EXHIBIT 4.1
EXHIBIT B
TO SERIES TRUST
AGREEMENT
STANDARD TERMS AND PROVISIONS OF TRUST AGREEMENT
between
AMERICAN CORPORATE RECEPTS, INC.
as Depositor,
and
----------------------------,
as Trustee
STANDARD TERMS AND PROVISIONS OF TRUST AGREEMENT
This document constitutes the Standard Terms and Provisions of Trust
Agreement which are to be incorporated by reference in, and attached as Exhibit
B to, one or more Series Trust Agreements by and among American Corporate
Receipts, Inc., as Depositor, and ________________, as Trustee.
Each Series Trust Agreement will create a trust (each, a "Trust")
under the laws of the State of New York to hold securities (the "Bonds") and
will provide for the creation, execution and delivery of trust receipts (the
"Receipts").
These Standard Terms shall be of no force and effect unless and
until incorporated by reference into a Series Trust Agreement.
The following terms and provisions shall govern the Receipts subject
to contrary terms and provisions expressly set forth in a Series Trust
Agreement, which contrary terms and provisions of the Series Trust Agreement
shall control, and subject to contrary terms and provisions contained in the
Trust Indenture Act of 1939, as amended, which contrary terms and conditions
shall control over both the Series Trust Agreement and these Standard Terms and
Provisions of Trust Agreement.
ARTICLE I
DEFINITIONS
SECTION 1.01. CERTAIN DEFINITIONS. All capitalized terms used herein
shall have the meaning set forth in this Section 1.01 unless the context
otherwise requires. Any capitalized terms not otherwise defined shall have the
meanings ascribed to them in the Act.
The term "Accreted Value" means, for any Receipt, (a) the original
issue price for such Receipt as set forth in Exhibit A to the Series Trust
Agreement, plus (b) an amount equal to an investment return thereon accrued to
the date of determination calculated based on a semiannual compounding rate, on
the basis of a 360 day year composed of twelve 30-day months, equal to the
original yield to maturity of such Receipt as set forth in Exhibit A to the
Series Trust Agreement. With respect to the allocation of proceeds of the Bonds
received in connection with a payment default on the Bonds, the relevant
determination date shall be the date of such default.
The term "Act" shall mean the Trust Indenture Act of 1939, as
amended.
The term "Agreement" shall mean the trust agreement consisting of
the Series Trust Agreement into which is incorporated by reference the Standard
Terms, including all exhibits, schedules, appendices, supplements and amendments
to each.
The term "Beneficial Owner" shall mean any purchaser of Receipts
which are held through a Direct or Indirect DTC Participant as such term is used
in the rules and regulations of DTC.
The term "Bond" shall mean with respect to each delivery of Receipts
hereunder, the Bonds specified in the Series Trust Agreement relating to such
Receipts in the aggregate principal amount so specified.
The term "Book-Entry Credit" shall mean the evidence of the deposit
by the Trustee of one or more Bonds in a separate account of the Trustee, as
Trustee under this Agreement, identified in the Series Trust Agreement.
The term "Callable Principal" shall mean the right to receive (i)
the payment, whether upon stated maturity or upon earlier redemption, of the
Principal of Bonds which are redeemable at the option of the issuer thereof
prior to stated maturity, including any redemption premium, and (ii) the
Interest relating to such Bonds with respect to Interest Payment Dates after the
First Call Date for such Bonds.
The term "Depositor" shall mean American Corporate Receipts, Inc., a
New Jersey corporation, and any successor as Depositor hereunder.
The term "Designated Office in New York City," when used with
respect to the Trustee, shall mean an office maintained in accordance with
Section 5.02(a) hereof and designated by the Trustee in the Borough of
Manhattan, City of New York, State of New York.
The term "DTC" shall mean The Depository Trust Company, a clearing
agency registered with the Securities and Exchange Commission, its successor or
successors, and its nominee or nominees.
The term "First Call Date" shall mean, for any Bond, the first date
such Bond can be redeemed at the option of the issuer thereof.
The term "Holder" shall mean a person in whose name a Receipt is
registered in the Receipt Register.
The term "Indenture" shall mean, with respect to any series of
Receipts, the trust indenture or similar agreement governing the Bonds specified
in the Series Trust Agreement relating to such series of Receipts.
The term "Interest" shall mean the right to receive the interest
payable on the Bonds on a single Interest Payment Date.
The term "Interest Payment Dates" shall mean the dates for interest
payments specified in the Series Trust Agreement.
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The term "Letter of Representations" shall mean the letter of
representations from the Depositor and the Trustee to DTC with respect to the
series of Receipts held at DTC.
The term "Participant" means an entity maintaining a custodial
account in its own name with DTC.
The term "Principal" shall mean the right to receive the principal
of the Bonds upon stated maturity.
The term "Receipt" shall mean a trust receipt of a class of receipts
to be issued under the Agreement, which classes are specified in the Series
Trust Agreement for the series. Such classes may consist of:
(i) Coupon Receipts, which entitle the Holders thereof, in the
aggregate, to the Interest payable on a single Interest Payment Date
on or before the First Call Date for the Bonds, or the stated
maturity date in the case of Bonds not redeemable (otherwise than in
connection with a default or acceleration) at the option of the
issuer thereof prior to stated maturity;
(ii) Principal Receipts, which entitle the Holders thereof, in the
aggregate, to Principal, payable at the stated maturity of the
Bonds, of Bonds which are not redeemable (otherwise than in
connection with a default or acceleration) at the option of the
issuer thereof prior to stated maturity; and
(iii) Callable Principal Receipts, which entitle the Holders
thereof, in the aggregate, to the Callable Principal relating to the
Bonds;
provided, that any designation of classes of Receipts made in the Series Trust
Agreement shall consist of only one of the following options: (a) Coupon
Receipts and Principal Receipts, or (b) Coupon Receipts and Callable Principal
Receipts.
The term "Receipt Register" shall have the meaning specified in
Section 2.03 hereof.
The term "Redemption Date" shall mean, with respect to any Bonds to
be redeemed, the date fixed by the issuer thereof for such redemption.
The term "Series Trust Agreement" shall mean the particular Series
Trust Agreement into which these Standard Terms have been incorporated.
The term "Standard Terms" shall mean this Standard Terms and
Provisions of Trust Agreement.
The term "Trust" shall mean each trust created by each Series Trust
Agreement.
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ARTICLE II
CREATION OF TRUST; DELIVERY AND CUSTODY
OF BONDS; FORM OF RECEIPTS; EXECUTION AND
DELIVERY, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. CREATION OF TRUST; DELIVERY AND CUSTODY OF BONDS;
EXECUTION AND DELIVERY OF RECEIPTS IN RESPECT THEREOF. The Trust shall be
established by the Depositor pursuant to a Series Trust Agreement. The sole
asset of such Trust shall be the Bonds deposited by the Depositor and any other
related property specified in the Series Trust Agreement. The Receipts shall
evidence fractional interests in designated portions of the assets of the Trust.
The income received by and the assets of such Trust shall be distributed solely
in accordance with this Agreement. The Trust shall not purchase or otherwise
acquire any additional securities and shall not dispose of or create any lien on
its assets. The Depositor shall, by book-entry credit or otherwise, irrevocably
deliver to the account of the Trustee specified in the Series Trust Agreement
such Bonds and, concurrently therewith, the Trustee shall, in accordance with
the provisions of this Agreement, execute and deliver to the Depositor, or such
person or persons as the Depositor may designate by written instruction, the
classes of Receipts identified in the Series Trust Agreement, evidencing the
aggregate amount, in authorized denominations, of the Bonds so delivered to the
Trustee. The Depositor shall also in connection with the Series Trust Agreement
enter into a separate agreement with the Trustee, satisfactory to the Trustee,
providing for the payment of the charges and expenses of the Trustee in respect
of such Receipts. In no event shall the assets of the Trust be used to pay such
fees.
The Trustee shall accept the Bonds so delivered as trustee for the
Holders of the Receipts which shall be delivered hereunder to evidence such
Bonds and shall hold the Bonds as provided hereunder. The Bonds specified in a
Series Trust Agreement shall be deposited by Book-Entry Credit in an account of
the Trustee at DTC, unless the Series Trust Agreement specifies that the Trustee
shall hold such Bonds (i) in a special trust account created by separate
recordation on its books, separate from all other assets of the Trustee, or (ii)
in some other manner. Separate subaccounts of any such special trust account
shall be established for each series of Receipts.
The Trustee shall hold all the Bonds delivered to it pursuant to
this Agreement in trust for the Holders, identified and held separate and apart
from the general assets of the Trustee. The account of the Trustee in which the
Bonds are held shall not contain any property of the Trustee in its individual
capacity and shall contain only property held by the Trustee as fiduciary. The
Trustee agrees that it does not have the authority to assign, transfer,
encumber, pledge, sell, set-off or otherwise dispose of any of the Bonds or any
interests therein except as provided hereunder or as required by law.
The Trustee acknowledges that it is not the beneficial owner of the
Bonds and that it holds the Bonds solely as trustee for the Holders pursuant to
this Agreement. Interest and
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principal payments on the Bonds held in the trust account will not be subject to
any right, charge, security interest, lien or claim of any kind in favor of the
Trustee or any person claiming through it.
The representations and covenants contained in any officer's
certificate of the Trustee delivered in connection with each series of Receipts
created by a deposit of Bonds shall be deemed to be incorporated by reference
herein, as fully as if set forth in full herein.
A reasonable time prior to the delivery of Bonds to the Trustee, the
Depositor shall furnish the Trustee with written instructions as to the name in
which the Receipts evidencing such Bonds shall initially be registered, the
denominations in which such Receipts shall initially be delivered, the persons
and addresses to whom such Receipts are to be delivered and such other
information as may be required by the Trustee in connection with the preparation
and delivery of such Receipts. Each class of Receipts shall evidence the
ownership by the Holders thereof of Interest, Principal, or Callable Principal
(or portions thereof), as the case may be, on the Bonds, to the extent required
by the terms of such class of Receipts.
Bonds underlying Receipts which are not held by book-entry credit at
an account of the Trustee at DTC shall be held by the Trustee at its Designated
Office in New York City or at such other place or places as the Trustee shall
determine.
SECTION 2.02. FORM OF RECEIPTS. Receipts shall be issued in
registered form only and shall be typewritten on safety paper or printed. The
classes of Receipts to be issued hereunder shall be identified in the Series
Trust Agreement and shall be substantially in the forms set forth in Appendix A,
in each case attached to these Standard Terms and with appropriate insertions,
modifications and omissions, as hereinafter so provided. Receipts shall be
executed by the Trustee by the manual signature of a duly authorized signatory
of the Trustee. No Receipt shall be entitled to any benefits under this
Agreement or be valid or obligatory for any purpose, unless it shall have been
executed manually by the Trustee by the signature of a duly authorized
signatory. The Trustee shall record in the Receipt Register each Receipt so
signed and delivered as herein provided.
The authorized denominations for each class of Receipts shall be the
dollar amount, and greater multiples thereof (or of such other dollar amount
specified in the Series Trust Agreement), set forth in the Series Trust
Agreement.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals not inconsistent with the provisions of this
Agreement as may be required by the Trustee or required to comply with any
applicable law or any regulation thereunder.
SECTION 2.03. REGISTRATION AND REGISTRATION OF TRANSFER AND EXCHANGE
OF RECEIPTS. The Trustee shall keep at its Designated Office in New York City
pursuant to Section 314 of the Act a register (the register maintained in such
office being herein sometimes referred to as the "Receipt Register") in which,
subject to such reasonable regulations as it may prescribe,
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the Trustee shall provide for the registration of Receipts and for the
registration of transfers or exchanges of Receipts.
Upon surrender for registration of transfer of any Receipt at the
Trustee's Designated Office in New York City, the Trustee shall, subject to
Sections 2.04 and 2.08 and any limitations that may be specified in the
applicable Series Trust Agreement, execute and deliver, in the name of the
designated transferee or transferees, one or more Receipts of the same class and
series, of any authorized denominations and of a like aggregate amount.
At the option of the Holder, Receipts may be exchanged for other
Receipts of the same class and series, of any authorized denominations and of a
like aggregate amount, upon surrender of the Receipts to be exchanged at the
Trustee's Designated Office in New York City. Whenever any Receipts are so
surrendered for exchange, the Trustee shall execute and deliver the Receipts
which the Holder making the exchange is entitled to receive.
All Receipts issued upon any registration of transfer or exchange of
Receipts shall evidence, to the extent indicated thereby, Interest, Principal or
Callable Principal (or portions thereof), as the case may be, of Bonds held by
the Trustee hereunder and shall be entitled to the same benefits under this
Agreement as the Receipts surrendered upon such registration of transfer or
exchange.
Every Receipt presented for registration of transfer or for exchange
shall (if so required by the Trustee) be duly endorsed by, or be accompanied by
a written instrument of transfer in form satisfactory to the Trustee and duly
executed by, the Holder thereof or such holder's attorney duly authorized in
writing.
The Trustee shall have no obligation to effect transfers or pledge
of Bonds in accordance with Section 8-320 of the New York Uniform Commercial
Code.
SECTION 2.04. LIMITATIONS ON EXECUTION AND DELIVERY, SURRENDER AND
REGISTRATION OF TRANSFER AND EXCHANGE OF RECEIPTS. As a condition precedent to
the execution and delivery, surrender or registration of transfer or exchange of
any Receipt, the Trustee may require payment, by the Holder requesting such
action, of the then applicable service charge of the Trustee and of a sum
sufficient for reimbursement of any tax or other governmental charge with
respect thereto, may require the production of proof reasonably satisfactory to
it as to the Holder's residence and identity and genuineness of any signature,
may require the Holder to execute receipts and to make such representations and
assurances as the Trustee may reasonably deem necessary or proper and may also
require compliance with such regulations, if any, as the Trustee may reasonably
establish consistent with the provisions of this Agreement.
The surrender or registration of transfer or exchange of outstanding
Receipts may be suspended if any such suspension is deemed necessary or
advisable by the Trustee at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of this Agreement, or for any other reason which makes such
surrender or registration of transfer or exchange impracticable.
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SECTION 2.05. MUTILATED, DESTROYED, LOST OR STOLEN RECEIPTS. In case
any Receipt shall be mutilated, the Trustee in its discretion may execute and
deliver a Receipt of the same series, of like form and tenor, and in the same
denomination and bearing a number not contemporaneously outstanding, in exchange
and substitution for such mutilated Receipt. In case any Receipt shall be
destroyed, lost or stolen, the Trustee may execute and deliver a Receipt of the
same series, of like form and tenor, and in the same denomination and bearing a
number not contemporaneously outstanding, in lieu of and in substitution for
such destroyed, lost or stolen Receipt, only upon (i) the filing by the Holder
thereof with the Trustee of evidence satisfactory to the Trustee of the
destruction, loss or theft of such Receipt and of the authenticity of such
Holder's ownership thereof, and (ii) the furnishing to the Trustee of reasonable
indemnification satisfactory to it. All expenses and charges associated with
such indemnity and with the preparation, execution and delivery of a new Receipt
shall be borne by the Holder of the Receipt mutilated destroyed, lost or stolen.
SECTION 2.06. PERSONS DEEMED OWNERS. Prior to due presentment of a
Receipt for registration of transfer, the Trustee and any agent of the Trustee
may treat the person in whose name such Receipt is registered as the owner of
such Receipt for the purpose of receiving payment of such Receipt and for all
other purposes whatsoever, whether or not such Receipt be overdue, and neither
the Trustee nor any agent of the Trustee shall be affected by notice to the
contrary.
SECTION 2.07. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS.
All Receipts surrendered to the Trustee shall be canceled by the Trustee. The
Trustee is authorized to destroy such receipts so canceled.
SECTION 2.08. BOOK-ENTRY. (i) At the election of the Depositor, any
Series Trust Agreement may provide that (1) all Receipts of a series are to be
held in DTC's book-entry only system, (2) all Receipts of a series are to be
issued in definitive physical form, or (3) the Receipts (or any part thereof)
are to be issued or held in such other form as is specified in the Series Trust
Agreement.
(ii) When the registered Holder of any or all of the Receipts is
DTC, such Receipts shall be registered in the name of Cede & Co., as nominee for
DTC. Payment in respect of any Interest or Principal represented by any Receipt
(a) if registered in the name of Cede & Co., shall be made by wire transfer of
immediately available funds to the account indicated for Cede & Co. in the
Receipt Register, and (b) if registered in the name of any other person (other
than a substitute depository for DTC described in Section 2.10 hereof), shall be
made by check for New York Clearing House funds mailed to the address indicated
for such person in the Receipt Register.
(iii) Receipts of which Cede & Co. shall be the Holder shall be
initially issued in the form of a separate single Receipt for each separate
class of Receipts identified in the Series Trust Agreement to be issued
hereunder, in the amount of each separate stated maturity of such Receipt. Upon
initial issuance, the ownership of such Receipt shall be
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registered in the Receipt Register in the name of Cede & Co., as nominee for
DTC. The Depositor and the Trustee may treat DTC (or its nominee) as the sole
and exclusive owner of the Receipt registered in its name for the purposes of
payment of interest, principal and/or premium represented thereby, giving any
notice permitted or required to be given to Holders under this Agreement,
registering the transfer of such Receipt, obtaining any consent or other action
to be taken by Holders and for all other purposes whatsoever, and neither the
Depositor nor the Trustee shall be affected by any notice to the contrary.
Neither the Depositor nor the Trustee shall have any responsibility or
obligation to any Participant, any person claiming a beneficial ownership
interest in such Receipt under or through DTC or any Participant or any other
person that is not shown on the Receipt Register as being a Holder of such
Receipt, with respect to the accuracy of any records maintained by DTC or any
Participant; the payment by DTC or any Participant of any amount in respect of
principal, interest and/or premium represented by such Receipt; any notice (or
the timeliness thereof) that is permitted or required to be given to Holders of
such Receipt under this Agreement; or any consent given or other action taken by
DTC as the Holder of such Receipt. Upon delivery by DTC to the Trustee of
written notice to the effect that DTC has determined to substitute a new nominee
in place of Cede & Co., and subject to the provisions of Section 2.03 hereof
limiting the obligations of the Trustee to register transfers of or to exchange
Receipts, the words "Cede & Co." in this Agreement shall refer to such new
nominee of DTC.
(iv) Upon (1) the resignation of DTC or its successor (or substitute
depository or its successor) from its functions as depository or (2) a
determination by the Depositor that it is in the best interests of (A) the
Depositor (and will not adversely affect the beneficial owners) or (B) the
beneficial owners to remove DTC or its functions as depository, the Depositor
shall notify DTC and the Trustee, whereupon DTC will notify the Participants of
the availability through DTC of physical certificates evidencing the Receipts.
In such event, the Trustee shall execute, register the transfer of and exchange
Receipts as requested by DTC or by any other Holders of such Receipts in
appropriate amounts and in accordance with the Receipt registry of DTC. In the
event the issuer of any Bond defaults on the payment of any Interest or
Principal which is evidenced by a Receipt held by DTC, and such default remains
uncured for 10 days, the Trustee may (but shall not be obligated to) withdraw
from DTC, in which event DTC shall promptly deliver to the Trustee the physical
certificates evidencing such Bonds. Whenever DTC requests the Trustee to do so,
the Trustee and the Depositor will cooperate with DTC in taking appropriate
action after reasonable notice (a) to make available one or more separate
physical certificates evidencing such Receipts to any Participant having
Receipts credited to its DTC account or (b) to arrange for another securities
depository to maintain custody of physical certificates evidencing such
Receipts.
(v) Notwithstanding any other provision of this Agreement to the
contrary, so long as any Receipt is registered in the name of Cede & Co., as
nominee for DTC, all payments with respect to the principal, interest and/or
premium represented by such Receipt shall be made by wire transfer of
immediately available funds and all notices with respect to such Receipt shall
be given, respectively, to DTC as provided in the Letter of Representations.
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(vi) 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 give DTC notice of such
record date not less than 15 calendar days in advance of such record date to the
extent possible.
(vii) If quarterly and annual financial statements concerning the
issuer of the Bonds are not available to the Trust and less than two years have
elapsed from the date of issuance of the Receipts, then, unless the Trust has
earlier suspended its own reporting requirements under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), for such Receipts, the Receipts
shall be removed from the DTC book entry system, and physical certificates
representing the Receipts of each class will be issued to the Holders of the
Receipts. Such physical certificates will bear a legend indicating that pursuant
to an undertaking by the Depositor to the staff of the Securities and Exchange
Commission, such Receipts must be treated as restricted securities that have not
been registered under the Securities Act of 1933, as amended (the "Securities
Act"), and may not be transferred unless they are subsequently registered under
the Securities Act or transferred pursuant to an exemption thereto. No such
removal from the DTC book entry system and legending as restricted securities
will be required at any time after the earlier of two years from the date of
issuance of the Receipts or the suspension by the Trust of its own Exchange Act
reporting requirements. In addition, in the event that Receipts have been so
removed and legended, such Receipts will be returned to the DTC book entry
system and such legends will be removed promptly after the first to occur of (a)
the lapse of two years after the date of issuance of such Receipts, (b) the
suspension by the Trust of its Exchange Act reporting requirements with respect
to such Receipts, and (c) the reinstatement of the Exchange Act reporting
requirements of the issuer of the Bonds.
SECTION 2.09. ACTION OR CONSENT OF HOLDERS. In the event of any
action or consent requiring the vote of the owners of any Bonds, the Trustee,
upon receipt of the Bond proxy, will notify DTC of such action. Under current
procedures it is expected that DTC will notify the Participants who will notify
the beneficial owners of Principal or Callable Principal Receipts of such event.
Thereafter, except when the approval of the beneficial owners of the Coupon
Receipts is also required as provided below, the Trustee shall vote solely in
accordance with the instructions received from the DTC (or pursuant to the
applicable procedures of DTC) and shall apportion its voting powers on the basis
of the face amount of the Principal or Callable Principal Receipts. If the
Receipts are not then held by DTC or any other Depository, the Trustee upon
receipt of the Bond proxy will notify the Holders of the Principal or Callable
Principal Receipts directly of such action and shall vote in the same manner as
noted above.
In no event shall the Depositor be allowed or entitled (other than
in its capacity as a safekeeper for a Holder) to vote, directly or indirectly,
any Receipts.
By their affirmative vote, the Holders of more than 50% in principal
amount of Receipts of any Series may direct the Trustee to take or omit to take
any action required or permitted under this Agreement or the Act; provided,
however, that the Trustee shall not vote in favor of any proposal with regard to
the Bonds which would have the effect of permitting a
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redemption or prepayment of the Bonds unless the Holders of 100% of the Receipts
then outstanding of the applicable Series (including all Coupon Receipts,
Principal Receipts or Callable Principal Receipts as the case may be) vote in
favor of such action.
SECTION 2.10. TRANSFER OF RECEIPTS HELD BY DTC TO SUCCESSOR
DEPOSITORY. If the Depositor elects to direct that the Trustee deliver Receipts
with respect to a particular Series Trust Agreement in the name of and to DTC,
as the Depository hereunder, subject to Section 2.08, said Receipts may not
thereafter be transferred except:
(i) to any successor of DTC or its nominee, or to any substitute
depository designated pursuant to clause (ii) of this subsection (a)
("substitute depository"); provided, that any successor of DTC or substitute
depository shall be qualified under any applicable laws to provide the services
proposed to be provided by it;
(ii) to any substitute depository not objected to by the Trustee,
upon (1) the resignation of DTC or its successor (or any substitute depository
or its successor) from its functions as depository or (2) a determination by the
Depositor that it is in the best interest of the Depositor (and will not
adversely affect the beneficial owners) or the Holders to remove DTC or its
successor (or any substitute depository or its successor); provided, that any
such substitute depository shall be qualified under any applicable laws to
provide the services proposed to be provided by it; or
(iii) as provided in Section 2.08(iv) hereof.
SECTION 2.11. TEMPORARY RECEIPTS. The Receipts may be initially
delivered in temporary form exchangeable for definitive Receipts when ready for
delivery, which temporary Receipts shall be printed, lithographed or
typewritten, shall be of such denominations as may be determined by the Trustee,
shall be in fully registered form and shall contain such reference to any of the
provisions hereof as may be appropriate. Every temporary Receipt shall be
executed and delivered by the Trustee upon the same conditions and terms and in
substantially the same manner as definitive Receipts. If temporary Receipts are
issued, the Trustee will execute and deliver definitive Receipts without delay,
and in that case upon demand of the Holder of any temporary Receipts such
temporary Receipts shall be exchanged without cost to such Holder for definitive
Receipts at the office of the Trustee upon surrender of such temporary Receipts,
and until so exchanged such temporary Receipts shall be entitled to the same
benefit, protection and security hereunder as the definitive Receipts executed
and delivered hereunder. All temporary Receipts surrendered pursuant to the
provisions of this Section 2.11 shall be canceled by the Trustee, shall not be
redelivered and shall be destroyed by the Trustee.
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ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF
RECEIPTS; DEPOSITOR'S WARRANTIES
SECTION 3.01. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any
Holder presenting Receipts for surrender or registration of transfer may be
required to file such proof of residence, or other matters or information, to
execute such certificates and to make such representations and warranties as the
Trustee may reasonably deem necessary or proper. The Trustee may withhold the
delivery or delay the surrender of or registration of transfer or exchange of
any Receipt until such proof or other information is filed, such certificates
are executed or such representations and warranties are made.
SECTION 3.02. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. If any
tax or other governmental charge shall become payable by or on behalf of the
Trustee, including any tax or charge required to be withheld from any payment
made to or by the Trustee under the provisions of any applicable law, with
respect to any Receipt or with respect to the Interest, Principal or Callable
Principal (or portions thereof) evidenced by any such Receipt, such tax or
governmental charge shall be payable by the Holder of such Receipt and may be so
withheld by the Trustee. The surrender of or registration of transfer or
exchange of any Receipt may be refused until such payment is made.
SECTION 3.03. DEPOSITOR'S WARRANTIES. In the case of each delivery
of Bonds to the Trustee, the Depositor shall be deemed thereby to represent and
warrant to the Trustee that the Depositor is duly authorized to so deliver such
Bonds and that immediately prior to the delivery thereof the Depositor owned
such Bonds free and clear of any lien, pledge, encumbrance or other security
interest. The Depositor shall further be deemed by such delivery to have made
the representations and warranties contained in the Series Trust Agreement with
respect to such Bonds and to represent and warrant to the Trustee that the
prospectus and prospectus supplement prepared by the Depositor with respect to
the Receipts makes such disclosure with respect to the Bonds as is required by
applicable federal and state securities laws. Such representations and
warranties shall survive the delivery of such Bonds and the Receipts in respect
thereof.
ARTICLE IV
PAYMENT OF INTEREST AND PRINCIPAL, CUSTODY
OF PROCEEDS OF INTEREST AND PRINCIPAL PAYMENTS
SECTION 4.01. PAYMENT OF INTEREST; PAYMENT OF PRINCIPAL. In the case
of any interest or principal payments due on Bonds held by the Trustee in
certificate form, the Trustee shall present to the issuer, trustee or paying
agent therefor, as applicable, for payment all coupons or other documents
required on the Interest Payment Dates related thereto and the
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receipts representing the Bonds and/or all other required documents at stated
maturity or upon the Redemption Date therefor.
With respect to any Coupon Receipt, on and after the Interest
Payment Date of the Interest evidenced thereby, if the applicable issuer shall
have paid in full and the Trustee shall have received the interest due on such
Interest Payment Date on the underlying Bonds, the Trustee shall pay to the
Holder thereof as of the applicable record date of the underlying Bonds, in
lawful money of the United States of America, (i) if the Holder is DTC or its
nominee or any successor depository or nominee thereof, by wire transfer of
immediately available funds, and (ii) if the Holder is any other person, by
check for New York Clearing House Funds sent by first-class mail to the address
of the Holder set forth in the Receipt Register, the entire amount of such
Interest evidenced thereby, less any taxes or governmental charges required to
be withheld from such payment by the Trustee.
Except as provided for under Section 5.01 hereof, with respect to
any Principal Receipt, if the applicable issuer shall have paid in full and the
Trustee shall have received the amount of such Principal, the Trustee shall pay
to the Holder thereof as of the applicable record date, in lawful money of the
United States of America, (i) if the Holder is DTC or its nominee or any
successor depository or nominee thereof, by wire transfer of immediately
available funds, and (ii) if the Holder is any other person, by check for New
York Clearing House Funds sent by first-class mail to the address of the Holder
set forth in the Receipt Register, the entire amount of such Principal evidenced
thereby, less any taxes or governmental charges required to be withheld from
such payment by the Trustee.
Except as provided for under Section 5.01 hereof, with respect to
any Callable Principal Receipt, if the applicable issuer shall have paid and the
Trustee shall have received all or any part of the principal amount of the
Principal and redemption premium, if any, due upon maturity, or upon the earlier
redemption of the underlying Bonds, the Trustee shall pay to the Holder thereof
as of the applicable record date, in lawful money of the United States of
America, (i) if the Holder is DTC or its nominee or any successor depository or
nominee thereof, by wire transfer of immediately available funds, and (ii) if
the Holder is any other person, by check for New York Clearing House funds sent
by first-class mail to the address of the Holder set forth in the Receipt
Register, the entire amount of such Principal and premium, if any, evidenced
thereby, or, in the case of a Callable Principal Receipt redeemed in part, the
amount of such Principal so redeemed; in each case less any taxes or
governmental charges required to be withheld from such Payment by the Trustee.
With respect to any Callable Principal Receipt, on and after the
Interest Payment Date of the Interest evidenced thereby (which Interest Payment
Date shall be on or after the First Call Date), if the applicable issuer shall
have paid in full and the Trustee shall have received the interest due on such
Interest Payment Date on the underlying Bonds, the Trustee shall pay to the
Holder thereof as of the applicable record date of the underlying Bonds, in
lawful money of the United States of America, (i) if the Holder is DTC or its
nominee or any successor depository or nominee thereof, by wire transfer of
immediately available funds, and (ii) if the Holder is any other person, by
check for New York Clearing House Funds sent by first-class mail to the
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address of the Holder set forth in the Receipt Register, the entire amount of
such Interest evidenced thereby, less any taxes or governmental charges required
to be withheld from such payment by the Trustee.
When making any payment to a Holder of a Receipt under this
Agreement, the Trustee shall round down such payment to the nearest whole cent.
SECTION 4.02. SEGREGATION OF MONEYS RECEIVED FROM ISSUERS IN RESPECT
OF BONDS. All moneys received from the issuers of Bonds or otherwise by the
Trustee in respect of Bonds evidenced by Receipts issued hereunder shall be held
by it without interest in a special account for each issue of Bonds held in
trust until required to be disbursed in accordance with the provisions of this
Agreement or as otherwise required by law and such moneys will be segregated by
separate recordation on the books and records of the Trustee.
ARTICLE V
THE TRUSTEE AND THE DEPOSITOR
SECTION 5.01. NO LIABILITY OF THE TRUSTEE OR THE DEPOSITOR ON THE
BONDS; POWERS OF TRUSTEE UPON A DEFAULT ON THE BONDS. The sole obligor with
respect to any Bond is the issuer thereof or any other entity obligated to make
payments to or on behalf of the issuer thereof (or its trustee or other
applicable fiduciary) with respect to any Bond. Neither the Trustee nor the
Depositor shall have any obligation on or with respect to the Bonds except as
provided herein or in the Act; and their respective obligations with respect to
Receipts shall be solely as set forth in this Agreement and the Act.
Upon any default by the issuer of any Bond on the payment of any
Interest, Principal, or Callable Principal which is evidenced by a Receipt, the
Trustee shall promptly give notice to DTC or, if the Receipts are not then held
by DTC or any other Depository, directly to Holders thereof as provided in
Section 8.03 hereof. Such notice shall set forth (a) the identity of the issue
of Bonds, (b) the date and nature of such default, (c) the face amount of the
Interest, Principal or Callable Principal to which such default relates, (d) the
identifying numbers or the class of Receipts, or any combination, as the case
may be, evidencing the Interest, Principal or Callable Principal (or portions
thereof) described above in clause (c), and (e) any other information which the
Trustee may deem appropriate.
In the event of the occurrence of any default by the issuer of any
Bond in the payment of any Interest, Principal, or Callable Principal which is
evidenced by a Receipt, and such default is not cured by such issuer or a
guarantor, insurer or other surety, if any, within ten (10) days of the date of
default, there will be an involuntary surrender of the related Receipts and the
Trustee will, whether or not requested by the Holders of Receipts promptly cause
the distribution in kind of the respective interests in the Bonds to the Holders
of the related Receipts (in proportion to the Accreted Value of each outstanding
class of Receipts, and within each class pro rata by face amount) and dissolve
the Trust, if the Bonds which are the subject of the default constitute all of
the assets of a given Trust.
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Where the interest of a Holder of a Receipt may not be separately
distributed in kind because physical coupons or Bonds are not available, or for
some other reason, the Trustee shall make the distribution in kind required by
the preceding paragraph (i) with respect to Coupon Receipts by supplying such
documents as the Holder of a Coupon Receipt may reasonably request (or in the
absence of such request, as the Trustee may deem appropriate), in order to
permit such Holder to preserve or assert his rights with respect to such Coupon
Receipt against the issuer of the Bonds; and (ii) with respect to Callable
Principal and Principal Receipts, by distributing pro rata (in proportion to
face amount) the principal amount of such Bonds to the respective holders of
such Callable Principal Receipts and Principal Receipts (or, if the Bonds are
not available in certificated form, by supplying such documents as the Holders
of such Receipts may reasonably request or, in the absence of such request, as
the Trustee may deem appropriate, in order to permit such Holders to preserve or
assert their rights with respect to such Bond against the issuer thereof). Bonds
or interest thereon shall be delivered to such Holders as provided pursuant to
this Section 5.01 upon surrender of the affected Receipts at the account of each
Holder as directed by such Holder in writing or, in the absence of such
direction or surrender, at an account maintained for the Holder by the Trustee.
Each Holder receiving defaulted Bonds or divided interest therein shall be
entitled to proceed against the issuer in the manner such Holder deems
appropriate.
In applying the provisions of the preceding paragraph in the case of
Receipts deliverable only in book-entry form pursuant to Section 2.08 hereof,
the Trustee will, to the extent possible, make distributions in kind of Bonds to
the Holders that are the beneficial owners according to the Receipt Register or
custodial records of DTC (which, in such event, shall be deemed a part of the
Receipt Register).
Holders of Receipts shall be entitled to proceed directly against
the issuer (or such guarantor, insurer, or surety, if any) of the Bonds or any
other person.
Holders of the Receipts shall have no recourse against the Depositor
or the Trustee for claims arising out of a default on the Bonds. The Trustee
shall furnish upon request of the Depositor and, after the notice is received by
the Trustee of the occurrence of an event of default or event which with the
passage of time will become an event of default, upon request of any Holder, a
list of the names, addresses and such other matters contained in the Receipts
Register as the Depositor or such Holder may request. The Depositor or the
Holder, as appropriate, shall pay to the Trustee any reasonable or customary
charge for the furnishing of the requested information.
In the event that the Trustee receives money or other property in
respect of the Bonds (other than a scheduled interest payment with respect to an
Interest Payment Date or the scheduled payment of principal on or with respect
to the stated maturity date of the Bonds) as a result of a payment default on
the Bonds, or actual notice that such moneys or other property will be paid to
the Trustee, the Trustee shall promptly give notice (as provided in Section 8.03
hereof) to DTC or, if the Receipts are not then held by DTC or any other
Depository, directly to the Holders of the Receipts then outstanding and unpaid.
Such notice shall state that, not later than thirty (30) days after the receipt
of such moneys or other property, the Trustee shall allocate and distribute such
moneys or other property to the Holders of the Receipts then outstanding and
unpaid, in proportion to the Accreted Value of each outstanding class of
Receipts, and within each class pro rata by face amount. Property received,
other than cash, shall be liquidated by the Trustee in a commercially reasonable
manner and the proceeds thereof, after deduction of all reasonable costs and
expenses of such liquidation, distributed in cash; provided, however, that if
such property consists of securities, such securities shall be liquidated only
to the extent necessary to avoid distribution of fractional securities.
Sections 317(a), 316(a)(1), 316(b), 315(b) and 315(e) of the Act are
hereby specifically incorporated by reference into these Standard Terms.
Neither the Trustee nor the Depositor shall be under any obligation
whatsoever to appear in, prosecute or defend any action, suit or other
proceeding in respect of the Bonds or Receipts.
ANY ACTION OR PROCEEDING ALLEGING ANY BREACH BY THE TRUSTEE OF ITS
DUTIES UNDER THIS AGREEMENT SHALL BE PROSECUTED ONLY IN A STATE OR FEDERAL COURT
LOCATED IN THE STATE OF NEW YORK COUNTY, NEW YORK. THE TRUSTEE SHALL HAVE THE
RIGHT AT ANY TIME TO SEEK INSTRUCTIONS FROM ANY COURT OF COMPETENT JURISDICTION.
The Trustee may consult with and rely upon the calculations of an
advisor (which may be the Depositor) in connection with any calculation of
Accreted Value to the extent such amount must be determined in order for the
Trustee to carry out its duties hereunder. The expenses of such an advisor
(other than the Depositor) shall be borne by the Holders and shall not exceed
$5,000.
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SECTION 5.02. MAINTENANCE OF OFFICES AND AGENCIES BY THE TRUSTEE.
Until termination of this Agreement in accordance with its terms, the Trustee
shall maintain (a) facilities in the Borough of Manhattan, City of New York,
State of New York, for the execution and delivery, payment, surrender and
registration of transfer and exchange of Receipts, all in accordance with the
provisions of this Agreement, and (b) such other agents, if any, according to
the terms and conditions as the Trustee and the Depositor may agree from time to
time.
SECTION 5.03. PREVENTION OR DELAY IN PERFORMANCE BY THE TRUSTEE OR
THE DEPOSITOR. Neither the Trustee nor the Depositor shall incur any liability
to any Holder of any Receipt, if by reason of any provision of any present or
future law, or regulation thereunder, of any governmental authority, or by
reason of any act of God or war or other circumstance beyond the control of the
relevant party, the Trustee or the Depositor shall be prevented or forbidden
from doing or performing any act or thing which the terms of this Agreement
provide shall be done or performed; and neither the Trustee nor the Depositor
shall incur any liability to any Holder of a Receipt by reason of any
non-performance or delay, caused as aforesaid, in the performance of any act or
thing which the terms of this Agreement provide shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Agreement.
SECTION 5.04. OBLIGATIONS OF THE TRUSTEE AND THE DEPOSITOR. Subject
to Section 315 of the Act as to the Trustee, neither the Trustee nor the
Depositor assume any obligation or shall be subject to any liability under this
Agreement to Holders of Receipts, other than by reason of willful misconduct,
bad faith or negligence in the performance of such duties as are specifically
set forth in this Agreement. Neither the Depositor nor the Trustee shall be
under any obligation to take any action hereunder which may tend to involve it
in any expense or liability, the payment of which within a reasonable time is
not, in its reasonable opinion, assured to it.
Neither the Trustee nor the Depositor shall be liable to any Holder
of any Receipt for any action or non-action by it in reliance upon the advice of
or information from legal counsel, accountants, any Holder of a Receipt or any
other person believed by it in good faith to be competent to give such advice or
information. The Trustee and the Depositor may each rely and shall each be
protected in acting upon any written notice, request, direction or other
document believed by it to be genuine and to have been signed or presented by
the proper party or parties.
Neither DTC nor any registrar with which Bonds are maintained as
book-entry credits shall be deemed agents of the Trustee. The Trustee may own
and deal in bonds of the same issue and maturity as the Bonds and in Receipts.
The Trustee shall at all times maintain a fidelity bond in
reasonable form and amount to protect against loss due to dishonest or
fraudulent action by its employees in connection with its obligations hereunder.
SECTION 5.05. RESIGNATION AND REMOVAL OF THE TRUSTEE; APPOINTMENT OF
SUCCESSOR TRUSTEE. The Trustee may at any time resign as Trustee hereunder by
written notice of
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its election so to do, delivered to the Depositor, and such resignation shall
take effect upon the appointment of a successor Trustee and its acceptance of
such appointment as hereinafter provided. The Depositor may at any time remove
the Trustee as Trustee hereunder by written notice of its election to do so,
delivered to the Trustee as provided in Section 8.03 hereof, and such removal
shall take effect upon the appointment of a successor Trustee and its acceptance
of such appointment as provided in the third succeeding paragraph; provided,
however, that in the event of such removal, the Depositor shall negotiate in
good faith with the Trustee in order to agree regarding payment of the
termination costs of the Trustee resulting from such removal. Upon the
designation of a successor Trustee following either resignation by or removal of
the Trustee, the Trustee shall deliver to the successor Trustee all records
relating to the Receipts in the form and manner then maintained by the Trustee,
which shall include a hard copy thereof upon request of the successor Trustee.
If at any time the Trustee fails to meet the qualifications for
successor Trustees set forth in the next paragraph, shall become incapable of
acting or shall be adjudged a 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, or the Trustee shall fail to
comply with the provisions of Section 310(b) of the Act, then any Holder of a
Receipt with respect to a particular issue of Bonds which has been such a Holder
for at least six (6) months or the Holders of ten percent (10%) of the face
amount of Receipts of a series which is outstanding at such time may, on behalf
of himself, herself or themselves and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with respect
to the Bonds evidenced by such Receipts and the appointment of a successor
Trustee.
In the case at any time the Trustee acting hereunder notifies the
Depositor that it elects to resign or the Depositor notifies the Trustee that it
elects to remove the Trustee as Trustee, the Depositor shall, within ninety (90)
days after the delivery of the notice of resignation or removal, appoint a
successor Trustee, which shall be a bank with trust powers or trust company
having its principal office in the United States of America, having a combined
capital and surplus of at least $50,000,000, and having a rating of Baa or
better assigned by at least one nationally recognized statistical rating agency,
as that term is defined under Securities and Exchange Commission Rule
15C3-1(c)(2)(vi)(F). If no successor Trustee has been appointed a successor
Trustee within ninety (90) days after the Trustee has given written notice of
its election to resign or the Depositor has given written notice to the Trustee
of its election to remove the Trustee, as the case may be, the Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee. Every successor Trustee shall execute and deliver to its predecessor
and to the Depositor an instrument in writing accepting its appointment
hereunder, and thereupon such successor Trustee, without any further act or
deed, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor and for all purposes shall be the Trustee under
this Agreement, and such predecessor, upon payment of all sums due it and on the
written request of the Depositor, shall execute and deliver an instrument
transferring to such successor all rights, obligations and powers of such
predecessor hereunder, and shall duly assign, transfer and deliver all right,
title and interest in the Bonds and parts thereof to such successor.
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Any successor Trustee shall promptly give notice of its appointment to the
Holders of Receipts for which it is successor Trustee as provided in Section
8.03 hereof.
Any corporation into or with which the Trustee may be merged,
consolidated or converted or any corporation which shall succeed to all or
substantially all of the corporate trust business of the Trustee shall be the
successor of such Trustee without the execution or filing of any document or any
further act.
SECTION 5.06. INDEMNIFICATION BY THE DEPOSITOR; CONTRIBUTION. The
Depositor agrees to indemnify the Trustee against, and hold it harmless from,
any liability which may arise out of or in relation to the acceptance,
administration or performance by the Trustee of its duties hereunder or any acts
performed or omitted in accordance with the provisions of this Agreement, as the
same may be amended, supplemented or modified from time to time, in relation to
the Bonds described in the Series Trust Agreement executed by the Depositor or
the Receipts of a series and any liability which may arise out of acts performed
or omitted in relation to such Receipts (a) by the Trustee or its agents, except
for any liability arising out of acts of willful misconduct, bad faith or
negligence on the part of the Trustee or its agents, or (b) by the Depositor or
any of its agents.
If the indemnification provided for in the preceding paragraph is
invalid or unenforceable, then the Depositor shall contribute to the amount paid
or payable by the Trustee as a result of such liability in such proportion as is
appropriate to reflect the relative benefits received by the Depositor on one
hand and the Trustee on the other from the issuance and sale of such Receipts.
For this purpose the benefits received by the Depositor shall be the aggregate
amount received by it upon the sale of such Receipts, less the costs and
expenses of such sale, including the cost of acquisition of the Bonds evidenced
thereby, and the benefits received by the Trustee shall be the aggregate amount
of fees received by it as Trustee, less costs and expenses incurred by it as
Trustee in relation to such Receipts, and the Bonds evidenced thereby. If,
however, the allocation provided by the immediately preceding two sentences is
not permitted by applicable law, then the Depositor shall contribute to such
amount paid or payable by the Trustee in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Depositor on the one hand and the Trustee on the other in connection with the
actions or omissions which resulted in such liability, as well as any other
relevant equitable considerations.
The term "liability," as used in this Section 5.06, shall include
any losses, claims, damages, expenses (including without limitation the
Trustee's costs and expenses in defending itself against any losses, claims or
investigations of any nature whatsoever to the extent the Trustee is not
reimbursed as contemplated therein) or other liabilities, joint or several,
arising for any reason (including without limitation violation of applicable
laws or trademarks or service marks).
The obligations of the Depositor under this Section 5.06 shall (i)
be in addition to any liability which the Depositor may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Trustee and to each person, if any, who controls the
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Trustee within the meaning of the Securities Exchange Act of 1934, as amended
and (ii) survive the resignation or removal of the Trustee and the termination
of this Agreement.
SECTION 5.07. CHARGES AND EXPENSES. Except as otherwise provided in
this Agreement, (i) no current or future charges, fees and expenses of the
Trustee shall be payable by or withheld from any person other than the
Depositor, except for any taxes and other governmental charges, and (ii) in full
payment and satisfaction of all other charges and expenses of the Trustee
(including, in each case, fees and expenses of counsel) incidental to the
performance of its obligations hereunder, the Depositor shall pay the Trustee an
amount determined in accordance with a separate agreement between it and the
Trustee.
SECTION 5.08. REPORTS TO RECEIPT HOLDERS.
(a) Quarterly and annual unaudited reports containing information
concerning the related Bonds, including an annual independent accountant's
statement of review regarding the payment of all income on the Bonds to the
Receipt Holders, will be prepared by the Depositor and sent on behalf of the
Trust to the Holders of the Receipts. The Depositor shall cause each Trust to
file with the Securities and Exchange Commission such other reports as may be
required under the Exchange Act of 1934, and the rules and regulations
thereunder, and, in addition, to prepare such reports and take such actions as
may otherwise be required by Section 314(a) of the Act.
(b) In addition to the foregoing, within the period of time
prescribed by the Internal Revenue Code of 1986, as amended, and the rules and
regulations thereunder, after the end of each calendar year during the term of
each Trust, the Trustee will mail to each person who at any time during such
calendar year has been a Holder and received any payment thereon a statement
containing certain information for the purposes of such Holder's preparation of
federal income tax returns.
(c) On or before February 1 of each year, the Trustee for each Trust
shall transmit by mail to the Holders of the related Receipts the report, if
any, required by Section 313(a) of the Act.
(d) In addition to the foregoing, the Trustee shall transmit to the
Holders of the Receipts any communications received by the Trustee from the
issuer of the related Bonds. To the extent that the issuer of the Bonds fails to
reimburse the Trustee for its reasonable expenses in connection with the
transmission of communications to the Holders of the Receipts, the Depositor
shall pay such expenses pursuant to Section 5.07 hereof.
SECTION 5.09. REPORTS TO TRUSTEE. The Depositor, on behalf of the
Trust, shall deliver to the Trustee semi-annually each June 30 and December 31
the information required by Section 312(a) of the Act; provided, however, that
so long as the Trustee is acting as registrar for the Receipts, no such
information need be furnished.
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ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. AMENDMENT. The form of the Receipts and any provisions
of this Agreement may at any time and from time to time be amended by agreement
in writing between the Depositor and the Trustee, executed by each of them, in
any respect which they may deem necessary or desirable, provided that in no
event shall any amendment defer or alter the maturity of a Receipt or, as
evidenced by an opinion of counsel delivered to the Trustee, in any other manner
adversely affect the rights to payment of a Holder of a Receipt or otherwise
materially prejudice any substantial existing right of the Holders of the
Receipts. Every Holder of a Receipt at the time any such amendment so becomes
effective shall be deemed to be continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by this Agreement as amended thereby.
Notwithstanding any other provision herein, no amendment to this Agreement shall
be effective unless the Depositor shall provide the nationally recognized
statistical rating agency, if any, which has rated the Receipts of each Trust to
be effected by such amendment with ten (10) days prior written notice of such
proposed amendment and has received a written confirmation from such nationally
recognized statistical rating agency that such amendment will not cause the
nationally recognized statistical rating agency to downgrade its rating of the
subject Receipts.
The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an opinion of counsel, in form and substance
reasonably satisfactory to the Trustee, stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Section 6.01 is
authorized and permitted by this Agreement. Such opinion of counsel shall not be
an expense of the Trustee.
SECTION 6.02. TERMINATION. This Agreement shall terminate with
respect to any Trust one year following the payment upon maturity (or any
earlier redemption) by the respective issuers of the entire principal amount
(and any redemption premium) of the Bonds. If any Receipts shall remain
outstanding after the date of termination of this Agreement, the Trustee shall
not perform any further acts under this Agreement, except that the Trustee shall
hold the proceeds of any payment, without liability for interest, for the pro
rata benefit of the Holders of Receipts which have not theretofore been
surrendered for payment unless otherwise required by applicable law. Upon the
termination of this Agreement, the Depositor shall be discharged from all
obligations under this Agreement except for its obligations to the Trustee under
Section 5.06 and 5.07 hereof.
ARTICLE VII
REDEMPTION OF CALLABLE PRINCIPAL RECEIPTS
SECTION 7.01. REDEMPTION. If the Bonds of any issue underlying
Callable Principal Receipts are redeemed in whole or in part on or after the
First Call Date, and upon
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actual receipt by the Trustee of notice of such redemption, the Trustee shall,
in accordance with the provisions of this Article VII, redeem a principal amount
of Callable Principal Receipts equal to the principal amount of the Bonds of
such issue held in trust hereunder so redeemed. In the absence of the actual
notice described in this Section 7.01, the Trustee shall be under no obligation
to effect the redemption required by this Section 7.01. The particular Callable
Principal Receipts to be redeemed shall be selected by the Trustee from the
outstanding Callable Principal Receipts of such series by lot or such other
method as the Trustee shall deem fair and appropriate and which may provide for
the selection for redemption of portions (in amounts equal to the minimum
authorized denomination of such series and integral multiples thereof) of the
principal amount represented by such Callable Principal Receipts. To the extent
practicable the Trustee shall, in the case of partial redemption, redeem
Callable Principal Receipts so that no more than one Callable Principal Receipt
is thereby rendered other than in an authorized denomination. Upon redemption of
any Callable Principal Receipts, the Holder will have no right to receive
Payments on any Interest maturing after the Redemption Date thereof.
SECTION 7.02. NOTICE OF REDEMPTION. Notice of redemption shall be
given by the Trustee to each Holder of any Callable Principal Receipts to be
redeemed as provided in Section 8.03 hereof within thirty (30) days after notice
of redemption of the underlying Bonds has been given by the issuer, trustee or
paying agent of or for the Bonds, as the case may be (but not less than fifteen
days prior to the redemption date); provided, however, that the Trustee shall
not be required to give any notice of redemption less than three (3) business
days after the date it receives notice of such redemption. All notices of
redemption shall be mailed to each Holder at such Holder's last address on the
Receipt Register and shall state the Redemption Date, the amount payable on such
date, the place at which Callable Principal Receipts are to be surrendered for
payment, that interest on amounts redeemed will cease to accrue and, if less
than all of a Holder's Callable Principal Receipt is to be redeemed, the
principal amount of such Callable Principal Receipt to be redeemed.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. EXCLUSIVE BENEFIT OF PARTIES AND HOLDERS OF RECEIPTS;
EFFECTIVE DATE. This Agreement is for the exclusive benefit of the parties
hereto, their respective successors hereunder, and Holders of Receipts, and
shall not be deemed to give any legal or equitable right, remedy or claim to any
other person whatsoever. The Holders from time to time shall be beneficiaries of
this Agreement and shall be bound by all the terms and conditions hereof and of
the Receipts by acceptance of delivery thereof. This Agreement shall become
effective as to the Trustee and the Depositor for each series of Receipts upon
the execution of the Series Trust Agreement for such series by the Trustee and
Depositor and the receipt by the Trustee of the Bonds deposited therewith.
SECTION 8.02. INVALIDITY OF PROVISIONS. In case any one or more of
the provisions contained in this Agreement or contained in the Receipts should
be or become invalid, illegal or
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unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 8.03. NOTICES. Any and all notices to be given to the
Depositor shall be deemed to have been duly given if personally delivered or
sent by mail or facsimile confirmed by letter addressed to the address set forth
in the Series Trust Agreement relating to Receipts evidencing Bonds deposited by
the Depositor, or at any other place to which the Depositor may have transferred
its principal executive office.
Any and all notices to be given to the Trustee shall be deemed to
have been duly given if personally delivered or sent by mail or by facsimile
confirmed by letter addressed to the Trustee at [___________________] Attention:
Corporate Trust Department, or to such other place which the Trustee may have
designated in writing to the Depositor.
All other notices to be given to any Holder shall be deemed to have
been duly given if given by mail, first-class postage prepaid, to each Holder at
such Holder's address as it appears in the Receipt Register. Neither the failure
to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders.
SECTION 8.04. GOVERNING LAW. This Agreement and the Receipts shall
be governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.05. HEADINGS. The headings of articles and sections in
this Agreement and in the form of the Receipts set forth in Appendix A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Agreement or to have any bearing upon the meaning or interpretation of any
provision contained herein or in the Receipts.
SECTION 8.06. TRUST INDENTURE ACT. The provisions of the Act which
impose duties on any person (including provisions automatically deemed included
in an indenture under the Act unless the indenture provides that such provisions
are excluded) are part of and govern this Agreement. If any provision hereof
limits, qualifies or conflicts with any of the duties imposed by operation of
the Act, the provisions of the Act shall control.
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