5.4. SEGREGATION OF FUNDS. Monies received by any Trustee hereunder
for on or behalf of the Trust shall be segregated and not commingled with the
funds of any other Person.
SECTION 5.5. RELIANCE UPON CERTIFICATES AND COUNSEL. No Trustee shall incur
any liability to any Person by reason of acting in reliance upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper reasonably believed by it to be genuine
and reasonably believed by it to be signed by the proper party or parties.
Unless other evidence in respect thereof is specifically prescribed herein, any
request, direction, order or demand of the Owner mentioned herein or in any
other Operative Document to which the Trust is now or hereafter a party shall be
sufficiently evidenced by a written instrument signed by a person purporting to
be an officer of the Owner. As to any fact or matter the manner of ascertainment
of which is not specifically provided herein, any Trustee may for all purposes
hereof rely on a certificate signed by an officer of the Owner as to such fact
or matter, and such certificate shall constitute full protection to such Trustee
for any action taken or omitted to be taken by it in good faith in reliance
thereon. In the administration of the Trust Estate as provided herein and in the
Operative Documents, each Trustee may execute any of the
<PAGE>
powers hereof and perform its powers and duties hereunder and under the
Operative Documents directly or through agents or counsel and may consult with
counsel, accountants and other persons selected and employed by it, and such
Trustee shall not be liable for anything done, suffered or omitted in good faith
by them in accordance with the advice of any such counsel or accountants
appointed by it with due care.
SECTION 5.6. NOT ACTING IN INDIVIDUAL Capacity. Each Trustee is acting
hereunder solely as a Trustee and not in its individual capacity except as
otherwise expressly provided herein; and, except as may be otherwise expressly
provided in this Agreement, all Persons, other than the Owner, having any claim
against the Trust by reason of the transactions contemplated hereby shall look
only to the Trust Estate for payment or satisfaction thereof.
SECTION 5.7. COMPENSATION AND EXPENSES. Each Trustee shall be entitled to
receive as compensation for its services hereunder such ordinary fees as are
fair, reasonable and customary for the performance of such services and as any
heretofore and from time to time hereafter be agreed upon between the Owner and
such Trustee and/or pursuant to a written agreement between the Owner and such
Trustee. Such Trustee shall be entitled to be reimbursed for its reasonable
expenses incurred in the performance of its duties as a Trustee, including but
not limited to the reasonable fees and expenses of any counsel or accountants
hired by such Trustee pursuant to Section 5.5 of this Agreement.
SECTION 5.8. TAX RETURNS. The Business Trustee shall be responsible for the
keeping of all appropriate books and records relating to the receipt and
disbursement by it of all monies under this Agreement and each other agreement
(including the Operative Documents to which the Trust is now or hereafter a
party) contemplated hereby. The Owner shall be responsible for causing to be
prepared and filed, at its expense, all income tax returns required to be filed
by the Owner and for causing to be prepared all income tax returns (if any)
required to be filed with respect to the trust created hereby. The Business
Trustee, upon request and upon adequate assurance of reimbursement by the Owner
for the costs and expenses associated therewith, shall furnish to the Owner all
such information as may be reasonably required from such Trustee in connection
with the preparation of such income tax returns. Upon request of the Owner, the
Business Trustee shall sign and file the trust's tax returns prepared by the
Owner. The Owner hereby instructs and directs Business the Trustee to apply for
and obtain a Federal Tax Identification Number for the Trust.
SECTION 5.9. TRUSTEE STATUS . It is expressly understood and agreed that
(a) any Operative Document entered into or to be entered into by the Trust is
executed and delivered by a Trustee, not individually or personally but solely
as a Trustee of the Trust, in the exercise of the powers and authority conferred
and vested in it under this Agreement, (b) each of the representations,
undertakings and agreements made in any Operative Document on the part of the
Trust is made and intended not as personal representations, undertakings, and
agreements by the Trustee but is made and intended for the purpose of binding
only the Trust, and (c) under no circumstances shall any Trustee be personally
liable for the payment of any indebtedness or other obligations of the Trust or
be liable for the breach or failure of any obligation, representation, warranty
or covenant made or undertaken by the Trust under any such Operative Document.
<PAGE>
SECTION 5.10. DOING BUSINESS IN OTHER JURISDICTIONS. Notwithstanding
anything contained herein to the contrary, the Delaware Trustee (and, if the
same Person is acting as both the Delaware Trustee and the Independent Trustee,
then also the Independent Trustee) shall not be required to take any action in
any jurisdiction other than in the State of Delaware if the taking of such
action will (i) require the consent or approval or authorization or order of or
the giving of notice to, or the registration with or the taking of any other
action in respect of, any state or other governmental authority or agency of any
jurisdiction other than the State of Delaware; (ii) result in any fee, tax or
other governmental charge under the laws of any jurisdiction or any political
subdivisions thereof in existence on the date hereof other than the State of
Delaware becoming payable by the Delaware Trustee (or, if the same Person is
acting as both the Delaware Trustee and the Independent Trustee, then also the
Independent Trustee); or (iii) subject the Delaware Trustee (or, if the same
Person is acting as both the Delaware Trustee and the Independent Trustee, then
also the Independent Trustee) to personal jurisdiction in any jurisdiction other
than the State of Delaware for causes of action arising from acts unrelated to
the consummation of the transactions by the Delaware Trustee (or, if the same
Person is acting as both the Delaware Trustee and the Independent Trustee, then
also the Independent Trustee) contemplated hereby. The Delaware Trustee (and, if
the same Person is acting as both the Delaware Trustee and the Independent
Trustee, then also the Independent Trustee) shall be entitled to obtain advice
of counsel (which advice shall be an expense of the Owner) to determine whether
any action required to be taken results in the consequences described in clauses
(i), (ii) and (iii) of the preceding sentence. If said counsel advises the
Delaware Trustee (or, if the same Person is acting as both the Delaware Trustee
and the Independent Trustee, then also the Independent Trustee) that such action
will result in such consequences, then the Delaware Trustee will direct the
Business Trustee to proceed with such action in its place and the Independent
Trustee will direct the Special Trustee to proceed with such action in its
place.
ARTICLE 6
INDEMNIFICATION OF AND REPRESENTATIONS TO
THE TRUSTEES BY THE OWNER
SECTION 6.1. INDEMNIFICATION OF THE TRUSTEES. To the fullest extent
permitted by law, the Owner hereby agrees, whether or not any of the
transactions contemplated hereby shall be consummated, to assume liability for,
and does hereby indemnify, protect, save and keep harmless the Trustees and
their respective successors, permitted assigns, agents and servants from and
against, any and all liabilities, obligations, losses, damages, penalties, taxes
(excluding any taxes payable by the Trustees on or measured by any fees or other
compensation received by the Trustees for their services hereunder), claims,
action, suits, costs, expenses or disbursements (including, without limitation,
reasonable legal fees and expenses) of any kind and nature whatsoever which may
be imposed on, incurred by or asserted against any of the Trustees in any way
relating to or arising out of this Agreement or any other Operative Document or
the enforcement of the terms of any thereof, or in any way relating to or
arising out of the acquisition, ownership, possession, use, sale or other
disposition of any of the Trust Estate, or in any way relating to or arising out
of the administration of the Trust Estate or the action or inaction of any of
the Trustees hereunder, except: (i) in the case of willful misconduct or gross
<PAGE>
negligence on the part of any of the Trustees or in any Trustee's individual
capacity in the performance or nonperformance of its obligations and duties
hereunder; (ii) those resulting from the inaccuracy of any representation or
warranty of any Trustee in its individual capacity (or from the failure of any
Trustee to perform any covenant in its individual capacity) in this Agreement;
(iii) those arising or resulting from any of the matters described in clauses
(i) through (v) of Section 5.1; or (iv) those resulting from any Trustee's
failure to perform the terms of Section 4.4(b) or from the failure to use
ordinary care in the receipt or disbursement of funds. The indemnities contained
in this Section 6.1 extend to the Trustees only and shall not be construed as
indemnities of the Trust Estate. The indemnities contained in this Section 6.1
shall survive the termination of this Agreement. Any claim by any Trustee shall
be against the interest of the Owner in the Trust Estate as security for any
amounts owning to it hereunder.
SECTION 6.2. REPRESENTATIONS. The Owner represents, warrants and agrees as
follows:
(a) The Owner has observed and will observe all applicable corporate
procedures including, where applicable, the holding of regular periodic and
special meetings, the recording and maintenance of minutes of such meetings, and
the recording of resolutions, if any, adopted at such meetings.
(b) The Owner has paid and will pay its liabilities (including liability in
respect of guaranties) and losses from its own separate funds.
(c) The Owner has and will have at all times sufficient officers and
employees to run its business and operations. The Owner will manage its own
assets and liabilities.
(d) The Owner has not taken and will not take any action that would give
any creditor of the Owner cause to believe that indebtedness previously incurred
by the Owner is now or will be an obligation of the Trust or any Trustee or that
the Owner is not or will not remain an entity separate and distinct from the
Trust and each Trustee.
(e) The Owner has not taken and will not take any action that is
inconsistent with any of the representations, warranties and agreements set
forth in this Agreement or that would give (i) any future creditor of the Owner
cause to believe mistakenly that any such future obligation incurred by the
Owner would be not only the obligation of the Owner, but also of the Trust or
any Trustee, or (ii) any future creditor of the Owner cause to believe
mistakenly that the Owner was not or would not continue to remain an entity
separate and distinct from the Trust and each Trustee.
(f) No transaction relating to this Agreement is being or will be entered
into by the Owner (i) in bad faith or with the intent to delay, hinder or
defraud any of its creditors, or (ii) with the intent of removing assets from
the Owner to the detriment of the Owner's creditors.
(g) So long as the Bonds are outstanding, the Owner will not consensually
merge or consolidate with the Trust, the Independent Trustee, or the Delaware
Trustee.
<PAGE>
ARTICLE 7
TRANSFER OF THE OWNER'S INTEREST
SECTION 7.1. TRANSFER OF INTEREST OF THE OWNER.
(a) The Owner may assign, convey or otherwise transfer all or any of its
right, title and interest in and to this Agreement and the Trust Estate by
giving written notice to the Business Trustee specifying (i) the name and
address of the proposed transferee, (ii) the effective date of the proposed
transfer, and (iii) the percentage of the interest of the Owner to be
transferred. Upon any assignment, conveyance or transfer of all of the interest
of the Owner, the transferor Owner shall, upon such assignment, conveyance or
transfer, be released and discharged without further act or formality whatsoever
from the indemnification obligations imposed under Section 6.1 arising after
such transfer date, except to the extent that any such transferee shall not have
assumed the obligations of the Owner hereunder with respect to such interest so
transferred. No such assignment, conveyance or transfer shall violate any legal
requirement or laws or create a relationship which would be in violation
thereof. The Business Trustee shall not be on notice of or otherwise be bound by
any such assignment, conveyance or transfer until the Business Trustee shall
have received an executed counterpart of the instrument of such assignment,
conveyance or transfer.
(b) No assignment, conveyance or other transfer pursuant to Section 7.1(a)
shall be effective unless (i) the transferee shall have executed and delivered
to the Business Trustee an instrument containing the transferee's agreement to
be bound by the terms of this Agreement, and (ii) if such assignment, conveyance
or other transfer shall result in the Owner owning less than 51% of the
aggregate beneficial interests in the Trust, then the Trust shall have received
Rating Agency Confirmation.
ARTICLE 8
SUCCESSOR TRUSTEE; CO-TRUSTEE
SECTION 8.1. RESIGNATION OR REMOVAL OF A TRUSTEE: APPOINTMENT OF SUCCESSOR.
(a) Resignation or Removal. Subject to Section 2.5(d) hereof, any Trustee
or any successor trustee may resign at any time without cause by giving at least
sixty (60) days' prior written notice to the Owner and, during the period while
any Bonds are outstanding and until all of the obligations of MP-LLC under the
Indentures or the Bonds have been indefeasibly and fully satisfied, to MP-LLC,
such resignation to be effective upon the acceptance of appointment by the
successor trustee under Section 8.1(b). In addition, subject to Section 2.5(d)
hereof, the Owner may at any time remove the Business Trustee without cause by a
notice in writing delivered to the Business Trustee and, during the period while
any Bonds are outstanding and until all of the obligations of MP-LLC under the
Indentures or the Bonds have been indefeasibly and fully satisfied, to MP-LLC,
such removal to be effective upon the acceptance of appointment by the successor
trustee under Section 8.1(b), but in no event shall such removal cause a
<PAGE>
termination of the Trust. In the case of the resignation or removal of the
Business Trustee or the Delaware Trustee, the Owner may appoint a successor
trustee by an instrument in writing signed by the Owner. If a successor trustee
shall not have been appointed within thirty (30) days after notice of
resignation or removal of such Trustee, then such Trustee or, during the period
while any Bonds are outstanding and until all of the obligations of MP-LLC under
the Indentures or the Bonds have been indefeasibly and fully satisfied, MP-LLC
may apply to any court of competent jurisdiction to appoint a successor trustee
to act until such time, if any, as a successor trustee shall have been appointed
by the Owner as above provided. Any successor trustee so appointed by such court
shall immediately, and without further act, be superseded by any successor
trustee appointed by the Owner as above provided.
(b) Execution and Delivery of Certain Documents. Any successor trustee,
however appointed, shall execute and deliver to the predecessor Trustee an
instrument accepting such appointment, and thereupon such successor trustee,
without further act, shall become vested with all the estates, properties,
rights, powers and duties of the predecessor Trustee in the Trust with like
effect as if originally named a Trustee herein and shall for the purpose of this
Agreement, thereafter be referred to as a Trustee; but nevertheless, upon the
written request of such successor trustee, such predecessor Trustee shall
execute and deliver an instrument transferring to such successor trustee, the
Trust herein expressed, all the estates, properties, rights, powers and duties
of such predecessor Trustee in and to the Trust, and such predecessor Trustee
shall duly assign, transfer, deliver and pay over to such successor trustee all
monies or other property then held by such predecessor Trustee in and to the
Trust, and such predecessor Trustee shall duly assign, transfer, deliver and pay
over to such successor trustee all monies or other property then held by such
predecessor Trustee in and to the Trust with respect to the Trust.
(c) Qualification. Any successor Delaware Trustee, however appointed, shall
be either a natural person who is a resident of the State of Delaware, or any
entity which has its principal place of business in the State of Delaware.
(d) Merger, Etc. Any corporation which any Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Trustee shall be a
party, or any corporation to which substantially all the corporate trust
business of any Trustee may be transferred, shall, subject to Section 8.1(c), be
such Trustee hereunder without further act.
SECTION 8.2. INDEPENDENT TRUSTEE. During the period while any Bonds are
outstanding and until all of the obligations of MP-LLC under the Indentures or
the Bonds are indefeasibly and fully satisfied, the Trust shall at all times
have at least one (1) Independent Trustee. A single Person may serve as both the
Delaware Trustee and the Independent Trustee.
<PAGE>
ARTICLE 9
SUPPLEMENTS AND AMENDMENTS TO TRUST AGREEMENT
AND OTHER DOCUMENTS
SECTION 9.1. SUPPLEMENTS AND AMENDMENTS.
(a) Execution. Subject to the other provisions of this Agreement,
including, without limitation, Section 2.5, 8.2 and 9.1(c), at any time and from
time to time upon the written request of the Owner: (i) the Trustees, together
with the Owner, shall execute a supplement to this Agreement for the purpose of
adding provisions to, or changing or eliminating provisions of, this Agreement
(except Section 10.11) as specified in such request; and (ii) each Trustee
shall, subject to the consent of MP-LLC during the period while any Bonds are
outstanding and until all of the obligations of MP-LLC under the Indentures or
the Bonds have been indefeasible and fully satisfied, enter into such written
amendment of or supplement to any other Operative Document to which such Trustee
is a party as may be specified in such request, or execute and deliver such
written waiver or modification of or consent under the terms of any such
Operative Document as may be specified in such request.
(b) Delivery of Amendments and Supplements to Certain Parties. Until the
Bonds shall have been repaid in full, a signed copy of each amendment or
supplement shall be delivered by each Trustee to MP-LLC and shall not in any way
affect the Bonds and shall not impose any duty on MP-LLC with respect to such
amendment or supplement.
(c) Amendments. Notwithstanding any other provision of this Agreement or
any provision of law, during the period while any Bonds are outstanding and
until all of the obligations of MP-LLC under the Indentures or the Bonds have
been indefeasibly and fully satisfied, no amendment of or supplement, waiver or
modification to this Agreement shall, without the prior written consent of
MP-LLC and the receipt by the Trust of Rating Agency Confirmation, (i) modify
the terms of Section 2.3, 2.5, 4.2, Article 5, Sections 7.1, 8.2, 9.1, 10.1, and
the definitions of Independent Trustee and Bankruptcy Event contained in this
Agreement, or (ii) result in the Trust being terminated until after all of the
obligations of MP-LLC under the Indentures or the Bonds have been indefeasibly
and fully satisfied.
SECTION 9.2. DISCRETION AS TO EXECUTION OF DOCUMENTS. If in the reasonable
opinion of any Trustee any document required to be executed by it pursuant to
the terms of Section 9.1 materially and adversely affects any right, duty,
immunity or indemnity in favor of such Trustee hereunder or under any other
Operative Document to which such Trustee is a party, then such Trustee may in
its discretion decline to execute such document. If, in the reasonable opinion
of any Trustee any instrument required to be so executed adversely affects any
right, duty or liability of, or immunity or indemnity in favor of such Trustee
under this Agreement or any of the other Operative Documents to which the Trust
is now or hereafter a party, or would cause or result in any conflict with or
breach of any terms, conditions or provisions of, or default under, such
Trustee's charter documents or by-laws or any document contemplated hereby to
which such Trustee is a party, then such Trustee may decline to execute such
instrument, unless such Trustee shall have been provided by the Owner an
indemnity satisfactory to such Trustee.
<PAGE>
SECTION 9.3. ABSENCE OF REQUIREMENTS AS TO FORM. It shall not be necessary
for any written request furnished pursuant to Section 9.1 to specify the
particular form of the proposed document to be executed pursuant to such
request, but it shall be sufficient if such request shall indicate the substance
thereof.
SECTION 9.4. DISTRIBUTION OF DOCUMENTS. Promptly after the execution by any
Trustee of any document entered into pursuant to Section 9.1, such Trustee shall
deliver, in accordance with the notice provisions of this Agreement, a conformed
copy thereof to the Owner.
SECTION 9.5. CONDITION TO SUCCESSOR TRUSTEE. No person shall become a
successor Trustee hereunder unless such successor Trustee shall deliver an
opinion of counsel, with respect to the laws of the jurisdiction of such
proposed successor Trustee (the "Relevant State"), to the following effect:
(a) Neither a Relevant State court nor a Federal court applying Relevant
State law, if properly presented with the issue and after having properly
considered each issue, would permit the Owner to terminate this Agreement,
except as otherwise provided herein or, during the period while any Bonds are
then outstanding, if any, and until all of the obligations of MP-LLC under the
Indentures or the Bonds have been indefeasible and fully satisfied, with the
consent of MP-LLC, as the case may be, until payment in full of the Bonds has
occurred; and
(b) Under the laws of the Relevant State, as long as this Agreement has not
been terminated in accordance with its terms or, during the period while any
Bonds are then outstanding and until all of the obligations of MP-LLC under the
Indentures or the Bonds have been indefeasible and fully satisfied, with the
express prior written consent of MP-LLC, creditors of any Person that is an
Owner, holders of a lien against the assets of such Person, and representatives
of creditors of any such Person, such as trustees, receivers or liquidators
(whether or not any insolvency proceeding had been commenced) (collectively, the
"Owner Creditors"), may acquire legal, valid and enforceable claims and liens,
as to the Trust Estate, only against the beneficial interest of such person in
the Trust Estate, and do not have, and may not through the enforcement of such
Owner Creditors' rights, acquire any greater rights than the Owner with respect
to the Trust Estate.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1. TERMINATION. This Agreement and the trusts, rights,
privileges and options created hereby shall terminate and this Agreement shall
be of no further force or effect upon the earliest of (i) provided the then
outstanding Bonds, if any, and all obligations of MP-LLC under the Bonds and the
related Indentures have been indefeasibly and fully satisfied, the sale or other
final disposition by the Business Trustee of all property constituting part of
the Trust Estate and the final distribution by the Business Trustee of all
monies or other property or proceeds constituting part of the Trust Estate in
accordance with Article 4, or (ii) twenty-one (21) years less one (1) day after
the death of the last survivor of the descendants living on the date of
<PAGE>
this Agreement of Joseph P. Kennedy, father of President John F. Kennedy, but if
any trusts, rights, privileges or options shall be or become valid under
applicable law for a period subsequent to the twenty-first anniversary of the
death of the last such survivor (or, without limiting the generality of the
foregoing, if legislation shall become effective providing for the validity or
permitting the effective grant of such trusts, rights, privileges and options
for a period in gross exceeding the period for which such trusts, rights,
privileges and options are hereinabove stated to extend and be valid), then such
trusts, rights, privileges and options shall not terminate as aforesaid but
shall extend to and continue in effect, but only if such non-termination and
extension shall then be valid under applicable law, until such time as the same
shall under applicable law cease to be valid, or (iii) the election of the Owner
by notice to the Business Trustee to revoke the trusts created hereby, if such
notice shall be accompanied by the written agreement of the Owner assuming all
the obligations of the Trust under or contemplated by the Operative Documents
and all other obligations of the Trust incurred by the Business Trustee as a
trustee hereunder. Notwithstanding the foregoing or any other provision hereof,
to the fullest extent permitted by law, no such election shall be effective and
this Agreement shall not be terminated (A) if such election or termination is
made in contravention of the Operative Documents, or (B) until payment in full
of all the obligations of MP-LLC under the Bonds and related Indentures;
otherwise this Agreement and the trusts created hereby shall continue in full
force and effect in accordance with the terms hereof. Upon such termination, all
monies or other property or proceeds constituting part of the Trust Estate shall
be distributed in accordance with the terms of Article 4. Upon the termination
of the Trust pursuant to this Article 10, the Business Trustee shall cause a
Certificate of Cancellation to be filed with the Secretary of State of the State
of Delaware.
SECTION 10.2. THE OWNER HAS NO LEGAL TITLE. The Owner shall not have legal
title to any part of the Trust Estate. No transfer, by operation of law or
otherwise, of any right, title or interest of the Owner in and to the Trust
Estate shall operate to terminate this Agreement or the trusts created hereunder
or entitle any successors or transferees of the Owner to an accounting or to the
transfer of legal title to any part of the Trust Estate. The bankruptcy, death
or incapacity of the Owner (or any other beneficiary hereunder, if any) will not
terminate this Agreement, nor entitle such person's legal representatives or
heirs to claim an accounting or to take any action or proceeding in any court
for a partition or winding up of the Trust Estate, nor otherwise effect the
rights, obligations and liabilities of the parties hereto. No Owner Creditor
shall obtain legal title to or exercise legal or equitable remedies with respect
the Trust Estate as a result of the Owner's holding of the beneficial interest
hereunder. No transfer, by operation of law or otherwise, of any right, title
and interest of the beneficial interest hereunder shall operate to terminate
this Agreement or the Trust created hereby.
SECTION 10.3. ASSIGNMENT, SALE, ETC. OF TRUST ESTATE. Any assignment, sale,
transfer or other conveyance of any portion of the Trust Estate by the Business
Trustee pursuant to the terms hereof shall bind the Owner and shall be effective
to transfer or convey all right, title and interest of the Trust and the Owner
in and to such property. No purchaser or other grantee shall be required to
inquire as to the authorization, necessity, expediency or regularity of such
assignment, sale, transfer or conveyance or as to the application of any sale or
other proceeds with respect thereto by the Business Trustee.
<PAGE>
SECTION 10.4. TRUST AGREEMENT FOR BENEFIT OF PARTIES ONLY. Nothing herein,
whether express or implied, shall be construed to give any other Person other
than the Trustee and the Owner any legal or equitable right, remedy or claim
under or in respect of this Agreement; but this Agreement shall be held to be
for the sole and exclusive benefit of the Trustee and the Owner.
SECTION 10.5. NOTICES. Unless otherwise expressly specified or permitted by
the terms hereof, any notice, request, demand, or other communications to be
delivered under or in connection with this Agreement shall be given in writing
and delivered by either (a) personal delivery, (b) facsimile transmission (with
a copy to follow in the manner set forth in the following clause (c)), (c)
certified or registered mail, with postage prepaid and return receipt requested,
or (d) an overnight delivery service of general commercial use (such as UPS,
Federal Express, DHL, U.S.P.S. Express Mail, or Airborne) addressed as follows:
(i) if to the Delaware Trustee or the Independent Trustee, addressed
to it at its office at:
Wilmington Trust Company
One Rodney Square
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust
Administration
Telephone Number: (302) ________
Facsimile Number: (302) ________
(ii) if to the Special Trustee, addressed to it at:
James H. Luther
3739 Bon Rea Drive
Charlotte, North Carolina 28226
Telephone Number: (704) 341-0354
Facsimile Number: (704) ________
(iii) if to the Business Trustee, addressed to it at:
John E. Mack
c/o NationsBank, N.A.
100 North Tryon Street
Charlotte, North
Carolina 28255-0065
Telephone Number: (704) 386-5833
Facsimile Number: (704) 386-0270
(iv) if to the Owner, addressed to it at:
NationsBank, N.A., 100 North Tryon Street
<PAGE>
Charlotte, North Carolina 28255-0065
Attention: _______________ Telephone
Number: (704) _________
Facsimile Number: (704) _________
with a copy to:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038-4892
Attention: A. Curtis Greer II, Esq.
Telephone Number: (212) 504-6000
Facsimile Number: (212) 504-6666
or to such other address or facsimile number as such party may hereafter specify
for such purposes by notice to the other party. Each such notice, request,
demand, or other communication shall be deemed to have been duly given and be
effective (i) if given by personal delivery, then when actually delivered to the
party to whom it is addressed, (ii) if given by facsimile, then when such
facsimile is transmitted, without error, to the facsimile number specified in
this Section, or (iii) if given by any other means, then when actually delivered
to the address specified in accordance with this Section.
SECTION 10.6. SEVERABILITY. Any provision hereof which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 10.7. WAIVERS. No term or provision hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing entered
into in compliance with the terms of Article 10; and any waiver of the terms
hereof shall be effective only in the specified instance and for the specific
purpose given. No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights and remedies
provided by law.
SECTION 10.8. COUNTERPARTS. This Agreement may be executed by the parties
hereto in any number of separate counterparts, each of which when so executed
and delivered shall be an original, but all of such counterparts together shall
constitute but one and the same instrument.
SECTION 10.9. BINDING EFFECT. All covenants and agreements contained herein
shall be binding upon, and inure to the benefit of, the Trustees, and their
respective successors and permitted assigns, and the Owner, and its successors
and its permitted assigns. Any request, notice, direction, consent, waiver or
other instrument or action by the Owner shall bind its successors and permitted
assigns.
<PAGE>
SECTION 10.10. HEADINGS. The headings of the various Articles, Sections and
paragraphs herein are for convenience of reference only and shall not alter,
modify, define or limit, or be used in construing or interpreting, any of the
terms or provisions hereof.
SECTION 10.11. GOVERNING LAW. This Agreement and the rights and obligations
of the parties hereunder shall in all respects be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, including all
matters of construction, validity and performance, with giving effect to such
state's principles of conflicts of law.
SECTION 10.12. AMENDMENT. Except as otherwise set forth herein, this
Agreement may not be amended, changed or modified except pursuant to a writing
duly executed by both parties.
SECTION 10.13. ASSIGNMENT. Except as otherwise set forth herein, this
Agreement and its rights and obligations may not be assigned by any party hereto
without the prior written consent of the other parties hereto.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective duly authorized officers as of the day and
year first written above.
OWNER:
NATIONSBANK, N.A.
By: /s/ James W. Kiser
--------------------------
Name:
Title:
DELAWARE TRUSTEE & INDEPENDENT TRUSTEE:
WILMINGTON TRUST COMPANY
By: /s/ Debra Eberly
--------------------------
Name: Debra Eberly
Title: Administrative
Account Manager
SPECIAL TRUSTEE:
/s/ James H. Luther
-----------------------------
JAMES H. LUTHER
BUSINESS TRUSTEE:
/s/ John E. Mack
-----------------------------
JOHN E. MACK
<PAGE>
EXHIBIT A
TO THE
TRUST AGREEMENT
OF
MAIN PLACE TRUST
(DATED AS OF DECEMBER 14, 1998)
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement") is dated as of
December __, 1998, by NATIONSBANK, N.A (the "Assignor") and MAIN PLACE Trust, a
Delaware business trust (the "Assignee").
WHEREAS, Assignor is the sole member of Main Place Funding, LLC, a Delaware
limited liability company formerly known as Main Place Holdings, LLC (the
"LLC"), and, in accordance with the Limited Liability Company Agreement of the
LLC dated as of October 15, 1998 (the "LLC Agreement"), Assignor holds a 100%
membership interest in the LLC (the "LLC Interest").
WHEREAS, Assignee is a newly-formed Delaware business trust and has not
conducted any business or operations, or acquired any assets.
WHEREAS, Assignor desires to transfer, as a capital contribution, in
exchange for all of the equity interests in Assignee one percent (1%) of its LLC
Interest (the "Transferred Interest") to Assignee, and Assignee desires to
accept the Transferred Interest on the terms set forth below.
NOW THEREFORE, in consideration of the premises and covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, each of the parties hereto hereby agrees as
follows:
1. Assignor hereby transfers, assigns, sells, grants and conveys unto
Assignee, its successors and assigns, all of the rights, title and interest of
Assignor in, to and under the Transferred Interest. This transfer and assignment
is made without representation or warranty except as set forth in this
Agreement.
<PAGE>
2. Assignee hereby affirms and accepts all the terms, conditions and
provisions of the LLC Agreement and agrees to be bound by and to the same, and
Assignee's execution of this Agreement shall be deemed to constitute Assignee's
execution of a counterpart signature page to the LLC Agreement.
3. Assignor represents and warrants that (a) it is the sole owner of
the Transferred Interest, and owns the Transferred Interest free and clear of
any lien, encumbrance or security interest, and (b) it has not assigned any or
all of its rights, title or interest in the Transferred Interest to any other
person or entity.
4. The terms of this Agreement shall be binding upon and shall inure to
the benefit of the Assignor, the Assignee and their respective successors and
assigns. All representations and warranties made herein shall survive the
execution and delivery of this Agreement.
5. This Agreement constitutes the complete agreement of the parties
hereto with respect to the subject matter referred to herein and supersedes all
prior or contemporaneous negotiations, promises, covenants, agreements or
representations of every nature whatsoever with respect thereto, all of which
have become merged and finally integrated into this Agreement. This Agreement
may not be amended, modified or supplemented except by an instrument in writing
executed by both parties hereto.
6. This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware, without giving effect to the
conflicts of law provisions thereof.
7. This Agreement may be executed in multiple counterparts, each one of
which shall constitute an original executed copy of this Agreement.
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<PAGE>
IN WITNESS WHEREOF, each of the undersigned has executed and delivered this
Agreement as of the date first above written.
NATIONSBANK, N.A.
By:__________________________
Name:
Title:
MAIN PLACE TRUST
By:__________________________
Name:
Title:
The undersigned, being the sole member and sole manager of Main Place
Funding, LLC (the "LLC"), hereby admits Main Place Trust as a member of the LLC.
Dated: December __, 1998 NATIONSBANK, N.A.
By:__________________________
Name:
Exhibit 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Post-Effective Amendment No. 3 to Registration
Statement on Form S-3 (No. 33-82040) of Main Place Funding LLC of our report
dated March 30, 1998 appearing on page 6 of Main Place Real Estate Investment
Trust's Annual Report on Form 10-K for the year ended December 31, 1997. We also
consent to the reference to us under the heading "Experts" in such Prospectus.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Charlotte, North Carolina
January 6, 1999
