Disposition of Trust Property. (a) Subject to Section 9.06, as promptly as possible after the occurrence of a Trust Wind-Up Event or Liquidation Event, and in any case within three Business Days following such occurrence, the Trustee shall provide notice to the Unitholders, the Swap Counterparties, the Depositor and the Rating Agencies of the occurrence of a Trust Wind-up Event or Liquidation Event specifying the particular Trust Wind-Up Event or Liquidation Event and in the case of a Liquidation Event, the particular Underlying Security, Swap Agreement or other Trust Property related to such Liquidation Event. In the case of a Trust Wind-Up Event, the notice shall state that (i) Holders should surrender their Units to the Trustee, or deliver security or indemnity acceptable to the Trustee in order to receive their respective distributions of Trust Property, if any, (ii) the location and hours of the Corporate Trust Office at which Units should be presented and surrendered and (iii) that each Holder must supply transfer instructions in writing with respect to Trust Property to be distributed in cash or in kind; provided, however, that with respect to Units that are Global Securities as to which distributions will be made through the facilities of DTC or another depository, the Trustee may adhere to the applicable rules and procedures or DTC or such other depository in lieu of clauses (i), (ii) and (iii) of this sentence. (b) Immediately upon receipt of notice from the Trustee that the Trust is required to sell Underlying Securities, the Selling Agent shall undertake to sell Underlying Securities on behalf of the Trust; provided, however, that the Selling Agent may elect not to act as Selling Agent with respect to some or all of the Underlying Securities by written notice to that effect to the Trustee. The timing, price and other terms of any sale conducted by the Selling Agent shall be determined by the Selling Agent in its sole discretion, but all such sales shall be completed within 30 days or such longer period of time as may be reasonable with respect to particular Underlying Securities. In the case of a Liquidation Event, sales under this provision shall be limited to the Affected Underlying Securities except where the proceeds from the Affected Underlying Securities are insufficient to make payment of the Swap Termination Payment. The Selling Agent must solicit at least three bids for the Underlying Securities to be sold. The Selling Agent must solicit at least three of such bids from registered broker-dealers of national reputation, but additional bids may be solicited from one or more financial institutions or other counterparties with credit worthiness acceptable to the Selling Agent in its discretion. The Selling Agent will, on behalf of the Trust, sell the Underlying Securities at the highest bid price received. None of the Selling Agent, its affiliates or its agents, may bid for the Underlying Securities. The Selling Agent may provide a right of last refusal to any Swap Counterparty, Call Option holder or other counterparty or holder with an interest in the Underlying Securities or other Trust Property that is not an affiliate of the Selling Agent or any holder of a Call Option. If the Selling Agent is unable to sell Underlying Securities within 180 days of its first attempt to do and the Selling Agent determines that it is not commercially reasonable to continue to try to sell such Underlying Securities, it may give notice to the Trustee that it is unable to sell such Underlying Securities and that it has determined that it is commercially unreasonable to continue to attempt to sell such Underlying Security. In such event, the Trustee shall arrange to distribute such Underlying Securities to Unitholders. (c) Subject to Section 9.06, as promptly as possible after the occurrence of a Liquidation Event, the Trustee shall take action on behalf of the Trust as specified in Section 9. 01. Subject to Section 9.06, as promptly as possible after the occurrence of a Trust Wind-Up Event, unless otherwise provided in the Trust Agreement, the Trustee on behalf of the Trust shall terminate all Swap Agreements, Credit Support and other agreements of the Trust, the Trustee shall permit delivery of any Trust Property to any Swap Counterparty or other person in accordance with any Swap Agreement or other agreement, and the Trustee shall cause the Selling Agent to liquidate all Trust Property. The Trustee shall use reasonable efforts to cause such terminations and liquidations within thirty days of the occurrence of such Trust Wind-Up Event. Upon completion of the liquidation of Trust Property, the Trustee shall provide a notice to Unitholders, the Swap Counterparties, the Depositor and the Rating Agencies stating the liquidation of Trust Property has been completed, specifying the amount of any Swap Termination Payment paid or to be paid and the amounts to be distributed to Unitholders. The Trustee shall distribute the cash proceeds of liquidation, and if applicable, other Trust Property, to Unitholders upon surrender, or delivery of security or indemnity acceptable to the Trustee, by each Holder of its Units at the Corporate Trust Office specified pursuant to paragraph (a) of this Section 9.05. Upon receipt by the Trustee of (i) appropriate transfer instructions in writing from a Holder with respect to the Underlying Securities and (ii) such Holder' Units (or acceptable security or indemnity), the Trustee shall promptly deliver Underlying Securities to such Holder in an aggregate principal amount corresponding to the aggregate Unit Principal Balance of such Holder's Units in accordance with such transfer instructions by (A) physical delivery or (B) if applicable, causing the book-entry depositary for such Underlying Securities to credit such Underlying Securities to an account of such Holder with such depositary or an account of a designated participant in such depositary, provided that such book-entry depositary will be an agency of the United States, DTC or another book-entry institution acceptable to the Depositary. With respect to a Global Security, the Trustee may also distribute such cash or other Trust Property in accordance with the rules of DTC or other applicable Depository. Any Transfer made in accordance with this paragraph shall satisfy all obligations of the Trust with respect to the Unitholders. (d) If the related Trust Agreement so specifies, in connection with any Swap Termination Payment payable by the Trust, the Unitholders may, acting unanimously, deliver to the Trustee the amount of such outstanding Swap Termination Payment (together with, in the case of a Trust Wind-Up Event, any Extraordinary Trust Expense in excess of the Maximum Reimbursable Amount payable to the Trustee) and a written instruction to discontinue sale of the Underlying Securities. If the Selling Agent receives notice from the Trustee of the exercise by the Unitholders of their rights under this Section 9.05(d), the Selling Agent shall promptly discontinue sales of the related Underlying Securities (but the Selling Agent and the Trustee shall complete the settlement of any sale already agreed). It is expressly understood and agreed that Underlying Securities may be sold in the time necessary for the Unitholders to be notified of and act upon their rights under this Section 9.05(d). If the Trust Agreement specifies that this provision shall be applicable, the Trustee shall provide notice of this right to Unitholders together with an estimate of the amount of any Swap Termination Payment and applicable Extraordinary Trust Expense at the time the Trustee provides notice to Unitholders of such Trust Wind-Up Event or Liquidation Event. (e) Unless otherwise provided in the Trust Agreement, and notwithstanding any other provision of this Agreement (and as specified in the Swap Agreement), in connection with early termination of a Swap Agreement or one or more Transactions thereunder, other than as a result of Underlying Security Default, the claim of the Swap Counterparty against the Underlying Securities (or proceeds thereof arising from sale thereof) and any other Trust Property will be limited to a claim pro rata with that of the Unitholders according to the amount of the Swap Termination Payment otherwise payable to the Swap Counterparty and the Unitholders' aggregate Unit Principal Balance plus accrued interest. (f) The only distributions from the Trustee to which the Holders shall be entitled are, subject to the security interest in all of the Trust Property granted in favor of the Swap Counterparty pursuant to the Swap Agreement and the obligation of the Trust to pay Extraordinary Trust Expenses, payments on the Underlying Securities, amounts, if any, recovered under the Swap Agreement (including Swap Termination Payments, if any, and amounts collected pursuant to Section 2(e) and Section 11 of the Swap Agreement) or Guarantee, received by the Trustee after the occurrence of the Trust Wind-Up Event, and any other remaining Trust Property, if any, which in each case the Trustee shall distribute pro rata to the Unitholders in the manner provided pursuant to Section 4.01 upon satisfaction of the conditions for transfer of Underlying Securities referred to in paragraph (b) of this Section. (g) Except for reports and other information required to be provided to Holders under the Trust Agreement, the obligations the Trustee and the Depositor will terminate upon the distribution to Unitholders of all amounts required to be distributed to them and the disposition of all Underlying Securities held by the Trustee, and such distribution shall constitute full satisfaction of all of the interests of the Unitholders under this Trust Agreement. (h) In the event that the Selling Agent resigns or declines to sell specific Underlying Securities, the Trustee shall proceed under Section 10.02(a)(x). (i) The Selling Agent is an agent of the Trustee only and shall have no fiduciary or other duties to the Unitholders, nor shall the Selling Agent have any liability to the Trust in the absence of the Selling Agent's bad faith or willful default. The Selling Agent shall be permitted to sell Underlying Securities to Affiliates of the Selling Agent. The Selling Agent may (in addition to declining to sell specific Underlying Securities as provided in Section 9.05(b)) resign at any time by written notice to the Trustee, such resignation to take effect immediately upon notice. Except as provided in the first sentence of this Section 9.05(i), each of the protections, releases, indemnities and other terms applicable to the Trustee under Section 10.01, 10.02, 10.03 and 10.05 shall apply to the Selling Agent in connection with its actions as Selling Agent for the Trust. (j) Subject to Section 9.05(b) and Section 9.05(e), the Trustee agrees that upon any failure of the Trust to make any payment when due under the Swap Agreement, the Swap Counterparty shall have the right to take all action and to pursue all remedies with respect to such property that a secured party is permitted to take with respect to collateral under the UCC, including the right to require the Trustee promptly to sell all or any portion of the Underlying Securities in the open market or, if the Swap Counterparty elects, to sell the Underlying Securities to the Swap Counterparty for its fair value as determined in good faith by the Swap Counterparty. In either case, the proceeds of sale shall be applied to any amounts owed to the Swap Counterparty. The Trustee further agrees to take any actions necessary to facilitate the perfection of the aforementioned security interest of the Swap Counterparty in the property of the Trust as the Swap Counterparty may reasonably request. (k) No Unitholder shall have any liability as a seller of the Trust Property in connection with any sale of Trust Property by the Trustee or the Selling Agent.
Appears in 2 contracts
Samples: Trust Agreement (MS Structured Asset Corp), Trust Agreement (MS Structured Asset Corp)
Disposition of Trust Property. (a) Subject to Section 9.06, as promptly as possible after the occurrence of a Trust Wind-Up Event or Liquidation Event, and in any case within three Business Days following such occurrence, the Trustee shall provide notice to the Unitholders, the Swap Counterparties, the Depositor and the Rating Agencies of the occurrence of a Trust Wind-up Event or Liquidation Event specifying the particular Trust Wind-Up Event or Liquidation Event and in the case of a Liquidation Event, the particular Underlying Security, Swap Agreement or other Trust Property related to such Liquidation Event. In the case of a Trust Wind-Up Event, the notice shall state that (i) Holders should surrender their Units to the Trustee, or deliver security or indemnity acceptable to the Trustee in order to receive their respective distributions of Trust Property, if any, (ii) the location and hours of the Corporate Trust Office at which Units should be presented and surrendered and (iii) that each Holder must supply transfer instructions in writing with respect to Trust Property to be distributed in cash or in kind; provided, however, that with respect to Units that are Global Securities as to which distributions will be made through the facilities of DTC or another depository, the Trustee may adhere to the applicable rules and procedures or DTC or such other depository in lieu of clauses (i), (ii) and (iii) of this sentence.
(b) Immediately upon receipt of notice from the Trustee that the Trust is required to sell Underlying Securities, the Selling Agent shall undertake to sell Underlying Securities on behalf of the Trust; provided, however, that the Selling Agent may elect not to act as Selling Agent with respect to some or all of the Underlying Securities by written notice to that effect to the Trustee. The timing, price and other terms of any sale conducted by the Selling Agent shall be determined by the Selling Agent in its sole discretion, but all such sales shall be completed within 30 days or such longer period of time as may be reasonable with respect to particular Underlying Securities. In the case of a Liquidation Event, sales under this provision shall be limited to the Affected Underlying Securities except where the proceeds from the Affected Underlying Securities are insufficient to make payment of the Swap Termination Payment. The Selling Agent must solicit at least three bids for the Underlying Securities to be sold. The Selling Agent must solicit at least three of such bids from registered broker-dealers of national reputationreputation who deal in securities of the type in question, but additional bids may be solicited from one or more financial institutions or other counterparties with credit worthiness acceptable to the Selling Agent in its discretion. The Selling Agent will, on behalf of the Trust, sell the Underlying Securities at the highest bid price received. None of the Selling Agent, its affiliates or its agents, may bid for the Underlying Securities. The Selling Agent may provide a right of last refusal to any Swap Counterparty, Call Option holder or other counterparty or holder with an interest in the Underlying Securities or other Trust Property that is not an affiliate of the Selling Agent or any holder of a Call Option. If the Selling Agent is unable to sell Underlying Securities within 180 days of its first attempt to do and the Selling Agent determines that it is not commercially reasonable to continue to try to sell such Underlying Securities, it may give notice to the Trustee that it is unable to sell such Underlying Securities and that it has determined that it is commercially unreasonable to continue to attempt to sell such Underlying Security. In such event, the Trustee shall arrange to distribute such Underlying Securities to Unitholders.
(c) Subject to Section 9.06, as promptly as possible after the occurrence of a Liquidation Event, the Trustee shall take action on behalf of the Trust as specified in Section 9.
01. Subject to Section 9.06, as promptly as possible after the occurrence of a Trust Wind-Up Event, unless otherwise provided in the Trust Agreement, the Trustee on behalf of the Trust shall terminate all Swap Agreements, Credit Support and other agreements of the Trust, the Trustee shall permit delivery of any Trust Property to any Swap Counterparty or other person in accordance with any Swap Agreement or other agreement, and the Trustee shall cause the Selling Agent to liquidate all Trust Property. The Trustee shall use reasonable efforts to cause such terminations and liquidations within thirty days of the occurrence of such Trust Wind-Up Event. Upon completion of the liquidation of Trust Property, the Trustee shall provide a notice to Unitholders, the Swap Counterparties, the Depositor and the Rating Agencies stating the liquidation of Trust Property has been completed, specifying the amount of any Swap Termination Payment paid or to be paid and the amounts to be distributed to Unitholders. The Trustee shall distribute the cash proceeds of liquidation, and if applicable, other Trust Property, to Unitholders upon surrender, or delivery of security or indemnity acceptable to the Trustee, by each Holder of its Units at the Corporate Trust Office specified pursuant to paragraph (a) of this Section 9.05. Upon receipt by the Trustee of (i) appropriate transfer instructions in writing from a Holder with respect to the Underlying Securities and (ii) such Holder' Units (or acceptable security or indemnity), the Trustee shall promptly deliver Underlying Securities to such Holder in an aggregate principal amount corresponding to the aggregate Unit Principal Balance of such Holder's Units in accordance with such transfer instructions by (A) physical delivery or (B) if applicable, causing the book-entry depositary for such Underlying Securities to credit such Underlying Securities to an account of such Holder with such depositary or an account of a designated participant in such depositary, provided that such book-entry depositary will be an agency of the United States, DTC or another book-entry institution acceptable to the Depositary. With respect to a Global Security, the Trustee may also distribute such cash or other Trust Property in accordance with the rules of DTC or other applicable Depository. Any Transfer made in accordance with this paragraph shall satisfy all obligations of the Trust with respect to the Unitholders.
(d) If the related Trust Agreement so specifies, in connection with any Swap Termination Payment payable by the Trust, the Unitholders may, acting unanimously, deliver to the Trustee the amount of such outstanding Swap Termination Payment (together with, in the case of a Trust Wind-Up Event, any Extraordinary Trust Expense in excess of the Maximum Reimbursable Amount payable to the Trustee) and a written instruction to discontinue sale of the Underlying Securities. If the Selling Agent receives notice from the Trustee of the exercise by the Unitholders of their rights under this Section 9.05(d), the Selling Agent shall promptly discontinue sales of the related Underlying Securities (but the Selling Agent and the Trustee shall complete the settlement of any sale already agreed). It is expressly understood and agreed that Underlying Securities may be sold in the time necessary for the Unitholders to be notified of and act upon their rights under this Section 9.05(d). If the Trust Agreement specifies that this provision shall be applicable, the Trustee shall provide notice of this right to Unitholders together with an estimate of the amount of any Swap Termination Payment and applicable Extraordinary Trust Expense at the time the Trustee provides notice to Unitholders of such Trust Wind-Up Event or Liquidation Event.
(e) Unless otherwise provided in the Trust Agreement, and notwithstanding any other provision of this Agreement (and as specified in the Swap Agreement), in connection with early termination of a Swap Agreement or one or more Transactions thereunder, other than as a result of Underlying Security Default, the claim of the Swap Counterparty against the Underlying Securities (or proceeds thereof arising from sale thereof) and any other Trust Property will be limited to a claim pro rata with that of the Unitholders according to the amount of the Swap Termination Payment otherwise payable to the Swap Counterparty and the Unitholders' aggregate Unit Principal Balance plus accrued interest.
(f) The only distributions from the Trustee to which the Holders shall be entitled are, subject to the security interest in all of the Trust Property granted in favor of the Swap Counterparty pursuant to the Swap Agreement and the obligation of the Trust to pay Extraordinary Trust Expenses, payments on the Underlying Securities, amounts, if any, recovered under the Swap Agreement (including Swap Termination Payments, if any, and amounts collected pursuant to Section 2(e) and Section 11 of the Swap Agreement) or Guarantee, received by the Trustee after the occurrence of the Trust Wind-Up Event, and any other remaining Trust Property, if any, which in each case the Trustee shall distribute pro rata to the Unitholders in the manner provided pursuant to Section 4.01 upon satisfaction of the conditions for transfer of Underlying Securities referred to in paragraph (b) of this Section.
(g) Except for reports and other information required to be provided to Holders under the Trust Agreement, the obligations the Trustee and the Depositor will terminate upon the distribution to Unitholders of all amounts required to be distributed to them and the disposition of all Underlying Securities held by the Trustee, and such distribution shall constitute full satisfaction of all of the interests of the Unitholders under this Trust Agreement.
(h) In the event that the Selling Agent resigns or declines to sell specific Underlying Securities, the Trustee shall proceed under Section 10.02(a)(x).
(i) The Selling Agent is an agent of the Trustee only and shall have no fiduciary or other duties to the Unitholders, nor shall the Selling Agent have any liability to the Trust in the absence of the Selling Agent's bad faith or willful default. The Selling Agent shall be permitted to sell Underlying Securities to Affiliates of the Selling Agent. The Selling Agent may (in addition to declining to sell specific Underlying Securities as provided in Section 9.05(b)) resign at any time by written notice to the Trustee, such resignation to take effect immediately upon notice. Except as provided in the first sentence of this Section 9.05(i), each of the protections, releases, indemnities and other terms applicable to the Trustee under Section 10.01, 10.02, 10.03 and 10.05 shall apply to the Selling Agent in connection with its actions as Selling Agent for the Trust.
(j) Subject to Section 9.05(b) and Section 9.05(e), the Trustee agrees that upon any failure of the Trust to make any payment when due under the Swap Agreement, the Swap Counterparty shall have the right to take all action and to pursue all remedies with respect to such property that a secured party is permitted to take with respect to collateral under the UCC, including the right to require the Trustee promptly to sell all or any portion of the Underlying Securities in the open market or, if the Swap Counterparty elects, to sell the Underlying Securities to the Swap Counterparty for its fair value as determined in good faith by the Swap Counterparty. In either case, the proceeds of sale shall be applied to any amounts owed to the Swap Counterparty. The Trustee further agrees to take any actions necessary to facilitate the perfection of the aforementioned security interest of the Swap Counterparty in the property of the Trust as the Swap Counterparty may reasonably request.
(k) No Unitholder shall have any liability as a seller of the Trust Property in connection with any sale of Trust Property by the Trustee or the Selling Agent.
Appears in 1 contract
Disposition of Trust Property. (a) Subject to Section 9.06, as promptly as possible after the occurrence of a Trust Wind-Up Event or Liquidation Event, and in any case within three Business Days following such occurrence, the Trustee shall provide notice to the Unitholders, the Swap Counterparties, the Depositor and the Rating Agencies of the occurrence of a Trust Wind-up Event or Liquidation Event specifying the particular Trust Wind-Up Event or Liquidation Event and in the case of a Liquidation Event, the particular Underlying Security, Swap Agreement or other Trust Property related to such Liquidation Event. In the case of a Trust Wind-Up Event, the notice shall state that (i) Holders should surrender their Units to the Trustee, or deliver security or indemnity acceptable to the Trustee in order to receive their respective distributions of Trust Property, if any, (ii) the location and hours of the Corporate Trust Office at which Units should be presented and surrendered and (iii) that each Holder must supply transfer instructions in writing with respect to Trust Property to be distributed in cash or in kind; provided, however, that with respect to Units that are Global Securities as to which distributions will be made through the facilities of DTC or another depository, the Trustee may adhere to the applicable rules and procedures or DTC or such other depository in lieu of clauses (i), (ii) and (iii) of this sentence.
(b) Immediately upon receipt of notice from the Trustee that the Trust is required to sell Underlying Securities, the Selling Agent shall undertake to sell Underlying Securities on behalf of the Trust; provided, however, that the Selling Agent may elect not to act as Selling Agent with respect to some or all of the Underlying Securities by written notice to that effect to the Trustee. The timing, price and other terms of any sale conducted by the Selling Agent shall be determined by the Selling Agent in its sole discretion, but all such sales shall be completed within 30 days or such longer period of time as may be reasonable with respect to particular Underlying Securities. In the case of a Liquidation Event, sales under this provision shall be limited to the Affected Underlying Securities except where the proceeds from the Affected Underlying Securities are insufficient to make payment of the Swap Termination Payment. The Selling Agent must solicit at least three bids for the Underlying Securities to be sold. The Selling Agent must solicit at least three of such bids from registered broker-dealers of national reputation, but additional bids may be solicited from one or more financial institutions or other counterparties with credit worthiness acceptable to the Selling Agent in its discretion. The Selling Agent will, on behalf of the Trust, sell the Underlying Securities at the highest bid price received. None of the Selling Agent, its affiliates or its agents, may bid for the Underlying Securities. The Selling Agent may provide a right of last refusal to any Swap Counterparty, Call Option holder or other counterparty or holder with an interest in the Underlying Securities or other Trust Property that is not an affiliate of the Selling Agent or any holder of a Call Option. If the Selling Agent is unable to sell Underlying Securities within 180 days of its first attempt to do and the Selling Agent determines that it is not commercially reasonable to continue to try to sell such Underlying Securities, it may give notice to the Trustee that it is unable to sell such Underlying Securities and that it has determined that it is commercially unreasonable to continue to attempt to sell such Underlying Security. In such event, the Trustee shall arrange to distribute such Underlying Securities to Unitholders.
(c) Subject to Section 9.06, as promptly as possible after the occurrence of a Liquidation Event, the Trustee shall take action on behalf of the Trust as specified in Section 9.
01. Subject to Section 9.06, as promptly as possible after the occurrence of a Trust Wind-Up Event, unless otherwise provided in the Trust Agreement, the Trustee on behalf of the Trust shall terminate all Swap Agreements, Credit Support and other agreements of the Trust, the Trustee shall permit delivery of any Trust Property to any Swap Counterparty or other person in accordance with any Swap Agreement or other agreement, and the Trustee shall cause the Selling Agent to liquidate all Trust Property. The Trustee shall use reasonable efforts to cause such terminations and liquidations within thirty days of the occurrence of such Trust Wind-Up Event. Upon completion of the liquidation of Trust Property, the Trustee shall provide a notice to Unitholders, the Swap Counterparties, the Depositor and the Rating Agencies stating the liquidation of Trust Property has been completed, specifying the amount of any Swap Termination Payment paid or to be paid and the amounts to be distributed to Unitholders. The Trustee shall distribute the cash proceeds of liquidation, and if applicable, other Trust Property, to Unitholders upon surrender, or delivery of security or indemnity acceptable to the Trustee, by each Holder of its Units at the Corporate Trust Office specified pursuant to paragraph (a) of this Section 9.05. Upon receipt by the Trustee of (i) appropriate transfer instructions in writing from a Holder with respect to the Underlying Securities and (ii) such Holder' Units (or acceptable security or indemnity), the Trustee shall promptly deliver Underlying Securities to such Holder in an aggregate principal amount corresponding to the aggregate Unit Principal Balance of such Holder's ' Units in accordance with such transfer instructions by (A) physical delivery or (B) if applicable, causing the book-entry depositary for such Underlying Securities to credit such Underlying Securities to an account of such Holder with such depositary or an account of a designated participant in such depositary, provided that such book-entry depositary will be an agency of the United States, DTC or another book-entry institution acceptable to the Depositary. With respect to a Global Security, the Trustee may also distribute such cash or other Trust Property in accordance with the rules of DTC or other applicable Depository. Any Transfer made in accordance with this paragraph shall satisfy all obligations of the Trust with respect to the Unitholders.
(d) If the related Trust Agreement so specifies, in connection with any Swap Termination Payment payable by the Trust, the Unitholders may, acting unanimously, deliver to the Trustee the amount of such outstanding Swap Termination Payment (together with, in the case of a Trust Wind-Up Event, any Extraordinary Trust Expense in excess of the Maximum Reimbursable Amount payable to the Trustee) and a written instruction to discontinue sale of the Underlying Securities. If the Selling Agent receives notice from the Trustee of the exercise by the Unitholders of their rights under this Section 9.05(d), the Selling Agent shall promptly discontinue sales of the related Underlying Securities (but the Selling Agent and the Trustee shall complete the settlement of any sale already agreed). It is expressly understood and agreed that Underlying Securities may be sold in the time necessary for the Unitholders to be notified of and act upon their rights under this Section 9.05(d). If the Trust Agreement specifies that this provision shall be applicable, the Trustee shall provide notice of this right to Unitholders together with an estimate of the amount of any Swap Termination Payment and applicable Extraordinary Trust Expense at the time the Trustee provides notice to Unitholders of such Trust Wind-Up Event or Liquidation Event.
(e) Unless otherwise provided in the Trust Agreement, and notwithstanding any other provision of this Agreement (and as specified in the Swap Agreement), in connection with early termination of a Swap Agreement or one or more Transactions thereunder, other than as a result of Underlying Security Default, the claim of the Swap Counterparty against the Underlying Securities (or proceeds thereof arising from sale thereof) and any other Trust Property will be limited to a claim pro rata with that of the Unitholders according to the amount of the Swap Termination Payment otherwise payable to the Swap Counterparty and the Unitholders' aggregate Unit Principal Balance plus accrued interest.
(f) The only distributions from the Trustee to which the Holders shall be entitled are, subject to the security interest in all of the Trust Property granted in favor of the Swap Counterparty pursuant to the Swap Agreement and the obligation of the Trust to pay Extraordinary Trust Expenses, payments on the Underlying Securities, amounts, if any, recovered under the Swap Agreement (including Swap Termination Payments, if any, and amounts collected pursuant to Section 2(e) and Section 11 of the Swap Agreement) or Guarantee, received by the Trustee after the occurrence of the Trust Wind-Up Event, and any other remaining Trust Property, if any, which in each case the Trustee shall distribute pro rata to the Unitholders in the manner provided pursuant to Section 4.01 upon satisfaction of the conditions for transfer of Underlying Securities referred to in paragraph (b) of this Section.
(g) Except for reports and other information required to be provided to Holders under the Trust Agreement, the obligations the Trustee and the Depositor will terminate upon the distribution to Unitholders of all amounts required to be distributed to them and the disposition of all Underlying Securities held by the Trustee, and such distribution shall constitute full satisfaction of all of the interests of the Unitholders under this Trust Agreement.
(h) In the event that the Selling Agent resigns or declines to sell specific Underlying Securities, the Trustee shall proceed under Section 10.02(a)(x).
(i) The Selling Agent is an agent of the Trustee only and shall have no fiduciary or other duties to the Unitholders, nor shall the Selling Agent have any liability to the Trust in the absence of the Selling Agent's bad faith or willful default. The Selling Agent shall be permitted to sell Underlying Securities to Affiliates of the Selling Agent. The Selling Agent may (in addition to declining to sell specific Underlying Securities as provided in Section 9.05(b)) resign at any time by written notice to the Trustee, such resignation to take effect immediately upon notice. Except as provided in the first sentence of this Section 9.05(i), each of the protections, releases, indemnities and other terms applicable to the Trustee under Section 10.01, 10.02, 10.03 and 10.05 shall apply to the Selling Agent in connection with its actions as Selling Agent for the Trust.
(j) Subject to Section 9.05(b) and Section 9.05(e), the Trustee agrees that upon any failure of the Trust to make any payment when due under the Swap Agreement, the Swap Counterparty shall have the right to take all action and to pursue all remedies with respect to such property that a secured party is permitted to take with respect to collateral under the UCC, including the right to require the Trustee promptly to sell all or any portion of the Underlying Securities in the open market or, if the Swap Counterparty elects, to sell the Underlying Securities to the Swap Counterparty for its fair value as determined in good faith by the Swap Counterparty. In either case, the proceeds of sale shall be applied to any amounts owed to the Swap Counterparty. The Trustee further agrees to take any actions necessary to facilitate the perfection of the aforementioned security interest of the Swap Counterparty in the property of the Trust as the Swap Counterparty may reasonably request.
(k) No Unitholder shall have any liability as a seller of the Trust Property in connection with any sale of Trust Property by the Trustee or the Selling Agent.
Appears in 1 contract
Disposition of Trust Property. (a) Subject to Section 9.06, as promptly as possible after the occurrence of a Trust Wind-Up Event or Liquidation Event, and in any case within three Business Days following such occurrence, the Trustee shall provide notice to the Unitholders, the Swap Counterparties, the Depositor and the Rating Agencies of the occurrence of a Trust Wind-up Event or Liquidation Event specifying the particular Trust Wind-Up Event or Liquidation Event and in the case of a Liquidation Event, the particular Underlying Security, Swap Agreement or other Trust Property related to such Liquidation Event. In the case of a Trust Wind-Up Event, the notice shall state that (i) Holders should surrender their Units to the Trustee, or deliver security or indemnity acceptable to the Trustee in order to receive their respective distributions of Trust Property, if any, (ii) the location and hours of the Corporate Trust Office at which Units should be presented and surrendered and (iii) that each Holder must supply transfer instructions in writing with respect to Trust Property to be distributed in cash or in kind; provided, however, that with respect to Units that are Global Securities as to which distributions will be made through the facilities of DTC or another depository, the Trustee may adhere to the applicable rules and procedures or DTC or such other depository in lieu of clauses (i), (ii) and (iii) of this sentence.
(b) Immediately upon receipt of notice from the Trustee that the Trust is required to sell Underlying Securities, the Selling Agent shall undertake to sell Underlying Securities on behalf of the Trust; provided, however, that the Selling Agent may elect not to act as Selling Agent with respect to some or all of the Underlying Securities by written notice to that effect to the Trustee. The timing, price and other terms of any sale conducted by the Selling Agent shall be determined by the Selling Agent in its sole discretion, but all such sales shall be completed within 30 days or such longer period of time as may be reasonable with respect to particular Underlying Securities. In the case of a Liquidation Event, sales under this provision shall be limited to the Affected Underlying Securities except where the proceeds from the Affected Underlying Securities are insufficient to make payment of the Swap Termination Payment. The Selling Agent must solicit at least three bids for the Underlying Securities to be sold. The Selling Agent must solicit at least three of such bids from registered broker-dealers of national reputation, but additional bids may be solicited from one or more financial institutions or other counterparties with credit worthiness acceptable to the Selling Agent in its discretion. The Selling Agent will, on behalf of the Trust, sell the Underlying Securities at the highest bid price received. None of the Selling Agent, its affiliates or its agents, may bid for the Underlying Securities. The Selling Agent may provide a right of last refusal to any Swap Counterparty, Call Option holder or other counterparty or holder with an interest in the Underlying Securities or other Trust Property that is not an affiliate of the Selling Agent or any holder of a Call Option. If the Selling Agent is unable to sell Underlying Securities within 180 days of its first attempt to do and the Selling Agent determines that it is not commercially reasonable to continue to try to sell such Underlying Securities, it may give notice to the Trustee that it is unable to sell such Underlying Securities and that it has determined that it is commercially unreasonable to continue to attempt to sell such Underlying Security. In such event, the Trustee shall arrange to distribute such Underlying Securities to Unitholders.
(c) Subject to Section 9.06, as promptly as possible after the occurrence of a Liquidation Event, the Trustee shall take action on behalf of the Trust as specified in Section 9.
01. Subject to Section 9.06, as promptly as possible after the occurrence of a Trust Wind-Up Event, unless otherwise provided in the Trust Agreement, the Trustee on behalf of the Trust shall terminate all Swap Agreements, Credit Support and other agreements of the Trust, the Trustee shall permit delivery of any Trust Property to any Swap Counterparty or other person in accordance with any Swap Agreement or other agreement, and the Trustee shall cause the Selling Agent to liquidate all Trust Property. The Trustee shall use reasonable efforts to cause such terminations and liquidations within thirty days of the occurrence of such Trust Wind-Up Event. Upon completion of the liquidation of Trust Property, the Trustee shall provide a notice to Unitholders, the Swap Counterparties, the Depositor and the Rating Agencies stating the liquidation of Trust Property has been completed, specifying the amount of any Swap Termination Payment paid or to be paid and the amounts to be distributed to Unitholders. The Trustee shall distribute the cash proceeds of liquidation, and if applicable, other Trust Property, to Unitholders upon surrender, or delivery of security or indemnity acceptable to the Trustee, by each Holder of its Units at the Corporate Trust Office specified pursuant to paragraph (a) of this Section 9.05. Upon receipt by the Trustee of (i) appropriate transfer instructions in writing from a Holder with respect to the Underlying Securities and (ii) such Holder' Units (or acceptable security or indemnity), the Trustee shall promptly deliver Underlying Securities to such Holder in an aggregate principal amount corresponding to the aggregate Unit Principal Balance of such Holder's Units in accordance with such transfer instructions by (A) physical delivery or (B) if applicable, causing the book-entry depositary for such Underlying Securities to credit such Underlying Securities to an account of such Holder with such depositary or an account of a designated participant in such depositary, provided that such book-entry depositary will be an agency of the United States, DTC or another book-entry institution acceptable to the Depositary. With respect to a Global Security, the Trustee may also distribute such cash or other Trust Property in accordance with the rules of DTC or other applicable Depository. Any Transfer made in accordance with this paragraph shall satisfy all obligations of the Trust with respect to the Unitholders.
(d) If the related Trust Agreement so specifies, in connection with any Swap Termination Payment payable by the Trust, the Unitholders may, acting unanimously, deliver to the Trustee the amount of such outstanding Swap Termination Payment (together with, in the case of a Trust Wind-Up Event, any Extraordinary Trust Expense in excess of the Maximum Reimbursable Amount payable to the Trustee) and a written instruction to discontinue sale of the Underlying Securities. If the Selling Agent receives notice from the Trustee of the exercise by the Unitholders of their rights under this Section 9.05(d), the Selling Agent shall promptly discontinue sales of the related Underlying Securities (but the Selling Agent and the Trustee shall complete the settlement of any sale already agreed). It is expressly understood and agreed that Underlying Securities may be sold in the time necessary for the Unitholders to be notified of and act upon their rights under this Section 9.05(d). If the Trust Agreement specifies that this provision shall be applicable, the Trustee shall provide notice of this right to Unitholders together with an estimate of the amount of any Swap Termination Payment and applicable Extraordinary Trust Expense at the time the Trustee provides notice to Unitholders of such Trust Wind-Up Event or Liquidation Event.
(e) Unless otherwise provided in the Trust Agreement, and notwithstanding any other provision of this Agreement (and as specified in the Swap Agreement), in connection with early termination of a Swap Agreement or one or more Transactions thereunder, other than as a result of Underlying Security Default, the claim of the Swap Counterparty against the Underlying Securities (or proceeds thereof arising from sale thereof) and any other Trust Property will be limited to a claim pro rata with that of the Unitholders according to the amount of the Swap Termination Payment otherwise payable to the Swap Counterparty and the Unitholders' aggregate Unit Principal Balance plus accrued interest.
(f) The only distributions from the Trustee to which the Holders shall be entitled are, subject to the security interest in all of the Trust Property granted in favor of the Swap Counterparty pursuant to the Swap Agreement and the obligation of the Trust to pay Extraordinary Trust Expenses, payments on the Underlying Securities, amounts, if any, recovered under the Swap Agreement (including Swap Termination Payments, if any, and amounts collected pursuant to Section 2(e) and Section 11 of the Swap Agreement) or Guarantee, received by the Trustee after the occurrence of the Trust Wind-Up Event, and any other remaining Trust Property, if any, which in each case the Trustee shall distribute pro rata to the Unitholders in the manner provided pursuant to Section 4.01 upon satisfaction of the conditions for transfer of Underlying Securities referred to in paragraph (b) of this Section.
(g) Except for reports and other information required to be provided to Holders under the Trust Agreement, the obligations the Trustee and the Depositor will terminate upon the distribution to Unitholders of all amounts required to be distributed to them and the disposition of all Underlying Securities held by the Trustee, and such distribution shall constitute full satisfaction of all of the interests of the Unitholders under this Trust Agreement.
(h) In the event that the Selling Agent resigns or declines to sell specific Underlying Securities, the Trustee shall proceed under Section 10.02(a)(x).
(i) The Selling Agent is an agent of the Trustee only and shall have no fiduciary or other duties to the Unitholders, nor shall the Selling Agent have any liability to the Trust in the absence of the Selling Agent's bad faith or willful default. The Selling Agent shall be permitted to sell Underlying Securities to Affiliates of the Selling Agent. The Selling Agent may (in addition to declining to sell specific Underlying Securities as provided in Section 9.05(b)) resign at any time by written notice to the Trustee, such resignation to take effect immediately upon notice. Except as provided in the first sentence of this Section 9.05(i), each of the protections, releases, indemnities and other terms applicable to the Trustee under Section 10.01, 10.02, 10.03 and 10.05 shall apply to the Selling Agent in connection with its actions as Selling Agent for the Trust.
(j) Subject to Section 9.05(b) and Section 9.05(e), the Trustee agrees that upon any failure of the Trust to make any payment when due under the Swap Agreement, the Swap Counterparty shall have the right to take all action and to pursue all remedies with respect to such property that a secured party is permitted to take with respect to collateral under the UCC, including the right to require the Trustee promptly to sell all or any portion of the Underlying Securities in the open market or, if the Swap Counterparty elects, to sell the Underlying Securities to the Swap Counterparty for its fair value as determined in good faith by the Swap Counterparty. In either case, the proceeds of sale shall be applied to any amounts owed to the Swap Counterparty. The Trustee further agrees to take any actions necessary to facilitate the perfection of the aforementioned security interest of the Swap Counterparty in the property of the Trust as the Swap Counterparty may reasonably request.
(k) No Unitholder shall have any liability as a seller of the Trust Property in connection with any sale of Trust Property by the Trustee or the Selling Agent.
Appears in 1 contract
Disposition of Trust Property. (a) Subject to Section 9.06, as promptly as possible after the occurrence of a Trust Wind-Up Event or Liquidation Event, and in any case within three Business Days following such occurrence, the Trustee shall provide notice to the Unitholders, the Swap Counterparties, the Depositor and the Rating Agencies of the occurrence of a Trust Wind-up Event or Liquidation Event specifying the particular Trust Wind-Up Event or Liquidation Event and in the case of a Liquidation Event, the particular Underlying Security, Swap Agreement or other Trust Property related to such Liquidation Event. In the case of a Trust Wind-Up Event, the notice shall state that (i) Holders should surrender their Units to the Trustee, or deliver security or indemnity acceptable to the Trustee in order to receive their respective distributions of Trust Property, if any, (ii) the location and hours of the Corporate Trust Office at which Units should be presented and surrendered and (iii) that each Holder must supply transfer instructions in writing with respect to Trust Property to be distributed in cash or in kind; provided, however, that with respect to Units that are Global Securities as to which distributions will be made through the facilities of DTC or another depository, the Trustee may adhere to the applicable rules and procedures or DTC or such other depository in lieu of clauses (i), (ii) and (iii) of this sentence.
(b) Immediately upon receipt of notice from the Trustee that the Trust is required to sell Underlying Securities, the Selling Agent shall undertake to sell Underlying Securities on behalf of the Trust; provided, however, that the Selling Agent may elect not to act as Selling Agent with respect to some or all of the Underlying Securities by written notice to that effect to the Trustee. The timing, price and other terms of any sale conducted by the Selling Agent shall be determined by the Selling Agent in its sole discretion, but all such sales shall be completed within 30 days or such longer period of time as may be reasonable with respect to particular Underlying Securities. In the case of a Liquidation Event, sales under this provision shall be limited to the Affected Underlying Securities except where the proceeds from the Affected Underlying Securities are insufficient to make payment of the Swap Termination Payment. The Selling Agent must solicit at least three bids for the Underlying Securities to be sold. The Selling Agent must solicit at least three of such bids from registered broker-dealers of national reputationreputation who deal in securities of the type in question, but additional bids may be solicited from one or more financial institutions or other counterparties with credit worthiness acceptable to the Selling Agent in its discretion. The Selling Agent will, on behalf of the Trust, sell the Underlying Securities at the highest bid price received. None of the Selling Agent, its affiliates or its agents, may bid for the Underlying Securities. The Selling Agent may provide a right of last refusal to any Swap Counterparty, Call Option holder or other counterparty or holder with an interest in the Underlying Securities or other Trust Property that is not an affiliate of the Selling Agent or any holder of a Call Option. If the Selling Agent is unable to sell Underlying Securities within 180 days of its first attempt to do and the Selling Agent determines that it is not commercially reasonable to continue to try to sell such Underlying Securities, it may give notice to the Trustee that it is unable to sell such Underlying Securities and that it has determined that it is commercially unreasonable to continue to attempt to sell such Underlying Security. In such event, the Trustee shall arrange to distribute such Underlying Securities to Unitholders.
(c) Subject to Section 9.06, as promptly as possible after the occurrence of a Liquidation Event, the Trustee shall take action on behalf of the Trust as specified in Section 9.
019.01. Subject to Section 9.06, as promptly as possible after the occurrence of a Trust Wind-Up Event, unless otherwise provided in the Trust Agreement, the Trustee on behalf of the Trust shall terminate all Swap Agreements, Credit Support and other agreements of the Trust, the Trustee shall permit delivery of any Trust Property to any Swap Counterparty or other person in accordance with any Swap Agreement or other agreement, and the Trustee shall cause the Selling Agent to liquidate all Trust Property. The Trustee shall use reasonable efforts to cause such terminations and liquidations within thirty days of the occurrence of such Trust Wind-Up Event. Upon completion of the liquidation of Trust Property, the Trustee shall provide a notice to Unitholders, the Swap Counterparties, the Depositor and the Rating Agencies stating the liquidation of Trust Property has been completed, specifying the amount of any Swap Termination Payment paid or to be paid and the amounts to be distributed to Unitholders. The Trustee shall distribute the cash proceeds of liquidation, and if applicable, other Trust Property, to Unitholders upon surrender, or delivery of security or indemnity acceptable to the Trustee, by each Holder of its Units at the Corporate Trust Office specified pursuant to paragraph (a) of this Section 9.05. Upon receipt by the Trustee of (i) appropriate transfer instructions in writing from a Holder with respect to the Underlying Securities and (ii) such Holder' ’ Units (or acceptable security or indemnity), the Trustee shall promptly deliver Underlying Securities to such Holder in an aggregate principal amount corresponding to the aggregate Unit Principal Balance of such Holder's ’s Units in accordance with such transfer instructions by (A) physical delivery or (B) if applicable, causing the book-entry depositary for such Underlying Securities to credit such Underlying Securities to an account of such Holder with such depositary or an account of a designated participant in such depositary, provided that such book-entry depositary will be an agency of the United States, DTC or another book-entry institution acceptable to the Depositary. With respect to a Global Security, the Trustee may also distribute such cash or other Trust Property in accordance with the rules of DTC or other applicable Depository. Any Transfer made in accordance with this paragraph shall satisfy all obligations of the Trust with respect to the Unitholders.
(d) If the related Trust Agreement so specifies, in connection with any Swap Termination Payment payable by the Trust, the Unitholders may, acting unanimously, deliver to the Trustee the amount of such outstanding Swap Termination Payment (together with, in the case of a Trust Wind-Up Event, any Extraordinary Trust Expense in excess of the Maximum Reimbursable Amount payable to the Trustee) and a written instruction to discontinue sale of the Underlying Securities. If the Selling Agent receives notice from the Trustee of the exercise by the Unitholders of their rights under this Section 9.05(d), the Selling Agent shall promptly discontinue sales of the related Underlying Securities (but the Selling Agent and the Trustee shall complete the settlement of any sale already agreed). It is expressly understood and agreed that Underlying Securities may be sold in the time necessary for the Unitholders to be notified of and act upon their rights under this Section 9.05(d). If the Trust Agreement specifies that this provision shall be applicable, the Trustee shall provide notice of this right to Unitholders together with an estimate of the amount of any Swap Termination Payment and applicable Extraordinary Trust Expense at the time the Trustee provides notice to Unitholders of such Trust Wind-Up Event or Liquidation Event.
(e) Unless otherwise provided in the Trust Agreement, and notwithstanding any other provision of this Agreement (and as specified in the Swap Agreement), in connection with early termination of a Swap Agreement or one or more Transactions thereunder, other than as a result of Underlying Security Default, the claim of the Swap Counterparty against the Underlying Securities (or proceeds thereof arising from sale thereof) and any other Trust Property will be limited to a claim pro rata with that of the Unitholders according to the amount of the Swap Termination Payment otherwise payable to the Swap Counterparty and the Unitholders' ’ aggregate Unit Principal Balance plus accrued interest.
(f) The only distributions from the Trustee to which the Holders shall be entitled are, subject to the security interest in all of the Trust Property granted in favor of the Swap Counterparty pursuant to the Swap Agreement and the obligation of the Trust to pay Extraordinary Trust Expenses, payments on the Underlying Securities, amounts, if any, recovered under the Swap Agreement (including Swap Termination Payments, if any, and amounts collected pursuant to Section 2(e) and Section 11 of the Swap Agreement) or Guarantee, received by the Trustee after the occurrence of the Trust Wind-Up Event, and any other remaining Trust Property, if any, which in each case the Trustee shall distribute pro rata to the Unitholders in the manner provided pursuant to Section 4.01 upon satisfaction of the conditions for transfer of Underlying Securities referred to in paragraph (b) of this Section.
(g) Except for reports and other information required to be provided to Holders under the Trust Agreement, the obligations the Trustee and the Depositor will terminate upon the distribution to Unitholders of all amounts required to be distributed to them and the disposition of all Underlying Securities held by the Trustee, and such distribution shall constitute full satisfaction of all of the interests of the Unitholders under this Trust Agreement.
(h) In the event that the Selling Agent resigns or declines to sell specific Underlying Securities, the Trustee shall proceed under Section 10.02(a)(x).
(i) The Selling Agent is an agent of the Trustee only and shall have no fiduciary or other duties to the Unitholders, nor shall the Selling Agent have any liability to the Trust in the absence of the Selling Agent's ’s bad faith or willful default. The Selling Agent shall be permitted to sell Underlying Securities to Affiliates of the Selling Agent. The Selling Agent may (in addition to declining to sell specific Underlying Securities as provided in Section 9.05(b)) resign at any time by written notice to the Trustee, such resignation to take effect immediately upon notice. Except as provided in the first sentence of this Section 9.05(i), each of the protections, releases, indemnities and other terms applicable to the Trustee under Section 10.01, 10.02, 10.03 and 10.05 shall apply to the Selling Agent in connection with its actions as Selling Agent for the Trust.
(j) Subject to Section 9.05(b) and Section 9.05(e), the Trustee agrees that upon any failure of the Trust to make any payment when due under the Swap Agreement, the Swap Counterparty shall have the right to take all action and to pursue all remedies with respect to such property that a secured party is permitted to take with respect to collateral under the UCC, including the right to require the Trustee promptly to sell all or any portion of the Underlying Securities in the open market or, if the Swap Counterparty elects, to sell the Underlying Securities to the Swap Counterparty for its fair value as determined in good faith by the Swap Counterparty. In either case, the proceeds of sale shall be applied to any amounts owed to the Swap Counterparty. The Trustee further agrees to take any actions necessary to facilitate the perfection of the aforementioned security interest of the Swap Counterparty in the property of the Trust as the Swap Counterparty may reasonably request.
(k) No Unitholder shall have any liability as a seller of the Trust Property in connection with any sale of Trust Property by the Trustee or the Selling Agent.
Appears in 1 contract
