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SERIES [ ]-[ ] SUPPLEMENT
between
PRUDENTIAL SECURITIES STRUCTURED ASSETS, INC.
as Depositor
and
THE CHASE MANHATTAN BANK
as Trustee
Receipts on Corporate Securities Trust [ ]-[ ]
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TABLE OF CONTENTS
PAGE
PRELIMINARY STATEMENT.........................................................1
SECTION 1. Certain Defined Terms..............................................1
SECTION 2. Creation and Declaration of Trust; Grant of
Underlying Securities; Acceptance by Trustee.......................4
SECTION 3. Designation........................................................4
SECTION 4. Form and Date of the Certificates..................................4
SECTION 5. Aggregate Certificate Principal Balance............................5
SECTION 6. Currency of the Certificates.......................................5
SECTION 7. Certificateholder Exchange Right...................................5
SECTION 8. Distributions......................................................5
SECTION 9. Termination of Trust...............................................7
SECTION 10.Limitation of Powers and Duties....................................8
SECTION 11.Certain Provisions of Base Trust Agreement Not Applicable..........8
SECTION 00.Xx Investment of Amounts Received on Underlying Securities.........8
SECTION 13.Notices............................................................8
SECTION 14.Access to Certain Documentation....................................8
SECTION 15.Ratification of Agreement..........................................8
SECTION 16.Counterparts.......................................................8
SECTION 17.Governing Law......................................................8
SECTION 18.Trustee Election...................................................9
SECTION 19.Covenant of Depositor..............................................9
EXHIBIT A -- Form of [ ] Class Certificate
SCHEDULE 1 -- Identification of Underlying Securities
-i-
SERIES [ ]-[ ] SUPPLEMENT dated as of , (this "Series Supplement"), between
Prudential Securities Structured Assets, Inc., a Delaware corporation, as
depositor (the "Depositor"), and The Chase Manhattan Bank, a New York banking
corporation, as trustee (the "Trustee").
PRELIMINARY STATEMENT
Pursuant to the Base Trust Agreement dated as of , (the "Base Trust
Agreement" and, as amended and supplemented pursuant to this Series Supplement,
the "Agreement"), between the Depositor and the Trustee, such parties may at any
time and from time to time enter into a series supplement supplemental to the
Base Trust Agreement for the purpose of creating a trust. Section 5.13 of the
Base Trust Agreement provides that the Depositor may at any time and from time
to time direct the Trustee to authenticate and deliver, on behalf of any such
trust, a new series of trust certificates. Each trust certificate of such new
series of trust certificates will represent a fractional undivided beneficial
interest in such trust. Certain terms and conditions applicable to each such
series are to be set forth in the related series supplement to the Agreement.
Pursuant to this Series Supplement, the Depositor and the Trustee shall
create and establish a new trust to be known as Receipts on Corporate Securities
Trust [ ]-[ ] (the "Trust"), and a new Series of trust certificates to be issued
thereby, which certificates shall be known as the Receipts on Corporate
Securities, Series [ ]-[ ] (the "Certificates"), and the Depositor and the
Trustee shall herein specify certain terms and conditions in respect thereof.
The Certificates shall be issued in Classes consisting of [describe
classes], subject to Section 5.16 of the Base Trust Agreement.
On behalf of and pursuant to the authorizing resolutions of the Board of
Directors of the Depositor, an authorized officer of the Depositor has
authorized the execution, authentication and delivery of the Certificates, and
has authorized the Base Trust Agreement and this Series Supplement in accordance
with the terms of Section 5.13 of the Base Trust Agreement.
SECTION 1. CERTAIN DEFINED TERMS. (a) All terms used in this Series
Supplement that are defined in the Base Trust Agreement, either directly or by
reference therein, have the meanings assigned to such terms therein, except to
the extent such terms are defined or modified in this Series Supplement or the
context requires otherwise. The Base Trust Agreement also contains rules as to
usage which shall be applicable hereto.
(b) Pursuant to Article I of the Base Trust Agreement, the meaning of
certain defined terms used in the Base Trust Agreement shall, when applied to
the trust certificates of a particular Series, be as defined in Article I but
with such additional provisions and modifications as are specified in the
related series supplement. With respect to the Certificates, the following
definitions shall apply:
["Acceleration of Underlying Securities": The acceleration of the maturity
of the Underlying Securities following the occurrence of any default (other than
a Payment Default) with respect to the Underlying Securities under the
Underlying Securities Indenture, and the Trustee receives notice of such
acceleration, notwithstanding any subsequent rescission and annulment of such
acceleration by the requisite holders of the entire series of Underlying
Securities.]
"Aggregate Certificate Principal Balance": As of any date of determination,
[the aggregate principal balance of the Underlying Securities in the Trust as of
such date of determination].
["Amortized Amount": For any Amortizing Class Certificate of $1,000
denomination, initially $1,000. On each Scheduled Distribution Date, the
Amortized Amount will be reduced by the positive difference between (i) the
Fixed Payment made on such Scheduled Distribution Date and (ii) interest accrued
on the Certificate Principal Balance at the Amortizing Class Yield during the
related Interest Accrual Period. On any Optional Redemption Date relating to a
Partial Optional Redemption, the Amortized Amount shall be recalculated based on
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the remaining Underlying Securities after such partial redemption and no effect
shall be given to the allocation to principal provided for in Section 9(d)
hereof.]
"Available Funds": As of any Distribution Date, the aggregate amount
received on or with respect to the Underlying Securities on or with respect to
such Distribution Date.
"Calculation Agent": The Depositor.
"Certificates": Receipts on Corporate Securities, Series [ ]-[ ].
"Certificateholder" or "Holder": With respect to any Certificate, the
Holder thereof.
"Certificate Principal Balance": [For any[ ] Class Certificate, a pro rata
portion of the principal amount of the then outstanding Underlying Securities.
For any [ ] Class Certificate, the Amortized Amount].
"Class": The [ ] Class Certificates or [ ] Class Certificates, as the case
may be.
"Closing Date": __________.
"Corporate Trust Office": The Chase Manhattan Bank, _____, _____, _____,
Attention: _____, or such other corporate trust office as the Trustee shall
designate in writing to the Depositor and the Certificateholders.
"Distribution Date": Any Scheduled Distribution Date, In-Kind Distribution
Date, Shortened Maturity Date, or Optional Redemption Date [describe other
distribution dates].
"Distribution Ratio": With respect to a specified distribution to be made
hereunder on any Distribution Date (other than a Scheduled Distribution Date),
the ratio in which such distribution will be made to the holders of the [ ]
Class Certificates and [ ] Class Certificates, respectively, being the same
ratio as [describe ratio].
"Excess Interest": Penalties, interest on overdue interest or other amounts
paid to holders of the Underlying Securities because of late or defaulted
payments on the Underlying Securities.
"Fixed Payment": Each semiannual installment of interest and Excess
Interest, if any, payable on the Underlying Securities through and including
_____, _____.
"Interest Accrual Period": With respect to any Scheduled Distribution Date,
the period from and including the immediately preceding Scheduled Distribution
Date (or in the case of the first Interest Accrual Period, from and including
____, _____) to but excluding the then current Scheduled Distribution Date.
"Interest Collections": With respect to any Distribution Date, all payments
received by the Trustee from the Underlying Securities Issuer with respect to
the Underlying Securities immediately prior to such Distribution Date, in
respect of (i) interest on the Underlying Securities and (ii) any Excess
Interest.
"Optional Redemption": A redemption of the Underlying Securities, as a
whole or in part from time to time, at the option of _____ pursuant to the
Underlying Securities Indenture, other than a Shortened Maturity Redemption.
"Optional Redemption Date": The date on which an Optional Redemption
occurs.
"Partial Optional Redemption": An Optional Redemption relating to only a
portion of the Underlying Securities.
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"Payment Default": A default in any payment of the principal of, premium,
if any, or interest on the Underlying Securities when the same becomes due and
payable, and the expiration of any applicable grace period for the making of
such payment.
"Place of Distribution": [New York, New York].
"Principal Collections": All principal payments received by the Trustee on
the Underlying Securities, including the principal portion of the redemption
price and the premium, if any, paid in the event of Shortened Maturity
Redemption or an Optional Redemption.
"Rating Agency": At any time after the Closing Date, the Depositor may
designate one or more credit rating agencies as a "Rating Agency" for purposes
of this Agreement by Depositor Order, acknowledged by the Trustee. Thereafter,
references to "the Rating Agency" in the Agreement shall be deemed to be each
such credit rating agency.
"Record Date": With respect to any Distribution Date, the [15th] day
immediately preceding such Distribution Date.
"Scheduled Distribution Date": The first day of each _____ and _____, or,
if any such day is not a Business Day and a Underlying Securities Scheduled
Payment Date, then the Business Day on or immediately following the Underlying
Securities Scheduled Payment Date, commencing _____,_____, through and including
[Scheduled Final Distribution Date]; provided, however, that payment on each
Scheduled Distribution Date shall be subject to receipt of the corresponding
payment of interest or principal, as applicable, on the Underlying Securities.
"Scheduled Final Distribution Date": _______.
"Shortened Maturity Date": A maturity date for the Underlying Securities on
or before _____, _____, designated by the Underlying Securities Issuer, as a
result of a Tax Event.
"Shortened Maturity Redemption": A redemption of the Certificates in whole,
but not in part, as a result of the Shortened Maturity Date occurring on or
prior to _____, _____.
"Specified Currency": [United States Dollars].
["Tax Event": Means that the Underlying Securities Issuer shall have
received an opinion of nationally recognized independent tax counsel to the
effect that, as a result of (a) any amendment to, clarification of or change
(including any announced prospective amendment, clarification or change) in any
law, or any regulation thereunder, of the United States, (b) any judicial
decision, official administrative pronouncement, ruling, regulatory procedure,
notice or announcement, including any notice or announcement of intent to adopt
or promulgate any ruling, regulatory procedure or regulation (any of the
foregoing, an "Administrative or Judicial Action"), or (c) any amendment to,
clarification of or change in any official position with respect to, or any
interpretation of, an Administrative or Judicial Action or a law or regulation
of the United States that differs from the theretofore generally accepted
position or interpretation, in each case, occurring on or after _____, _____,
there is more than an insubstantial increase in the risk that interest paid by
the Underlying Securities Issuer on the Underlying Securities is not, or will
not be, deductible, in whole or in part, by the Underlying Securities Issuer for
United States federal income tax purposes.]
"Trust": Receipts on Corporate Securities Trust [ ]-[ ].
"Trustee": The Chase Manhattan Bank, a New York banking corporation.
"Trust Termination Event": (a) the distribution in-kind of the Underlying
Securities to the [ ] Class Certificateholders on _____, _____ (subject to
Section 8(b) hereof), (b) the payment in full of the Certificates following a
Shortened Maturity Redemption, (c) an In-Kind Distribution, (d) the payment in
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full of the Certificates following an Optional Redemption, other than a Partial
Optional Redemption, or (e) the exchange of Certificates for the last remaining
Underlying Securities pursuant to Section 7. [describe other termination events,
including any applicable Rule Against Perpetuities limitation]
"Underlying Securities": The $______ aggregate principal amount of _____%
[identify Underlying Securities, issued by the Underlying Securities Issuer,
deposited in the Trust by the Depositor and further identified on Schedule 1
hereto.
"Underlying Securities Indenture": The indenture dated as of _____, _____,
between the Underlying Securities Issuer and the Underlying Securities Trustee,
as amended from time to time.
"Underlying Securities Issuer":__________.
"Underlying Securities Scheduled Payment Date": The _____ day of each _____
and_____, commencing on _____, _____; provided, however, that if any Underlying
Securities Scheduled Payment Date would otherwise fall on a day that is not a
Business Day (as defined in the Underlying Securities Indenture), such
Underlying Securities Scheduled Payment Date will be the next following day that
is a Business Day (as so defined).
"Underlying Securities Prospectus": The prospectus of the Underlying
Securities Issuer, dated _____, _____, as supplemented by a supplement thereto
dated _____, ____, with respect to the Underlying Securities.
"Underlying Securities Trustee": The trustee under the Underlying
Securities Indenture.
"Voting Rights": Voting Rights will be allocated between the Classes of
Certificateholders as follows: [describe allocation of voting rights].
SECTION 2. CREATION AND DECLARATION OF TRUST; GRANT OF UNDERLYING
SECURITIES; ACCEPTANCE BY TRUSTEE. (a) The Depositor, concurrently with the
execution and delivery hereof and pursuant to Section 2.1 of the Agreement, has
delivered or caused to be delivered to the Trustee the Underlying Securities in
exchange for the delivery to, or at the direction of the Depositor, of all of
the Certificates, representing the entire beneficial interest in all of the
assets of the Trust.
(b) The Trustee hereby (i) acknowledges such deposit, pursuant to
subsection (a) above, and receipt by it of the Underlying Securities, (ii)
accepts the trusts created hereunder in accordance with the provisions hereof
and of the Agreement but subject to the Trustee's obligation, as and when the
same may arise, to make any payment or other distribution of the assets of the
Trust as may be required pursuant to this Series Supplement, the Agreement and
the Certificates, and (iii) agrees to perform the duties herein or therein
required and any failure to receive reimbursement of expenses and disbursements
under Section 7.5 of the Agreement shall not release the Trustee from its duties
herein or therein.
SECTION 3. DESIGNATION. There is hereby created a Series of trust
certificates to be issued pursuant to the Agreement and this Series Supplement
to be known as the "Receipts on Corporate Securities, Series [ ]-[ ]." The
Certificates shall be issued in _____ Classes, consisting of the [ ] Class
Certificates and the [ ] Class Certificates [identify others].
SECTION 4. FORM AND DATE OF THE CERTIFICATES. (a) The Certificates that are
executed, authenticated and delivered by the Trustee to the Depositor upon
Depositor Order on the Closing Date shall be dated the Closing Date. All other
Certificates that are authenticated after the Closing Date for any other purpose
under the Agreement shall be dated the date of their authentication. The
Certificates and the certificate of authentication of the Trustee thereon shall
be substantially in the form of Exhibit A or Exhibit B hereto, as specified
below, which are hereby incorporated in and expressly made a part of this
Agreement.
(b) The [ ] Class Certificates will be represented by one or more permanent
Certificates in definitive, fully registered form in minimum denominations of
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$______ in Certificate Principal Balance and integral multiples of $_____ in
excess thereof. The [ ] Class Certificates will be represented by one or more
permanent Certificates in definitive, fully registered form in minimum
denominations of $_____ in Certificate Principal Balance and integral multiples
of $ in excess thereof.
SECTION 5. AGGREGATE CERTIFICATE PRINCIPAL BALANCE. The maximum Aggregate
Certificate Principal Balance of the [ ] Class Certificates that may be
executed, authenticated and delivered under the Agreement and this Series
Supplement is $_____. The maximum Aggregate Certificate Principal Balance of the
[ ] Class Certificates that may be authenticated and delivered under the
Agreement and this Series Supplement is $_____. In each case such maximum
amounts shall be calculated without regard to Certificates authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Certificates pursuant to Sections 5.3, 5.4, 5.5 or 5.16 of the Agreement.
The Certificates are issuable in the minimum denominations specified in Section
4.
SECTION 6. CURRENCY OF THE CERTIFICATES. All distributions on the
Certificates will be made in the Specified Currency.
SECTION 7. CERTIFICATEHOLDER EXCHANGE RIGHT. Any Holder of [ ] Class
Certificates and [ ] Class Certificates may, by delivery of a notice to the
Trustee substantially in the form of the Notice of Exchange attached to a
Certificate (a "Notice of Exchange") not less than [30] and not more than [45]
days prior to any Scheduled Distribution Date other than _____, _____, elect to
exchange Certificates of both Classes for Underlying Securities on such
Scheduled Distribution Date (the "Exchange Date") in accordance with this
Section. In order to exercise such right, the holder shall tender to the Trustee
on the Exchange Date immediately succeeding such notice both (a) [ ] Class
Certificates evidencing the percentage specified in the Notice of Exchange of
the Aggregate Certificate Principal Balance of all [ ] Class Certificates then
outstanding and (b) [ ] Class Certificates evidencing the same percentage of the
Aggregate Certificate Principal Balance of all [ ] Class Certificates then
outstanding as is represented by the [ ] Class Certificates tendered pursuant to
clause (a).
Upon tender of such Certificates, duly endorsed by the Holder to the
Trustee, the Trustee shall transfer to the Holder (or its designee specified in
the Notice of Exchange) a principal amount of Underlying Securities comprising
the same percentage of the Underlying Securities then held in the Trust as the
percentage of [ ] Class Certificates and [ ] Class Certificates tendered by such
Holder on such Scheduled Distribution Date, rounded down to the nearest
authorized denomination of Underlying Securities. Upon such exchange, the
Trustee shall cancel the tendered Certificates, provided that if the amount of
Underlying Securities delivered to the Holder or its designee was rounded down
in accordance with the preceding sentence, the Trustee shall issue to such
Holder new Certificates of each Class evidencing percentage interests of such
Class (regardless of whether such interests would otherwise be authorized
denominations) equal to the amount of such Class in excess of the amount
accepted for such exchange.
The delivery of a Notice of Exchange pursuant to this Section shall be
irrevocable; provided, however, that if (i) the proceeds of an Optional
Redemption, Shortened Maturity Redemption or In-Kind Distribution are to be
distributed on the Exchange Date to which such Notice of Exchange relates or
(ii) if prior to such Exchange Date, the Trustee gives notice to Holders that
the proceeds of an Optional Redemption, Shortened Maturity Redemption or In-Kind
Distribution are scheduled to be distributed on a date subsequent to such
Exchange Date, such Notice of Exchange shall be automatically deemed canceled
and be of no further force and effect.
Any Holder tendering Certificates in exchange for Underlying Securities on
an Exchange Date pursuant to this Section shall be entitled to receive cash
distributions otherwise payable on such Certificates on such Exchange Date
pursuant to Section 8(a).
SECTION 8. DISTRIBUTIONS. (a) Not later than each Scheduled Distribution
Date, the Trustee shall distribute to the Holders of the [ ] Class Certificates,
to the extent of Interest Collections constituting Available Funds, an amount
equal to the Fixed Payment plus any Excess Interest. Each Fixed Payment shall be
allocated first to interest accrued during the related Interest Accrual Period
on the then outstanding Aggregate Certificate Principal Balance of the [ ] Class
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Certificates, with the balance of such Fixed Payment allocated to the repayment
of principal in accordance with the amortization schedule attached hereto as
Schedule 2 (the "Amortization Schedule"). Any Excess Interest shall be allocated
as additional interest and shall not be taken into account in the allocation of
the Fixed Payment. In the event of a Partial Optional Redemption or an exchange
of Certificates for Underlying Securities pursuant to Section 7, the Fixed
Payment to the holders of the [ ] Class Certificates will be reduced, effective
on the next Scheduled Distribution Date, pro rata with the reduction of the
Underlying Securities.
In the event that any Interest Collections are received by the Trustee
after a Scheduled Distribution Date and prior to the final distribution with
respect to the [ ] Class Certificate, the Trustee will distribute such Interest
Collections to the holders of the [ ] Class Certificates as soon as practicable
after receipt.
(b) On _____, _____, the Trustee shall distribute the remaining Underlying
Securities in kind to the [ ] Class Certificateholders; provided that if payment
to the [ ] Class Certificateholders with respect to the Underlying Securities
due on ,_____, _____ is not made by the Underlying Securities Issuer on such
date, the Underlying Securities will not be distributed to the holders of the [
] Class Certificates until such payment is made by the Underlying Securities
Issuer or the Trustee makes an In-Kind Distribution to Certificateholders in
accordance with this Agreement.
(c) In the event of an Optional Redemption on or prior to _____, _____, the
Certificates will be redeemed on the Optional Redemption Date. Such redemption
shall be a redemption of the Certificates as a whole if the Optional Redemption
is redemption of the Underlying Securities as a whole, and shall be a redemption
of the Certificates in part, as described in the next subsection, if the
Optional Redemption is a Partial Optional Redemption. In such event, the Trustee
will distribute the aggregate redemption price received on the Underlying
Securities on the Optional Redemption Date to the holders of the [ ] Class
Certificates and the [ ] Class Certificates, respectively, on the basis of the
Distribution Ratio. Such ratio will be calculated by the Calculation Agent.
(d) In the event of a Partial Optional Redemption, the distribution of the
portion of the redemption price allocable to a particular Class of Certificates
pursuant to the preceding subsection shall be made on a pro rata basis among all
Certificateholders of such Class. Amounts so allocated to the [ ] Class
Certificates shall be allocated first to interest accrued since the start of the
most recent Interest Accrual Period on the then outstanding Certificate
Principal Balance of the [ ] Class Certificates, with the balance of such
distribution allocated to the repayment of principal. At the close of business
on the applicable Optional Redemption Date, the respective Certificate Principal
Balances of the Certificates shall be reduced in accordance with definition of
the term "Certificate Principal Balance."
(e) In the event of a Shortened Maturity Redemption on or prior to the
Scheduled Final Distribution Date, the Certificates shall be redeemed as a whole
on the Shortened Maturity Date. In such event, the Trustee will distribute, the
aggregate redemption price received on the Underlying Securities on the
Shortened Maturity Date to the holders of the [ ] Class Certificates and the [ ]
Class Certificates, respectively, on the basis of the Distribution Ratio. Such
ratio will be calculated by the Calculation Agent.
(f) (i) Upon receipt by the Trustee of actual notice that a Payment Default
or an Acceleration of the Underlying Securities has occurred under the
Underlying Securities Indenture on or before the Scheduled Final
Distribution Date, the Trustee will make an In-Kind Distribution of the
remaining Underlying Securities, pursuant to Section 3.6 of the Agreement,
to the holders of the [ ] Class Certificates and the [ ] Class
Certificates. The Trustee will distribute the Underlying Securities and any
proceeds from liquidation thereof made pursuant to Section 3.6(b) to the
holders of the [ ] Class Certificates and [ ] Class Certificates,
respectively, on the basis of the Distribution Ratio as of the date of such
Payment Default or Acceleration. Such ratio will be calculated by the
Calculation Agent.
(ii) Upon receipt by the Trustee of actual notice that an Underlying
Securities Issuer has ceased to provide periodic information and other
reports to the Commission as required by the Exchange Act , the Trustee
will make an In-Kind Distribution of the Underlying Securities of such
Underlying Securities Issuer, pursuant to Section 3.6 of the Agreement, to
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the holders of the [ ] Class Certificates and the [ ] Class Certificates.
The Trustee will distribute the applicable Underlying Securities and any
proceeds from liquidation thereof made pursuant to Section 3.6(b) to the
holders of the [ ] Class Certificates and the [ ] Class Certificates,
respectively, on the basis of the Distribution Ratio as of the date
specified in the applicable notice from the Depositor. Such ratio will be
calculated by the Calculation Agent.
(g) Distributions of any Purchase Price pursuant to Section 2.5 of the
Agreement shall be distributed in the same ratio set forth in subsection (c)
above discounted to the date on which the Purchase Price is distributed. Such
distribution shall be made fifteen days after receipt of the Purchase Price.
(h) Distributions to the Certificateholders on each Distribution Date will
be made to the Certificateholders of record on the related Record Date of the [
] Class Certificates and [ ] Class Certificates, as applicable.
(i) All distributions to Certificateholders of any Class shall be allocated
pro rata among the Certificates of such Class, based on the respective
Certificate Principal Balances as of the Record Date with respect to such
Distribution Date.
(j) Notwithstanding any provision of the Agreement to the contrary, to the
extent funds are available, the Trustee will initiate payment in immediately
available funds by 10:00 A.M. (New York City time) on each Distribution Date of
all amounts payable to each Certificateholder with respect to any Certificate
held by such Certificateholder or its nominee (without the necessity for any
presentation or surrender thereof or any notation of such payment thereon) in
the manner and at the address as each Certificateholder may from time to time
direct the Trustee in writing fifteen days prior to such Distribution Date
requesting that such payment will be so made and designating the bank account to
which such payments shall be so made. The Trustee shall be entitled to rely on
the last instruction delivered by the Certificateholder pursuant to this Section
8(j) unless a new instruction is delivered in writing 15 days prior to a
Distribution Date.
(k) The rights of the Certificateholders to receive distributions in
respect of the Certificates, and all interests of the Certificateholders in such
distributions, shall be as set forth in this Series Supplement. The Trustee
shall in no way be responsible or liable to the Certificateholders nor shall any
Certificateholder in any way be responsible or liable to any other
Certificateholder in respect of amounts previously distributed on the
Certificates based on their respective Certificate Principal Balances.
(l) The Trustee shall furnish notice to Certificateholders as soon as
practicable after a Responsible Officer learns of a situation giving rise to a
distribution under subsections (c), (d) or (e) hereof.
SECTION 9. TERMINATION OF TRUST. (a) The Trust shall terminate upon the
occurrence of any Trust Termination Event and the distribution to
Certificateholders of all amounts or property required to be distributed to them
and the disposition of all Underlying Securities held by the Trustee.
(b) Promptly after the Trustee has received a notice from the Underlying
Securities Trustee or Underlying Securities Issuer of an Optional Redemption
other than a Partial Optional Redemption, a Shortened Maturity Redemption, a
Payment Default or an Acceleration of the Underlying Securities, the Trustee
shall provide notice to the Certificateholders of the expected occurrence of a
Trust Termination Event and the termination of the Trust.
(c) The obligations of the Trustee will thereupon terminate, except for the
making of final distributions to Certificateholders and the furnishing of any
reports and other information required to be provided to Certificateholders
hereunder and under the Agreement and except as otherwise specified herein and
therein.
SECTION 10. LIMITATION OF POWERS AND DUTIES. (a) The Trustee shall
administer the Trust and the Underlying Securities solely as specified herein
and in the Agreement.
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(b) The Trust is constituted solely for the purpose of acquiring and
holding the Underlying Securities. The Trustee is not authorized to acquire any
other investments or engage in any activities not authorized herein and, in
particular, notwithstanding anything to the contrary in the Agreement, the
Trustee is not authorized (i) to sell, assign, transfer, exchange, pledge,
set-off or otherwise dispose of any of the Underlying Securities, once acquired,
or interests therein, including to Certificateholders except as expressly
provided in Section 3.6 of the Base Trust Agreement or (ii) to do anything that
would materially increase the likelihood that the Trust will fail to qualify as
a grantor trust for United States federal income tax purposes.
[SECTION 11. CERTAIN PROVISIONS OF BASE TRUST AGREEMENT NOT APPLICABLE. The
provisions of Sections 2.2(b), 2.3 (except insofar as incorporated in Section
2.5), 5.16, 6.4 and 8.1(a)(i) of the Base Trust Agreement shall be inapplicable
with respect to the Certificates.]
SECTION 12. [NO] INVESTMENT OF AMOUNTS RECEIVED ON UNDERLYING SECURITIES.
[All amounts received on or with respect to the Underlying Securities shall be
held uninvested by the Trustee without liability for interest thereon.] [Amounts
received by the Trustee on or with respect to the Underlying Securities shall be
invested in Permitted Investments as directed by the Depositor in writing from
time to time.]
SECTION 13. NOTICES. (a) All directions, demands and notices hereunder and
under the Agreement shall be in writing and shall be deemed to have been duly
given when received if personally delivered or mailed by first class mail,
postage prepaid or by express delivery service or by certified mail, return
receipt requested or delivered in any other manner specified herein, (i) in the
case of the Depositor, to Prudential Securities Structured Assets, Inc., Xxx Xxx
Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: _____, or such
other address as may hereafter be furnished to the Trustee in writing by the
Depositor, and (ii) in the case of the Trustee, to The Chase Manhattan Bank,
Global Trust Services, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust Department, or such other address as may hereafter be
furnished to the Depositor in writing by the Trustee.
(b) For purposes of delivering notices to the Rating Agency, notices shall
be sent to the address specified by the Depositor's designation.
SECTION 14. ACCESS TO CERTAIN DOCUMENTATION. Access to documentation
regarding the Underlying Securities will be afforded without charge to any
Certificateholder so requesting pursuant to Section 3.9 of the Agreement.
Additionally, the Trustee shall provide at the request of any Certificateholder
without charge to such Certificateholder the name and address of each
Certificateholder of Certificates hereunder as recorded in the Certificate
Register for purposes of contacting the other Certificateholders with respect to
their rights hereunder or for the purposes of effecting purchases or sales of
the Certificates, subject to the transfer restrictions set forth herein.
SECTION 15. RATIFICATION OF AGREEMENT. With respect to the Series issued
hereby, the Base Trust Agreement, as supplemented by this Series Supplement, is
in all respects ratified and confirmed and the Base Trust Agreement as so
supplemented by this Series Supplement shall be read, taken and construed as one
and the same instrument. To the extent there is any inconsistency between the
terms of the Base Trust Agreement and this Series Supplement, the terms of this
Series Supplement shall govern.
SECTION 16. COUNTERPARTS. This Series Supplement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all of such counterparts shall together constitute but one and the
same instrument.
SECTION 17. GOVERNING LAW. This Series Supplement and each Certificate
issued hereunder shall be construed and enforced in accordance with and governed
by the law of the State of New York without regard to principles of conflicts of
law.
[SECTION 18. TRUSTEE ELECTION. In mutual consideration for each
Certificateholder's purchase of a Certificate, each Certificateholder
acknowledges that it intends that the Trust be excluded from the application of
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the rules of subchapter K of the Code in the event that the Internal Revenue
Service successfully recharacterizes the Trust as a partnership for federal
income tax purposes, and will be deemed to have consented to the making of a
protective election pursuant to Treasury Regulation Section 1.761-2 as of the
date hereof.]
SECTION 19. COVENANT OF DEPOSITOR. The Depositor hereby covenants that it
will be adequately capitalized at all times. The Depositor hereby further
covenants that it will not purchase or otherwise acquire any Certificates in the
open market or otherwise at any time.
* * * * *
IN WITNESS WHEREOF, the Depositor and the Trustee have caused this Series
Supplement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
PRUDENTIAL SECURITIES STRUCTURED ASSETS,
INC., as Depositor
By__________________________________
Authorized Signatory
THE CHASE MANHATTAN BANK,
a New York banking corporation,
as Trustee
By__________________________________
Vice President
9
Exhibit A
[Form of [ ] Class Certificate]
NUMBER Certificate Principal Balance $_____
R-___ Aggregate Certificate Principal Balance $_____
CUSIP NO. _____
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE REPRESENTS A FRACTIONAL UNDIVIDED INTEREST IN THE TRUST
AND DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND IS NOT GUARANTEED
BY THE DEPOSITOR OR THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE TRUST ASSETS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
A-1
RECEIPTS ON CORPORATE SECURITIES TRUST, [ ]-[ ]
RECEIPTS ON CORPORATE SECURITIES
SERIES [ ]-[ ]
[ ] Class Certificates evidencing a fractional undivided beneficial
ownership interest in the Trust, as defined below, the property of which
consists of $ aggregate principal amount of % [Title of Underlying Securities
due , (the "Underlying Securities") issued by , (the "Underlying Securities
Issuer"), and deposited in the Trust by the Depositor, as defined below. The
Underlying Securities were purchased by the Trust from Prudential Securities
Structured Assets, Inc. (the "Depositor") in exchange for the transfer of the
Certificates to the Depositor by the Trust.
THIS CERTIFIES THAT _____ is the registered owner of a nonassessable,
fully-paid, fractional undivided interest in Receipts on Corporate Securities
Trust, [ ]-[ ] formed by the Depositor. Under the Trust Agreement, except upon
or after the occurrence of [an Optional Redemption, a Shortened Maturity
Redemption or an In-Kind Distribution,] there will be distributed to the Holders
of the Certificates an amount equal to the Fixed Payment [plus any Excess
Interest]on the _____ day of each _____ and _____, or, if any such day is not a
Business Day and a Underlying Securities Scheduled Payment Date, then the
Business Day on or immediately following the Underlying Securities Scheduled
Payment Date, commencing _____, _____, through and including _____, _____;
provided that payment on each Scheduled Distribution Date shall be subject to
receipt of the corresponding payment of interest or principal, as applicable, on
the Underlying Securities. Each Fixed Payment shall be allocated first to
interest accrued during the related Interest Accrual Period on the then
outstanding Aggregate Certificate Principal Balance of the Certificates, with
the balance of such Fixed Payment allocated to the repayment of principal in
accordance with the amortization schedule attached to the Series Supplement (the
"Amortization Schedule"). Any Excess Interest shall be allocated as additional
interest and shall not be taken into account in the allocation of the Fixed
Payment. In the event of a Partial Optional Redemption or an exchange of
Certificates for Underlying Securities pursuant to Section 7 of the Series
Supplement referred to below, the Fixed Payment to the holders of the
Certificates and the Certificate Principal Balance of this Certificate will be
reduced in accordance with the Trust Agreement. In the event of an Optional
Redemption or a Shortened Maturity Redemption, the Trustee will distribute the
payments received on the Underlying Securities on the Optional Redemption Date
or the Shortened Maturity Date, as applicable, to the Certificates in the same
ratio as [describe ratio] (such ratio being the "Distribution Ratio") to the
Optional Redemption Date or Shortened Maturity Date, as applicable. Such amounts
will be calculated by the Calculation Agent. In the event of an In-Kind
Distribution pursuant to Section 3.6 of the Base Trust Agreement, the Trustee
shall make such In-Kind Distribution to the Holders of the Certificates on the
basis of the Distribution Ratio to the date on which the Payment Default or
Acceleration of the Underlying Securities occurred. Such ratio shall be
calculated by the Calculation Agent.
The Trust was created pursuant to a Base Trust Agreement dated as of _____,
_____, (the "Base Trust Agreement"), between the Depositor and The Chase
Manhattan Bank, a New York banking corporation, not in its individual capacity
but solely as Trustee (the "Trustee"), as supplemented by the Series [ ]-[ ]
Supplement dated as of _____, _____, (the "Series Supplement" and, together with
the Base Trust Agreement, the "Trust Agreement"), between the Depositor and the
Trustee. This Certificate does not purport to summarize the Trust Agreement and
reference is hereby made to the Trust Agreement for information with respect to
the interests, rights, benefits, obligations, proceeds and duties evidenced
hereby and the rights, duties and obligations of the Trustee with respect
hereto. A copy of the Trust Agreement may be obtained from the Trustee by
written request sent to the Corporate Trust Office. Capitalized terms used but
not defined herein have the meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates designated as
"Receipts on Corporate Securities, Series [ ]-[ ], [ ] Class Trust Certificates"
(herein called the "[ ] Class Certificates"). The Trust is also issuing
certificates designated as "Receipts on Corporate Securities, Series [ ]-[ ], [
] Class Trust Certificates" (hereinafter called the "[ ] Class Certificates" and
together with the [ ] Class Certificates, the "Certificates") pursuant to the
Trust Agreement. 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 such Holder is bound. The property of the Trust consists of the Underlying
A-2
Securities and all payments on or collections in respect of the Underlying
Securities accrued on or after the Closing Date, all as more fully specified in
the Trust Agreement.
Subject to the terms and conditions of the Trust Agreement (including the
availability of funds for distribution) and until the obligation created by the
Trust Agreement shall have terminated in accordance therewith, distributions
will be made on each Distribution Date to the Person in whose name this
Certificate is registered on the applicable Record Date. The Record Date
applicable to any Distribution Date is the 15th day immediately preceding such
Distribution Date.
Distributions made on this Certificate will be made as provided in the
Trust Agreement by the Trustee by wire transfer or credit to the appropriate
account of the Holder in immediately available funds, without the presentation
or surrender of this Certificate or the making of any notation hereon. Except as
otherwise provided in the Trust Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Trustee of the tendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Trustee in the Borough of Manhattan, the City of New York.
Unless the certificate of authentication hereon has been executed by or on
behalf 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.
It is the intent of the Depositor and the Certificateholders that, for
purposes of federal income, state and local income and franchise taxes and any
other taxes imposed upon, measured by or based upon gross or net income, the
Trust shall be treated as a grantor trust or, failing that, as a partnership
that is not treated as an association (or publicly traded partnership) taxable
as a corporation, and the Trust Agreement shall be interpreted accordingly.
Except as otherwise required by appropriate taxing authorities, the Depositor
and the other Certificateholders by acceptance of a Certificate, agree to treat,
the Certificates for such tax purposes as interests in such grantor trust. It is
also the intent of the Depositor and the Certificateholders that the Trust be
excluded from the application of the rules of subchapter K of the Code in the
event that the Internal Revenue Service successfully recharacterizes the Trust
as a partnership for federal income tax purposes, and that a protective election
pursuant to Treasury Regulation Section 1.761-2 be made as of the date of
formation of the Trust.
The Certificates are limited in right of distribution to certain payments
and collections respecting the Trust Agreement, all as more specifically set
forth herein and in the Trust Agreement. The registered Holder hereof, by its
acceptance hereof, agrees that it will look solely to the Underlying Securities
(to the extent of its rights therein) for distributions hereunder.
Subject to the next sentence and to certain exceptions provided in the
Trust Agreement, the Trust Agreement permits the amendment thereof and the
modification of the rights and obligations of the Depositor and the Trustee and
the rights of the Certificateholders under the Trust Agreement at any time by
the Depositor and the Trustee with the unanimous consent of the Holders each
Outstanding Class of Certificates. Any such consent by the Holder of this
Certificate (or any predecessor Certificate) shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Trust Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Trustee in the Borough of Manhattan, The City of New York, duly endorsed by,
or accompanied by an assignment in the form below and by such other documents as
required by the Trust Agreement signed by, the Holder hereof, and thereupon one
or more new Certificates of the same Class in authorized denominations
evidencing the same principal amount will be issued to the designated transferee
or transferees. The Certificate Registrar appointed under the Trust Agreement is
The Chase Manhattan Bank.
A-3
No service charge will be made for any registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The Depositor and the Trustee and any agent of the Depositor or the Trustee
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, nor any such
agent shall be affected by any notice to the contrary.
The Trust and the obligations of the Depositor and the Trustee created by
the Trust Agreement with respect to the Certificates will terminate upon (i) the
distribution of the Underlying Securities to the Class Certificateholders on
[the Scheduled Final Distribution Date] (subject to Section 8(b) of the Series
Supplement), (ii) the payment in full of the Certificates after a Shortened
Maturity Redemption, (iii) the occurrence of an In-Kind Distribution, (iv) the
occurrence of an Optional Redemption other than a Partial Optional Redemption,
or (v) the exchange of Certificates for the last remaining Underlying Securities
pursuant to Section 7 of the Series Supplement. [describe other termination
events]
THIS CERTIFICATE SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
THE CHASE MANHATTAN BANK,
on behalf of the Trust and not in its individual capacity
By:______________________________________
Authorized Officer
Dated: _____, _____
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the [ ] Class Certificates described in the Trust Agreement
referred to herein.
THE CHASE MANHATTAN BANK,
By:__________________________________
Authorized Officer
A-4
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR TAXPAYER IDENTIFICATION OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Trust Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
--------------------------------------------------------------------------------
Attorney to transfer said Trust Certificate on the books of the Certificate
Registrar, with full power of substitution in the premises.
Dated:_______
*
_____________________________________________
Signature Guaranteed;
*
_____________________________________________
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Trust Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must be
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Certificate Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Certificate Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
A-5
Schedule 1
IDENTIFICATION OF UNDERLYING SECURITIES
Terms of Underlying Securities:
Underlying Securities Issuer:..... ________________________________________
Underlying Securities:............ ________________________________________
Issue Date:....................... On or about ____________________________
Original Principal Maturity Date:. _____, _____
Original Principal Amount Issued:. $______________________
CUSIP Number:..................... _______________________
Stated Interest Rate:............. _____%
Interest Payment Dates:........... _____ and _____
Mode of Payment of Underlying [By credit to the account of
Securities:....................... the holder at DTC]
Principal Amount of Underlying
Securities Deposited Under
Trust Agreement:.................. $_____________________
The Underlying Securities will be held by the Trustee for the Owners of
Certificates as [book-entry credits to an account of the Trustee at DTC].
===============================================================================
BASE TRUST AGREEMENT
between
PRUDENTIAL SECURITIES STRUCTURED ASSETS, INC.
Depositor
and
THE CHASE MANHATTAN BANK
Trustee
Dated as of __________, _____
===============================================================================
TABLE OF CONTENTS
ARTICLE I
Definitions and Assumptions
Section 1.1. Definitions.........................................1
Section 1.2. Rules of Construction..............................11
ARTICLE II
Declaration of Trusts; Issuance of Certificates
Section 2.1. Creation and Declaration of Trusts;
Assignment of Underlying Securities.....................12
Section 2.2. Acceptance by Trustee..............................12
Section 2.3. Repurchase or Substitution of Certain
Underlying Securities..............................12
Section 2.4. Representations and Warranties of the
Depositor..........................................13
Section 2.5. Breach of Representation, Warranty or
Covenant...........................................14
Section 2.6. Agreement to Execute, Authenticate and
Deliver Certificates...............................14
Section 2.7. Statement of Intent................................14
ARTICLE III
Administration of each Trust
Section 3.1. Administration of each Trust.......................14
Section 3.2. Collection of Certain Underlying Security Payments.15
Section 3.3. Certificate Account................................15
Section 3.4. Investment of Funds in the Accounts................16
Section 3.5. Maintenance of Credit Support......................17
Section 3.6. In-Kind Distribution Events........................17
Section 3.7. Retained Interest..................................18
Section 3.8. [Intentionally omitted]............................18
Section 3.9. Access to Certain Documentation....................18
Section 3.10. Depositor to Furnish Names and
Addresses of Holders to Trustee....................18
Section 3.11. Preservation of Information,
Communications to Holders..........................18
Section 3.12. Reports by Trustee.................................19
ARTICLE IV
Distributions and Reports to Certificateholders
Section 4.1. Distributions......................................19
Section 4.2. Reports to Certificateholders......................19
Section 4.3. Compliance with Withholding Requirements...........20
Section 4.4. No Charge for Reports to Certificateholders.......20
ARTICLE V
The Certificates
Section 5.1. The Certificates...................................20
Section 5.2. Execution, Authentication and Delivery.............23
Section 5.3. Temporary Certificates.............................24
Section 5.4. Registration; Registration of Transfer
and Exchange.......................................24
Section 5.5. Mutilated, Destroyed, Lost and Stolen
Certificates......... .............................26
Section 5.6. Distributions on Certificate; Rights
Preserved..........................................27
Section 5.7. Persons Deemed Owners..............................27
Section 5.8. Cancellation.......................................28
Section 5.9. Global Securities..................................28
Section 5.10. Notices to Depositary..............................28
Section 5.11. Definitive Certificates............................29
Section 5.12. Currency of Distributions in Respect of
Certificates.......................................29
Section 5.13. Conditions of Authentication and
Delivery of New Series............................30
Section 5.14. Appointment of Paying Agent.......................30
Section 5.15. Authenticating Agent..............................31
Section 5.16. Optional Exchange.................................32
ARTICLE VI
The Depositor
Section 6.1. Preparation and Filing of Exchange Act
Reports; Obligations of the Depositor..............32
Section 6.2. Merger or Consolidation of the Depositor...........33
Section 6.3. Limitation on Liability of the Depositor...........34
Section 6.4. Depositor May Purchase Certificates................34
Section 6.5. Preferential Collection of Claims
Against Depositor..................................34
ARTICLE VII
Concerning the Trustee
Section 7.1. Duties of Trustee; Notice of Defaults..............34
Section 7.2. Certain Matters Affecting the Trustee..............36
Section 7.3. Trustee Not Liable for Recitals in
Certificates or Underlying Securities..............37
Section 7.4. Trustee May Own Certificates.......................37
Section 7.5. Trustee's Fees and Expenses;
Indemnification; Undertaking for Costs.............37
Section 7.6. Eligibility Requirements for Trustee...............38
Section 7.7. Resignation or Removal of the Trustee..............38
Section 7.8. Successor Trustee..................................39
Section 7.9. Merger or Consolidation of Trustee.................39
Section 7.10. Appointment of Co-Trustee or Separate
Trustee............................................39
Section 7.11. Appointment of Office or Agency................. ..40
Section 7.12. Representations and Warranties of
Trustee............................................40
Section 7.13 Trustee to Act Only in Accordance With
This Agreement or Pursuant to Instructions of
Certificateholders.................................41
Section 7.14. Accounting and Reports to
Certificateholders, Internal Revenue Service
and Others.........................................41
-ii-
ARTICLE VIII
Termination
Section 8.1. Termination upon Purchase or Liquidation
of All Underlying Securities.......................41
ARTICLE X
Miscellaneous Provisions
Section 9.1. Amendment..........................................42
Section 9.2. Counterparts.......................................43
Section 9.3. Limitation on Rights of
Certificateholders.................................43
Section 9.4. Governing Law......................................43
Section 9.5. Notices............................................43
Section 9.6. Severability of Provisions.........................44
Section 9.7. Notice to Rating Agency............................44
Section 9.8. Grant of Security Interest.........................44
Section 9.9. Nonpetition Covenant...............................45
Section 9.10. No Recourse............................... ........45
Section 9.11. Article and Section References............. .......45
Section 9.12. Conflict with Trust Indenture Act........... ......45
-iii-
BASE TRUST AGREEMENT dated as of ___________, ____, between Prudential
Securities Structured Assets, Inc., a Delaware corporation, as Depositor, and
The Chase Manhattan Bank, a New York banking corporation, as Trustee.
PRELIMINARY STATEMENT
The Depositor and the Trustee have duly authorized the execution and
delivery of this Base Trust Agreement to provide for one or more Series (and one
or more Classes within each such Series) of Trust Certificates, issuable from
time to time as provided in this Agreement. Each such Series (or each Class
within such Series) of Certificates will be issued only under a separate Series
Supplement to this Agreement duly executed and delivered by the Depositor, if
any, specified in the applicable Series Supplement, and the Trustee. All
representations, covenants and agreements made herein by each of the Depositor
and the Trustee are for the benefit and security of the Certificateholders and,
to the extent provided in the applicable Series Supplement, for the benefit and
security of any Credit Support Provider. The Depositor is entering into this
Agreement, and the Trustee is accepting the trusts created hereby, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged. All terms defined herein shall have meanings solely with respect
to the particular Series Supplement in which these provisions are incorporated.
Incorporation of these provisions into a Series Supplement is for convenience
only, and each Trust created by a Series Supplement shall be a legally separate
and distinct Trust from any other Trust created by any other Series Supplement
into which these provisions may also be incorporated. These provisions shall by
themselves be of no force and effect, and shall only have effect as and to the
extent incorporated by reference in a Series Supplement. The Series Supplement
into which this Base Trust Agreement is incorporated by reference shall together
constitute a single trust agreement and are referred to herein as the "Trust
Agreement". In the event of a conflict between any Series Supplement, including
the Terms Schedule attached thereto, and this Base Trust Agreement, the Series
Supplement shall control.
ARTICLE I
Definitions and Assumptions
Section 1.1. DEFINITIONS. Except as otherwise specified herein or in the
applicable Series Supplement or as the context may otherwise require, the
following terms have the respective meanings set forth below for all purposes of
this Agreement.
"Account": As defined in Section 3.4.
"Accounting Date": With respect to any Series, if applicable, as defined in
the related Series Supplement.
"Affiliate": With respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control", when used with respect to 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.
"Agreement": With respect to any Series of Certificates, this Trust
Agreement and all amendments hereof and, unless the context otherwise requires,
the related Series Supplement.
"Authenticating Agent": As defined in Section 5.15.
"Authorized Newspaper": A newspaper in an official language of the country
of publication customarily published at least once a day, and customarily
published for at least five days in each calendar week, and of general
circulation in such city or cities specified pursuant to Section 5.1 with
respect to the Certificates of any Series. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day in such city.
"Available Funds": Unless otherwise specified in the applicable Series
Supplement, for any Distribution Date in respect of a given Series or Class, the
sum of (i) all amounts actually received on or with respect to the Underlying
Securities (including Liquidation Proceeds and investment income on amounts in
the Accounts) with respect to such Series during the related Collection Period,
(ii) all amounts received pursuant to any Credit Support Instruments with
respect to such Series for such Distribution Date and (iii) all other amounts,
if any, specified by the applicable Series Supplement; in each case, only to the
extent that such amounts are same day funds.
"Basic Documents": With respect to any Series, if
applicable, as defined in the related Series Supplement.
"Board of Directors": Either the Board of Directors of the Depositor or any
executive or committee of such Board duly authorized under applicable law to act
on behalf of such Board.
"Board Resolution": A copy of a resolution certified by the Secretary or an
Assistant Secretary of the Depositor to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification
and delivery to the Trustee.
"Business Day": With respect to any Place of Distribution specified
pursuant to Section 5.1, any day that is not a Saturday or a Sunday or a day on
which banking institutions or trust companies in such Place of Distribution are
authorized or obligated by law, regulation or executive order to close.
"Calculation Agent": With respect to each Series, as defined in the related
Series Supplement.
"Certificate Account": As defined in Section 3.3.
"Certificate Owners": As defined in Section 5.9.
"Certificate Principal Balance": With respect to an Outstanding
Certificate, as determined at any time, the maximum amount that the Holder
thereof is entitled to receive as distributions allocable to principal payments
on the Underlying Securities. The Certificate Principal Balance, if any, of any
Class within a given Series (other than those Classes, if any, specified in the
related Series Supplement), as of any date of determination, shall be equal to
the aggregate initial Certificate Principal Balance thereof less the sum of all
amounts allocable to prior distributions made to such Class in respect of
principal of the Underlying Securities.
"Certificate Register" and "Certificate Registrar": As respectively defined
in Section 5.4.
"Certificateholder": Any Holder of a Certificate.
"Certificates": Any Trust Certificates authorized by, and authenticated and
delivered under, this Agreement.
"Class": With respect to any Series, any one of the classes of Certificates
of such Series, each consisting of Certificates having identical terms.
"Closing Date": With respect to any Series, the day on which Certificates
of such Series are first executed, authenticated and delivered.
"Code": The Internal Revenue Code of 1986, as amended, and Treasury
Regulations promulgated thereunder.
"Collection Period": With respect to any Distribution Date for a Series (or
Class within such Series),the period specified in the related Series Supplement.
2
"Commission": The U.S. Securities and Exchange Commission.
"Corporate Trust Office": The principal corporate trust office of the
Trustee located at the address set forth in the related Series Supplement or
such other addresses as the Trustee may designate from time to time by notice to
the Holders and the Depositor, or the principal corporate trust office of any
successor Trustee (or such other addresses as a successor Trustee may designate
from time to time by notice to the Holders and the Depositor).
"Credit Support": With respect to any Series (or any Class within such
Series), a letter of credit, surety bond, swap agreement, put or call option or
other asset intended to support or ensure the timely or ultimate distributions
of amounts due in respect of all or certain of the Underlying Securities for
such Series or Class, which in each case is specified as such in the related
Series Supplement. The Credit Support for any such Series or the related Trust
shall not constitute a Credit Support for any other Series or any other Trust
"Credit Support Instrument": The instrument or document pursuant to which
the Credit Support for a given Series (or any Class within such Series) is
provided, as specified in the applicable Series Supplement.
"Credit Support Provider": With respect to any Series (or any Class within
such Series), the Person, if any, that will provide any Credit Support with
respect to all or a portion of the Underlying Securities for such Series or
Class as specified in the applicable Series Supplement.
"Currency": Dollars or Foreign Currency.
"Cut-off Date": With respect to any Series, the date specified as such in
the related Series Supplement. For purposes of this Agreement, any Underlying
Security acquired by the Depositor after the applicable Cut-off Date but prior
to the applicable Closing Date and included in the related Trust as of such
Closing Date shall be deemed to have been Outstanding as of such Cut-off Date
and references to the principal balance of such Underlying Security as of such
Cut-off Date shall be deemed to be to the principal balance of such Underlying
Security as of the date on which it was acquired by the Depositor.
"Definitive Certificates": As defined in Section 5.9.
"Deleted Underlying Security": A Underlying Security replaced or to be
replaced by a Qualified Substitute Underlying Security.
"Deliver" (and with correlative meaning, "delivers," "delivery" or
"delivered"): when used with respect to any security:
(a) with respect to any security that is a "certificated security"
(as defined in Section 8-102 of the UCC) transfer thereof:
(i) by physical delivery of such certificated security to the
Trustee, provided that if the certificated security is in registered form, it
shall be indorsed to, or registered in the name of, the Trustee or indorsed in
blank;
(ii) by physical delivery of such certificated security,
provided that it is in registered form, to an Intermediary of the Trustee that
is not a "clearing corporation" (as defined in Section 8-102 of the UCC)
specially indorsed to the Trustee and thereafter reregistered in the name of the
Trustee; or
(iii) the crediting by an Intermediary of such certificated
security to a securities account of the Trustee and, to the extent required by
applicable law, the sending by such Intermediary, if not a clearing corporation,
of a confirmation of the purchase of such security and the identification by
such Intermediary by book entry of the security as belonging to the Trustee;
3
(b) with respect to any security that is either a certificated
security or an uncertificated security (each, as defined in Section 8-102 of the
UCC) credited on the books of a clearing corporation, transfer thereof:
(i) by the crediting of such security to (i) a securities
account of the Trustee or (ii) a securities account of an Intermediary of the
Trustee and the crediting by such Intermediary of such security to a securities
account of the Trustee; and
(ii) to the extent required by applicable law,
(A) in the case of a security (1) that is a certificated
security, by the custody of such security by the clearing corporation
or a custodian or a nominee of either subject to the control of the
clearing corporation and such security being in bearer form or
indorsed in blank by an appropriate person or registered in the name
of the clearing corporation or custodian or a nominee of either, and
(2) that is an uncertificated security, by the registration of such
security in the name of a clearing corporation or a custodian or
nominee of either and
(B) by (1) the making of appropriate entries on the books of the
clearing corporation reducing the account of a transferor on the books
of the clearing corporation and increasing the account of the Trustee
or its designee, if any (which shall be an Intermediary), by the
amount of the obligation or the number of shares or rights
transferred, (2) the sending by the designee, if any, to the Trustee
of confirmation of the purchase of such security by the Trustee and
(3) the identification by such Intermediary by book entry of such
security as belonging to the Trustee;
(c) with respect to any security that is a security maintained in the form
of an entry in the records of a Federal Reserve Bank, (x) the crediting by such
Federal Reserve Bank in its records of such security to the securities account
of the Intermediary and (y) the crediting by such Intermediary of such security
to a securities account of the Trustee;
(d) with respect to any security that is an uncertificated security and
that is not governed by clause (b) or (c) above, transfer thereof
(i) by registration of the transfer thereof to
the Trust, on the books and records of the issuer thereof; or
(ii) by the crediting by an Intermediary of such security to a
securities account of the Trustee and, to the extent required by applicable law,
the sending by such Intermediary of a confirmation of the purchase of such
security and the identification by such Intermediary by book entry of the
security as belonging to the Trustee;
(e) with respect to any "instrument" within the meaning of Section
9-105(a)(9) of the UCC (other than certificated securities) that is susceptible
of physical delivery, transfer thereof to the Trust by physical delivery to the
Trustee, indorsed to the Trustee or its nominee or indorsed in blank; and
(f) with respect to any deposit account with a commercial bank
located in New York, the establishment of such account in the name of the
Trustee, with the funds in such account payable at maturity to an account of the
Trustee.
Notwithstanding the foregoing, with respect to each of the provisions of
paragraphs (a) through (e), delivery may be effected by such additional or
alternative procedures as may hereafter become appropriate to effect the
complete transfer of ownership of any such security to the Trustee free and
clear of any adverse claims, consistent with changes in applicable law or
regulation or the interpretation thereof.
"Depositary": With respect to the Certificates of any Series (or Class
within such Series) issuable in whole or in part in the form of one or more
Global Securities, the Person designated as Depositary by the Depositor pursuant
to Section 5.1 until a successor Depositary shall have become such pursuant to
the applicable
4
provisions of this Agreement, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Certificates of
any such Series or Class shall mean the Depositary with respect to the
Certificates of that Series or Class.
"Depositor": Prudential Securities Structured Assets, Inc., a Delaware
corporation, and, if a successor Person shall have become the Depositor pursuant
to any applicable provisions of this Agreement, "Depositor" shall mean such
successor Person.
"Depositor Order" or "Depositor Request": A written order or request,
respectively, signed in the name of the Depositor by any two of its Chief
Executive Officer, Chief Financial Officer, Chief Operating Officer, President,
a Vice President, its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary and delivered to the Trustee; provided that (i) any such
order or request shall be signed by either the President or a Vice President and
(ii) no person may sign in a dual capacity.
"Depository Agreement": If applicable, the agreement pursuant to which the
Depositary will agree to act as Depositary with respect to any Series (or Class
within such Series) of Certificates in accordance with Section 5.9.
"Distribution Date": With respect to any Series (or Class within such
Series) of Certificates, each date specified as a "Distribution Date" for such
Series (or Class) in the related Series Supplement.
"Dollar" or "$" or "USD": Such currency of the United States as at the time
of payment is legal tender for the payment of public and private debts.
"Eligible Account": Either (i) an account or accounts maintained with a
Federal or State chartered depository institution or trust company the long term
unsecured debt obligations of which are rated by the Rating Agency the higher of
(w) at least the then current long-term rating of the Underlying Securities or
(x) in one of its two highest long-term rating categories (unless otherwise
specified in the Series Supplement) at the time any amounts are held in deposit
therein or (ii) a trust account or accounts maintained as a segregated account
or as segregated accounts and held by a Federal or State chartered depository
institution or trust company in trust for the benefit of the Certificateholders,
provided, however, that such depositary institution or trust company (y) has a
long-term rating in one of the four highest categories by the Rating Agency or
(z) is the Trustee.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exchange Act Reports": As defined in Section 6.1 hereof.
"Exchange Rate Agent": With respect to any Series (or Class within such
Series) of Certificates, if applicable, the Depositor or its agent so specified
in the related Series Supplement.
"Executive Officer": With respect to any corporation other than the
Trustee, the Chief Executive Officer, Chief Operating Officer, Chief Financial
Officer, President, any Vice President, the Secretary or the Treasurer of such
corporation; with respect to the Trustee, any Vice President, any Assistant Vice
President or any Assistant Treasurer; with respect to any partnership, any
general partner thereof.
"Foreign Currency": A currency issued by the government of any country
other than the United States or a composite currency the value of which is
determined by reference to the values of the currencies of any group of
countries.
"Global Security": A Certificate evidencing all or part of a Series (or
Class within such Series) of Certificates, issued to the Depositary for such
Series or Class in accordance with Section 5.9 and bearing the legend prescribed
therein.
5
"Grant": To sell, convey, assign, transfer, deposit, set over and confirm
to the Trustee pursuant to this Agreement and a related Series Supplement; and
the terms "Granted" and "Granting" have the meanings correlative to the
foregoing. A Grant of any Underlying Securities or of any other instrument shall
include all rights, powers and options (but none of the obligations) of the
Granting party thereunder, including the immediate and continuing right to claim
for, collect, receive and give receipt for principal, premium, if any, and
interest payments in respect of such Underlying Securities and all other moneys
payable thereunder, to give and receive notices and other communications, to
make waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the Granting party or otherwise, and generally to do
and receive anything that the Granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"Holder": The registered holder of a Certificate.
"In-Kind Distribution": A distribution by the Trustee of certain Underlying
Securities pursuant to Section 3.6 hereof and the Series Supplement.
"Independent": When used with respect to any specified Person means that
the Person specifies he or she (1) is in fact independent of the Depositor and
of any Affiliate of the Depositor, (2) does not have any direct or indirect
financial interest in the Depositor or in any Affiliate of the Depositor that is
material with respect to such Person and (3) is not connected with the
Depositor, as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
"Independent Certificate" means a certificate of an Independent Person, as
required by the TIA.
"Intermediary" shall mean a clearing corporation or a person, including a
bank or broker, that in the ordinary course of its business maintains securities
accounts for others and is acting in that capacity.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Letter of Credit": With respect to any Series or Class within such Series,
the letter of credit, if any, providing for the payment of all or a portion of
amounts due in respect of such Series or Class, issued to the Trustee for the
benefit of the Holders of such Series or Class, issued by the related Credit
Support Provider, all as specified in the related Series Supplement.
"Limited Guarantor": With respect to the Underlying Securities relating to
any Series (or Class within such Series), a Person specified in the related
Series Supplement as providing a guarantee or insurance policy or other credit
enhancement supporting the distributions in respect of such Series (or Class) as
and to the extent specified in such Series Supplement.
"Limited Guaranty": With respect to any Series or Class within such Series,
any guarantee of or insurance policy or other comparable form of credit
enhancement with respect to amounts required to be distributed in respect of
such Series or Class or payments under all or certain of the Underlying
Securities relating to such Series or Class, executed and delivered by a Limited
Guarantor in favor of the Trustee, for the benefit of the Certificateholders, as
specified in the related Series Supplement.
"Liquidation Proceeds": The amounts received by the Trustee in connection
with the repurchase, substitution or sale of a Underlying Security.
"Notional Amount": With respect to any Class of Certificates, if
applicable, the initial notional amount specified in the related Series
Supplement on which distributions of interest may be determined at the
applicable interest rate payable on the Underlying Securities.
"Officer's Certificate": A certificate signed by any one (or, if specified
in this Agreement or any Series Supplement, more than one) Executive Officer of
the Depositor or, in the case of the Trustee, a Responsible Officer.
6
"Opinion of Counsel": A written opinion of counsel, who may, except as
otherwise expressly provided in this Agreement, be counsel for the Depositor
acceptable to the Trustee, except that any opinion of counsel relating to (i)
federal income tax characterization, (ii) the Investment Company Act, and (iii)
the qualification of any account required to be maintained pursuant to this
Agreement as an Eligible Account must state that it is an opinion of counsel who
is in fact Independent of the Depositor.
"Outstanding": With respect to Certificates of a specified Series (or Class
within such Series), as of any date of determination, all such Certificates
theretofore authenticated and delivered under this Agreement and the related
Series Supplement except:
(i) Certificates theretofore canceled by the Certificate Registrar or
delivered to the Certificate Registrar for cancellation or lost or missing
Certificates, in exchange for which no new Certificates have been issued,
but with respect to which final payment has been made; and
(ii) Certificates in exchange for or in lieu of which other
Certificates have been authenticated and delivered pursuant to this
Agreement, unless proof satisfactory to the Trustee is presented that any
such Certificates are held by a bona fide purchaser in whose hands such
Certificates are valid obligations of the Trust;
provided, however, that in determining whether the Holders of the required
percentage of the aggregate Voting Rights of the Certificates have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Certificates beneficially owned by the Depositor, or any Affiliate thereof,
shall be disregarded and deemed not to be Outstanding, and the Voting Rights to
which its Holder would otherwise be entitled shall not be taken into account in
determining whether the requisite percentage of aggregate Voting Rights
necessary to effect any such consent or take any such action has been obtained
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Certificates with respect to which the Depositor has provided the
Trustee an Officer's Certificate stating that such Certificates are so owned
shall be so disregarded. Certificates so owned that have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee by certifying to such effect in an Officer's
Certificate the pledgee's right so to act with respect to such Certificates and
that the pledgee is not, to the actual knowledge of the Trustee without any duty
of investigation, the Depositor or any Affiliate thereof so owned.
"Participant": A broker, dealer, bank, other financial institution or other
Person for whom from time to time a Depositary effects book-entry transfers and
pledges of securities deposited with the Depositary.
"Paying Agent": As defined in Section 5.14.
"Percentage Interest": With respect to a Certificate of any Series or Class
within a Series, the portion of such Series or Class evidenced by such
Certificate, expressed as a percentage, equal to the product of (x) a fraction,
the numerator of which is the initial Certificate Principal Balance or Notional
Amount, as applicable, represented by such Certificate and the denominator of
which is the aggregate initial Certificate Principal Balance or Notional Amount,
as applicable, of all the Certificates of such Series or Class and (y) 100.
"Permitted Investments": With respect to any Series, unless otherwise
specified in the related Series Supplement, any one or more of the following
obligations or securities, provided that the total return specified by the terms
of each such obligation or security is at least equal to the purchase price
thereof and that such Obligations, by their terms, convert into cash within a
finite period of time:
(i) direct obligations of, and obligations the timely payment of
principal and interest on which are fully guaranteed by, the United
States, the Federal Home Loan Mortgage Corporation, the Federal
7
National Mortgage Association, the Federal Farm Credit System or any agency
or instrumentality of the United States the obligations of which are backed
by the full faith and credit of the United States of America; provided that
obligations of, or guaranteed by, the Federal Home Loan Mortgage
Corporation, the Federal National Mortgage Association or the Federal Farm
Credit System shall be Permitted Investments only if, at the time of
investment, it has the rating specified in such Series Supplement for
Permitted Investments;
(ii) demand and time deposits in, certificates of deposit of, or
banker's acceptances issued by any depository institution or trust company
(including the Trustee or any agent of the Trustee acting in their
respective commercial capacities) incorporated under the laws of the
United States or any State and subject to supervision and examination by
Federal and/or State banking authorities so long as the commercial paper
and/or the short-term debt obligations of such depository institution or
trust company (or, in the case of a depository institution which is the
principal subsidiary of a holding company, the commercial paper or other
short-term debt obligations of such holding company) at the time of such
investment or contractual commitment providing for such investment have
the rating specified in such Series Supplement for Permitted Investments;
provided, however, that such rating shall be no lower than the rating on
the Underlying Securities at the time of purchase of the investments;
(iii) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States or any State
that have the rating specified in such Series Supplement for Permitted
Investments at the time of such investment or contractual commitment
providing for such investment; provided, however, that such rating shall
be no lower than the rating on the Underlying Securities; provided,
further, that securities issued by any particular corporation will not be
Permitted Investments to the extent that investment therein will cause the
then outstanding principal amount of securities issued by such corporation
and held as part of the Trust for such Series to exceed 10% of the
aggregate outstanding principal balances and amounts of all the Underlying
Securities and Permitted Investments held as part of the Trust for such
Series;
(iv) commercial paper having at the time of such investment the
rating specified in the Series Supplement for Permitted Investments;
(v) money market funds having at the time of such investment the
rating specified in the Series Supplement for Permitted Investments,
including without limitation money market funds for which the Trustee or
an affiliate of the Trustee serves as an investment advisor,
administrator, shareholder servicing agent and/or custodian or
subcustodian;
(vi) a deposit of any bank (including the Trustee and its
affiliates), trust company or financial institution authorized to engage
in the banking business having at the time of such investment the capital
and surplus levels and rating specified in the Series Supplement for such
bank, trust company or financial institution; and
(vii) repurchase agreements or other similar obligations from a
counterparty having at the time of such investment the rating specified in
the Series Supplement or which obligations under such agreement or other
contract are collateralized to such level.
"Person": Any individual, corporation, partnership, joint venture,
association, joint stock company, limited liability company, trust (including
any beneficiary thereof), unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Distribution": With respect to any Series (or Class within such
Series) of Certificates, the place or places where the principal of (and
premium, if any) and interest on the Certificates of such Series (or Class) are
distributable as specified pursuant to Section 5.1.
"Predecessor Certificate": With respect to any particular Certificate,
every previous Certificate evidencing all or a portion of the same interest as
that evidenced by such particular Certificate; and, for the purpose of this
definition, any Certificate authenticated and delivered under Section 5.5 in
lieu of a lost, destroyed or stolen Certificate shall be deemed to evidence the
same interest as the lost, destroyed or stolen Certificate.
8
"Proceeding": Any suit in equity, action at law or other judicial or
administrative proceeding.
"Purchase Price": With respect to any Underlying Security required to be
repurchased by the Depositor pursuant to Sections 2.3 or 2.5 and as confirmed by
an Officer's Certificate from the Depositor to the Trustee, an amount equal to
the sum of (i) 100% of the principal balance (if any) thereof as of the date of
such repurchase, (ii) accrued and unpaid interest thereon from the immediately
preceding interest payment date on the Underlying Security, or if no interest
has been paid to the Trust with respect thereto, from the Cut-Off Date, in each
case adjusted, if applicable, to the rate at which interest on such Underlying
Security is distributable to the applicable Certificateholder, as specified in
the applicable Series Supplement, on the principal balance of such Underlying
Security as of the close of business on the Business Day immediately preceding
the date of purchase or such other day as may be specified in the applicable
Series Supplement on which such purchase is to occur, (iii) expenses reasonably
incurred or to be incurred by the Trustee in respect of the breach or defect
giving rise to the purchase obligation, including any expenses arising out of
the enforcement of the purchase obligation and (iv) any realized losses
previously incurred with respect to such Underlying Security and allocated to
Certificateholders on or before the date of purchase. Notwithstanding the
foregoing, if the Underlying Security was a zero coupon bond, a discount
security, or an interest-only security, the Purchase Price shall be as defined
in the Series Supplement.
"Qualified Substitute Underlying Security": With respect to any Series and
any Underlying Security, as defined in the Series Supplement.
"Rating Agency": With respect to any Series (or Class within such Series),
as defined in the related Series Supplement.
"Rating Agency Condition": With respect to any action or occurrence, unless
otherwise specified in the applicable Series Supplement, that each Rating Agency
shall have been given 10 days (or such shorter period acceptable to each Rating
Agency) prior notice thereof and that each Rating Agency shall have notified the
Depositor, the Trustee in writing that such action or occurrence will not result
in a reduction or withdrawal of the then current rating of any Certificate of
the applicable Series.
"Record Date": With respect to any Distribution Date for any Series (or
Class within such Series) of Certificates, the date specified in the related
Series Supplement.
"Required Interest": Unless otherwise specified in the related Series
Supplement, with respect to the Outstanding Certificates of any Series or any
Class thereof, the accrued and undistributed interest on the Certificate
Principal Balance or Notional Amount of such Outstanding Certificates computed
at the applicable Pass Through Rate.
"Required Percentage--Amendment": Unless otherwise specified in the related
Series Supplement, 66 2/3% of the aggregate Voting Rights of Certificates of
such Series (or of a designated Class or group of Classes within such Series)
(either voting as separate Classes or as a single Class) applicable to such
matter, all as specified in the applicable Series Supplement.
"Required Percentage--Definitive Certificates": Unless otherwise specified
in the related Series Supplement, greater than 50% of the aggregate Voting
Rights of Certificates of such Series.
"Required Percentage--Direction of Trustee": Unless otherwise specified in
the related Series Supplement, greater than 50% of the aggregate Voting Rights
of Certificates of such Series.
"Required Percentage--Remedies": Unless otherwise specified in the related
Series Supplement, 66 2/3% of the aggregate Voting Rights of Certificates of
such Series.
"Required Percentage--Removal of Trustee": Unless otherwise specified in
the related Series Supplement, greater than 50% of the aggregate Voting Rights
of Certificates of such Series.
9
"Required Principal": As determined for any Distribution Date for a given
Series (or Class within such Series), unless otherwise specified in the related
Series Supplement, the amounts on deposit in the Certificate Account allocable
to principal payments on the Underlying Securities and required to be
distributed in respect of Certificates of such Series (or Class) in accordance
with the terms of such Certificates and such related Series Supplement.
"Required Rating": With respect to any Series (or Class within such
Series), the rating category (or categories) specified in the Series Supplement
that, as a condition to the issuance of such Series or Class or the subsequent
sale of such securities in an offering registered under the Securities Act, is
(or are) the lowest category (or categories) in which the Certificates of such
Series or Class may be categorized by the Rating Agency.
"Requisite Reserve Amount": As of any date with respect to any Series (or
Class within such Series) of Certificates, the amount, if any, required to be
maintained in the Reserve Account, if any, for such Series or Class as specified
in or determined pursuant to the related Series Supplement.
"Reserve Account": An Eligible Account, if any, created and maintained for
the purposes described in Section 3.5.
"Responsible Officer": With respect to the Trustee, any officer within the
Corporate Trust Office of the Trustee, including any Vice President, Assistant
Vice President, Assistant Treasurer, Assistant Secretary or any other officer of
the Trustee, as have been assigned to the administration of the Trust.
"Retained Interest": If applicable, with respect to any Underlying
Security, an ownership interest in and a right to a portion of the payments
thereon by the obligor thereof, as specified in the Underlying Securities
Schedule to the related Series Supplement, held by the Person so specified in
such Underlying Securities Schedule.
"Rule 3a-7" means Rule 3a-7 under the Investment Company Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Scheduled Final Distribution Date": With respect to any Certificate, the
date on which all the unpaid principal of (and premium, if any, on) such
Certificate is scheduled, without giving effect to any prepayment, exchange or
early termination, to become due and payable as provided therein and in the
applicable Series Supplement.
"Series": A separate series of Certificates issued pursuant to this
Agreement and a related Series Supplement, which series may be divided into two
or more Classes, as provided in such Series Supplement.
"Series Supplement": An agreement supplemental to this Agreement that
authorizes the issuance of a particular Series (and each Class within such
Series) of Certificates.
"Specified Currency": As defined in the related Series Supplement.
"State": Any one of the 00 xxxxxx xx xxx Xxxxxx Xxxxxx or the District of
Columbia.
"Surety Bond": If so specified in the Series Supplement, with respect to
any Series (or Class within such Series) of Certificates, the surety bond
providing for the distribution under certain circumstances specified in such
Series Supplement of amounts to the Certificateholders of such Series (or
Class), which surety bond will be issued to the Trustee for the benefit of such
Certificateholders by the related Credit Support Provider, all as specified in
such Series Supplement.
"TIA": The Trust Indenture Act of 1939, as amended.
10
"Trust": With respect to any Series, the segregated asset or pool of assets
subject hereto, constituting the trust created hereby and by the related Series
Supplement and to be administered hereunder and thereunder, consisting of those
Underlying Securities and the Credit Support, if applicable, and all sums
distributed in respect thereof that are specified as being part of the Trust for
such Series in the related Series Supplement, all for the benefit of the
Certificateholders of such Series as of any particular time.
"Trust Asset Instrument": Any instrument or agreement evidencing a
Underlying Security or a Credit Support Instrument.
"Trustee": With respect to any Series, the Person so specified in the
applicable Series Supplement (which Person shall have agreed pursuant to such
Series Supplement to assume all the duties, obligations, responsibilities and
liabilities of the Trustee as set forth in this Agreement and such Series
Supplement with respect to the related Series of Certificates) for such Series
or any co-trustee appointed pursuant to Section 7.10, until a successor Person
shall have become the Trustee pursuant to the applicable provisions of this
Agreement and the applicable Series Supplement, and thereafter "Trustee" shall
mean such successor Person.
"Trust Termination Event": With respect to any Series, as specified in the
related Series Supplement.
"UCC" means the Uniform Commercial Code as in effect in the State of New
York, as amended from time to time.
"Underlying Securities": With respect to any Series, the asset or assets
Granted as part of the Trust for such Series or acquired (or, in the case of an
agreement, entered into) by the Trustee for the benefit of the Holders of such
Series and, if and to the extent provided in the applicable Series Supplement,
for the benefit of any Credit Support Provider, all as identified in the
Underlying Securities Schedule to the related Series Supplement. The Underlying
Securities for any such Series or the related Trust shall not constitute
Underlying Securities for any other Series or any other Trust.
"Underlying Securities Issuer": As defined in the related Series
Supplement.
"Underlying Securities Schedule": With respect to any Series, a listing of
the Underlying Securities for such Series as of the Closing Date, including,
with respect to each Underlying Security, the obligor and the principal balance
thereof, which shall be attached to such Series Supplement as Schedule A.
"United States": The United States of America (including the States), its
territories, its possessions and other areas subject to its jurisdiction.
"Voting Rights": With respect to any Series (or Class within such Series)
of Certificates, the portion of the aggregate voting rights of the Certificates
of such Series or Class which shall be allocated to any Certificate as specified
in the applicable Series Supplement.
Section 1.2. RULES OF CONSTRUCTION. Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning to it
in accordance with generally accepted accounting principles as in effect
in the United States from time to time;
(iii) "or" is not exclusive;
(iv) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision;
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(v) "including" means including without limitation; and
(vi) words in the singular include the plural and words in the plural
include the singular.
ARTICLE II
Declaration of Trusts; Issuance of Certificates
Section 2.1. CREATION AND DECLARATION OF TRUSTS; ASSIGNMENT OF UNDERLYING
SECURITIES. (a) The Depositor, concurrently with the execution and delivery
hereof, does hereby agree to Grant to the Trustee, on behalf and for the benefit
of the Certificateholders of each given Series of Certificates and without
recourse, all the right, title and interest of the Depositor, including any
security interest therein for the benefit of the Depositor, in, to and under the
Underlying Securities attributable to each such Series (except for the
Underlying Securities attributable to such Series which are not Granted by the
Depositor, as specified in the Underlying Securities Schedule to the applicable
Series Supplement), now existing or hereafter acquired, in each case as
identified on the applicable Underlying Securities Schedule, and all other
assets included or to be included in the respective Trust for the benefit of the
Certificateholders of each such Series. Each such Grant will include all
interest, premium (if any) and principal received by or on behalf of the
Depositor of, on or with respect to any such Underlying Securities due after the
applicable Cut-off Date, and, unless otherwise specified in the Series
Supplement, will exclude (i) all interest, premium (if any) and principal of, on
or with respect to any such Underlying Securities due on or before the
applicable Cut-off Date and (ii) any Retained Interest in any such Underlying
Security.
(b) In connection with each Grant referred to in the preceding
paragraph, the Depositor shall, not later than the applicable Closing Date, (i)
deposit the Underlying Securities for a given Series with the Trustee by
Delivery of such Underlying Securities.
(c) Unless otherwise specified in the applicable Series Supplement,
the Grant of such Underlying Securities by the Depositor for a given Series
accomplished hereby and by such Series Supplement is absolute and is intended by
the parties hereto as a sale.
Section 2.2. ACCEPTANCE BY TRUSTEE. With respect to each Series, the
Trustee will acknowledge receipt by it, or by a custodian on its behalf, of the
related Underlying Securities and the related documents referred to in Section
2.1, now existing or hereafter acquired, and declares that it will hold such
Underlying Securities and documents and all other documents delivered to it
pursuant to this Agreement, and that it will hold all such assets and such other
assets comprising the Trust for a given Series of Certificates, in trust for the
exclusive use and benefit of all present and future Certificateholders of such
Series and for the purposes and subject to the terms and conditions set forth in
this Agreement.
Section 2.3. REPURCHASE OR SUBSTITUTION OF CERTAIN UNDERLYING SECURITIES .
(a) Except to the extent provided for in a Series Supplement relating to a given
Series of Certificates, upon discovery or receipt of notice pursuant to Section
2.2 that a Trust Asset Instrument is missing or defective, the Trustee shall
immediately notify the Depositor and the Rating Agency that such document is
defective or missing and, unless the Depositor provides to the Trustee an
Officer's Certificate stating such missing or defective document will not have a
materially adverse effect on the related Trust, the Depositor shall cure such
defect within 60 days from the date on which it was first notified of such
missing document or defect, and if the Depositor does not deliver such missing
document or cure such defect in all material respects during such period, the
Depositor shall repurchase such Underlying Security from the Trustee at the
applicable Purchase Price within 75 days after the date on which it was first
notified of such missing document or defect. The Purchase Price for the
repurchased asset underlying the defective or missing Trust Asset Instrument
shall be delivered to the Trustee directly for deposit in the Certificate
Account and the Trustee, upon receipt of such deposit, shall release to the
Depositor the related documents in its possession and shall execute and deliver
such instruments of transfer or assignment, in each case without recourse, as
shall be necessary to vest in the Depositor any such asset released pursuant
hereto, and the Trustee shall have no further obligations with regard to such
documents.
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Any such repurchase price will be distributed to Certificateholders of the
related Series or Class as described in the related Series Supplement. The
foregoing notwithstanding, if and to the extent the Series Supplement provides,
the Depositor may, as an alternative to repurchasing any such Underlying
Security as provided above, cause such Underlying Security to be removed from
the Trust (in which case it shall become a Deleted Underlying Security) by
agreeing to substitute, within the time period set forth above, one or more
Qualified Substitute Underlying Securities in the manner and subject to the
limitations set forth in Section 2.3(b) and the related Series Supplement. It is
understood and agreed that the obligation of the Depositor to repurchase or
substitute for any Underlying Security as to which a constituent document is
missing or a defect in a constituent document exists shall, if such defect is
not cured or such missing document is not provided, constitute (unless otherwise
specified in the applicable Series Supplement) the sole remedy respecting such
omission or defect available to the Certificateholders or the Trustee on behalf
of the Certificateholders.
(b) If and to the extent provided for in a Series Supplement relating
to a given Series of Certificates, with respect to any Deleted Underlying
Security for which the Depositor substitutes a Qualified Substitute Underlying
Security or Securities, such substitution shall be effected by the Depositor
delivering to the Trustee or a custodian on its behalf such Qualified Substitute
Underlying Security or Securities and such documents and agreements, with all
necessary endorsements thereon, as would be required under the terms of Section
2.1, together with an Officer's Certificate of the Depositor certifying that
each such Qualified Substitute Underlying Security satisfies the definition
thereof and the requirements under this Section. The Trustee or such custodian
shall acknowledge receipt of such Qualified Substitute Underlying Security or
Securities. The Depositor shall give or cause to be given written notice to the
Certificateholders of such Series and the Rating Agency that such substitution
has taken place and shall amend the Underlying Security Schedule to reflect the
removal of such Deleted Underlying Security from the terms of this Agreement and
the substitution of the Qualified Substitute Underlying Security or Securities.
Upon such substitution, such Qualified Substitute Underlying Security or
Securities shall be subject to the terms of this Agreement in all respects,
including those related to the representations and warranties as of the date of
substitution. Any further terms upon which such substitution may be effected
shall be specified in the applicable Series Supplement.
Section 2.4. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR . The
Depositor hereby represents and warrants to the Trustee that as of the Closing
Date or as of such other date specifically provided herein or in the applicable
Series Supplement:
(a) the Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(b) with respect to each Series Supplement, to the Depositor's
knowledge, the information set forth in the Underlying Security Schedule
with respect to each Underlying Security is true and correct in all
material respects at the date or dates respecting which such information
is furnished;
(c) the execution and delivery of this Agreement by the Depositor and
its performance of and compliance with the terms of this Agreement will
not violate the Depositor's certificate of incorporation or by-laws or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach or
acceleration of, any material contract, agreement or other instrument to
which the Depositor is a party or which may be applicable to the Depositor
or any of its assets;
(d) the Depositor has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement and
has duly executed and delivered this Agreement. This Agreement, upon its
execution and delivery by the Depositor and assuming due authorization,
execution and delivery by the Trustee, will constitute a valid, legal and
binding obligation of the Depositor, enforceable against it in accordance
with the terms hereof, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium or other
laws relating to or affecting the rights of creditors generally, and by
13
general equity principles (regardless of whether such enforcement is considered
a proceeding in equity or at law);
(e) the Underlying Securities are owned by the Depositor free and
clear of any right, charge, security interest or lien or claim and the
Depositor has the right to Grant the applicable Underlying Securities to
the Trustee;
(f) the Depositor is not in violation, and the execution and delivery
of this Agreement by the Depositor and its performance and compliance with
the terms of this Agreement will not constitute a violation, of any order
or decree of any court or any order or regulation of any Federal, State,
municipal or governmental agency having jurisdiction over the Depositor or
its properties, which violation would reasonably be expected to have a
material and adverse effect on the condition (financial or otherwise) or
operations of the Depositor or its properties or on the performance of its
duties hereunder; and
(vii) any additional representations and warranties, if any, that may
be specified in the applicable Series Supplement.
It is understood and agreed that the representations and warranties of the
Depositor set forth in this Section 2.4 shall survive delivery of the respective
documents to the Trustee and shall inure to the benefit of the Trustee on behalf
of the Certificateholders notwithstanding any restrictive or qualified
endorsement or assignment. Upon discovery by any of the Depositor or the Trustee
of a breach of any of the foregoing representations and warranties which
materially and adversely affects the interests of the Certificateholders, the
party discovering such breach shall give prompt written notice thereof to the
other parties.
Section 2.5. BREACH OF REPRESENTATION, WARRANTY OR COVENANT. Within 90 days
of the earlier of discovery by the Depositor or receipt of notice by the
Depositor of a breach of any representation or warranty of the Depositor set
forth in Section 2.4 that materially and adversely affects the interests of the
Certificateholders of a given Series of Certificates, the Depositor shall cure
such breach in all material respects; PROVIDED THAT, a breach by the Depositor
of its representation and warranty in Section 2.4(e) shall be cured by a
repurchase or substitution of such Underlying Security in the manner prescribed
by Section 2.3 of this Agreement.
Section 2.6. AGREEMENT TO EXECUTE, AUTHENTICATE AND DELIVER CERTIFICATES.
With respect to each Series of Certificates and the related Trust, the Trustee
hereby agrees and acknowledges that it will, concurrently with the Grant to and
receipt by it of the related Underlying Securities, cause the Certificates of
such series to be executed, authenticated and delivered to, and upon Depositor
Order, in authorized denominations evidencing ownership of the entire Trust for
such Series, all in accordance with the terms and subject to the conditions of
Sections 5.2 and 5.13.
Section 2.7. STATEMENT OF INTENT. It is the intention of the parties hereto
that, for purposes of federal income taxes, state and local income and franchise
taxes and any other taxes imposed upon, measured by or based upon gross or net
income, the Trust shall be treated as a grantor trust, but failing that, as a
partnership. The terms of this Agreement shall be interpreted to further this
intention of the parties. The parties hereto agree that, unless otherwise
required by appropriate tax authorities, the Trust shall file or cause to be
filed annual or other necessary returns, reports and other forms consistent with
such intended characterization. Each Certificateholder and each beneficial owner
of a Certificate by acceptance of its Certificate (or its beneficial interest
therein) agrees, unless otherwise required by appropriate tax authorities, to
file its own tax returns and reports in a manner consistent with such
characterization.
ARTICLE III
Administration of each Trust
Section 3.1. ADMINISTRATION OF EACH TRUST. (a) The Trustee shall administer
the Underlying Securities for each given Trust for the benefit of the
Certificateholders of the related Series. In engaging in such
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activities, the Trustee shall, subject to the provisions of Article VI hereof,
follow or cause to be followed collection procedures in accordance with the
terms of this Agreement and the applicable Series Supplement, the respective
Underlying Securities and any applicable Credit Support Instruments. With
respect to each Trust, and subject only to the above-described standards and the
terms of this Agreement, the related Series Supplement and the respective
Underlying Securities and applicable Credit Support Instruments, if any, the
Trustee shall have full power and authority, acting alone or through its agent,
to do or cause to be done any and all things in connection with such
administration which it deems necessary to comply with the terms of this
Agreement and the applicable Series Supplement.
(b) The parties acknowledge that the Trustee, as the holder of the
Underlying Securities, has the right to vote and give consents and waivers in
respect of the Underlying Securities and enforce the other rights, if any, of a
holder of the Underlying Securities, except as otherwise limited by this
Agreement. In the event that the Trustee receives a request from the Underlying
Securities Trustee, the Underlying Securities Issuer or, if applicable, the
Depositary with respect to the Underlying Securities, for the Trustee's consent
to any amendment, modification or waiver of the Underlying Securities, the
Indenture or any other document thereunder, or relating thereto, or receives any
other solicitation for any action with respect to the Underlying Securities, the
Trustee shall within ten Business Days mail a notice of such proposed amendment,
modification, waiver or solicitation to each Certificateholder of record as of
the date of such request. The Trustee shall request instructions from the
Certificateholders as to what action to take in response to such request and
shall be protected in taking no action if no direction is received. Except as
otherwise provided herein, the Trustee shall consent or vote, or refrain from
consenting or voting, in the same proportion (based on the Voting Rights of the
Certificates) as the Certificates of the Trust were actually voted or not voted
by the Holders thereof as of the date determined by the Trustee prior to the
date such vote or consent is required; provided, however, that, notwithstanding
anything to the contrary in this Agreement, the Trustee shall at no time vote in
favor of or consent to any matter (i) that would alter the timing or amount of
any payment on the Underlying Securities (including, without limitation, any
demand to accelerate the Underlying Securities) or (ii) that would result in the
exchange or substitution of any Underlying Security pursuant to a plan for the
refunding or refinancing of such Underlying Security, except in each case with
the unanimous consent of the Certificateholders and subject to the requirement
that such vote would not materially increase the likelihood that the Trust will
fail to qualify as a grantor trust for federal income tax purposes, such
determination to be based solely on an Opinion of Counsel. The Trustee shall
have no liability for any failure to act or to refrain from acting resulting
from the Certificateholders' late return of, or failure to return, directions
requested by the Trustee from the Certificateholders.
(c) Except as is otherwise provided in the Series Supplement, the
Trustee shall act as the sole Authenticating Agent, Paying Agent, and
Certificate Registrar.
(d) The duties of the Trustee shall be performed in accordance with
applicable local, State and Federal law. The Depositor will make, or cause to be
made, any and all filings, reports, notices or applications with, and seek any
comments and authorizations from, the Commission and any State securities
authority on behalf of the Trust for each Series to the extent required by law
or otherwise deemed necessary or appropriate by the Depositor, and the Trustee
will cooperate with the Depositor in such connection to the extent it is
provided with appropriate information, materials and responses by the Depositor.
(e) The Trustee shall provide the Depositor as soon as practicable
copies of each notice, report or other communication relating to the Underlying
Securities and Underlying Securities Issuer received by it in its capacity as
holder of the Underlying Securities or in its capacity as Trustee. In addition,
the Trustee shall furnish to the Depositor copies of all pleadings, complaints
and other documents received by it relating to any Proceeding involving the
Trust or the Certificates.
Section 3.2. COLLECTION OF CERTAIN UNDERLYING SECURITY PAYMENTS. With
respect to any Series or Class of Certificates until such time as the Underlying
Securities in question are distributed to Certificateholders pursuant to an
In-Kind Distribution, the Trustee shall make reasonable efforts to collect all
payments required to be made pursuant to the terms of the Underlying Securities
or any related Credit Support Instruments in a manner consistent with the terms
of this Agreement, such Underlying Securities and any related Trust Asset
Instruments,
15
including making demand on Underlying Securities Issuer or the Credit Support
Provider for payment pursuant to such Trust Asset Instrument. The Trustee shall
have no obligation to institute any Proceedings with respect to any default
under any Trust Asset Instrument except as provided in the Series Supplement.
Section 3.3. CERTIFICATE ACCOUNT. (a) For each Series of Certificates, the
Trustee shall establish and maintain one or more Eligible Accounts
(collectively, the "Certificate Account"), held in trust for the benefit of the
Certificateholders of such Series. The Trustee on behalf of such
Certificateholders shall possess all right, title and interest in all funds on
deposit from time to time in each Certificate Account and in all proceeds
thereof. With respect to each Series of Certificates, the Certificate Account
shall be under the sole dominion and control of the Trustee for the benefit of
the related Certificateholders. With respect to each Series of Certificates,
except as otherwise specified in the Series Supplement, the Trustee shall
deposit or cause to be deposited in the Certificate Account no later than the
Business Day on which amounts collected with respect to the Underlying
Securities are received, any Credit Support and all Liquidation Proceeds related
to such Series including:
(i) all payments on account of principal of such
Underlying Securities;
(ii) all payments on account of interest on such Underlying
Securities;
(iii) all payments on account of premium (if any) on such Underlying
Securities;
(iv) any payments in respect of any such Credit Support;
(v) any interest or investment income earned on funds deposited in
the related Accounts; and
(vi) any Purchase Price of such Underlying Securities.
Unless otherwise specified in the applicable Series Supplement, it is
understood and agreed that payments in the nature of prepayment or redemption
penalties, late payment charges or assumption fees which may be received by the
Trustee shall be deposited by the Trustee in the Certificate Account and shall
not be retained by the Trustee for its own account.
If, at any time, the Certificate Account for any Series ceases to be an
Eligible Account, the Trustee shall within 10 Business Days (or such longer
period, not to exceed 30 calendar days, as to which the Rating Agency Condition
is met) establish a new Certificate Account meeting the conditions specified
above and transfer any cash and any investments on deposit in the Certificate
Account to such new Certificate Account, and from the date such new Certificate
Account is established, it shall be the Certificate Account for such Series.
(b) If requested in writing by the Depositor or the Rating Agency, if
any, the Trustee shall give notice to the Depositor and the Rating Agency, if
any, of the location of each Eligible Account constituting the Certificate
Account and prior to any change thereof.
(c) The Trustee shall determine the appropriate application of
Available Funds with respect to any Distribution Date for which application is
to be made on any such Distribution Date in accordance with the terms of Section
4.1 and the related Series Supplement.
Section 3.4. INVESTMENT OF FUNDS IN THE ACCOUNTS. The Depositor, on behalf
of the Trust, may direct the Trustee in writing to direct any depository
institution maintaining the Certificate Account or the Reserve Account, if any,
for the applicable Series and any other segregated Eligible Account the contents
of which are held for the benefit of Certificateholders of such Series (each, an
"Account") to invest the funds therein in one or more Permitted Investments
bearing interest or sold at a discount, which shall be held to maturity unless
payable on demand and which funds shall not be reinvested upon the maturity or
demand for payment of such Permitted Investment. If the Depositor does not
provide any investment directions to the Trustee, funds held in any Account will
be invested in the Permitted Investments specified in clause (ii) of the
definition thereof. Investments of such funds shall be invested in Permitted
Investments that will mature so that such funds will be available for
distribution
16
on the Distribution Date on which such amounts are to be applied as
distributions to Certificateholders. In the event amounts on deposit in an
Account are at any time invested in a Permitted Investment payable on demand,
the Trustee shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (1) all amounts then payable thereunder and (2) the amount required to
be withdrawn on such date; and
(y) demand same day payment of all amounts due thereunder upon a
determination by the Trustee that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter on
deposit in any Account.
Section 3.5. MAINTENANCE OF CREDIT SUPPORT. If specified in the applicable
Series Supplement, on the applicable Closing Date, the Trustee or, if so
specified in the applicable Series Supplement, the Depositor, shall, to the
extent specified in the applicable Series Supplement, establish and maintain, or
enter into, as applicable, a Reserve Account either as a part of the related
Trust or outside it, for the benefit of a Credit Support Provider, as specified
in the applicable Series Supplement. To the extent specified in the applicable
Series Supplement, the Depositor will make or cause to be made any initial
deposit to the Certificate Account or any Reserve Account for the related Series
as of the Closing Date. Unless the Series Supplement for a given Series provides
otherwise, if a Reserve Account exists for such Series, collections with respect
to the Underlying Securities for such Series not distributed to the
Certificateholders of such Series shall be deposited in the Reserve Account.
Amounts on deposit in the Reserve Account and amounts available pursuant to
any Credit Support for such Series shall be applied by the Trustee to make
distributions of principal of and premium (if any) and interest on the
Certificates of such Series as required pursuant to Section 4.1 and the
applicable Series Supplement to the extent that funds are not otherwise
available for such purpose. If specified in such Series Supplement, immediately
after each Distribution Date, amounts on deposit in the Reserve Account for such
Series in excess of a specified amount shall be paid to the Person so specified
in such Series Supplement.
Section 3.6. IN-KIND DISTRIBUTION EVENTS. (a) If:
(i) default is made in the payment of any installment of interest on
any Underlying Security when the same becomes due and payable, and such
default continues unremedied beyond the period specified in the indenture
or other authorizing document for such Underlying Security (or, if no such
period is specified, three days);
(ii) default is made in the payment of the principal of or any
installment of the principal of any Underlying Security when the same
becomes due and payable, and such default continues unremedied for the
period specified in the indenture or other authorizing document for such
Underlying Security (or, if no such period is specified, three days);
(iii) there is an acceleration of the maturity of the Underlying
Securities following a default (other than that described in clauses (i)
and (ii) above) in the indenture or other authorizing document for such
Underlying Security and the Trustee receives actual notice of such
acceleration, notwithstanding any subsequent rescission or annulment of
such acceleration; or
(iv) there occurs any other event for which the Series Supplement
requires an In-Kind Distribution;
then, as soon as practicable, the Trustee shall institute an In-Kind
Distribution of the Underlying Securities in question to the Holders of
Outstanding Certificates in the manner described by the Series Supplement,
subject to any conditions contained in a Credit Support Instrument relating to
such Underlying Securities as further specified in the related Series
Supplement. In connection therewith, the Trustee shall use its best reasonable
efforts in accordance
17
with such normal and customary procedures it shall deem necessary or advisable,
and shall have the power and authority, acting alone, to do any and all things
in connection therewith and the administration of the Trust as it may deem
necessary or advisable.
(b) To the extent necessary to avoid an In-Kind Distribution of
Underlying Securities in unauthorized denominations, the Trustee shall liquidate
in a commercially reasonable manner such Underlying Securities as are not
distributable in authorized denominations. After deduction of all reasonable
costs of such liquidation, the proceeds from such liquidation shall be
distributed to Certificateholders based on their respective rights to Underlying
Securities in unauthorized denominations.
(c) In the event that the Trustee receives money or other property in
respect of Underlying Securities after an In-Kind Distribution has occurred on
such Underlying Securities, the Trustee shall promptly give notice (as provided
in Section 9.5 hereof) to the Depository and shall distribute such moneys or
other property to the Holders of the Outstanding Certificates as allocable to
the Underlying Securities to which each such Holder received in the In-Kind
Distribution. Property received (other than cash) in such circumstance shall be
liquidated by the Trustee in a commercially reasonable manner and the proceeds
thereof, after deduction of all reasonable costs of such liquidation,
distributed in cash, only to the extent necessary to avoid distribution of
fractional interests in such property on the same basis as the In-Kind
Distribution.
(d) The Trustee may request, and rely upon, instructions from the
Depositor in liquidating the Underlying Securities pursuant to paragraph (b) or
(c) above.
Section 3.7. RETAINED INTEREST. The Retained Interest, if any, in any
Underlying Security shall initially be held by the Person so specified in the
related Series Supplement as and to the extent specified in Schedule A thereof.
With respect to each Underlying Security, the Retained Interest shall be
deducted by the Trustee, at the written direction of the Depositor from
applicable collections in respect of such Underlying Security. Unless otherwise
provided in the applicable Series Supplement, collections in respect of Retained
Interest shall not be deposited in the Certificate Account for the applicable
Series and shall not constitute a part of the Trust for such Series, but shall
instead be distributed to the holder of such Retained Interest, provided that
the Series Supplement for any Series with respect to which there is a Retained
Interest may provide that, notwithstanding the terms contained herein,
commingled amounts received in respect of assets inclusive of Underlying
Securities and Retained Interest may initially be deposited in a separate and
discrete Eligible Account established by the Trustee at the written direction of
the Depositor and such Series Supplement may provide for additional terms
relating thereto. Unless otherwise provided in the applicable Series Supplement,
after deduction of all applicable fees as provided for in this Agreement, on
each Distribution Date the Trustee shall allocate on a pari passu basis any
partial recovery on a Underlying Security between (a) the Retained Interest, if
any, and (b) distributions to Certificateholders of the applicable Series.
Section 3.8. [Intentionally omitted]
Section 3.9. ACCESS TO CERTAIN DOCUMENTATION. The Trustee shall provide to
any Federal, State or local regulatory authority that may assert authority over
any Certificateholder access to the documentation regarding the Underlying
Securities required by applicable laws and regulations. Such access shall be
afforded without charge, but only upon reasonable request and during normal
business hours at the offices of the Trustee designated by each of them. In
addition, access to the documentation regarding the Underlying Securities
related to a given Series (or Class within such Series) will be provided to any
Certificateholder of such Series (or Class) upon reasonable written request
during normal business hours at the offices of the Trustee designated by each of
them at the expense of the Certificateholder requesting such access.
Section 3.10. DEPOSITOR TO FURNISH NAMES AND ADDRESSES OF HOLDERS TO
TRUSTEE. The Depositor shall furnish or cause to be furnished to the Trustee not
more than five days before each Distribution Date, and at such other times as
the Trustee may request in writing, a list, in such form as the Trustee may
reasonably require, to the extent such information is in the possession or
control of the Depositor or any of its paying agents, of the Holders of
Certificates as of the close of business on the applicable record date of the
Underlying Securities;
18
provided, however, that so long as the Trustee maintains the Certificate
Register, no such list shall be required to be furnished.
Section 3.11. PRESERVATION OF INFORMATION, COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders of Certificates contained in
the most recent list furnished to the Trustee as provided in Section 3.10 and
the names and addresses of Holders of Certificates received by the Trustee in
its capacity as Certificate registrar. The Trustee may destroy any list
furnished to it as provided in such Section 3.10 upon receipt of a new list so
furnished.
(b) Holders shall have the right to communicate pursuant to TIA
Section 312(b) with other Holders with respect to their rights under this
Agreement or under the Certificates.
(c) Irrespective of whether the TIA shall apply to this Agreement,
the Depositor, the Trustee, the Paying Agent and the Certificate Registrar shall
have the protections provided pursuant to TIA Section 312(c).
Section 3.12. REPORTS BY TRUSTEE. If required by TIA Section 313(a), within
60 days after [May 15] of each year, the Trustee shall mail to (i) each Holder
as required by TIA Section 313(c) and (ii) the Depositor, a brief report dated
as of such date that complies with TIA Section 313(a). The Trustee also shall
comply with TIA Section 313(b). A copy of any report delivered pursuant to this
Section 3.12 shall, at the time of its mailing to Holders and the Depositor, be
filed by the Trustee with the Commission and each stock exchange, if any, on
which the Certificates are listed. The Depositor shall notify the Trustee if and
when the Certificates are listed on any stock exchange.
ARTICLE IV
Distributions and Reports to Certificateholders
Section 4.1. DISTRIBUTIONS. On each Distribution Date for a given Series of
Certificates, the Trustee shall apply Available Funds in the Certificate Account
for such Series in the manner and priority set forth in the Series Supplement
for such Series. Notwithstanding any other provisions in this Agreement, the
right of the Holder of any Certificate to receive any such distributions in the
manner and priority set forth in the Series Supplement for such Series and to
institute suit for the enforcement of any such payment on or after the date such
payment is payable, shall not be impaired without the consent of such Holder.
Section 4.2. REPORTS TO CERTIFICATEHOLDERS. Unless otherwise specified in
the applicable Series Supplement, on the next Business Day following each such
Distribution Date the Trustee, as specified in such Series Supplement, shall
forward or cause to be forwarded to the Depositor, each Certificateholder of
such Series and such other Persons as may be specified in such Series
Supplement, a statement setting forth:
(i) the amount of the distribution on such Distribution Date to
Certificateholders of each Class of such Series allocable to principal,
and interest, if applicable, on the Certificates of each such Class; and
the amount of aggregate unpaid interest accrued or accreted, if
applicable, as of such Distribution Date;
(ii) [any information reasonably requested by a Certificateholder to
enable such Certificateholders to prepare their tax returns, provided that
such information is reasonably attainable in the requested form, and the
amount of compensation received by the Trustee for the period;]
(iii) the aggregate stated principal amount or, if applicable,
notional amount of the Underlying Securities related to such Series and
the current interest rate or rates thereon at the close of business on
such Distribution Date;
19
(iv) the aggregate Certificate Principal Balance (or Notional Amount,
if applicable) of each Class of such Series at the close of business on
such Distribution Date, separately identifying any reduction in such
aggregate Certificate Principal Balance or aggregate Notional Amount due
to the allocation of any Realized Losses or otherwise; and
(v) as to any Series (or any Class within such Series) for which
Credit Support has been obtained, the amount or notional amount of
coverage of each element of Credit Support (and rating, if any, thereof)
included therein as of the close of business on such Distribution Date.
In the case of information furnished pursuant to subclauses (i) and
(iii) above, the amounts shall be expressed as a Dollar amount (or the
equivalent thereof in any other Specified Currency) per minimum denomination of
Certificates or for such other specified portion thereof. Within a reasonable
period of time after the end of each calendar year, the Trustee shall furnish to
each person who at any time during each such calendar year was a
Certificateholder a statement containing the information set forth in subclauses
(i) and (iii) above, aggregated for such calendar year or the applicable portion
thereof during which such person was a Certificateholder. Such obligation of the
Trustee shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as are from time to time in effect.
Section 4.3. COMPLIANCE WITH WITHHOLDING Requirements. If any withholding
tax is imposed on the payment (or allocations of income) to any
Certificateholder, such tax shall reduce the amount otherwise distributable to
such Holder. The Trustee is hereby authorized and directed to retain from
amounts otherwise distributable to any Holder sufficient funds for the payment
of any tax that is legally owed by the Trust (but such authorization shall not
prevent the Trustee from contesting any such tax in appropriate proceedings and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings), or that the Trustee may otherwise determine it is obligated
to withhold under applicable law or regulation. The amount of any withholding
tax imposed with respect to any Holder shall be treated as cash distributed to
such Holder at the time it is withheld by the Trustee and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution, the Trustee may in its sole discretion
withhold such amounts in accordance with this Section 4.3. If any Holder wishes
to apply for a refund of any such withholding tax, the Trustee shall reasonably
cooperate with such Holder in making such claim so long as such Holder agrees to
reimburse the Trustee for any out-of-pocket expenses incurred. The Trustee shall
use reasonable efforts to give notice to each Holder of any such withholding
requirement at least 10 days prior to the date of the payment from which amounts
are required to be withheld.
Section 4.4. NO CHARGE FOR REPORTS TO CERTIFICATEHOLDERS. The Trustee shall
deliver all notices or reports required to be delivered to or by the Trustee or
the Depositor to the Certificateholders without charge to such
Certificateholders.
ARTICLE V
The Certificates
Section 5.1. THE CERTIFICATES. The Certificates of any Series (or Class
within such Series) will be issued in fully-registered form as Certificates and
shall be substantially in the form of the exhibits with respect thereto attached
to the applicable Series Supplement. The aggregate Certificate Principal Balance
or Notional Amount of Certificates that may be authenticated and delivered under
this Agreement is unlimited.
The Certificates may be issued in one or more Series, each of which
Series may be issued in one or more Classes, with such further particular
designations added or incorporated in such title for the Certificates of any
particular Series or Class within such Series as the Board of Directors (or a
Person authorized by a Board Resolution) may determine. Each Certificate shall
bear upon its face the designation so selected for the Series and Class to which
it belongs. All Certificates of the same Series and
20
Class shall be identical in all respects except for the denominations thereof.
All Certificates of all Classes within any one Series at any time Outstanding
shall be identical except for differences among the Certificates of the
different Classes within such Series specified in the applicable Series
Supplement. Except as otherwise provided in a Series Supplement, all
Certificates of a particular Series (and all Classes within such Series) issued
under this Agreement shall be in all respects equally and ratably entitled to
the benefits hereof without preference, priority or distinction on account of
the actual time or times of authentication and delivery, all in accordance with
the terms and provisions of this Agreement.
Each Series (and all Classes within such Series) of Certificates shall be
created by a Series Supplement authorized by the Board of Directors (or a Person
authorized by a Board Resolution) and establishing the terms and provisions of
such Series. The several Series may differ as between Series and any Class may
vary as between the other Classes within any given Series in respect of any of
the following matters:
(1) designation of such Series and Class;
(2) the dates on which or periods during which the Certificates
of such Series and Class may be issued;
(3) the number of Classes, the maximum Certificate Principal
Balance or Notional Amount of Certificates of each Class that may be
issued and any priorities or subordination among Classes of a Series with
respect to distributions from the Trust;
(4) if applicable, for each Class of Certificates with a
specified interest rate, such rate or the method for calculating such
rate;
(5) the terms of the Letter of Credit, if any, or of the Surety
Bond, if any, or of any other Credit Support for the benefit of the
Certificateholders of such Series or Class or group of Classes;
(6) the places, if any, in addition to or instead of the
Corporate Trust Office of the Trustee (in the case of Certificates), where
the principal of (and premium, if any) and interest on Certificates of
such Series and Class shall be distributable;
(7) the Collection Periods, the Distribution
Dates and the Scheduled Final Distribution Dates for such
Series and Class;
(8) the types of Underlying Securities that will be included in
the Trust for such Series and the manner and priorities of allocating
distributions with respect to collections of principal (and premium, if
any) and interest payments allocable to such Underlying Securities among
Holders of Certificates of different Classes (including whether the
Certificates of any such Class are to be entitled to receive principal
distributions with disproportionate, nominal or no interest distributions,
or interest distributions with disproportionate, nominal or no principal
distributions, and, in each case, the applicable terms thereof);
(9) the amount, if any, to be deposited on the Closing Date in
the Certificate Account for such Series;
(10) the manner in which the Reserve Account, if any, is to be
funded, the amount, if any, to be deposited therein on the Closing Date
and the Requisite Reserve Amount, if any, for such Series or Class;
(11) whether the Certificates of such Series or Class are to be
issued as discount certificates and the amount of discount with which such
Certificates may be issued;
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(12) whether the Certificates of such Series or Class are to be issued in
whole or in part in the form of one or more Global Securities and, in such case,
the Depositary for such Global Security or Securities and the terms and
conditions, if any, upon which interests in such Global Security or Securities
may be exchanged in whole or in part for the individual Certificates represented
thereby;
(13) if other than Dollars, the Currency in which Certificates of such
Series or Class shall be denominated or in which distributions of the principal
of (and premium, if any) and interest on such Certificates may be made and any
other terms concerning such payment;
(14) if the principal of (and premium, if any) or interest on Certificates
of such Series or Class are to be distributable, at the election of the
Depositor or a Holder thereof, in a Currency other than that in which such
Certificates are denominated or distributable without such election, the periods
within which and the terms and conditions upon which such election may be made
and the time and the manner of determining the exchange rate between the
Currency in which such Certificates are denominated or distributable without
such election and the Currency in which such Certificates are to be distributed
if such election is made;
(15) any additional representations, warranties or covenants provided for
with respect to Certificates of such Series;
(16) provisions with respect to the terms for which the definitions set
forth in Article I permit or require further specification in the related Series
Supplement, including:
(a) "Available Funds";
(b) "Basic Documents";
(c) "Calculation Agent";
(d) "Closing Date";
(e) "Collection Period";
(f) "Corporate Trust Office";
(g) "Credit Support";
(h) "Credit Support Instrument";
(i) "Credit Support Provider";
(j) "Cut-off Date";
(k) "Depositary";
(l) "Depository Agreement";
(m) "Distribution Date";
(n) "Global Securities";
(o) "Grant";
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(p) "Letter of Credit";
(q) "Limited Guarantor";
(r) "Limited Guaranty";
(s) "Notional Amount";
(t) "Permitted Investments";
(u) "Place of Distribution";
(v) "Purchase Price";
(w) "Rating Agency";
(x) "Rating Agency Condition";
(y) "Record Date";
(z) "Required Percentage";
(aa) "Requisite Reserve Amount";
(ab) "Retained Interest";
(ac) "Scheduled Final Distribution Date";
(ad) "Specified Currency";
(ae) "Surety Bond";
(af) "Trust";
(ag) "Trustee";
(ah) "Trust Termination Event";
(ai) "Underlying Securities";
(aj) "Underlying Securities Issuer";
(ak) "Underlying Securities Schedule";
(al) "Voting Rights".
(22) rights and remedies provided to any Credit Support Provider with
respect to all or a portion of the Trust for such Series or Class;
(23) any restrictions on the sale and transfer of the Certificates,
including restrictions arising out of the Securities Act, the Investment Company
Act, the Employee Retirement Income Security Act of 1974, as amended, or the
Code; and
23
(24) any other provisions expressing or referring to the terms and
conditions upon which the Certificates of such Series or Class are to be issued
under this Agreement that do not prevent such Certificates from receiving the
Required Rating.
A different Trustee may be appointed by the Depositor for each Series of
Certificates prior to the issuance of such Series provided that the Rating
Agency Condition is met. If the initial Trustee is to be other than The Chase
Manhattan Bank, then such Series Supplement shall provide for the appointment of
such Trustee, as applicable, of such Series and shall add or change any of the
provisions of this Agreement as shall be necessary to provide for or facilitate
the administration of the trusts hereunder and of the Underlying Securities; it
being understood that nothing contained herein or in such Series Supplement
shall constitute the Trustees for different Series as co-trustees for the same
Series and that each Trustee shall be a trustee of a trust or trusts separate
and apart from any trust or trusts hereunder of any other Trustee. Upon final
appointment of any new Trustee, the Trustee shall provide a notice of such
appointment to the Rating Agency not later than 15 days following such
appointment.
Section 5.2. EXECUTION, AUTHENTICATION AND DELIVERY. (a) The Certificates
shall be executed on behalf of the Trust by the Trustee by its authorized
officer pursuant to Depositor Order. The signature may be manual or facsimile.
Certificates bearing the manual or facsimile signature of individuals who were
at any time the authorized officer of the Trustee shall be binding,
notwithstanding that such individuals or any of them have ceased to be an
authorized officer prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates.
(b) Each Certificate shall be dated as of the later of the date
specified in the related Series Supplement and the date of its authentication.
(c) No Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, unless there appears on
such Certificate a certificate of authentication substantially in one of the
forms provided for herein executed by the Trustee by the manual signature of one
of its authorized officers, and such certificate upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Agreement.
Section 5.3. TEMPORARY CERTIFICATES. Pending the preparation of Definitive
Certificates of any Series (or Class within such Series), the Trustee may
execute, authenticate and deliver upon receipt of a Depositor Order, temporary
Certificates which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the Definitive Certificates in lieu of which they are issued, in registered
form and with such appropriate insertions, omissions, substitutions and other
variations as may be authorized by such Depositor Order. Any such temporary
Certificate may be in global form, representing all or a portion of the
Outstanding Certificates of such Series or Class. Every such temporary
Certificate shall be executed, authenticated and delivered by the Trustee upon
the same conditions and in substantially the same manner, and with the same
effect, as the Definitive Certificate or Definitive Certificates in lieu of
which it is issued.
If temporary Certificates of any Series (or Class within such Series) are
issued, the Depositor will cause Definitive Certificates of such Series or Class
to be prepared without unreasonable delay and (a) after the preparation of
Definitive Certificates of such Series or Class, the temporary Certificates of
such Series or Class shall be exchangeable for Definitive Certificates of such
Series or Class upon surrender of the temporary Certificates of such Series or
Class at the office of the Trustee in a Place of Distribution for such Series or
Class, without charge to the Holder, except as provided in Section 5.4 in
connection with a transfer and (b) upon surrender for cancellation of any one or
more temporary Certificates of any Series or Class within such Series the
Trustee shall execute, authenticate and deliver in exchange therefor Definitive
Certificates with a like Certificate Principal Balance or Notional Amount, as
applicable, of the same Series (or Class within such Series) of authorized
denominations and of like tenor. Until so exchanged, temporary Certificates of
any Series (or Class within such Series) shall in all respects be entitled to
the same benefits under this Agreement as Definitive Certificates of such Series
or Class, except as otherwise specified in the applicable Series Supplement with
respect to the payment of interest on Global Securities in temporary form.
24
Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the individual Definitive Certificates
represented thereby pursuant to this Section 5.3 or Section 5.4, the temporary
Global Security shall be endorsed by the Trustee to reflect the reduction of the
aggregate Certificate Principal Balance or Notional Amount, as applicable,
evidenced thereby, whereupon the aggregate Certificate Principal Balance or
Notional Amount, as applicable, of such temporary Global Security shall be
reduced for all purposes by the amount so exchanged and endorsed.
Section 5.4. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE. The
Trustee shall cause to be kept a register for each Series of Certificates (the
registers maintained in such office and in any other office or agency of the
Trustee in a Place of Distribution being herein sometimes collectively referred
to as the "Certificate Register") in which the Trustee, as registrar and
transfer agent (the "Certificate Registrar"), shall provide for the registration
of Certificates and the registration of transfers and exchanges of Certificates.
The Trustee is hereby initially appointed Certificate Registrar for the purpose
of registering Certificates and transfers and exchanges of Certificates as
herein provided; provided, however, that the Trustee may appoint one or more
co-Certificate Registrars. Upon any resignation of any Certificate Registrar,
the Depositor shall promptly appoint a successor or, in the absence of such
appointment, assume the duties of Certificate Registrar.
If a Person other than the Trustee is appointed by the Depositor as
Certificate Registrar, the Depositor will give the Trustee prompt written notice
of the appointment of a Certificate Registrar and of the location, and any
change in the location, of the Certificate Register, and the Trustee shall have
the right to rely upon a certificate executed on behalf of the Certificate
Registrar by an Executive Officer thereof as to the names and addresses of the
Holders of the Certificates and the principal amounts and numbers of such
Certificates.
Upon surrender for registration of transfer of any Certificate of any
Series (or Class within such Series) at the office or agency of the Trustee, if
the Depositor has notified the Trustee that the requirements of Section 8-
401(1) of the UCC are met to the Depositor's satisfaction and upon satisfaction
of any transfer restrictions set forth in the related Series Supplement, the
Trustee shall execute, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of any authorized
denominations, of a like Series, Class and aggregate Certificate Principal
Balance or Notional Amount, as applicable.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for the individual Certificates represented
thereby, a Global Security representing all or a portion of the Certificates of
a Series (or Class within such Series) may not be transferred except as a whole
by the Depositary for such Series or Class to a nominee of such Depositary or by
a nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such Series or Class or a nominee of such successor Depositary.
At the option of the Holder, Certificates of any Series (or Class within
such Series) (other than a Global Security, except as set forth below) may be
exchanged for other Certificates of the same Series or Class of any authorized
denomination or denominations of like tenor and aggregate Certificate Principal
Balance or Notional Amount, as applicable, upon surrender of the Certificates to
be exchanged at the office or agency of the Trustee maintained for such purpose.
Whenever any Certificates are so surrendered for exchange, the Trustee
shall execute, authenticate and deliver the Certificates that the Holder making
the exchange is entitled to receive.
If at any time the Depositary for the Certificates of a Series (or Class
within such Series) notifies the Depositor that it is unwilling or unable to
continue as Depositary for the Certificates of such Series or Class or if at any
time the Depositary for the Certificates of such Series or Class shall no longer
be eligible under Section 5.9(b), the Depositor shall appoint a successor
Depositary with respect to the Certificates of such Series or Class. If a
successor Depositary for the Certificates of such Series or Class is not
appointed by the Depositor within 90 days after the Depositor receives such
notice or becomes aware of such ineligibility, the Depositor's election pursuant
to Section 5.1 shall no longer be effective with respect to the Certificates of
such Series or Class and the Depositor will execute, and the Trustee, upon
receipt of a Depositor Order for the authentication and delivery of individual
25
Certificates of such Series or Class, will authenticate and deliver individual
Certificates of such Series or Class in an aggregate Certificate Principal
Balance or Notional Amount, as applicable, equal to the aggregate Certificate
Principal Balance or Notional Amount, as applicable, of the Global Security or
Securities representing Certificates of such Series or Class in exchange for
such Global Security or Securities.
The Depositor may at any time and in its sole discretion determine that
individual Certificates of any Series (or Class within such Series) issued in
the form of one or more Securities shall no longer be represented by such Global
Security or Securities. In such event, upon receipt of a Depositor Order for the
authentication and delivery of individual Certificates of such Series or Class,
the Trustee shall execute, authenticate and deliver individual Certificates of
such Series or Class in an aggregate Certificate Principal Balance or Notional
Amount, as applicable, equal to the aggregate Certificate Principal Balance or
Notional Amount, as applicable, of the Global Security or Securities
representing Certificates of such Series or Class in exchange for such Global
Security or Securities.
If specified by the Depositor pursuant to Section 5.1 with respect to a
Series (or Class within such Series) of Certificates, the Depositary for such
Series may surrender a Global Security for such Series or Class in exchange in
whole or in part for individual Certificates of such Series or Class on such
terms as are acceptable to the Depositor and such Depositary. Thereupon, upon
receipt of a Depositor Order, the Trustee shall execute, authenticate and
deliver, without service charge,
(i) to each Person specified by such Depositary a new individual
Certificate or Certificates of the same Series or Class, of any authorized
denomination as requested by such Person in an aggregate Certificate
Principal Balance or Notional Amount, as applicable, equal to and in
exchange for such Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination equal
to the difference, if any, between the aggregate Certificate Principal
Balance or Notional Amount, as applicable, of the surrendered Global
Security and the aggregate Certificate Principal Balance or Notional
Amount, as applicable, of individual Certificates delivered to Holders
thereof.
In any exchange provided for in any of the preceding three paragraphs, upon
receipt of a Depositor Order, the Trustee will execute, authenticate and deliver
individual Certificates in registered form in authorized denominations.
Upon the exchange of a Global Security for individual Certificates, such
Global Security shall be canceled by the Trustee. Individual Certificates issued
in exchange for a Global Security pursuant to this Section 5.4 shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its Participants, any
indirect participants or otherwise, shall instruct the Trustee in writing. The
Trustee shall deliver such Certificates to the Persons in whose names such
Certificates are so registered.
All Certificates issued upon any registration of transfer or exchange of
Certificates shall constitute complete and indefeasible evidence of ownership in
the Trust related to such Certificates and be entitled to the same benefits
under this Agreement as the Certificates surrendered upon such registration of
transfer or exchange.
Every Certificate presented or surrendered for registration of transfer or
exchange shall (if so required by the Trustee or the Certificate Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar, duly executed, by the
Holder thereof or his attorney duly authorized in writing, with such signature
guaranteed by a brokerage firm or financial institution that is a member of a
Securities Approved Medallion Program such as Securities Transfer Agents
Medallion Program (STAMP), Stock Exchange Medallion Program (SEMP) or New York
Stock Exchange Inc. Medallion Signature Program (MSP).
26
No service charge shall be made to a Holder for any registration of
transfer or exchange of Certificates, but the Depositor may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Certificates,
other than exchanges pursuant to Section 5.3 not involving any transfer.
Section 5.5. MUTILATED, DESTROYED, LOST AND STOLEN CERTIFICATES. If (i) any
mutilated Certificate is surrendered to the Trustee at its Corporate Trust
Office (in the case of Certificates) or (ii) the Trustee receives evidence to
its satisfaction of the destruction, loss or theft of any Certificate, and there
is delivered to the Trustee such security or indemnity as it may require to hold
it and any Paying Agent harmless, and the Trustee has not received notice that
such Certificate has been acquired by a BONA FIDE purchaser, then the Trustee
shall execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate a new Certificate of the same
Series and Class of like tenor, form, terms and principal amount, bearing a
number not contemporaneously Outstanding.
Upon the issuance of any new Certificate under this Section, the Trustee
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Certificate of any Series or Class issued pursuant to this
Section shall constitute complete and indefeasible evidence of ownership in the
Trust related to such Series, whether or not the destroyed, lost or stolen
Certificate shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Agreement equally and proportionately with any and all
other Certificates of that Series or Class duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Certificates.
Section 5.6. DISTRIBUTIONS ON CERTIFICATES; RIGHTS PRESERVED. (a) All
Interest Collections on any Distribution Date shall be distributed in the manner
prescribed in the applicable Series Supplement to the Person in whose name such
Certificate (or one or more Predecessor Certificates) is registered at the close
of business on the related Record Date notwithstanding the cancellation of such
Certificate upon any transfer or exchange subsequent to such related Record
Date. Distributions on Certificates, other than a final distribution, shall be
made at the Corporate Trust Office (except as otherwise specified in the Series
Supplement pursuant to Section 5.1) or, at the option of the Trustee, by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Certificate Register or, if provided pursuant to Section 5.1 and
in accordance with arrangements satisfactory to the Trustee, at the option of
the Holder by wire transfer to an account designated by the Holder.
(b) Subject to the foregoing provisions of this Section 5.6, each
Certificate delivered under this Agreement upon transfer of or in exchange for
or in lieu of any other Certificate shall carry the rights to interest accrued
and undistributed, and to accrue, that were carried by such other Certificate.
(c) All computations of interest due with respect to any Certificate
of any Series or Class within such Series shall be made as specified in the
Series Supplement applicable to that particular Series or Class of Certificates.
(d) With respect to any computations or calculations to be made under
this Agreement, the applicable Series Supplement and the Certificates, except as
otherwise provided, (i) all percentages resulting from any calculation of
accrued interest will be rounded, if necessary, to the nearest 1/100,000 of 1%
(.0000001), with five one-millionths of a percentage point rounded upward, and
(ii) all currency amounts will be rounded to the nearest one-hundredth of a unit
(with .005 of a unit being rounded upward).
(e) Notwithstanding any other provisions in this Agreement, the right
of the Holder of any Certificate to receive any of the payments described above
in this Section 5.6, and to institute suit for the
27
enforcement of any such payment on or after the date such payment is payable,
shall not be impaired without the consent of such Holder.
Section 5.7. PERSONS DEEMED OWNERS. The Depositor and the Trustee and any
agent of the Depositor or the Trustee may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions of principal of (and premium, if any) and (subject to
Section 5.6) interest, if any, on such Certificate and for all other purposes
whatsoever, whether or not such Certificate be overdue, and neither the
Depositor, the Trustee, nor any agent of the Depositor or the Trustee shall be
affected by notice to the contrary. All distributions made to any Holder, or
upon his order, shall be valid, and, to the extent of the sum or sums paid,
effectual to satisfy and discharge the liability for moneys distributable upon
such Certificate.
None of the Depositor, the Trustee, or any of their agents will have any
responsibility or liability for any aspect of the records relating to or
distributions made on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
In connection with any notice or other communication to be provided to
Holders pursuant to this Agreement by the Trustee with respect to any consent or
other action to be taken by Holders, the Trustee shall establish a record date
for such consent or other action and in the case of Global Certificates, give
the Depository notice of such record date not less than 15 calendar days in
advance of such record date to the extent possible. Such record date shall be
the later of thirty (30) days prior to the first solicitation of such consent or
other action or the date of the most recent list of Holders furnished to the
Trustee pursuant to Section 3.11 hereof.
Section 5.8. CANCELLATION. Unless otherwise specified pursuant to Section
5.1 for Certificates of any Series, all Certificates surrendered for payment,
redemption, transfer or exchange shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and shall be promptly canceled by it.
No Certificates shall be authenticated in lieu of or in exchange for any
Certificates canceled as provided in this Section, except as expressly permitted
by this Agreement.
Section 5.9. GLOBAL SECURITIES. (a) If the Series Supplement pursuant to
Section 5.1 provides that a Series (or Class within such Series) of Certificates
shall be represented by one or more Global Securities, then the Trustee shall
execute, authenticate and deliver one or more Global Securities that (i) shall
represent the aggregate initial Certificate Principal Balance or Notional
Amount, as applicable, of the Certificates of such Series or Class to be
represented by such one or more Global Securities, (ii) shall be registered, in
the name of the Depositary for such Global Security or Securities or the nominee
of such Depositary, (iii) shall be delivered by the Trustee to such Depositary
or pursuant to such Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for the individual Certificates represented hereby, this Global
Security may not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary."
No Holder of a Certificate of such Series or Class will receive a
Definitive Certificate representing such Holder's interest in such Certificate
or Certificates, except as provided in Section 5.11. Unless and until
definitive, fully registered Certificates (the "Definitive Certificates") have
been issued to Holders of such Series or Class pursuant to Section 5.11:
(i) the provisions of this Section 5.9 shall be in
full force and effect;
(ii) the Certificate Registrar and the Trustee shall be entitled to
deal with the Depositary for all purposes of this Agreement (including the
distribution of principal of, and premium, if any, and interest on the
Certificates and the giving of instructions, notices or directions
hereunder) as the sole Holder of the Certificates of such Series or Class,
and shall have no obligation to the owners of beneficial interests in such
Series or Class (collectively, the "Certificate Owners");
28
(iii) to the extent that the provisions of this Section 5.9 conflict
with any other provisions of this Agreement, the provisions of this
Section 5.9 shall control;
(iv) the rights of Certificate Owners of such Series or Class shall
be exercised only through the Depositary and shall be limited to those
established by law and agreements between such Certificate Owners and the
Depositary or its Participants; and
(v) whenever this Agreement requires or permits actions to be taken
based upon instructions or directions of Holders of Certificates of such
Series or Class evidencing a specified percentage of the aggregate Voting
Rights of such Series or Class, the Depositary shall be deemed to
represent such percentage only to the extent that it has received
instructions to such effect from Certificate Owners of such Series or
Class or Participants in such Depositary's system owning or representing,
respectively, such required percentage of the beneficial interest in the
Certificates of such Series or Class and has delivered such instructions
to the Trustee.
(b) Each Depositary designated pursuant to Section 5.1 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as such Depositary, be a clearing agency registered under
the Exchange Act and any other applicable statute or regulation.
Section 5.10. NOTICES TO DEPOSITARY. Whenever a notice or other
communication to the Holders of a Series or Class within such Series represented
by one or more Global Securities is required under this Agreement, unless and
until Definitive Certificates for such Series or Class shall have been issued to
such Certificate Owners pursuant to Section 5.11, the Trustee shall give all
such notices and communications specified herein to be given to Holders of the
Certificates of such Series to the Depositary, and shall have no obligation to
the Certificate Owners.
Section 5.11. DEFINITIVE CERTIFICATES. If in respect of a Series (or Class
within such Series) represented by one or more Global Securities (i) the
Depositor advises the Trustee in writing that the Depositary is no longer
willing or able to properly discharge its responsibilities with respect to the
Certificates of such Series or Class and the Depositor is unable to locate a
qualified successor or (ii) the Depositor at its option advises the Trustee in
writing that it elects to terminate the book-entry system for such Series or
Class through the Depositary, Certificate Owners representing beneficial
interests aggregating at least a majority (or such other Required
Percentage--Definitive Certificates that may be specified in a Series
Supplement) of the Voting Rights of the Certificates of such Series or Class
advise the Depositary in writing that the continuation of a book-entry system
for such Series or Class through the Depositary is no longer in the best
interests of the Certificate Owners of such Series or Class, then the Depositary
shall notify all Certificate Owners or Participants in the Depositary's system
with respect to such Series or Class and the Trustee of the occurrence of any
such event and of the availability of Definitive Certificates for such Series or
Class to Certificate Owners of such Series or Class requesting the same. Upon
surrender to the Trustee of the Global Securities of such Series or Class by the
Depositary, accompanied by registration instructions, the Trustee shall execute,
authenticate the Definitive Certificates of such Series or Class in accordance
with the instructions of the Depositary. None of the Depositor, the Certificate
Registrar or the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates of such Series
or Class, the Trustee shall recognize the holders of the Definitive Certificates
of such Series or Class as Holders.
Section 5.12. CURRENCY OF DISTRIBUTIONS IN RESPECT OF
CERTIFICATES.
(a) Except as otherwise specified pursuant to Section 5.1 for
Certificates of any Series (or Class within such Series), distributions of the
principal of (and premium, if any) and interest on Certificates of such Series
or Class will be made in Dollars.
(b) For purposes of any provision of the Agreement where the Holders
of Outstanding Certificates may perform an act that requires that a specified
percentage of the aggregate Voting Rights of the Certificates perform such act
and for purposes of determining the amount of a distribution payable to
29
Certificateholders, the principal of or notional amount of, as applicable, the
Outstanding Certificates denominated in a Foreign Currency will be the amount in
Dollars based upon exchange rates, determined as specified pursuant to Section
5.1 for Certificates of such Series, as of the date for determining whether the
Holders entitled to perform such act have performed it or as of the date of such
distribution, as the case may be.
(c) With respect to Certificates of any Series (or Class within such
Series), any decision or determination to be made regarding exchange rates shall
be made by an Exchange Rate Agent appointed by the Depositor; provided that such
Exchange Rate Agent shall accept such appointment in writing and the terms of
such appointment shall be acceptable to the Trustee and shall, in the opinion of
the Depositor at the time of such appointment, require such Exchange Rate Agent
to make such determination by a method consistent with the method provided in
the applicable Series Supplement for the making of such decision or
determination. All decisions and determinations of such Exchange Rate Agent
regarding exchange rates shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Depositor, the Trustee and all Holders of the Certificates of
such Series or Class.
(d) If distributions in respect of a Certificate are required to be
made in a Specified Currency other than Dollars and such currency is unavailable
due to the imposition of exchange controls or other circumstance beyond the
control of the Trustee and the Depositor or is no longer used by the government
of the country issuing such Specified Currency or is no longer commonly used for
the settlement of transactions by public institutions of or within the
international banking community, then all distributions in respect of such
Certificate shall be made in Dollars until such Specified Currency is again so
used in the manner specified in the related Series Supplement.
Section 5.13. CONDITIONS OF AUTHENTICATION AND DELIVERY OF NEW SERIES.
Certificates of a new Series may be issued at any time and from time to time
after the execution and delivery of this Agreement. The Trustee shall execute,
authenticate and deliver such Certificates upon a Depositor Order and upon
delivery by the Depositor to the Trustee of the following:
(1) Board Resolution. A Board Resolution (or action by a Person
authorized by Board Resolution) authorizing the execution, authentication
and delivery of the Certificates and specifying the Series, the Classes
within such Series and their respective Scheduled Final Distribution
Dates, priorities as to distributions of principal, premium (if any) and
interest, aggregate initial Certificate Principal Balances and Notional
Amounts, if any, and Pass Through Rates of, if any, each Class of such
Series of Certificates to be authenticated and delivered and the method of
calculation thereof.
(2) Series Supplement. A Series Supplement consistent with the
applicable provisions of this Agreement, accompanied by a Board Resolution
(or action by a Person authorized by Board Resolution) authorizing such
Series Supplement (and, in the case of the first Series to be
authenticated and delivered hereunder, authorizing this Agreement).
(3) Certificates of the Depositor.
(a) An Officer's Certificate of the Depositor, dated as of the
Closing Date, to the effect that the Depositor is not in breach of this
Agreement and that the issuance of the Certificates applied for will not
result in any breach of any of the terms, conditions, or provisions of, or
constitute a default under, the Depositor's Certificate of Incorporation
or bylaws, or any indenture, mortgage, deed of transfer or other agreement
or instrument to which the Depositor is a party or by which it or its
property is bound or any order of any court or administrative agency
entered in any Proceeding to which the Depositor is a party or by which it
or its property may be bound or to which it or its property may be
subject.
(b) An Officer's Certificate of the Depositor, dated as of the
Closing Date, to the effect that attached thereto are true and correct
copies of letters signed by the Rating Agency (or other evidence
satisfactory to the Trustee) and confirming that the related Certificates
have received the Required Rating.
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(4) Requirements of Series Supplement. Such other funds, accounts,
documents, certificates, agreements, instruments or opinions as may be
required by the terms of the Series Supplement creating such Series.
If all the Certificates of a Series are not to be originally issued at the
same time, then the documents required to be delivered pursuant to this Section
5.13 must be delivered only once, prior to the authentication and delivery of
the first Certificate of such Series; provided, however, that any subsequent
Depositor Order to the Trustee to authenticate Certificates of such Series upon
original issuance shall constitute a representation and warranty by the
Depositor that, as of the date of such request, the statements made in the
Officer's Certificates delivered pursuant to this Section 5.13 shall be true and
correct as if made on such date.
Section 5.14. APPOINTMENT OF PAYING AGENT. The Trustee may appoint one or
more paying agents (each, a "Paying Agent") with respect to the Certificates of
any Series. The Trustee may remove the Paying Agent if the Trustee determines in
its sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Paying Agent shall
initially be the Trustee and any co-paying agent chosen by the Depositor and
acceptable to the Trustee, including, if and so long as any Series or Class
within such Series is listed on the Luxembourg Stock Exchange and such exchange
so requires, a co-paying agent in Luxembourg or another European city. Any
Paying Agent shall be permitted to resign as Paying Agent upon 30 days' notice
to the Trustee. In the event that the Trustee shall no longer be the Paying
Agent, the Trustee shall appoint a successor or additional Paying Agent. The
Trustee shall cause each successor to act as Paying Agent to execute and deliver
to the Trustee an instrument in which such successor or additional Paying Agent
shall agree with the Trustee that (i) it will hold all sums, if any, held by it
for distribution to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be distributed to such
Certificateholders and (ii) it will give the Trustee notice of any default by
any obligor on the applicable Series of Certificates or on the Underlying
Securities. The Paying Agent shall return all unclaimed funds to the Trustee and
upon removal shall also return all funds in its possession to the Trustee. The
provisions of Sections 7.1, 7.2, 7.3, 7.5 and 7.9 shall apply to the Trustee
also in its role as Paying Agent, for so long as the Trustee shall act as Paying
Agent. Any reference in this Agreement to the Paying Agent shall include any
co-paying agent unless the context requires otherwise. Notwithstanding anything
contained herein to the contrary, the appointment of a Paying Agent pursuant to
this Section 5.14 shall not release the Trustee from the duties, obligations,
responsibilities or liabilities arising under this Agreement other than with
respect to funds paid to such Paying Agent.
Section 5.15. AUTHENTICATING AGENT. (a) The Trustee may appoint one or more
Authenticating Agents (each, an "Authenticating Agent") with respect to the
Certificates of any Series which shall be authorized to act on behalf of the
Trustee in authenticating such Certificates in connection with the issuance,
delivery and registration of transfer or exchange of such Certificates. Whenever
reference is made in this Agreement to the authentication of Certificates by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee by
an Authenticating Agent. Each Authenticating Agent must be acceptable to the
Depositor. Notwithstanding anything contained herein to the contrary, the
appointment of an Authenticating Agent pursuant to this Section 5.15 shall not
release the Trustee from the duties, obligations, responsibilities or
liabilities arising under this Agreement.
(b) Any institution succeeding to the corporate agency business of
any Authenticating Agent shall continue to be an Authenticating Agent without
the execution or filing of any power or any further act on the part of the
Trustee or such Authenticating Agent. An Authenticating Agent may at any time
resign by giving notice of resignation to the Trustee and to the Depositor. The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving notice of termination to such Authenticating Agent and to the Depositor.
Upon receiving such a notice of resignation or upon such a termination, or in
case at any time an Authenticating Agent shall cease to be acceptable to the
Trustee or the Depositor, the Trustee promptly may appoint a successor
Authenticating Agent. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless acceptable to the Depositor. The Trustee agrees to pay to each
Authenticating Agent from time to time reasonable compensation for
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its services under this Section. The provisions of Section 7.1, 7.2, 7.3, 7.5
and 7.9 shall be applicable to any Authenticating Agent.
(c) Pursuant to an appointment made under this Section, the
Certificates may have endorsed thereon, in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the Certificates described in the Trust Agreement and the
related Series Supplement.
----------------------------
as Authenticating Agent
for the Trustee,
By__________________________
Authorized Officer
Section 5.16. OPTIONAL EXCHANGE. (a) In connection with any Series, the
Depositor may exchange any Certificates or all Certificates within a Class or a
Series for a newly created Class or Classes of Certificates evidencing interests
in the related Trust, having such terms as are provided in a Depositor Request;
provided that (i) in no case shall the aggregate distributions payable on such
newly created Class or Classes of Certificates exceed the aggregate
distributions payable on the Certificates exchanged by the Depositor for the
newly created Class of Certificates; (ii) in no case shall the issuance of such
newly created Certificates adversely affect the rights or interests of Holders
of Certificates not so exchanged; (iii) the Rating Agency Condition, if any, is
satisfied; (iv) such exchange would not, as evidenced by an opinion of Counsel,
(a) be inconsistent with the Trust's continued satisfaction of the applicable
requirements for exemption under Rule 3a-7 (or other applicable rule or
exemption) under the Investment Company Act and (b) cause the Trust to fail to
be characterized as a grantor trust under federal income tax purposes.
(b) Upon completion of any such exchange, new Certificates in a form
mutually agreed upon by the Depositor and the Trustee shall be executed,
authenticated and delivered in accordance with Sections 5.1, 5.2 and 5.3 MUTATIS
MUTANDIS.
ARTICLE VI
The Depositor
Section 6.1. PREPARATION AND FILING OF EXCHANGE ACT REPORTS; OBLIGATIONS OF
THE DEPOSITOR. (a) The Depositor shall:
(i) on behalf of the Trust, prepare, sign and file with the
Commission, within the time period set forth below, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe), if any, which the Depositor on
behalf of the Trust may be required to file with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act (collectively, "Exchange Act
Reports") with respect to the Trust. The names of such Reports and the
dates on which they are required to be filed with the Commission are as
follows:
(A) Form 8-K, within the time requirement prescribed by the
Exchange Act if the filing of Form 8-K is necessary;
(B) Form 10-K, within the time requirement prescribed by the
Exchange Act; and
32
(C) such other reports as may be required pursuant to Section 13
or 15(d) of the Exchange Act.
(ii) deliver to the Trustee within 15 days after the Depositor is
required to file the same with the Commission, such additional
information, documents and reports with respect to compliance by the
Depositor with the conditions and covenants of this Agreement, if any, as
may be required to be filed with the Commission from time to time by such
rules and regulations; and
(iii) deliver to the Trustee, which shall then transmit by mail to
all Holders as described in TIA Section 313(c), in the manner and to the
extent provided therein, such summaries of any information, documents and
reports required to be filed by the Depositor and received pursuant to
clauses (i) and (ii) of this Section 6.1(a), if any, as may be required by
rules and regulations prescribed from time to time by the Commission.
(b) The Depositor shall deliver to the Trustee, not less often than
annually, an Officer's Certificate signed by an Executive Officer who is the
principal executive officer, principal financial officer or principal accounting
officer of the Depositor, dated as of the date set forth in the Series
Supplement for such year, stating that:
(i) a review of the activities of the Depositor during such fiscal
year and of performance under this Agreement has been made under such
Executive Officer's supervision; and
(ii) to the best of such Executive Officer's knowledge, based on such
review, the Depositor has fulfilled all of its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to
such Executive Officer and the nature and status thereof. A copy of such
certificate may be obtained by any Holder by a request in writing to the
Depositor addressed to the Corporate Trust Office of the Trustee.
(c) Upon any application or request by the Depositor to the Trustee
to take any action under the provisions of this Agreement, which action is
subject to the satisfaction of a condition precedent (including any covenants
compliance with which constitutes a condition precedent), the Depositor shall
furnish to the Trustee: (i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Agreement relating to the proposed
action have been complied with, (ii) an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with and (iii) (if required by the TIA) an Independent Certificate from
a firm of certified public accountants meeting the applicable requirements of
the TIA, except that, in the case of any such application or request as to which
the furnishing of such documents is specifically required by any provision of
this Agreement, no additional certificate or opinion need be furnished. Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Agreement shall include:
(i) a statement that such signatory of such certificate or opinion
has read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the judgment of each such signatory, such
signatory has made such examination or investigations as is necessary to
enable such signatory to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
Section 6.2. MERGER OR CONSOLIDATION OF THE DEPOSITOR . (a) Subject to the
following paragraph, the Depositor will keep in full effect its existence,
rights and franchises as a corporation under the laws of the jurisdiction of its
incorporation and will obtain and preserve its qualification to do business as a
foreign corporation
33
in each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, the Certificates or
any of the Underlying Securities and to perform its respective duties under this
Agreement.
(b) The Depositor may consolidate or merge with or into any other
Person, provided that:
(i) the Person (if other than the Depositor) formed by or surviving
such consolidation or merger shall expressly assume, by an agreement
supplemental hereto executed and delivered to the Trustee, in form
satisfactory to the Trustee, the performance or observance of every
agreement and covenant of this Agreement on the part of the Depositor, as
applicable, to be performed or observed, all as provided herein and in the
applicable Series Supplement or Supplements; and
(ii) the Depositor shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such consolidation
or merger and such supplemental agreement comply with this Article VI and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 6.3. LIMITATION ON LIABILITY OF THE Depositor. (a) Unless otherwise
expressly specified in this Agreement or a Series Supplement, the Depositor
shall not be under any obligation to expend or risk its own funds or otherwise
incur financial liability in the performance of its duties hereunder or under a
Series Supplement or in the exercise of any of its rights or powers if
reasonable grounds exist for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
(b) Neither the Depositor, nor any of the directors, officers,
employees or agents of the Depositor shall be under any liability to any Trust
or the Certificateholders of any Series for any action taken, or for refraining
from the taking of any action, in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect the
Depositor or any such person against any breach of warranties, representations
or covenants made herein, or against any specific liability imposed pursuant
hereto, or against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or gross negligence in the performance of duties
or by reason of reckless disregard of obligations and duties hereunder.
The Depositor shall not be under any obligation to appear in, prosecute or
defend any legal action unless such action is related to its respective duties
under this Agreement and, in its opinion, does not involve it in any expense or
liability; provided, however, that the Depositor may in its discretion undertake
any such action which it may deem necessary or desirable with respect to this
Agreement and the rights and duties of the parties hereto and the interests of
the Certificateholders hereunder. The legal expenses and costs of such action
and any liability resulting (except any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties hereunder or by reason of reckless disregard of obligations and duties
hereunder) shall be allocated as specified in the applicable Series Supplement.
Section 6.4. DEPOSITOR MAY PURCHASE CERTIFICATES. The Depositor may at any
time purchase Certificates in the open market or otherwise. Certificates so
purchased by the Depositor may, at the discretion of the Depositor, be held or
resold. Certificates beneficially owned by the Depositor will be disregarded for
purposes of determining whether the required percentage of the aggregate Voting
Rights has given any request, demand, authorization, direction, notice, consent
or waiver hereunder.
Section 6.5. PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR.
Irrespective of whether the TIA shall apply to this Agreement, the Trustee shall
comply with TIA Section 311(a), excluding any creditor relationship listed in
TIA Section 311(b). A trustee who has resigned or been removed shall be subject
to TIA Section 311(a) to the extent required by TIA Section 311(a).
34
ARTICLE VII
Concerning the Trustee
Section 7.1. DUTIES OF TRUSTEE; NOTICE OF DEFAULTS. (a) The Trustee prior
to the occurrence of a default under a Trust Asset Instrument and after the
curing of all such defaults, undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement and the related Series
Supplement. During the period in which such a default is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Agreement, and
shall use the same degree of care and skill in their exercise as a prudent man
would exercise or use under the circumstances in the conduct of such person's
own affairs. Any permissive right of the Trustee enumerated in this Agreement
shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments (other
than the Underlying Securities) furnished to the Trustee which are specifically
required to be furnished pursuant to any provision of this Agreement, shall
examine them to determine whether they conform to the requirements of this
Agreement. If any such instrument is found not to conform to the requirements of
this Agreement, the Trustee shall take action as it deems appropriate to have
the instrument corrected, and if the instrument is not corrected to the
Trustee's satisfaction, the Trustee will provide notice thereof to the Depositor
and Certificateholders.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct; provided, however, that:
(i) prior to the occurrence of a default under a Trust Asset
Instrument, and after the curing of all such defaults, the duties and
obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee or
upon any directions or information supplied by the Depositor that conform
to the requirements of this Agreement;
(ii) the Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of the Required
Percentage--Direction of Trustee of the aggregate Voting Rights of a given
Series (or Class or group of Classes within such Series) relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Agreement;
(iv) the Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of
its duties hereunder or in the exercise of any of its rights or powers if
there is reasonable ground for believing that the repayment of such funds
or adequate indemnity against such risk or liability is not reasonably
assured to it, and none of the provisions contained in this Agreement
shall in any event require the Trustee to perform;
(v) except for actions expressly authorized by this Agreement, the
Trustee shall take no actions reasonably likely to impair the interests of
the Trust in any Underlying Security now existing or hereafter acquired or
to impair the value of any Underlying Security now existing or hereafter
acquired;
(vi) except as expressly provided in this Agreement, the Trustee
shall not engage in any activity other than those required or authorized
by the terms of this Agreement. In particular, after the Closing Date
35
the Trustee shall not purchase or otherwise acquire any additional
securities, modify or permit the modification of any Trust Asset Instrument
or otherwise vary the investment of the Certificateholders or incur or
modify any obligations, (a) except as expressly required or permitted by
the terms of this Agreement or (b) unless the Trustee obtains, at the
expense of the Certificateholders, an Opinion of Counsel to the effect that
such acquisition, incurrence or modification will not cause the Trust
(unless otherwise indicated in a related Series Supplement) to fail to be
classified as a grantor trust for federal income tax purposes; and
(vii) in the event that the Paying Agent or the Certificate Registrar
shall fail to perform any obligation, duty or agreement in the manner or
on the day required to be performed by the Paying Agent or Certificate
Registrar, as the case may be, under this Agreement, the Trustee shall be
obligated promptly upon its knowledge thereof to perform such obligation,
duty or agreement in the manner so required and
(d) The Trustee shall have the legal power to exercise all of the
rights, powers and privileges of holders of the Underlying Securities in which
the Certificates evidence an interest. However, neither the Trustee (except as
specifically provided herein or in the TIA) nor the Depositor shall be under any
obligation whatsoever to appear in, prosecute or defend any action, suit or
other proceeding in respect of Underlying Securities or Certificates.
(e) Neither the Trustee nor the Depositor shall have any obligation
on or with respect to the Underlying Securities, except as provided in this
Article VII with respect to the Trustee; and their respective obligations with
respect to Certificates shall be solely as set forth in this Agreement.
(f) If there is an event of default (as defined in the indenture or
other document pursuant to which the Underlying Securities were issued) with
respect to any Underlying Security and written notice of such default has been
provided to the Trustee or if a payment default with respect to any Underlying
Security has occurred, the Trustee shall promptly give notice to the Depositor
or, if the Certificates are Definitive Certificates, directly to Holders thereof
as provided in Section 9.5 hereof (and in the manner and to the extent provided
in TIA Section 313(c)) within 90 days after such event of default occurs. Such
notice shall set forth (i) the identity of the Underlying Securities, (ii) the
date and nature of such default, (iii) the face amount of the obligation to
which such default relates, (iv) the identifying numbers of the Series and Class
of Certificates, or any combination, as the case may be, evidencing the
obligations (or portions thereof) described above in clause (iii), and (v) any
other information which the Trustee may deem appropriate. Except in the case of
a default in payment of principal or interest (including payments pursuant to a
redemption of any Certificate), the Trustee may withhold the notice to Holders
if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders.
(g) Holders of Certificates shall have no recourse against the
Depositor or the Trustee for payment defaults on the Underlying Securities.
Section 7.2. CERTAIN MATTERS AFFECTING THE TRUSTEE. (a) Except as otherwise
provided in Section 7.1:
(i) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond or other paper or document reasonably believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and any written advice or
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such written advice or Opinion of
Counsel;
(iii) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto, at the
36
request, order or direction of any of the Certificateholders, pursuant to
the provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby;
provided, however, that nothing contained herein, shall relieve the Trustee
of the obligations upon the occurrence of a default under a Trust Asset
Instrument (that has not been cured or waived) to exercise such of the
rights and powers vested in it by this Agreement, and to use the same
degree of care and skill in their exercise as a prudent man would exercise
or use under the circumstances in the conduct of such person's own affairs;
(iv) the Trustee shall not be personally liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v) prior to the occurrence of any default under a Trust Asset
Instrument and after the curing of such defaults, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, approval, bond or other paper or
document believed by it to be genuine, unless requested in writing to do
so by Holders of the Required Percentage--Direction of Trustee of the
aggregate Voting Rights of the affected Series (or Class or Classes within
any such Series), as specified by the applicable Series Supplement;
provided, however, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such
action;
(vi) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian and shall not be liable for such persons' actions
if it has selected such persons with reasonable care; and
(vii) the Trustee shall not be personally liable for any loss
resulting from the investment of funds held in any Certificate Account or
Reserve Account at the direction of the Depositor pursuant to Section 3.4.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates of any Series (or Class within such
Series), or the production thereof at the trial or other Proceeding relating
thereto, and any such suit, action or proceeding instituted by the Trustee shall
be brought in its name for the benefit of all the Holders of such Certificates,
subject to the provisions of this Agreement.
Section 7.3. TRUSTEE NOT LIABLE FOR RECITALS IN CERTIFICATES OR UNDERLYING
SECURITIES. The Trustee assumes no responsibility for the correctness of the
recitals contained herein and in the Certificates or in any document issued in
connection with the sale of the Certificates (other than the signature and
authentication on the Certificates). Except as set forth in Section 7.12, the
Trustee makes no representations or warranties as to the validity or sufficiency
of this Agreement or of the Certificates of any Series (other than the signature
and authentication on the Certificates) or of any Underlying Security or related
document. The Trustee shall not be accountable for the use or application by the
Depositor of any of the Certificates or of the proceeds of such Certificates.
Section 7.4. TRUSTEE MAY OWN CERTIFICATES. The Trustee in its individual
capacity or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not Trustee.
Section 7.5. TRUSTEE'S FEES AND EXPENSES; INDEMNIFICATION; UNDERTAKING FOR
COSTS. (a) The Trustee shall be entitled to receive [from the Depositor or an
affiliate of the Depositor] as compensation for the Trustee's services
hereunder, trustee's fees [pursuant to a separate agreement between the Trustee
and the Depositor] [payable from distributions on the Underlying Securities in
the amounts and in the manner specified in the applicable Series Supplement],
and shall be reimbursed for all reasonable expenses, disbursements and advances
37
incurred or made by the Trustee (including the reasonable compensation,
disbursements and expenses of its counsel and other persons not regularly in its
employ). The Depositor shall indemnify and hold harmless the Trustee and its
successors, assigns, officers, directors, employees, agents and servants against
any and all loss, liability or reasonable expense (including attorney's fees)
incurred by it in connection with the administration of this trust and the
performance of its duties thereunder; the disclosure by the Depositor with
respect to the Underlying Securities except where such information is based on
erroneous information from the Trustee; any registration statement of the
Certificates of any Series under the Securities Act; registration of the
arrangement created by this Agreement under the Investment Company Act; any
failure by the Depositor to file Exchange Reports on behalf of the Trust as may
be required; and any defect in the rights of the Trust to the Underlying
Securities arising under a breach of warranty by the Depositor made pursuant to
Section 2.4 hereof. The Trustee shall notify the Depositor promptly of any claim
for which it may seek indemnity. Failure by the Trustee to so notify the
Depositor shall not relieve the Depositor of its obligations hereunder. The
Depositor need not reimburse any expense or indemnify against any loss,
liability or expense incurred by the Trustee through the Trustee's own willful
misconduct, negligence or bad faith. In the absence of actual knowledge of a
Responsible Officer that a tax filing signed by the Trustee on behalf of the
Trust pursuant to Section 7.14 is incorrect, the execution of such a filing
shall not be deemed to be willful misconduct, negligent or in bad faith. The
indemnities contained in this Section 7.5(a) shall survive the resignation or
termination of the Trustee or the termination of this Agreement.
(b) Failure by the Depositor to pay, reimburse or indemnify the
Trustee shall not entitle the Trustee to any payment, reimbursement or
indemnification from the Trust, nor shall such failure release the Trustee from
the duties it is required to perform under this Agreement. Any unpaid,
unreimbursed or unindemnified amounts shall not be borne by the Trust and shall
not constitute a claim against the Trust, but shall be borne by the Trustee in
its individual capacity.
(c) All parties to this Agreement agree, and each Holder of any
Certificate by such Holder's acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any Proceeding for the
enforcement of any right or remedy under this Agreement, or in any Proceeding
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such Proceeding of an undertaking to pay the
costs of such Proceeding and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such Proceeding, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the provisions of this
Section 7.5(c) shall not apply to:
(i) any Proceeding instituted by the Trustee;
(ii) any Proceeding instituted by any Holder, or group of Holders, in
each case holding in the aggregate Outstanding Certificates representing
more than 10% of the Voting Rights; or
(iii) any Proceeding instituted by any Holder for the enforcement of
the payment of principal or interest on or after the respective due dates
expressed in such Certificate and in this Agreement (or, in the case of
redemption, on or after the redemption date).
Section 7.6. ELIGIBILITY REQUIREMENTS FOR TRUSTEE. (a) The Trustee shall at
all times satisfy the requirements of TIA Section 310(a) and Section (a)(4)(i)
of Rule 3a-7. The Trustee hereunder shall at all times be a corporation which is
not an Affiliate of the Depositor (but may have normal banking relationships
with the Depositor or any obligor with respect to the Underlying Securities with
respect to such Series of Certificates and their respective Affiliates)
organized and doing business under the laws of any State or the United States,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by Federal or State authority. If such corporation or association
publishes reports of conditions at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of conditions so published. Such corporation or
association must be rated in one of the four highest rating categories by the
Rating Agency.
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(b) The Trustee shall comply with Section 310(b); provided, however,
that there shall be excluded from the operation of TIA Section 310(b)(1), any
Series Supplement under which other securities are outstanding evidencing
ownership interest in obligations of the Underlying Securities Issuer if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
Section 7.7. RESIGNATION OR REMOVAL OF THE TRUSTEE. (a) The Trustee
may, with respect to any Series of Certificates, at any time resign and be
discharged from any trust hereby created by giving written notice thereof to the
Depositor, the Rating Agency and to all Certificateholders of such Series. Upon
receiving such notice of resignation, the Depositor shall promptly appoint a
successor trustee for such Series by written instrument, in duplicate, which
instrument shall be delivered to the resigning Trustee and to the successor
trustee. A copy of such instrument shall be delivered to such Certificateholders
by the Depositor. If no such successor trustee shall have been so appointed and
have accepted appointment within 30 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 for such Series.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.6 and shall fail to resign after
written request therefor by the Depositor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Depositor may remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, which instrument shall be delivered to the Trustee so
removed and to the successor trustee. A copy of such instrument shall be
delivered to the Certificateholders by the Depositor.
(c) The Holders of Certificates of any Series representing the
Required Percentage--Removal of Trustee of the aggregate Voting Rights may at
any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact and duly authorized, one complete set of which instruments
shall be delivered to the Depositor, one complete set to the Trustee so removed
and one complete set to the successor trustee so appointed. A copy of such
instrument shall be delivered to the Certificateholders by the Depositor.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor trustee as
provided in Section 7.8.
Section 7.8. SUCCESSOR TRUSTEE. (a) Any successor trustee appointed as
provided in Section 7.7 shall execute, acknowledge and deliver to the Depositor
and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder (either with respect to a given Series
of Certificates or with respect to all Certificates issued under this
Agreement), with the like effect as if originally named as trustee herein. The
predecessor trustee shall deliver to the successor trustee all documents and
statements held by it hereunder, and the Depositor and the predecessor trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for more fully and certainly vesting and confirming in
the successor trustee all such rights, powers, duties and obligations. No
successor trustee shall accept appointment as provided in this Section unless at
the time of such acceptance such successor trustee shall be eligible under the
provisions of Section 7.6.
(b) Upon acceptance of appointment by a successor trustee as provided
in this Section, the Depositor shall transmit notice of the succession of such
trustee hereunder to all Holders of Certificates and to the Rating Agency in the
manner provided in Section 7.7.
Section 7.9. MERGER OR CONSOLIDATION OF TRUSTEE. Any corporation or
association into which the Trustee may be merged or converted or with which it
may be consolidated or any corporation or association resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation
39
or association succeeding to the trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such corporation or association
shall be eligible under the provisions of Section 7.6, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section 7.10. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE. (a)
Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust for a given Series may at the time be located, the Depositor and the
Trustee acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee or co-trustees, jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of such Trust, and to vest in such Person
or Persons, in such capacity, such title to such Trust, or any part thereof,
and, subject to the other provisions of this Section 7.10, such powers, duties,
obligations, rights and trusts as the Depositor and the Trustee may consider
necessary or desirable. If the Depositor shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 7.6 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee or co-trustees or separate trustee
or trustees shall be required under Section 7.8 hereof. Notwithstanding anything
contained herein to the contrary, the appointment of a co-trustee pursuant to
this Section 7.10 shall not release the Trustee from the duties, obligations,
responsibilities or liabilities arising under this Agreement.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 7.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed by the Trustee, 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 such Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed by such separate trustee or co-trustee at the direction
of the 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 VII. 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. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, 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 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 7.11. APPOINTMENT OF OFFICE OR AGENCY. As specified in a Series
Supplement, the Trustee shall appoint an office or agency in the City of New
York where the Certificates may be surrendered for registration of transfer or
exchange, and presented for the final distribution with respect thereto, and
where notices and demands to or upon the Trustee in respect of the Certificates
of the related Series and this Agreement may be served.
Section 7.12. REPRESENTATIONS AND WARRANTIES OF Trustee. The Trustee
represents and warrants that:
(i) the Trustee is duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or
association;
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(ii) neither the execution nor the delivery by the Trustee of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will violate its charter documents or by-laws; and
(iii) the Trustee has full power, authority and right to execute,
deliver and perform its duties and obligations as set forth herein and in
each Series Supplement to which it is a party and has taken all necessary
action to authorize the execution, delivery and performance by it of this
Agreement.
Section 7.13. TRUSTEE TO ACT ONLY IN ACCORDANCE WITH THIS AGREEMENT OR
PURSUANT TO INSTRUCTIONS OF Certificateholders. The Trustee shall only take such
action or shall refrain from taking such action under this Agreement as directed
pursuant to a specific provision of this Agreement or, if required hereunder, by
all the Certificateholders, and the Trustee shall not otherwise act in respect
of the Trust; provided, however, that the Trustee shall not be required to take
any such action if it reasonably determines, or receives, at the expense of the
Certificateholders, an Opinion of Counsel (with copies thereof delivered to the
Certificateholders and the Depositor), that such action (i) is inconsistent with
the purpose of the Trust set forth in Section 2.7 or contrary to the terms
hereof.
Section 7.14. ACCOUNTING AND REPORTS TO CERTIFICATEHOLDERS, INTERNAL
REVENUE SERVICE AND OTHERS. The Trustee shall (a) maintain the books of the
Trust on a calendar year basis on the cash method of accounting, (b) after the
close of each calendar year, deliver to each Certificateholder, as may be
required by the Code and applicable Treasury Regulations or otherwise, such
information for such year as may be required to enable each Certificateholder to
prepare its federal income tax returns, (c) cause independent public accountants
to prepare such tax returns relating to the Trust, execute and file such returns
and make such elections, as may from time to time be directed by the Depositor,
under any New York State, New York City or federal statute or rule or regulation
thereunder so as to maintain the Trust's characterization as other than an
association taxable as a corporation for federal income tax purposes, (d) cause
such tax returns to be signed on behalf of the Trust in the manner required by
law and (e) collect or cause to be collected any withholding tax as described in
and in accordance with Subsection 4.3 with respect to income or distributions to
Certificateholders.
ARTICLE VIII
Termination
Section 8.1. TERMINATION UPON PURCHASE OR LIQUIDATION OF ALL UNDERLYING
SECURITIES. (a) The respective obligations and responsibilities under this
Agreement of the Depositor and the Trustee (other than the obligations of the
Trustee to make distributions to Holders of the Certificates of any given Series
as hereafter set forth) shall terminate (subject to surviving rights of
indemnity) upon the distribution to such Holders of all amounts held in all the
Accounts for such Series and required to be paid to such Holders pursuant to
this Agreement on the Distribution Date coinciding with or following the earlier
to occur of (i) if and as provided in the Series Supplement for such Series, the
purchase by, and at the sole option of the Depositor, as provided in the Series
Supplement for such Series, of all remaining Underlying Securities for such
Series in the Trust for such Series on any Distribution Date, provided that such
option may be exercised only if the aggregate principal amount of such
Underlying Securities at the time of any such purchase is less than 10% (or such
other percentage as may be specified in such Series Supplement) of the aggregate
principal amount of all Underlying Securities deposited in such Trust as of the
applicable Cut-off Date and (ii) the final payment on, In-Kind Distribution or
other liquidation (which may include redemption or other purchase thereof by the
applicable Underlying Securities Issuer) of the last Underlying Security
remaining in the Trust for such Series or the disposition of all property
acquired upon foreclosure or liquidation of any such Underlying Security;
provided, however, that in no event shall the trust created hereby continue to
exist if such continued existence would violate any applicable common-law or
statutory Rule Against Perpetuities.
(b) The Depositor shall exercise its option to purchase all the
Underlying Securities remaining in the Trust pursuant to clause (i) of Section
8.1(a) not later than 91 days prior to the anticipated date of purchase of all
such Underlying Securities, at a price as may be specified in the applicable
Series Supplement; provided, however, that such price shall not be less than the
then outstanding aggregate principal amount of such Underlying Securities
41
as determined on the date of purchase. The proceeds of such purchase will be
deposited into the Certificate Account and applied in the same manner and
priority that collections on Underlying Securities would be applied as provided
in the applicable Series Supplement.
(c) Written notice of any termination shall be provided as set forth
in Section 9.5.
(d) Upon presentation and surrender of the Certificates by the
Certificateholders on the Scheduled Final Distribution Date, or the Distribution
Date coinciding with or next following the earlier to occur of the occurrences
specified in clauses (i) and (ii) of Section 8.1(a), with respect to the
applicable Series of Certificates, the Trustee shall distribute to each Holder
presenting and surrendering its Certificates the amount otherwise distributable
on such Distribution Date in accordance with Section 4.1 in respect of the
Certificates so presented and surrendered, if not in connection with the
purchase by the Depositor of all the Underlying Securities. Any funds not
distributed on such Distribution Date shall be set aside and held in trust for
the benefit of Certificateholders not presenting and surrendering their
Certificates in the aforesaid manner, and shall be disposed of in accordance
with this Section 8.1 and Section 4.1 hereof. Immediately following the deposit
of funds in trust hereunder, the Trust for such Series shall terminate.
ARTICLE IX
Miscellaneous Provisions
Section 9.1. AMENDMENT. (a) This Agreement may be amended from time to time
by the Depositor and the Trustee without notice to or the consent of any of the
Certificateholders for any of the following purposes: (i) to cure any ambiguity
or to correct or supplement any provision herein which may be defective or
inconsistent with any other provision herein; (ii) to add or supplement any
Credit Support for the benefit of any Certificateholders; (iii) to add to the
covenants, restrictions or obligations of the Depositor or the Trustee for the
benefit of the Certificateholders; (iv) to add, change or eliminate any other
provisions with respect to matters or questions arising under this Agreement;
(v) to comply with any requirements imposed by the Code; (vi) to evidence and
provide for the acceptance of appointment hereunder of a Trustee other than the
Chase Manhattan Bank, as Trustee for a Series of Certificates, and to add to or
change any of the provisions of this Agreement as shall be necessary to provide
for or facilitate the administration of the separate Trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 5.1 hereof; (vii) to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Certificates of one or more Series or to add or
change any of the provisions of this Agreement as shall be necessary to provide
for or facilitate the administration of the trusts hereunder; or (viii) to
provide for the issuance of new Certificates issued pursuant to Section 5.16
hereof; so long as (x) any such amendment described in (i) through (viii), but
not (vi), will not, as evidenced by an Opinion of Counsel, cause the Trust
(unless otherwise specified in a related Series Supplement) to fail to be
characterized as a grantor trust for federal income tax purposes or result in a
sale or exchange of any Certificate for federal income tax purposes and (y) the
Trustee has received an Officer's Certificate from the Depositor that such
amendment will not have a material adverse effect on any Class of
Certificateholders.
(b) Without limiting the generality of the foregoing, with respect to
any Series, this Agreement may also be modified or amended from time to time by
the Depositor and the Trustee with the consent of the Holders of Certificates
representing the Required Percentage--Amendment of the aggregate Voting Rights
of each Class voting as a Class, of those Certificates to which such
modification or amendment relates for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (i) reduce in any manner the amount of, or
alter the timing of, payments received on Underlying Securities which are
required to be distributed on any Certificate without the unanimous consent of
the Holders of such Certificates, (ii) adversely affect in any material respect
the interests of the Holders of any Series (or Class within such Series) of
Certificates in a manner other than as described in (i), without the consent of
the Holders of Certificates of such Series or Class evidencing not less than the
Required Percentage--Amendment of the aggregate Voting Rights of such Series or
Class or (iii) reduce the percentage of aggregate Voting Rights required by
(ii), as described in (ii), without the consent of the Holders of all
Certificates of such Series or Class then Outstanding; and provided further
42
that (x) the Depositor shall furnish to the Trustee an Opinion of Counsel
(unless otherwise indicated in a related Series Supplement) stating that, in the
opinion of such counsel, any such amendment would not cause the Trust to fail to
be characterized as a grantor trust for federal income tax purposes or result in
a sale or exchange of any Certificate for federal income tax purposes and (y)
the Trustee has received written confirmation from each Rating Agency rating
such Certificates that such amendment will not cause such Rating Agency rating
such Certificates to reduce or withdraw the then current rating thereof.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 9.1, Certificates
registered in the name of the Depositor, or any Affiliate thereof, shall be
entitled to Voting Rights with respect to matters affecting such Certificates.
Notwithstanding any other provision of this Agreement, this Section 9.1(b) shall
not be amended without the unanimous consent of the Holders of all such
Certificates.
(c) Promptly after the execution of any such amendment or
modification, the Trustee shall furnish a copy of such amendment or modification
to each Certificateholder of the affected Series or Class and to the Rating
Agency. It shall not be necessary for the consent of Certificate-holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Section 9.2. COUNTERPARTS. This Agreement may be executed simultaneously in
any number of counterparts, each of which counterparts shall be deemed to be an
original, and such counterparts shall constitute but one and the same
instrument.
Section 9.3. LIMITATION ON RIGHTS OF Certificateholders. (a) The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the applicable Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of then.
(b) No Certificateholder of a given Series shall have any right to
vote (except as expressly provided for herein) or in any manner otherwise
control the operation and management of any Trust, or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Certificates, be construed so as to constitute the Certificateholders
from time to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder of a given Series shall have any right by
virtue of any provision of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless (i) such Holder previously shall have given to the Trustee a written
notice of breach and of the continuance thereof and unless also the Holders of
Certificates of such Series evidencing not less than the Required
Percentage--Remedies of the aggregate Voting Rights of such Series shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 30 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and agreed that the Trustee shall not be obligated to make any
investigation of matters arising under this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any Certificateholders unless such Certificateholders have
offered to the Trustee the reasonable indemnity referred to above. It is further
understood and agreed, and expressly covenanted by each Certificateholder of
each Series with every other Certificateholder of such Series and the Trustee,
that no one or more Holders of Certificates of such Series shall have any right
in any manner whatever by virtue of any provision of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of the Certificates
of such Series, or to obtain or seek to obtain priority over or preference to
any other such Holder, or to enforce any right under this Agreement, except in
the manner herein provided and for the equal, ratable and common benefit of all
Certificateholders of such Series. For the protection and enforcement
43
of the provisions of this Section, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 9.4. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the law of the State of New York
without regard to principles of conflicts of law.
Section 9.5. NOTICES. All directions, demands and notices hereunder shall
be in writing and shall be delivered as set forth in the applicable Series
Supplement. Any notice required to be provided to a Holder of a Certificate
shall be given by first class mail, postage prepaid, at the last address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given when mailed, whether or not the Certificateholder receives such
notice.
Section 9.6. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then to the extent permitted by law 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 Certificates or the rights of the Holders thereof.
Section 9.7. NOTICE TO RATING AGENCY. The Trustee shall use its best
efforts promptly to provide notice to each Rating Agency, with a copy to the
Depositor, with respect to each of the following of which any of its Responsible
Officers has actual knowledge:
(i) any change or amendment to this Agreement;
(ii) the resignation or termination of the Trustee;
(iii) the repurchase or substitution of Underlying Securities, if
any, pursuant to Section 2.3;
(iv) the final payment to Holders of the Certificates of any Class;
and
(v) any change in the location of the Certificate Account.
Any such notice pursuant to this Section shall be in writing and shall be deemed
to have been duly given if personally delivered or mailed by first class mail,
postage prepaid, or by express delivery service to each Rating Agency at the
address specified in the applicable Series Supplement.
Section 9.8. GRANT OF SECURITY INTEREST. It is the express intent of the
parties hereto that each conveyance of any Underlying Securities by the
Depositor to the Trustee be, and be construed as, a sale of the Underlying
Securities by the Depositor and not a pledge of any Underlying Securities by the
Depositor to secure a debt or other obligation of the Depositor. However, in the
event that, notwithstanding the aforementioned intent of the parties, any
Underlying Securities are held to be property of the Depositor, then, (a) it is
the express intent of the parties that such conveyance be deemed a pledge of
such Underlying Securities by the Depositor to the Trustee to secure a debt or
other obligation of the Depositor and (b)(1) this Agreement shall also be deemed
to be a security agreement within the meaning of Articles 8 and 9 of the UCC as
in effect from time to time in the State of New York, or such other State as may
be specified in the related Series Supplement; (2) the conveyance provided for
in Section 2.1 hereof shall be deemed to be a grant by the Depositor to the
Trustee of a first priority security interest in all the Depositor's right,
title and interest in and to such Underlying Securities and all amounts payable
to the holders of such Underlying Securities in accordance with the terms
thereof and all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property, including all
amounts from time to time held or invested in the applicable Certificate
Account, whether in the form of cash, instruments, securities or other property;
(3) the obligations secured by such security agreement shall be deemed to be all
the Depositor's obligations under this Agreement, including the obligation to
provide to the Certificateholders the benefits of this Agreement relating to
such Underlying Securities and the applicable Trust; and (4) notifications to
persons holding such property,
44
and acknowledgments, receipts or confirmations from persons holding such
property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Trustee for the purpose of perfecting such security interest under
applicable law. Accordingly, the Depositor hereby grants to the Trustee a
security interest in the Underlying Securities and all other property described
in clause (2) of the preceding sentence, for the purpose of securing to the
Trustee the performance by the Depositor of the obligations described in clause
(3) of the preceding sentence. Notwithstanding the foregoing, the parties hereto
intend the Grant pursuant to Section 2.1 to be a true, absolute and
unconditional sale of the Underlying Securities and assets constituting the
applicable Trust by the Depositor to the Trustee. The Depositor shall, to the
extent consistent with this Agreement, take such actions as may be necessary to
ensure that, if this Agreement were deemed to create a security interest in the
Underlying Securities, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such for so long as any of the Underlying Securities remain outstanding.
Without limiting the generality of the foregoing, the Depositor, shall file, or
shall cause to be filed, all filings identified by the Depositor to be necessary
to maintain the effectiveness of any original filings identified by the
Depositor to be necessary under the UCC as in effect in any jurisdiction to
perfect the Trustee's security interest in or lien on the Underlying Securities,
including (x) continuation statements and (y) such other statements as may be
occasioned by (1) any change of name of the Depositor or the Trustee, (2) any
change of location of the place of business or the chief executive office of the
Depositor or (3) any transfer of any interest of the Depositor in any Underlying
Security.
Section 9.9. NONPETITION COVENANT. Notwithstanding any prior termination of
this Agreement, each of the Trustee (including any Co-Trustee), any agent
(including the Authenticating Agent, the Calculation Agent and the Paying Agent)
and the Depositor agrees that it shall not, until the date which is one year and
one day after the earlier of a Trust Termination Event or the Scheduled Final
Distribution Date, as defined in the related Series Supplement, acquiesce,
petition or otherwise invoke or cause the Trust to invoke the process of the
United States of America, any State or other political subdivision thereof or
any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government for the purpose of
commencing or sustaining a case by or against the Trust under a 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 all or any part of the property or assets of the Trust or ordering the
winding up or liquidation of the affairs of the Trust.
Section 9.10. NO RECOURSE. Provided that there exists no default on the
Underlying Securities, neither the Trustee (including any Co-Trustee), any agent
(including the Authenticating Agent, the Calculation Agent and the Paying Agent)
nor the Depositor shall have any recourse to the Underlying Securities, except
as specifically provided in the related Series Supplement.
Section 9.11. ARTICLE AND SECTION REFERENCES. All article and section
references used in this Agreement, unless otherwise provided, are to articles
and sections in this Agreement.
Section 9.12. CONFLICT WITH TRUST INDENTURE ACT.
(a) If any provision hereof limits, qualifies or conflicts with
another provision hereof that is required to be included in this Agreement by
any of the provisions of the TIA, such required provision shall control.
(b) The provisions of the TIA Sections 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
herein unless expressly excluded by this Agreement) are a part of and govern
this Agreement, whether or not physically contained herein.
(c) Except as expressly provided in this Agreement, all provisions
specifically referencing the TIA shall be inapplicable until such time as this
Agreement is qualified under the TIA.
45
IN WITNESS WHEREOF, the Depositor and the Trustee have caused their
names to be signed hereto by their respective officers thereunto duly
authorized, in each case as of the day and year first above written.
PRUDENTIAL SECURITIES STRUCTURED
ASSETS, INC., a Delaware
corporation, as Depositor
By:_____________________________
Authorized Signatory
THE CHASE MANHATTAN BANK,
a New York banking corporation, as
Trustee
By:_______________________________
Vice President
