EXHIBIT 10(C)
AMENDED AND RESTATED TRUST AGREEMENT
between
NMS SERVICES (CAYMAN) INC.,
as Grantor and Initial Certificateholder
and
WILMINGTON TRUST COMPANY,
as Trustee
Dated as of September 8, 2000
MBG TRUST
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
PAGE
Section 1.1 Definitions..................................................................1
Section 1.2 Other Definitional Provisions................................................6
ARTICLE II
ORGANIZATION
Section 2.1 Name.........................................................................6
Section 2.2 Statement of Intent..........................................................6
Section 2.3 Appointment of Trustee.......................................................6
Section 2.4 Declaration of Trust.........................................................7
Section 2.5 Initial Capital Contribution to the Trust....................................7
Section 2.6 Office.......................................................................7
Section 2.7 Purposes and Powers..........................................................7
Section 2.8 Liability of Certificateholder...............................................8
Section 2.9 Title to Trust Property......................................................8
Section 2.10 Situs of Trust...............................................................8
Section 2.11 Representations and Warranties of Grantor....................................8
ARTICLE III
THE CERTIFICATE
Section 3.1 Initial Beneficiary..........................................................9
Section 3.2 Form of Certificate..........................................................9
Section 3.3 Execution, Authentication and Delivery.......................................9
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificate............................10
Section 3.5 Person Deemed Certificateholder.............................................10
Section 3.6 Maintenance of Corporate Trust Office.......................................10
Section 3.7 Transfer of Certificate.....................................................10
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TABLE OF CONTENTS
(CONTINUED)
ARTICLE IV
ACTIONS BY TRUSTEE
PAGE
Section 4.1 Action by Trustee with Respect to the Securities Portfolio..................11
Section 4.2 Action by the Certificateholder with Respect to Bankruptcy..................11
Section 4.3 Restrictions on the Certificateholder's Power...............................11
Section 4.4 Replacement of Investment Adviser...........................................12
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1 Establishment of Accounts...................................................12
Section 5.2 Application of Trust Funds..................................................12
ARTICLE VI
THE TRUSTEE
Section 6.1 Duties of Trustee...........................................................14
Section 6.2 Execution of Documents......................................................15
Section 6.3 Acceptance of Trusts and Duties.............................................15
Section 6.4 Refrain from Certain Actions................................................17
Section 6.5 Furnishing of Documents.....................................................17
Section 6.6 Representations and Warranties of Trustee...................................17
Section 6.7 Reliance; Advice of Counsel.................................................18
Section 6.8 Transactions with Trustee...................................................19
Section 6.9 Compensation; Indemnity.....................................................19
Section 6.10 Replacement of Trustee......................................................20
Section 6.11 Merger or Consolidation of Trustee..........................................21
Section 6.12 Appointment of Co-Trustee or Separate Trustee...............................21
Section 6.13 Eligibility Requirements for Trustee........................................22
Section 6.14 Voting of Securities Portfolio..............................................23
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
Section 7.1 Termination of Trust Agreement..............................................23
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TABLE OF CONTENTS
(CONTINUED)
ARTICLE VIII
AMENDMENTS
PAGE
Section 8.1 Amendments..................................................................24
Section 8.2 Form of Amendments..........................................................24
ARTICLE IX
CUSTODY, ACQUISITION AND LIQUIDATION OF THE
SECURITIES PORTFOLIO
Section 9.1 Custody of the Securities Portfolio.........................................24
Section 9.2 Acquisition and Liquidation of the Securities Portfolio.....................25
ARTICLE X
MISCELLANEOUS
Section 10.1 Limitations on Rights of Others.............................................26
Section 10.2 Notices.....................................................................26
Section 10.3 Severability................................................................27
Section 10.4 Counterparts................................................................27
Section 10.5 Successors and Assigns......................................................27
Section 10.6 No Petition Covenant........................................................27
Section 10.7 No Recourse.................................................................27
Section 10.8 Headings....................................................................28
Section 10.9 Governing Law...............................................................28
EXHIBIT A Form of Trust Certificate
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THIS TRUST AGREEMENT, dated as of September 8, 2000 (as amended and
supplemented from time to time, this "TRUST AGREEMENT" or this "AGREEMENT"), is
hereby executed by and between NMS Services (Cayman) Inc., a Cayman Islands
corporation, in its capacity as Grantor and initial Certificateholder hereunder,
and Wilmington Trust Company, a Delaware banking corporation, in its capacity as
trustee hereunder (the "TRUSTEE"). This Agreement amends and restates in its
entirety the Trust Agreement, dated as of June 29, 2000 (the "INITIAL TRUST
AGREEMENT"), between NMS Services (Cayman) Inc. and the Trustee
W I T N E S S E T H:
WHEREAS, the parties entered into the Initial Trust Agreement and now
desire to amend and restate in its entirety the Initial Trust Agreement.
NOW, THEREFORE, the Grantor and the Trustee hereby agree as follows:
Article I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 DEFINITIONS. Except as otherwise specified herein or as the
context may otherwise require, the following terms have the respective meanings
set forth below for all purposes of this Trust Agreement.
"AFFILIATE" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"BASIC DOCUMENTS" means this Trust Agreement, the Loan Agreement, the
Collateral Agreement, the Stock Purchase Agreement and the Investment Advisory
Agreement.
"BUSINESS DAY" means any day on which commercial banks are open for
business in New York, New York and Wilmington, Delaware (PROVIDED that if the
Paying Agent's principal office is located in a city other than the foregoing,
this sentence shall be construed to include such city in connection with
payments made by the Paying Agent in addition to the foregoing) other than
Saturday or Sunday.
"BUSINESS TRUST STATUTE" means the Delaware Business Trust Act, 12
Del. C., Section 3801 et seq., as amended from time to time.
"CERTIFICATE" means the certificate issued by the Trust pursuant to
this Trust Agreement, representing the undivided beneficial interest in the
assets of the Trust,
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which shall be substantially in the form of EXHIBIT A hereto.
"CERTIFICATE OF TRUST" means the Certificate of Trust in respect of
the Trust, which was filed with the Secretary of State pursuant to Section 3810
of the Business Trust Statute on June 29, 2000.
"CERTIFICATEHOLDER" or "HOLDER" means the Person in whose name the
Certificate is registered, which shall initially be NMS Services (Cayman) Inc.
"CLOSING DATE" means September 8, 2000.
"CODE" means the Internal Revenue Code of 1986, as amended, and
Treasury Regulations promulgated thereunder.
"COLLATERAL AGENT" means Banc of America Securities LLC, a Delaware
limited liability company, in its capacity as collateral agent under the
Collateral Agreement.
"COLLATERAL AGREEMENT" means the Collateral Agreement, dated as of
September 8, 2000, among the Collateral Agent, the Share Purchaser, the Share
Seller, and the Trust.
"COLLECTION ACCOUNT" means the collection account created pursuant to
Section 5.1.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee at
which, at any particular time, its corporate trust business shall be
administered, which office at date of the execution of this Trust Agreement is
located at ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Administration; or at such other address
as the Trustee may designate from time to time by notice to the
Certificateholder and the Relevant Parties or the principal corporate trust
office of any successor Trustee (the successor Trustee shall provide notice to
the Certificateholder of the address of such office).
"DESIGNATED BROKER" means Banc of America Securities LLC.
"ELIGIBLE DEPOSIT ACCOUNT" means, either (i) a segregated account with
an Eligible Institution or (ii) a segregated trust account with the corporate
trust department of a depository institution organized under the laws of the
United States of America or any one of the states thereof or the District of
Columbia (or any domestic branch of a foreign bank), having corporate trust
powers and acting as trustee for funds and securities deposited in such account,
so long as any of the securities of such depository institution shall have a
credit rating in one of the four highest rating categories of any nationally
recognized statistical rating agency.
"ELIGIBLE INSTITUTION" means (i) the corporate trust department of the
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Trustee or the Paying Agent under this Trust Agreement or (ii) a depository
institution organized under the laws of the United States of America or any one
of the states thereof or the District of Columbia (or any domestic branch of a
foreign bank), whose deposits are insured by the Federal Deposit Insurance
Corporation.
"ELIGIBLE SUBSTITUTE COLLATERAL" has the meaning set forth in the
Collateral Agreement.
"EXCHANGE BUSINESS DAY" has the meaning set forth in the Stock
Purchase Agreement.
"EXTRAORDINARY EXPENSES" means all costs, expenses and disbursements
of the Trust or the Trustee (including legal fees and expenses of the Trust or
the Trustee and indemnification payments), other than (i) Ordinary Expenses,
(ii) the costs and expenses of establishment of the Trust and (iii) those
expenses for which the Trustee is not entitled to indemnification as described
in Section 6.9.
"FEE AGREEMENT" means that certain Fee Agreement, dated as of
September 8, 2000, by and between the Trustee and the Grantor.
"FINAL DETERMINATION" means (i) a decision, judgment, decree or other
order by any court of competent jurisdiction, which decision, judgment, decree
or other order has become final after all allowable appeals by either party to
the action have been exhausted or the time for filing such appeals has expired,
(ii) a closing agreement entered into under Section 7121 of the Code or any
other settlement agreement entered into in connection with an administrative or
judicial proceeding, (iii) the expiration of the time for instituting suit with
respect to the claimed deficiency or (iv) the expiration of the time for
instituting a claim for refund, or if such a claim was filed, the expiration of
the time for instituting suit with respect thereto.
"FINAL DISTRIBUTION DATE" means the date on which the Collateral Agent
has delivered all cash (or other property) to which the Trust is or may become
entitled under the Collateral Agreement.
"FINAL LOAN PAYMENT" has the meaning specified in Section
5.2(b)(viii).
"GRANTOR" means NMS Services (Cayman) Inc. and its successors.
"INITIAL PERIOD" has the meaning set forth in the Stock Purchase
Agreement.
"INTREPID" means Intrepid Funding Master Trust, a Delaware business
trust.
"INVESTMENT ADVISORY AGREEMENT" means the Investment Advisory
Agreement, dated as of September 8, 2000, between the Trust and the Investment
Adviser.
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"INVESTMENT ADVISER" means Banc of America Securities LLC, a Delaware
limited liability company, in its capacity as investment adviser under the
Investment Advisory Agreement, or any successor Investment Adviser thereunder.
"LOAN AGREEMENT" means the loan agreement, dated as of September 8,
2000, between Intrepid and the Trust.
"MATURITY DATE" has the meaning set forth in the Stock Purchase
Agreement.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor
thereto.
"OPINION OF COUNSEL" means one or more written opinions of counsel who
may be employees of or counsel to the Trust and who shall be satisfactory to the
Trustee, and which opinion or opinions shall be addressed to the Trustee as
Trustee, and shall be in form and substance satisfactory to the Trustee.
"ORDINARY EXPENSES" means the Trustee's ordinary expenses and overhead
with respect to its services as Trustee hereunder, including (i) the costs and
expenses of preparing, sending and receiving all reports, statements, notices,
returns, filings, solicitations of consent or instructions, or other
communications required by this Agreement, (ii) the costs and expenses of
holding and making ordinary collection or payments on the assets of the Trust
and of determining and making payments of interest or principal, (iii) the costs
and expenses of the Trust's or the Trustee's counsel, accountants and other
experts for ordinary or routine consultation or advice in connection with the
administration and termination of the Trust and (iv) any other costs and
expenses that are or reasonably should have been expected to be incurred in the
ordinary course of administration of the Trust; PROVIDED, HOWEVER, that Ordinary
Expenses shall not include amounts incurred in connection with (A) revisions of
a substantive nature (and not revisions to correct or cure any ambiguity) to the
Basic Documents that occur subsequent to the Closing Date; (B) issues or
requests or investigations of parties other than Wilmington Trust Company and
the Relevant Parties and (C) termination of the Trust, other than the
termination of the Trust pursuant to Section 7.1 or at the request of Wilmington
Trust Company.
"PAYING AGENT" means the Trustee or any other Person that meets the
eligibility standards for the Trustee specified in Section 6.13 and is
authorized by the Trust to make distributions with respect to the Certificate
from the Collection Account.
"PERMITTED INVESTMENTS" means (i) cash; (ii) any evidence of
indebtedness with a maturity of 270 days or less issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof); (iii)
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certificates of deposit or acceptances with a maturity of 270 days or less of
any financial institution that is a member of the Federal Reserve System having
combined capital and surplus and undivided profits of not less than
$500,000,000; (iv) commercial paper with a maturity of 270 days or less issued
by a corporation organized under the laws of any state of the United States or
the District of Columbia and rated at least A-1 by Standard & Poor's or P-1 by
Moody's; and (v) repurchase agreements and reverse repurchase agreements
relating to marketable direct obligations issued or unconditionally guaranteed
by the United States or issued by any agency thereof and backed by the full
faith and credit of the United States, maturing within one year from the date of
acquisition; PROVIDED, HOWEVER, that the terms of such repurchase agreements
comply with the guidelines set forth in the Federal Financial Institutions
Examination Council Policy Statement regarding Repurchase Agreements of
Depository Institutions with Securities Dealers and Others.
"PERSON" means any individual, corporation, estate, partnership, joint
venture, association, limited liability company, joint stock company, trust
(including any beneficiary thereof), unincorporated organization or government
or any agency or political subdivision thereof.
"PREPAYMENT DATE" has the meaning set forth in the Stock Purchase
Agreement.
"PRINCIPAL AMOUNT" means on any date of determination, the outstanding
principal amount of the Promissory Note.
"PROMISSORY NOTE" means the promissory note executed by the Trust in
favor of Intrepid evidencing the Trust's borrowing pursuant to the Loan
Agreement.
"RELEVANT PARTIES" means the Share Purchaser, the Share Seller, the
Collateral Agent and the Investment Adviser.
"RESPONSIBLE OFFICER" means, with respect to the Trustee, any officer
within the Corporate Trust Administration Department of the Trustee, including
any Vice President, Assistant Vice President, Secretary, Assistant Secretary,
Financial Services Officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"SECRETARY OF STATE" means the Secretary of State of the State of
Delaware.
"SECURITIES ACCOUNT" means the securities account created pursuant to
Section 5.1.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
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"SECURITIES PORTFOLIO" means the (i) Shares purchased by the Trust on
the Closing Date; (ii) any additional Shares purchased after the Closing Date
and during the Initial Period pursuant to Section 9.2(a); (iii) Shares delivered
to the Collateral Agent as directed by the Share Seller under the Collateral
Agreement; (iv) any U.S. Government Obligations or Shares purchased by the Trust
pursuant to Section 9.2(c) or (e); and (v) any proceeds or distributions
relating to the foregoing.
"SETTLEMENT DATE" has the meaning set forth in the Stock Purchase
Agreement.
"SHARE PURCHASER" means Mandalay Resort Group together with its
successors and permitted assigns under the Stock Purchase Agreement.
"SHARES" means shares of the common stock, par value 12/3 cents per
share, of the Share Purchaser.
"SHARE SELLER" means Bank of America, N.A. together with its
successors and permitted assigns under the Stock Purchase Agreement.
"STANDARD & POOR'S" means Standard & Poor's, a division of The McGraw
Hill Companies, and any successor thereto.
"STOCK PURCHASE AGREEMENT" means the Stock Purchase Agreement, dated
as of September 8, 2000, between the Share Purchaser, the Share Seller and the
Trust.
"TREASURY REGULATIONS" means regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"TRUST" means the MBG Trust, a Delaware business trust, created
pursuant to the Initial Trust Agreement and governed hereby.
"TRUSTEE" means Wilmington Trust Company, a Delaware banking
corporation, in its capacity as trustee hereunder, and any successor qualifying
under Sections 6.10 and 6.13.
"U.S. GOVERNMENT OBLIGATIONS" has the meaning set forth in the
Collateral Agreement.
Section 1.2 OTHER DEFINITIONAL PROVISIONS. All references herein to "the
Agreement" or "this Agreement" are to this Trust Agreement, and all references
herein to Articles, Sections and subsections are to Articles, Sections and
subsections of this Agreement unless otherwise specified. All terms defined in
this Agreement shall have the defined meanings when used in any certificate,
notice, Certificate or other document made or delivered pursuant hereto, unless
otherwise defined therein.
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Article II
ORGANIZATION
Section 2.1 NAME. The Trust shall be known as "MBG Trust" in which name
the Trustee may conduct the business of the Trust, make and execute contracts
and other instruments on behalf of the Trust and ▇▇▇ and be sued on behalf of
the Trust.
Section 2.2 STATEMENT OF INTENT. It is the intention of the parties
hereto that the Trust constitute a business trust under the Business Trust
Statute and that this Agreement constitute the governing instrument of this
Trust.
Section 2.3 APPOINTMENT OF TRUSTEE. The Grantor hereby confirms the
appointment of the Trustee as trustee of the Trust, to have all the rights,
powers and duties set forth herein and, to the extent not inconsistent herewith,
in the Business Trust Statute, with respect to accomplishing the purposes of the
Trust. The Trustee shall, unless otherwise required by a Final Determination,
make any and all filings required by the Business Trust Statute or required to
be made with respect to the Trust.
Section 2.4 DECLARATION OF TRUST. The Trustee hereby declares that it
shall hold any monies and other property received by it hereunder for the
benefit of the Trust.
Section 2.5 INITIAL CAPITAL CONTRIBUTION TO THE TRUST. The Trustee hereby
acknowledges receipt in trust from the Grantor of the sum of $1.00 pursuant to
the Initial Trust Agreement which shall constitute the initial capital of the
Trust and shall be deposited in the Collection Account. The Grantor shall pay or
cause to be paid organizational expenses of the Trust as they may arise or
shall, upon the request of the Trustee, promptly reimburse the Trustee for any
such expenses paid by the Trustee, including as provided in the Fee Agreement.
Section 2.6 OFFICE. The office of the Trust shall be in care of the
Trustee at the Corporate Trust Office or at such other address in Delaware as
the Trustee may designate by written notice to Intrepid, the Relevant Parties
and the Grantor.
Section 2.7 PURPOSES AND POWERS. The sole purposes of the Trust are, and
the Trust shall have the power, subject to the provisions of this Trust
Agreement, to engage only in the following activities:
(a) to acquire and dispose of from time to time, subject to the Basic
Documents, the Securities Portfolio and to execute and deliver any
documentation necessary to effectuate the acquisition and/or disposition of
the Securities Portfolio;
(b) to enter into and perform its obligations under the Loan Agreement
and to issue the Promissory Note pursuant to the terms thereof;
(c) to enter into, exercise its rights and perform its obligations
under the Basic Documents to which it is to be a party;
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(d) to issue the Certificate and distribute to the Certificateholder,
pursuant to the terms of this Trust Agreement, any monies held in respect
of the Certificate;
(e) to establish such brokerage accounts as may from time to time
become necessary in connection with the activities in which the Trust is or
may otherwise be authorized to engage; and
(f) to engage in those activities, including entering into agreements
and making regulatory filings with appropriate gaming and other regulatory
authorities, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith.
The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing or
other than as required or authorized by the terms of this Agreement or the Basic
Documents.
Section 2.8 LIABILITY OF CERTIFICATEHOLDER. The Certificateholder shall
not have any personal liability for any liability or obligation of the Trust;
PROVIDED, HOWEVER, that this Section 2.8 shall not limit the obligations of the
Grantor under Section 6.9 hereof.
Section 2.9 TITLE TO TRUST PROPERTY.
(a) Legal title to all the assets of the Trust shall be vested at all times
in the Trust as a separate legal entity except where applicable law in any
jurisdiction requires title to any part of such assets to be vested in a trustee
or trustees, in which case title shall be deemed to be vested in the Trustee, a
co-trustee and/or a separate trustee, as the case may be, for the benefit of the
Trust.
(b) The Certificateholder shall not have legal title to any of the assets
of the Trust. The Certificateholder shall be entitled to receive distributions
with respect to its undivided beneficial ownership interest in the Trust only in
accordance with Articles V and VII. No transfer, by operation of law or
otherwise, of any right, title and interest in any assets of the Trust shall
operate to terminate this Agreement or the trusts hereunder or entitle any
transferee to an accounting or to the transfer to it of legal title to any asset
of the Trust.
Section 2.10 SITUS OF TRUST. The Trust shall be located and administered
in the State of Delaware or the State of New York. All bank accounts maintained
by the Trustee on behalf of the Trust shall be located in the State of Delaware
or the State of New York. The Trust shall not have any employees in any state
other than Delaware or New York; PROVIDED, HOWEVER, that nothing herein shall
restrict or prohibit the Trustee from having employees within or without the
State of Delaware. Payments shall be received by the Trust only in Delaware or
New York and payments will be made by the Trust only from
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Delaware or New York. The only office of the Trust shall be as specified in
Section 2.6.
Section 2.11 REPRESENTATIONS AND WARRANTIES OF GRANTOR. The Grantor
hereby represents and warrants to the Trustee that:
(a) The Grantor has been duly organized and is validly existing as a
company organized under the laws of the Cayman Islands, with power and
authority to own its properties and to conduct its business as such
properties are presently owned and such business is presently conducted.
(b) The Grantor has the power and authority to execute, deliver and
perform its obligations under this Agreement, and has taken all necessary
action to authorize the execution, delivery and performance by it of this
Agreement.
(c) The Grantor has duly executed and delivered this Agreement, and
this Agreement constitutes the legal, valid and binding obligation of the
Grantor, enforceable against the Grantor in accordance with its terms,
subject to applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and to equitable principles of general
applicability.
(d) The execution, delivery and performance by the Grantor of this
Agreement (i) shall not violate any provision of any law or any order,
writ, judgment or decree of any court, arbitrator or governmental authority
applicable to it or any of its assets and (ii) shall not violate any
provision of its constitutive documents.
Article III
THE CERTIFICATE
Section 3.1 INITIAL BENEFICIARY. The Grantor shall be the initial sole
beneficiary of the Trust.
Section 3.2 FORM OF CERTIFICATE.
(a) The Certificate shall be issued in definitive, fully registered form
substantially in the form set forth in EXHIBIT A, with such legends as may be
applicable thereto, and registered in the name of the Holder thereof. The
Certificate shall be executed on behalf of the Trust by manual or facsimile
signature of a Responsible Officer of the Trustee. A Certificate bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be valid and binding obligations of the Trust, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Certificate or did not hold such offices at
the date of authentication and delivery of such Certificate.
(b) The Certificate shall be typewritten, printed, lithographed or engraved
or produced by any combination of these methods (with or without steel engraved
borders)
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all as determined by the officers executing such Certificate, as evidenced by
their execution of the Certificate.
Section 3.3 EXECUTION, AUTHENTICATION AND DELIVERY. On the Closing Date,
the Trustee shall cause the Certificate to be executed on behalf of the Trust,
authenticated and delivered to the Holder without further action by the Grantor.
The Certificate shall entitle its Holder to any benefit under this Agreement and
shall be valid for any purpose if there shall appear on the Certificate a
certificate of authentication substantially in the form set forth in EXHIBIT A,
executed by the Trustee by manual signature. Such authentication shall
constitute conclusive evidence that the Certificate shall have been duly
authenticated and delivered hereunder. The Certificate shall be dated the date
of its respective authentication.
Section 3.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATE.
(a) With respect to the Certificate, if (i) a mutilated Certificate is
surrendered to the Trustee, or the Trustee receives evidence to its satisfaction
of the destruction, loss or theft of the Certificate and (ii) there is delivered
to the Trustee and the Trust such security or indemnity as may be required by
them to hold each of them harmless, the Trustee shall execute on behalf of the
Trust and the Trustee shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a replacement
Certificate of a like aggregate principal amount; PROVIDED, HOWEVER, that if any
such destroyed, lost or stolen Certificate, but not a mutilated Certificate,
shall have become or within seven days shall be due and payable, then instead of
issuing a replacement Certificate the Trustee may pay such destroyed, lost or
stolen Certificate when so due or payable.
(b) In connection with the issuance of any replacement Certificate under
this Section 3.4, the Trustee may require the payment by the Holder of the
Certificate of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other reasonable expenses
(including the fees and expenses of the Trustee) connected therewith.
(c) Any duplicate Certificate issued pursuant to this Section 3.4 in
replacement of the mutilated, destroyed, lost or stolen Certificate shall
constitute an original additional contractual obligation of the Trust, whether
or not the mutilated, destroyed, lost or stolen Certificate shall be found at
any time or be enforced by anyone.
(d) The provisions of this Section 3.4 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of the mutilated, destroyed, lost or stolen Certificate.
Section 3.5 PERSON DEEMED CERTIFICATEHOLDER. The Trustee shall treat the
Person in whose name the Certificate shall be registered as the Holder of the
Certificate for the purpose of receiving distributions pursuant to Article V and
VII and for all other purposes whatsoever, and the Trustee shall not be affected
by any notice to the contrary.
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Section 3.6 MAINTENANCE OF CORPORATE TRUST OFFICE. The Trustee shall
maintain an office or offices or agency or agencies where notices and demands to
or upon the Trustee in respect of the Certificate and the Basic Documents may be
served. The Trustee initially designates its Corporate Trust Office for such
purposes. The Trustee shall give prompt written notice to the Certificateholder
and the Relevant Parties of any change in the location of any such office or
agency.
Section 3.7 TRANSFER OF CERTIFICATE.
(a) GENERAL. Transfers of the Certificate shall be permitted only (i) to
Affiliates of Bank of America Corporation or their respective successors or (ii)
in connection with the transfer by the Share Seller of all of its rights and
obligations under the Stock Purchase Agreement pursuant to the terms thereof.
Except as provided in the preceding sentence, (i) the Certificateholder may not,
in any transaction or series of transactions, directly or indirectly (each of
the following, a "TRANSFER"), (A) sell, assign or otherwise in any manner
dispose of all or any part of its interest in the Certificate, whether by act,
deed, merger or otherwise, or (B) mortgage, pledge or create a lien or security
interest in such Certificate and (ii) no such purported transfer of the
Certificate or any portion thereof shall be given effect by or be binding upon
the Trust or the Trustee and any such purported transfer shall be null and void
AB INITIO and vest in the purported transferee no rights against the Trust or
the Trustee.
(b) SECURITIES LEGEND. The Certificate issued hereunder will contain the
following legend:
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE TRUST
AGREEMENT REFERRED TO HEREIN. THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS, AND THE TRUST HAS NOT BEEN REGISTERED
UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED. IN
ADDITION TO THE RESTRICTION REFERRED TO IN THE FIRST SENTENCE ABOVE, THIS
CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT IN A TRANSACTION EXEMPT FROM OR
NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
Article IV
ACTIONS BY TRUSTEE
Section 4.1 ACTION BY TRUSTEE WITH RESPECT TO THE SECURITIES PORTFOLIO.
The Trustee shall not have the power to sell the Securities Portfolio or any
interest therein except pursuant to Section 9.2.
Section 4.2 ACTION BY THE CERTIFICATEHOLDER WITH RESPECT TO BANKRUPTCY.
The Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the
15
Trust without the prior approval of the Holder of the Certificate and the
delivery to the Trustee by the Certificateholder of a certificate certifying
that the Certificateholder reasonably believes that the Trust is insolvent.
Section 4.3 RESTRICTIONS ON THE CERTIFICATEHOLDER'S POWER. The Trustee
shall not take or refrain from taking any action if such action or inaction
would be contrary to any obligation of the Trust or the Trustee under this
Agreement or any of the other Basic Documents or would be contrary to Section
2.7 or applicable law. The Certificateholder agrees, by its acceptance of the
Certificate, not to instruct the Trustee to take any action that would violate
the provisions of this Agreement or any of the other Basic Documents or
applicable law.
Section 4.4 REPLACEMENT OF INVESTMENT ADVISER. The Trustee shall be
entitled, subject to the prior written consent of the Share Seller (which
consent shall not be unreasonably withheld or delayed), to terminate the
appointment of the Investment Adviser pursuant to the terms of the Investment
Advisory Agreement. Upon any such termination, or upon the resignation of the
Investment Adviser pursuant to the terms of the Investment Advisory Agreement,
the Trustee shall, subject to the prior written consent of the Share Seller
(which consent shall not be unreasonably withheld or delayed), appoint a
replacement Investment Adviser.
Article V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1 ESTABLISHMENT OF ACCOUNTS.
(a) The Trustee shall establish and maintain in the name of the Trust a
Collection Account and a Securities Account.
(b) The Trustee on behalf of the Trust shall possess all right, title and
interest in and to all funds on deposit from time to time in the Collection
Account and all securities on deposit from time to time in the Securities
Account, and in all proceeds thereof. Such accounts shall be under the sole
dominion and control of the Trustee. If, at any time, the Collection Account or
the Securities Account ceases to be an Eligible Deposit Account, the Trustee
shall within ten (10) Business Days (or such longer period as may be required,
not to exceed thirty (30) calendar days) establish a new Collection Account or
Securities Account, as applicable, as an Eligible Deposit Account and shall
transfer any cash and/or any investments from the Collection Account, or any
securities from the Securities Account, as applicable, to such new account. Any
monies in the Collection Account shall, to the extent not required to be
distributed on the date received, be invested in Permitted Investments other
than cash.
Section 5.2 APPLICATION OF TRUST FUNDS.
(a) The Trustee shall credit to the Collection Account (i) all monies
received from the Collateral Agent pursuant to the terms of the Collateral
Agreement, (ii) all loan proceeds
16
received from Intrepid on the Closing Date or thereafter pursuant to Section
9.2(a) or (c), (iii) all investment income collected on monies in the Collection
Account, and (iv) all proceeds received from the disposition of and income on
securities in the Securities Account. The Trustee shall credit to the Securities
Account any Shares or U.S. Government Obligations received from time to time
from the Collateral Agent pursuant to Section 2.7 of the Collateral Agreement.
(b) Monies held in the Collection Account shall be applied as follows:
(i) on each Business Day on which the purchase of Shares during the
Initial Period is settled, the Trust shall, pursuant to Section 9.2(a), utilize
the loan proceeds received pursuant to the Loan Agreement to effect such
settlement;
(ii) to the extent sufficient amounts in respect thereof have been
received from the Collateral Agent pursuant to the terms of the Collateral
Agreement, an amount equal to the interest due on the Promissory Note pursuant
to the terms of the Loan Agreement (including any overdue amounts) shall be paid
from the Collection Account to Intrepid when due;
(iii) to the extent sufficient amounts in respect of the Monthly
Commission Cost (as defined in the Stock Purchase Agreement) have been received
from the Collateral Agent pursuant to the terms of the Collateral Agreement,
such amount shall be paid from the Collection Account to the Designated Broker;
(iv) in connection with any Prepayment Date or the Maturity Date, an
amount equal to the proceeds received from, or the proceeds of property received
from, the Collateral Agent in respect thereof pursuant to the Collateral
Agreement (including with respect to a net-share or net-cash settlement) shall
be paid from the Collection Account to Intrepid on the date received as a
repayment of the Promissory Note pursuant to the terms thereof;
(v) in connection with an Extraordinary Dividend (as defined in or
deemed to occur under the Stock Purchase Agreement), an amount equal to the
proceeds received from the Collateral Agent in respect thereof pursuant to the
Collateral Agreement shall be paid from the Collection Account to Intrepid on
the date received as a repayment of the Promissory Note pursuant to the terms
thereof;
(vi) on each Business Day on which the Trust elects to deliver
Eligible Substitute Collateral in the form of cash to the Collateral Agent
pursuant to the Collateral Agreement, such amounts shall be paid from the
Collection Account;
(vii) on each Business Day on which the purchase of Shares or U.S.
Government Obligations pursuant to Section 9.2(c) is settled, the Trust shall
use funds in the Collection Account to effect such settlement; and
(viii) on the Final Distribution Date, the amount, if any, remaining
in the
17
Collection Account shall be transferred from the Collection Account to Intrepid
in satisfaction of the Promissory Note, up to the remaining amount due with
respect to the Promissory Note (the "FINAL LOAN PAYMENT"). In the event such
amounts are insufficient to pay the Final Loan Payment, the Trustee shall notify
the Share Seller of such deficiency.
(c) On the Business Day following the Final Distribution Date, after
payment of the amounts described in subsection (b) above and any amounts due the
Collateral Agent from the Collection Account, the Trustee shall distribute to
the Certificateholder all amounts deposited in the Collection Account and not
previously distributed.
Article VI
THE TRUSTEE
Section 6.1 DUTIES OF TRUSTEE.
(a) The Trustee undertakes to perform such duties, and only such duties, as
are specifically set forth in this Agreement, including the administration of
the Trust in the interest of the Certificateholder and the Relevant Parties as
third party beneficiaries hereunder, and in accordance with the provisions of
this Agreement. No implied covenants or obligations shall be read into this
Agreement.
(b) Notwithstanding the foregoing, the Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent any other Person has agreed to perform any act or to
discharge any duty of the Trustee or the Trust hereunder or under any Basic
Document, and the Trustee shall not be liable for the default or failure of any
such other Person to carry out its obligations.
(c) In the absence of bad faith on its part, the Trustee may conclusively
rely upon certificates or opinions furnished to the Trustee and conforming to
the requirements of this Agreement in determining the truth of the statements
and the correctness of the opinions contained therein; PROVIDED, HOWEVER, that
the Trustee shall have examined such certificates or opinions so as to determine
compliance of the same with the requirements of this Agreement.
(d) No provision of this Agreement shall be construed as relieving the
Trustee from liability for its own gross negligence, willful misconduct or bad
faith, except that:
(i) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer unless it is proved that the Trustee
was grossly negligent in ascertaining the pertinent facts; and
(ii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Sections 4.2 or 6.4.
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(e) Subject to Sections 5.1 and 5.2, monies received by the Trustee
hereunder need not be segregated in any manner except to the extent required
by law and may be deposited under such general conditions as may be
prescribed by law, and the Trustee shall not be liable for any interest
thereon.
(f) The Trustee shall not take or be required to take any action that
(i) is inconsistent with the purposes of the Trust set forth in Section 2.7
or (ii) would, to the actual knowledge of a Responsible Officer of the
Trustee, result in the Trust's becoming taxable as a corporation for federal
income tax purposes.
(g) In addition to the foregoing, the Trustee is authorized and shall be
obligated to cause the Trust to take all actions required of the Trust
pursuant to the Basic Documents.
The Trustee shall be deemed to have complied with its obligations under
this Section 6.1 to the extent any other Person has agreed to perform any such
obligations on behalf of the Trust pursuant to the Basic Documents.
Section 6.2 EXECUTION OF DOCUMENTS. The Trustee is authorized and
directed to execute and deliver (i) the Basic Documents and each certificate or
other document attached as an exhibit to or contemplated by the Basic Documents
to which the Trust is to be a party and (ii) any other agreements, instruments,
certificates or filings necessary, suitable or convenient to accomplish the
foregoing, as evidenced conclusively by the Trustee's execution thereof.
Section 6.3 ACCEPTANCE OF TRUSTS AND DUTIES. Except as otherwise provided
in this Article VI, in accepting the trusts hereby created, Wilmington Trust
Company acts solely as Trustee hereunder and not in its individual capacity and
all Persons having any claim against the Trustee by reason of the transactions
contemplated by this Agreement or any Basic Document shall look only to the
Trust for payment or satisfaction thereof. The Trustee accepts the trusts hereby
created and agrees to perform its duties hereunder with respect to such trusts
but only upon the terms of this Agreement. The Trustee also agrees to disburse
all monies actually received by it constituting part of the assets of the Trust
upon the terms of the Basic Documents and this Agreement. The Trustee shall not
be liable or accountable hereunder or under any Basic Document under any
circumstances, except (i) for its own grossly negligent action, its own grossly
negligent failure to act or its own willful misconduct, (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 6.6 and
expressly made by the Trustee in its individual capacity or (iii) for its
failure to perform the express written obligations set forth hereunder. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) the Trustee shall at no time have any responsibility or liability
for or with respect to the legality, validity and enforceability of any
security in the Securities Portfolio or any action of the Collateral Agent
taken in the name of the Trustee or the Trust and the Trustee shall be
deemed to have discharged its duties hereunder to the extent that the
foregoing persons have agreed to perform such
19
duties;
(b) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in accordance with the instructions of the
Grantor except to the extent any such instructions of the Grantor are
expressly contrary to any provision herein or in the Basic Documents. The
Grantor agrees not to instruct the Trustee to take any action which would
be contrary to any provision herein or in the Basic Documents;
(c) no provision of this Agreement or any Basic Document shall require
the Trustee to expend or risk funds or otherwise incur any financial
liability in the performance of any of its rights or powers hereunder or
under any Basic Document, if the Trustee shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents;
(e) the Trustee shall not be responsible for or in respect of and
makes no representation as to the validity or sufficiency of any provision
of this Agreement or for the due execution hereof by the Grantor or for the
form, character, genuineness, sufficiency, value or validity of any of the
assets of the Trust or for or in respect of the validity or sufficiency of
the Basic Documents, the Certificate (other than the certificate of
authentication on the Certificate) or of any security in the Securities
Portfolio or any related documents, and the Trustee shall in no event
assume or incur any liability, duty or obligation to the Certificateholder
other than as expressly provided for herein;
(f) the Trustee shall not be liable for the default or misconduct of
the Collateral Agent or the Grantor under any of the Basic Documents or
otherwise and the Trustee shall have no obligation or liability to perform
the obligations of the Trust under this Agreement or the Basic Documents
that are required to be performed by the Collateral Agent hereunder or
under the other Basic Documents;
(g) the right of the Trustee to perform any discretionary act
enumerated in this Agreement or in any Basic Document shall not be
construed as a duty, and the Trustee shall not be answerable for other than
its gross negligence or willful misconduct in the performance of any such
act;
(h) the Trustee shall not have any duty or obligation to manage,
control, prepare, file or maintain any report, license or registration,
use, sell, dispose of or otherwise deal with the applicable trust estate,
or otherwise to take or refrain from taking any action under or in
connection with the Basic Documents, except as expressly required by the
terms of Section 6.1, and no implied duties or obligations shall be read
into this Agreement against the
20
Trustee;
(i) the Trustee shall be under no obligation to appear in, prosecute
or defend any action, or to take any other action other than the giving of
notices, which in its opinion may require it to incur any out-of-pocket
expense or any liability unless it shall be furnished with such security
and indemnity against such expense or liability as it may reasonably
require;
(j) the Trustee shall incur no liability if, by reason of any
provision of any present or future law or regulation thereunder, or by any
force majeure event, including but not limited to natural disaster, war or
other circumstances beyond its control, the Trustee shall be prevented or
forbidden from doing or performing any act or thing which the terms of this
Agreement provide shall or may be done or performed, or by reason of any
exercise of, or failure to exercise, any discretion provided for in this
Agreement;
(k) every provision of this Agreement relating to the Trustee shall
be subject to the provisions of this Section 6.3; and
(l) notwithstanding anything contained herein to the contrary, the
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 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 Trustee; or (iii) subject the
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 Trustee contemplated hereby.
Section 6.4 REFRAIN FROM CERTAIN ACTIONS. The Trustee shall not be
required to take any action hereunder or under any Basic Document if the Trustee
shall have reasonably determined, or shall have been advised by counsel, that
such action is likely to result in liability on the part of the Trustee or is
contrary to the terms hereof or of any Basic Document or is otherwise contrary
to law.
Section 6.5 FURNISHING OF DOCUMENTS. The Trustee shall furnish to the
Certificateholder and the Relevant Parties, promptly upon receipt of a written
request therefor, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to or by the Trustee under the Basic Documents.
Section 6.6 REPRESENTATIONS AND WARRANTIES OF TRUSTEE. On the date hereof
and on the date that the Certificate is issued, Wilmington Trust Company hereby
represents and warrants to the Certificateholder and to the Relevant Parties
that:
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(a) it is a banking corporation duly organized, validly existing and
in good standing under the laws of the state of its incorporation;
(b) it has full power, authority and legal right to execute, deliver
and perform its obligations under this Agreement, and has taken all
necessary action to authorize the execution, delivery and performance by it
of this Agreement;
(c) the execution, delivery and performance by it of this Agreement
(i) shall not violate any provision of any law or regulation of the State
of Delaware or the United States governing the banking and trust powers of
Wilmington Trust Company or any order, writ, judgment or decree of any
court, arbitrator or governmental authority applicable to Wilmington Trust
Company or any of its assets, (ii) shall not violate any provision of the
corporate charter or by-laws of the Trustee and (iii) shall not violate any
provision of, or constitute, with or without notice or lapse of time a
default under, or result in the creation or imposition of any lien on any
properties included in the Trust pursuant to the provisions of any
mortgage, indenture, contract, agreement or other undertaking to which it
is a party, which violation, default or lien could reasonably be expected
to have a materially adverse effect on Wilmington Trust Company's
performance or ability to perform its duties as Trustee under this
Agreement or on the transactions contemplated in this Agreement;
(d) the execution, delivery and performance by Wilmington Trust
Company of this Agreement shall not require the authorization, consent or
approval of, the giving of notice to, the filing or registration with, or
the taking of any other action in respect of, any governmental authority or
agency regulating the banking and corporate trust activities of banks or
trust companies in the jurisdiction in which the Trust was formed; and
(e) this Agreement has been duly executed and delivered by Wilmington
Trust Company and constitutes the legal, valid and binding agreement of
Wilmington Trust Company, enforceable in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization,
or other similar laws affecting the enforcement of creditors' rights in
general and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
Section 6.7 RELIANCE; ADVICE OF COUNSEL.
(a) The Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond or other document or paper reasonably believed by it to be
genuine and reasonably believed by it to be signed by the proper party or
parties and need not investigate any fact or matter in any such document. The
Trustee may accept a certified copy of a resolution of the board of directors or
other governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
22
and effect. As to any fact or matter the method of the determination of which is
not specifically prescribed herein, the Trustee may for all purposes hereof rely
on a certificate, signed by the president or any vice president or by the
treasurer or other authorized officers of the relevant party, as to such fact or
matter, and such certificate shall constitute full protection to the Trustee for
any action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement or the Basic
Documents to which it is party, the Trustee: (i) may act directly or through its
agents, attorneys, custodians or nominees (including the granting of a power of
attorney to Responsible Officers of the Trustee to execute and deliver any Basic
Documents, the Certificate or other documents related hereto or thereto on
behalf of the Trustee) pursuant to agreements entered into with any of them, and
although the Trustee shall be responsible for all obligations of the Trustee
hereunder, the Trustee shall not be liable for the conduct or misconduct of such
agents, attorneys, custodians or nominees if such agents, attorneys, custodians
or nominees shall have been selected by the Trustee in good faith and (ii) may
consult with counsel, accountants and other skilled professionals to be selected
in good faith and employed by it. The Trustee shall not be liable for anything
done, suffered or omitted in good faith by it in accordance with the opinion or
advice of any such counsel, accountants or other such persons.
Section 6.8 TRANSACTIONS WITH TRUSTEE. The Trustee may deal with the
Grantor or the Collateral Agent in transactions other than transactions pursuant
to the Basic Documents in the same manner as if it were not the Trustee.
Section 6.9 COMPENSATION; INDEMNITY.
(a) As compensation for the performance of its duties under this Agreement
(the amount of such compensation having been agreed to in a separate fee letter
between the Trustee and the Grantor) and to provide reimbursement for its
Ordinary Expenses, the Trustee shall be entitled to payment of trustee fees. At
the time set forth and as provided in the Fee Agreement, the Trustee shall be
compensated in full by the Grantor for its acceptance fee and Grantor shall pay
the then owing expenses of counsel, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger ("RLF"), in the
amount set forth in the invoice of RLF with respect to such fees and expenses.
On each anniversary of the Closing Date, and on the termination date of the
Collateral Agreement, as provided in the Fee Agreement, the Grantor shall pay to
the Trustee the amount specified in the Fee Agreement.
(b) The Grantor shall provide reimbursement to the Trustee for
Extraordinary Expenses incurred by the Trustee, as and to the extent provided in
the Fee Agreement.
(c) The Trustee (including in its individual capacity) and any director,
officer, employee or agent thereof shall be indemnified and held harmless by the
Grantor, as provided in the Fee Agreement, against any loss, liability, claim,
action, suit, cost or expense of any kind and nature whatsoever incurred in
connection with any legal action
23
relating to this Agreement or the performance of the Trustee's duties under this
Agreement, other than any loss, liability or expense (i) that constitutes a
specific liability of the Trustee under the Agreement or (ii) incurred by reason
of negligence in the handling of funds, willful misconduct, bad faith, or,
except with respect to the handling of funds, gross negligence in the
performance of the Trustee's duties under this Agreement.
Section 6.10 REPLACEMENT OF TRUSTEE.
(a) The Trustee may resign at any time and be discharged from the trusts
hereby created by giving 30 days' prior written notice thereof to the
Certificateholder and the Relevant Parties. The Certificateholder may, on 30
days' prior written notice to the Trustee and the Relevant Parties, remove the
Trustee. In either case, the Certificateholder shall appoint a successor Trustee
as provided in subsection (b). If no successor Trustee shall have been appointed
and have accepted appointment within 45 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee. The Trustee shall
resign if:
(i) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.13;
(ii) the Trustee shall be adjudged bankrupt or insolvent;
(iii) a receiver or other public officer shall be appointed or take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation; or
(iv) the Trustee shall otherwise be incapable of acting.
(b) If the Trustee resigns or if a vacancy exists in the office of Trustee
for any reason, the Certificateholder shall promptly appoint a successor Trustee
by written instrument, in duplicate (one copy of which shall be delivered to the
Relevant Parties, respectively and one copy of which shall be delivered to the
successor Trustee) and the Grantor shall pay all fees owed to the outgoing
Trustee, if any, as provided in the Fee Agreement.
(c) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 6.10 shall
not become effective until a written acceptance of appointment is delivered by
the successor Trustee to the outgoing Trustee, the Certificateholder and the
Relevant Parties and all fees and expenses due to the outgoing Trustee are paid.
Any successor Trustee appointed pursuant to this Section 6.10 shall be eligible
to act in such capacity in accordance with Section 6.13 and, following
compliance with the preceding sentence, shall become fully vested with all the
rights, power, duties and obligations of its predecessor under this Agreement,
with like effect as if originally named as Trustee.
(d) The predecessor Trustee shall upon payment of its fees, expenses and
indemnity deliver to the successor Trustee all documents and statements and
monies held by it under
24
this Agreement. The predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Trustee all such rights,
powers, duties and obligations.
(e) Upon acceptance of appointment by a successor Trustee pursuant to this
Section 6.10, the successor Trustee shall mail notice of the succession of such
Trustee to the Certificateholder and to the Relevant Parties.
(f) The Relevant Parties, either individually or collectively, shall not
have any right to remove or replace the Trustee.
(g) Any successor Trustee appointed hereunder shall promptly file with the
Delaware Secretary of State an amendment to the Certificate of Trust identifying
the name and principal place of business of such successor Trustee in the State
of Delaware.
Section 6.11 MERGER OR CONSOLIDATION OF TRUSTEE. Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such corporation shall
be eligible pursuant to Section 6.13, and without the execution or filing of any
instrument or any further act on the part of any of the parties hereto;
PROVIDED, HOWEVER, that the successor Trustee shall file a certificate of
amendment with the Secretary of State pursuant to the Business Trust Statute
reflecting the identity and principal place of business of the successor
Trustee.
Section 6.12 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
(a) Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirement of any jurisdiction in which
any part of the assets of the Trust may at the time be located, the Trustee
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons to act as co-trustee, jointly with the Trustee, or as
separate trustee or trustees, of all or any part of any such assets, and to vest
in such Person, in such capacity such title to the Trust, or any part thereof,
and, subject to the other provisions of this Section 6.12, such powers, duties,
obligations, rights and trusts as the Trustee may consider necessary or
desirable. No co-trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a successor trustee pursuant to
Section 6.13 and no notice of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 6.10. Any appointment of a
co-trustee or separate trustee shall be at the expense of the Trustee unless
such appointment is required by law.
(b) Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the
25
Trustee shall be conferred upon and exercised or performed by the Trustee and
such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without the
Trustee joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed, the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
(ii) no separate trustee or co-trustee under this Agreement shall be
personally liable by reason of any act or omission of any other trustee
under this Agreement; and
(iii) the Trustee may at any time accept the resignation of or removal
of any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Each
such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may at any time appoint the Trustee
as its agent or attorney-in-fact with full power and authority, to the extent
not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 6.13 ELIGIBILITY REQUIREMENTS FOR TRUSTEE. The Trustee shall at
all times: (a) be a corporation satisfying the provisions of Section 3807(a) of
the Business Trust Statute; (b) be authorized to exercise corporate trust
powers; (c) have (or have a parent which has) a combined capital and surplus of
at least $50,000,000 and be subject to supervision or examination by federal or
state authorities; and (d) have a long-term unsecured debt rating of at least
BBB by Standard & Poor's and at least Baa3 by ▇▇▇▇▇'▇. If such corporation shall
publish reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section 6.13, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so
26
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 6.13, the Trustee shall resign immediately
in the manner and with the effect specified in Section 6.10.
Section 6.14 VOTING OF SECURITIES PORTFOLIO. The Certificateholder will
have no voting rights with respect to any securities held as part of the
Securities Portfolio. The Trust shall cause the securities held as part of the
Securities Portfolio to be voted in accordance with the Basic Documents. The
Trustee shall have no duties or obligations with respect to voting the
Securities Portfolio other than as provided in the Basic Documents.
Article VII
TERMINATION OF TRUST AGREEMENT
Section 7.1 TERMINATION OF TRUST AGREEMENT.
(a) This Agreement (other than Section 6.9) shall terminate and the Trust
shall wind up and dissolve and be of no further force or effect on the final
distribution by the Trustee of all monies or other property or proceeds of the
Trust. The Trust shall not be dissolved until the Collateral Agreement has
terminated pursuant to its terms, all proceeds due on the Securities Portfolio
have been received, the Trust has received any monies due to it from the
Collateral Agent pursuant to the terms of the Collateral Agreement and the
Trustee has made the final distribution pursuant to Section 5.2. The bankruptcy,
liquidation, dissolution, death or incapacity of the Certificateholder shall not
(A) operate to terminate this Agreement or the Trust, nor (B) entitle the
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of the Trust or the trust estate nor (C) otherwise affect the
rights, obligations and liabilities of the parties hereto.
(b) Neither the Grantor nor the Certificateholder nor any Relevant Party
shall be entitled to revoke or terminate the Trust.
(c) Notice of any dissolution of the Trust specifying the Final
Distribution Date shall be given by the Trustee to the Certificateholder mailed
within five Business Days of receipt of notice of the termination of the
Collateral Agreement pursuant to its terms from the Collateral Agent stating:
(i) the first date on which payment in respect of the Certificate may be made
upon presentation and surrender of the Certificate at the office of the Paying
Agent therein designated; (ii) the amount of any such payment; and (iii) that
payments will be made only upon presentation and surrender of the Certificate at
the office of the Paying Agent therein specified. The Trustee shall give such
notice to the Paying Agent (if other than the Trustee) at the time such notice
is given to the Certificateholder. On the Business Day following the Final
Distribution Date, upon presentation and surrender of the Certificate, the
Paying Agent shall cause to be distributed to the Certificateholder amounts
distributable to such Certificateholder pursuant to Section 5.2 after giving
effect to the distribution of all other amounts distributable thereunder.
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(d) Upon the winding up of the Trust and its dissolution, the Trustee shall
cause the Certificate of Trust to be cancelled by filing a certificate of
cancellation with the Secretary of State in accordance with the provisions of
Section 3810 of the Business Trust Statute.
Article VIII
AMENDMENTS
Section 8.1 AMENDMENTS. This Agreement may be amended at any time and from
time to time by written instrument by the Trustee and the Certificateholder with
the consent of the Relevant Parties to correct or cure any ambiguity contained
herein or for any other purpose deemed reasonable or desirable; PROVIDED,
HOWEVER, that no such amendment shall affect the rights of the parties to the
Collateral Agreement or Intrepid under the Loan Agreement.
Section 8.2 FORM OF AMENDMENTS.
(a) Promptly after the execution of any amendment to the Certificate of
Trust, the Trustee shall cause the filing of such amendment with the Secretary
of State.
(b) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement. The Trustee may, but shall not be obligated to,
enter into any such amendment which affects the Trustee's own rights, duties or
immunities under this Agreement or otherwise.
Article IX
CUSTODY, ACQUISITION AND LIQUIDATION
OF THE SECURITIES PORTFOLIO
Section 9.1 CUSTODY OF THE SECURITIES PORTFOLIO. The Securities Portfolio
shall be held by or on behalf of the Collateral Agent pursuant to the terms of
the Collateral Agreement; PROVIDED that securities received from the Collateral
Agent pursuant to Section 2.7 of the Collateral Agreement shall be held in the
Securities Account as provided in Article V. The Trustee shall not take or
consent to any action which would result in the placement of a lien on the
Securities Portfolio, and shall not have the authority to assign, transfer,
pledge, set-off or otherwise dispose of any of the securities or interests
therein, to any party other than the Collateral Agent pursuant to the Collateral
Agreement, except as provided in Section 9.2 or any Basic Document.
Section 9.2 ACQUISITION AND LIQUIDATION OF THE SECURITIES PORTFOLIO.
(a) In connection with purchases of Shares by the Trust during the Initial
Period, the Trust shall request loan advances under the Loan Agreement in
sufficient amounts and with sufficient advance notice as to provide adequate
funds to effect such purchases of Shares. Unless Intrepid notifies the Trust
that it will not make any such loan advance, on
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any Business Day during the Initial Period on which the Trust receives notice
from the Share Seller to purchase additional Shares pursuant to the terms of the
Stock Purchase Agreement and the Collateral Agreement, the Trustee shall direct
the Designated Broker to take all actions reasonably required to purchase such
Shares on such Business Day. The Trustee shall deposit the loan proceeds
received from Intrepid in the Collection Account and shall direct the Designated
Broker to use such proceeds to effect the settlement of such purchase and to
deliver such Shares to the Collateral Agent pursuant to the Collateral
Agreement.
(b) Any liquidation of the Securities Portfolio (other than as provided in
subsection (d) or (f) below) shall be effected in accordance with the terms of
the Collateral Agreement. The Trustee shall transfer all proceeds received from
the Collateral Agent for distribution in accordance with Section 5.2.
(c) On any Business Day on which the Trust receives direction from the
Investment Adviser to deliver Eligible Substitute Collateral in the form of U.S.
Government Obligations or Shares to the Collateral Agent pursuant to Section 2.7
of the Collateral Agreement, the Trustee shall follow such direction and direct
the Designated Broker to take all actions reasonably required to acquire such
U.S. Government Obligations or Shares, as the case may be, on such Business Day,
using funds available from the Collection Account (including through the
liquidation of Permitted Investments) pursuant to Section 5.2. To the extent
funds available from the Collection Account are insufficient for such purpose,
the Trust shall request loan advances under the Loan Agreement in sufficient
amounts to provide adequate funds to effect such purchases. The Trustee shall
deliver or cause the delivery of such securities to the Collateral Agent
pursuant to the Collateral Agreement immediately upon receipt thereof.
(d) At the direction of the Investment Adviser, the Trustee shall assign,
transfer, pledge, set-off or otherwise dispose of Shares or U.S. Government
Obligations received from the Collateral Agent pursuant to Section 2.7 of the
Collateral Agreement and held in the Securities Account. The Trustee shall
transfer all proceeds received in connection therewith to the Collection Account
in accordance with Section 5.2.
(e) Notwithstanding the foregoing, if the Trust is required to deliver
Shares to the Collateral Agent pursuant to Section 2.7 of the Collateral
Agreement on any Business Day, the Trustee shall acquire Shares pursuant to
subsection (c) above sufficiently in advance of such date to permit the Trust to
perform such obligation.
(f) To the extent any U.S. Government Obligations or Shares remain in the
Securities Account immediately prior to the Final Distribution Date, the Trustee
shall sell such securities sufficiently in advance of such date to permit the
proceeds thereof to be transferred to the Collection Account on the Final
Distribution Date.
Article X
MISCELLANEOUS
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Section 10.1 LIMITATIONS ON RIGHTS OF OTHERS.
(a) The provisions of this Agreement are solely for the benefit of the
Trustee, the Grantor, the Certificateholder and the Relevant Parties, as third
party beneficiaries of this Agreement, and nothing in this Agreement, whether
express or implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the trust estate or under or in respect of
this Agreement or any covenants, conditions or provisions contained herein.
(b) The Relevant Parties are intended third party beneficiaries of this
Agreement and the Trust created hereby. With respect to the Relevant Parties,
the Trustee undertakes to perform or observe only such of the covenants and
obligations of the Trustee as are expressly set forth in this Agreement, and no
implied covenants or obligations with respect to the Relevant Parties shall be
read into this Agreement or the other Basic Documents against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the Relevant Parties,
and shall not be liable to any such person for the failure of the Trust to
perform its obligations to such persons other than as a result of the gross
negligence or willful misconduct of the Trustee in the performance of its
express obligations under this Agreement.
Section 10.2 NOTICES.
All demands, notices and communications under this Agreement shall be
in writing, personally delivered, sent by electronic facsimile (with hard copy
to follow via first class mail) or mailed by certified mail-return receipt
requested, and shall be deemed to have been duly given upon receipt (i) in the
case of the Grantor, at the following address: NMS Services (Cayman) Inc., c/o
Banc of America Securities LLC, ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Equity Financial Products, Middle Office, Facsimile ▇▇▇-▇▇▇-▇▇▇▇;
(ii) in the case of the Share Seller, at the following address: Bank of America,
N.A., c/o Banc of America Securities LLC, ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇, Facsimile: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to Bank of
America, N.A., c/o Banc of America Securities LLC, ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Equity Financial Products, Middle Office, Facsimile:
▇▇▇-▇▇▇-▇▇▇▇; (iii) in the case of the Trust or the Trustee, to the Trustee at
its Corporate Trust Office, Facsimile: ▇▇▇-▇▇▇-▇▇▇▇; (iv) in the case of the
Share Purchaser, at the following address: Mandalay Resort Group, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
President, Facsimile: ▇▇▇-▇▇▇-▇▇▇▇; and (v) in the case of the Collateral Agent,
at the following address: Banc of America Securities LLC, ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Equity Financial Products, Middle Office,
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇, or at such other address as shall be designated by such
Person in a written notice to the other parties to this Agreement.
Any notice required or permitted to be given to the Certificateholder shall
be given by first-class mail, postage prepaid, at the address of the Holder. Any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to
30
have been duly given, whether or not the Certificateholder receives such notice.
Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once, on the first date on which
publication is made.
Section 10.3 SEVERABILITY. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever be held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificate
or the rights of the Holder or the Relevant Parties.
Section 10.4 COUNTERPARTS. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument.
Section 10.5 SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Grantor, the Trustee, the Certificateholder and the Relevant Parties and their
respective successors and permitted assigns, all as herein provided. Any
request, notice, direction, consent, waiver or other instrument or action by the
Certificateholder and the Relevant Parties shall bind the successors and assigns
of the Certificateholder and the Relevant Parties.
Section 10.6 NO PETITION COVENANT. To the extent permitted by applicable
law, notwithstanding any prior termination of this Agreement, the Grantor and
the Trustee shall not, and the Certificateholder agrees by its acceptance of the
Certificate not to, prior to the date which is one year and one day after the
termination of this Agreement, acquiesce, petition or otherwise invoke or cause
the Trust to invoke the process of any court or governmental authority for the
purpose of commencing or sustaining a case against the Trust under any federal
or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Trust or any substantial part of its property, or making a general
assignment for the benefit or creditors, or ordering the winding up or
liquidation of the affairs of the Trust.
Section 10.7 NO RECOURSE.
(a) The Certificateholder by accepting the Certificate acknowledges that
the Certificateholder's Certificate represents a beneficial interest in the
Trust only and does not represent interests in or obligations of the Trustee,
the Relevant Parties or any Affiliate thereof and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated in this Agreement, the Certificate or the Basic Documents.
Section 10.8 HEADINGS. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
31
Section 10.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
32
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
NMS SERVICES (CAYMAN) INC., as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
WILMINGTON TRUST COMPANY,
as Trustee of the MBG TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
33
EXHIBIT A
THIS CERTIFICATE IS NOT TRANSFERABLE IN WHOLE OR IN PART EXCEPT AS PROVIDED IN
THE TRUST AGREEMENT REFERRED TO HEREIN. THIS CERTIFICATE HAS NOT BEEN AND WILL
NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS, AND THE TRUST HAS NOT BEEN REGISTERED UNDER
THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED. IN ADDITION TO THE
RESTRICTION REFERRED TO IN THE FIRST SENTENCE ABOVE, THIS CERTIFICATE MAY NOT BE
TRANSFERRED EXCEPT IN A TRANSACTION EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
NUMBER
R-1
MBG TRUST CERTIFICATE evidencing a fractional undivided beneficial interest
in MBG Trust.
(This Certificate does not represent an interest in or obligation of the
Trustee, the Relevant Parties or any of their respective affiliates, except to
the extent described below.)
THIS CERTIFIES THAT NMS SERVICES (CAYMAN) INC. or registered assigns, is
the registered owner of a nonassessable, fully-paid, undivided beneficial
interest in the Trust Estate of MBG Trust (the "Trust").
The Trust is governed pursuant to an Amended and Restated Trust Agreement,
dated as of September 8, 2000 (as amended and supplemented from time to time,
the "Trust Agreement"), between NMS Services (Cayman) Inc. and Wilmington Trust
Company, as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth below. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Trust Agreement.
This Certificate is the duly authorized Certificate designated as "MBG
Trust Certificate" (the "Certificate"). This Certificate is issued under and is
subject to the terms, provisions and conditions of the Trust Agreement, to which
Trust Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which the Holder is bound. The property of the Trust
includes the Securities Portfolio, all monies due thereunder on or after the
Closing Date, certain bank accounts and all proceeds of the foregoing.
A-34
Under the Trust Agreement, there shall be distributed to the Person in
whose name this Certificate is registered at the close of business on the
Business Day following the Final Distribution Date (as defined below) after all
other distributions required to be made on such date, such Certificateholder's
fractional undivided interest in the assets remaining in the Trust on the Final
Distribution Date after (i) the Promissory Note is paid in full, (ii) the
Collateral Agreement is terminated and (iii) all fees and expenses due and owing
to the Trustee have been paid in full.
The "Final Distribution Date," means the date on which the Collateral Agent
has delivered all cash (or other property) to which the Trust is or may become
entitled under the Collateral Agreement.
The distributions in respect of this Certificate are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
The Holder of this Certificate acknowledges and agrees that its rights to
receive distributions in respect of this Certificate are subordinated to the
rights of Intrepid Funding Corporation to receive payment pursuant to the
Promissory Note and the Collateral Agent to receive amounts under the Collateral
Agreement on behalf of the secured parties thereunder.
To the extent permitted by applicable law, the Certificateholder, by its
acceptance of the Certificate, covenants and agrees that the Certificateholder
shall not, prior to the date which is one year and one day after the termination
of the Trust Agreement, acquiesce, petition or otherwise invoke or cause the
Trust to invoke the process of any court or governmental authority for the
purpose of commencing or sustaining a case against the Trust under any federal
or state bankruptcy, insolvency, reorganization or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Trust or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Trust.
The final distribution on this Certificate shall be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office maintained for such purpose by
the Paying Agent at its office specified therein.
The Holder of this Certificate acknowledges and agrees that Wilmington
Trust Company is executing this Certificate solely in its capacity as Trustee
under the Trust Agreement and that Wilmington Trust Company shall incur no
personal liability in connection herewith except by reason of its own gross
negligence, willful misconduct or negligence in the disbursement of funds.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Trustee by manual signature, this Certificate shall
not entitle the holder hereof to any benefit under the Trust Agreement or be
valid for any purpose.
A-35
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
A-36
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Certificate to be duly executed.
MBG TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Trustee
By: _____________________
Name:
Title:
Dated: September 8, 2000
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust
Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Trustee
By: _________________________________
As Authenticating Agent
A-38