EXECUTION COPY
TRUST AGREEMENT
Trust Agreement, dated as of December 1, 1997 between
Citibank N.A., a national banking association (the "Bank" and, in
its capacity as trustee, the "Trustee"), having an office at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, and BNP U.S. Funding
L.L.C., a limited liability company organized under the laws of
Delaware, having an office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Company").
W I T N E S S E T H:
WHEREAS, the Company is selling on the date hereof its
common and preferred securities to the purchasers thereof and
applying the proceeds of such sale to acquire securities;
WHEREAS, the Company and the Trustee desire to establish
the trust created hereby (the "Trust") to hold for the benefit of
the Company and the holders of the Company's common and preferred
securityholders (collectively, the "Securityholders") securities,
including the securities listed on Annex 1 hereto and each
additional security purchased by or on behalf of the Company and
held by the Trustee hereunder, and such funds and other property
of the Company as may be held from time to time by the Trustee
hereunder (collectively, the "Trust Property"); and
WHEREAS, the Company will instruct the Trustee in all cases
as provided herein as to the application of funds included in the
Trust Property, including with respect to the purchase of
additional securities with principal or interest payments
received by the Trustee or other dispositions thereof.
NOW, THEREFORE, in consideration of the premises and of the
agreements hereinafter set forth, the parties hereby agree as
follows:
1. APPOINTMENT AND ACCEPTANCE.
The Company hereby establishes the Trust and appoints the
Trustee as trustee of the Trust Property, and the Trustee agrees
to act as such upon the terms and conditions hereinafter
provided. The Company represents that it is authorized (a) to
establish the Trust and to open and maintain a Trust Account (the
"Trust Account") with the Trustee to hold the Trust Property
including, but not limited to, the securities ("Securities")
owned by the Company, (b) to enter into this Agreement, and (c)
to direct all actions and effect all transactions contemplated
hereunder. The Company further represents that it is duly formed,
and in good standing under the laws of the state of its formation
and the consummation of the transactions contemplated hereby or
directed by it hereunder will not violate any applicable laws,
regulations or orders.
It is the intention of the Company and the Trustee that the
Company assign and transfer hereunder to the Trustee in trust an
ownership interest in the Trust Property valid against third
parties. If, notwithstanding such intention, the assignment and
transfer of the Trust Property to the Trustee pursuant to this
Agreement is held or deemed to be a pledge of security, the
Company intends that the rights and obligations of the parties
shall be established pursuant to the terms of this Agreement and
that, in such event, (i) the Company shall be deemed to have
granted and does hereby grant to the Trustee in trust a first
priority security interest in the entire right, title and
interest of the Company in and to the Trust Property and all
proceeds thereof, and (ii) this Agreement shall constitute a
security agreement under applicable law to the extent necessary
to establish such security interest.
2. DELIVERY; SAFEKEEPING.
The Company has heretofore delivered, or will deliver or
cause to be delivered, Trust Property to the Trustee, which Trust
Property the Trustee agrees to hold in trust in accordance with
the express provisions hereof. The Trustee shall not surrender
possession of Trust Property except upon properly authorized
Instructions (as hereinafter defined) of the Company or as may be
required by due process of applicable law.
3. IDENTIFICATION AND SEGREGATION OF ASSETS.
(a) Except as otherwise provided in this Agreement, the
Trustee will separately identify on its books and, to the extent
practicable, segregate all Trust Property held pursuant to this
Agreement by the Trustee or any other entity authorized to hold
Trust Property in accordance with Section 6 hereof.
(b) The Trustee shall supply to the Company from time to time
as mutually agreed upon a written statement with respect to all
Trust Property in the Trust Account. In the event that the
Company does not inform the Trustee in writing of any exceptions
or objections within thirty (30) days after the date of such
statement, the Company shall be deemed to have approved such
statement.
4. STANDARD OF CARE.
(a) The Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement. The
Trustee shall exercise such of the rights and powers vested in it
by this Agreement, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under
the circumstances in the conduct of such person's own affairs.
(b) 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 willful misconduct;
provided, however, that:
(i) 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
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Trustee and appearing on their face to 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 the
Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(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 the Company relating to exercising any
trust or power conferred upon the Trustee under this
Agreement.
(c) 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 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.
(d) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates,
statements, notices, requests or other documents furnished to the
Trustee and reasonably believed by it to be genuine and to have
been presented to it pursuant to this Agreement; but in the case
of any such certificates, statements, notices, requests or other
documents which by any provisions hereof are specifically
required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they
conform as to form as to the requirements of this Agreement.
(e) The Trustee may consult with counsel of its choice and any
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 opinion
of counsel.
(f) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement at the
request, order or direction of the Company, pursuant to the
provisions of this Agreement, unless the Company shall have
offered to the Trustee satisfactory security or indemnity against
the costs, expenses and liabilities which may be incurred therein
or thereby.
(g) The Trustee may exercise any of the trusts or powers under
this Agreement or perform any duties under this Agreement either
directly or by or through agents or attorneys or a custodian.
(h) Except as otherwise expressly provided herein, the Trustee
shall not be liable, in its individual capacity, for any action
taken, suffered or omitted by it in good faith and believed by it
in good faith to be authorized or within the discretion or rights
or powers conferred upon it by this Agreement.
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(i) In selecting and appointing U.S. Depositories (as
hereinafter defined), and other agents (except as otherwise
provided in this Section 4), as authorized by Section 6 of this
Agreement, the Trustee shall use reasonable care and shall be
responsible only for negligence in the selection thereof.
(j) Notwithstanding the above, neither the Trustee nor the
Bank, its parent nor any of its branches, subsidiaries or
affiliates is responsible for any losses or damages resulting
from reasons or causes beyond its control, including, without
limitation, nationalization, expropriation, currency
restrictions, act of war, terrorism, insurrection, revolution,
civil unrest, riots or strikes, nuclear fusion or fission or acts
of God.
(k) The Trustee is not under any duty to supervise the
investments of the Company, or to advise or make any
recommendation to the Company with respect to the purchase or
sale of any Securities or the investment of any funds. The
Company shall have the sole and exclusive responsibility for
directing the Trustee with respect to the investment of Trust
Property held hereunder.
5. PERFORMANCE BY THE TRUSTEE.
(a) General:
The Trustee's performance of its duties hereunder and the
day-to-day operations of the Trust Account shall be in accordance
with written service standards as may be furnished to the Company
by the Trustee from time to time. Such service standards, as may
be amended from time to time, are incorporated herein by
reference.
(b) Receipt, Delivery and Disposal of Securities:
The Trustee shall, or shall instruct any other entity
authorized to hold Trust Property in accordance with Section 6
hereof to, receive or deliver Securities and credit or debit the
Trust Account, in accordance with properly authorized
Instructions from the company. The Trustee or such authorized
entity shall also receive in custody all stock dividends, rights
and similar securities issued in connection with Securities held
hereunder, shall surrender for payment, in a timely manner, all
items maturing or called for redemption and shall take such other
action as the Company may direct in properly authorized
Instructions.
(c) Trade Execution:
The Company may from time to time direct the Trustee to buy
or sell Securities held or to be held in the Trust Account, the
brokers and dealers through which and the times and prices at
which such transactions should be effected and the Trustee shall
have no liability or responsibility whatsoever for any error,
neglect, or default of any such broker or dealer or for
mutilations, interruptions, omissions, errors or delays occurring
in the mails, or on the part of any telegraph, cable or wireless
company, or any employee of such company, or by reason of any
cause beyond the Trustee's control. The Company agrees to provide
specific Instructions regarding the deposit or delivery of all
such Securities to the Trust Account.
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(d) Registration:
Securities held hereunder may be registered in the name of
the Trustee, any entity authorized to hold Trust Property in
accordance with Section 6 hereof or a nominee of the Trustee or
any such authorized entity, and the Company shall be informed
upon request of all such registrations. Securities in registered
form will be transferred upon request of the Company into such
names or registrations as it may specify in properly authorized
Instructions.
(e) Cash:
(i) All cash received or held by the Trustee as
interest, dividends, proceeds from transfer, and other
payments for or with respect to Securities shall be
held in (x) the Trust Account in accordance with
properly authorized Instructions of the Company
received by the Trustee or (y) if specified in the
Company's Instructions, such other account as the
Company may direct. All such cash shall be received
and remitted by the Trustee in U.S. dollars and will
not require any currency conversion.
(ii) The Company agrees, with respect to the
payment for all purchases of Securities to be
deposited in the Trust Account, that funds for
settlement will be on deposit by the settlement date
at the location of settlement, in good available funds
and in the currency of settlement. The Company
acknowledges that nothing in this Agreement shall
obligate the Trustee or the Bank to extend credit,
grant financial accommodation or otherwise advance
moneys to the Company for the purpose of making any
such payments or part thereof or otherwise carrying
out any Instructions.
(f) Reports:
(i) If the Trustee has in place a system for
providing telecommunications access or other means of
electronic access by trust customers to the Trustee's
reporting system for Trust Property in the Trust
Account, then, at the Company's election, the Trustee
may agree to provide the Company with such
instructions and passwords as may be necessary in
order for the Company to have such direct access
through the Company's terminal device. Such electronic
access shall be restricted to information relating to
the Trust Account. If electronic access to such
reporting system is requested by the Company, the
Company agrees to assume full responsibility for the
consequences of the use, including any misuse or
unauthorized use of the terminal device, instructions
or passwords referred to above and agrees to defend
and indemnify the Trustee and hold the Trustee
harmless from and against any and all liabilities,
losses, damages, costs, counsel fees, and other
expenses of every nature suffered or incurred by the
Trustee by reason of, or in connection with, such use
by the Company or others of such terminal device,
unless such liabilities, losses, damages, costs,
counsel fees and other expenses can be shown to be the
result of negligent or wrongful acts of the Trustee.
Further, in the event the Company elects to have
electronic access,
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the Trustee shall provide the Company on each business
day a report of the preceding business day's
transactions relating to the Trust Account and of the
closing or net balances for each business day. If the
Company should not choose to have electronic access,
the Trustee shall provide the Company with such
reports of transactions in the Trust Account by such
means as may be mutually agreed upon.
(ii) The Trustee agrees to use reasonable efforts
to furnish the Company with such information regarding
Trust Property held hereunder as the Company may
reasonably request in connection with its complying
with requests of any regulatory authorities having
jurisdiction over the Company.
(iii) The Trustee shall also, subject to
restrictions under applicable law, seek to obtain from
any entity with which the Trustee maintains the
physical possession of any Trust Property in the Trust
Account such records of such entity relating to the
Trust Account as may be required by the Company or its
agents in connection with an internal examination by
the Company of its own affairs. Upon a reasonable
request from the Company, the Trustee shall use its
best efforts to furnish to the Company such reports
(or portions thereof) of the external auditors of each
such entity as relate directly to such entity's system
of internal accounting controls applicable to its
duties under its agreement with the Trustee.
(g) Access:
During the Trustee's regular banking hours and upon receipt
of reasonable notice directly from the Company, any officer or
employee of the Company, any independent accountant(s) selected
by the Company and any person designated by any regulatory
authority having jurisdiction over the Company shall be entitled
to examine on the Trustee's premises Trust Property held by the
Trustee on its premises and the Trustee's records regarding Trust
Property held hereunder or deposited with entities authorized to
hold Trust Property in accordance with Section 6 hereof, but only
upon furnishing the Trustee with properly authorized Instructions
to that effect, provided such examination shall be consistent
with the Trustee's obligations of confidentiality to other
parties.
The Trustee's costs and expenses in facilitating such
examinations shall be borne by the Company, provided that such
costs and expenses shall not be deemed to include the Trustee's
costs in providing to the Company: (i) the "single audit report"
of the independent certified public accountants engaged by the
Bank and (ii) such reports and documents as this Agreement
contemplates that the Trustee shall furnish routinely to the
Company.
(h) Voting and Other Actions:
(i) The Trustee will transmit to the Company upon
receipt, and will instruct any entities authorized to
hold Trust Property in accordance with Section 6
hereof to transmit to the Company upon receipt, all
financial reports, securityholder communications,
notices, proxies and proxy soliciting materials
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received from issuers of Securities, and all
information relating to exchange or tender offers
received from offerors with respect to Securities.
Proxies will be executed by the registered holder if
the registered holder is other than the Company, but
the manner in which the Securities are to be voted
will not be indicated. Neither the Trustee nor any
such authorized entity shall vote any Securities or
authorize the voting of any Securities or give any
consent or take any other action with respect thereto,
except as otherwise provided herein.
(ii) In the event of a tender offer, the Company
shall hand deliver, telecopy or transmit via tested
telex Instructions to the Trustee, as to the action to
be taken with respect thereto, designating such
Instructions as being related to a tender offer. The
Company shall hold the Trustee harmless from any
adverse consequences of the Company's use of any other
method of transmitting Instructions relating to a
tender offer.
(iii) The Company agrees that, if it gives an
Instruction for the performance of an act on the last
permissible date of a period established by the tender
offer or otherwise to act, the Company shall hold the
Trustee harmless from any adverse consequences in
connection with acting upon or failing to act upon
such Instruction.
(iv) The Trustee is authorized to accept and open
on the Company's behalf all mail or communications
received by it or directed in its care.
6. AUTHORIZED USE OF U.S. DEPOSITORIES.
The Company authorizes the Trustee, for any Securities held
hereunder, to use the services of any United States central
securities depository it deems appropriate, including, but not
limited to, the Depository Trust Company, the Participants Trust
Company and the Federal Reserve Book Entry System ("U.S.
Depositories"). The Trustee will deposit Securities held
hereunder with a U.S. Depository only in an account which holds
exclusively the assets of customers of the Bank.
7. USE OF AGENTS.
The Trustee may, subject to applicable laws, rules and
regulations, appoint agents, whether in its name or that of the
Company, to perform any of the duties of the Trustee hereunder,
and the Trustee may delegate to any such agent so appointed any
of its functions under this Agreement.
8. INSTRUCTIONS.
(a) The Trustee is authorized to rely and act upon written
instructions ("Instructions") which are signed by persons
("Authorized Persons") named in a list provided to the Trustee
from time to time, which list must be certified by the Company's
Secretary and include authenticated specimen signatures of all
Authorized Persons. Such list shall separately designate those
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Authorized Persons who may authorize the withdrawal of Securities
free of payment, those Authorized Persons who may authorize the
unconditional transfer of funds and those Authorized Persons who
may give Instructions by electronic access as provided hereunder.
(b) The Company agrees that the Trustee is authorized to
rely and act upon such Instructions in accordance with this
Section 8 and the Manual Transmission Authorization attached
hereto and incorporated herein by reference (including the Manual
Transmission Procedures attached thereto) and to debit or credit
the applicable account(s) of the Company accordingly and that
such Manual Transmission Authorization and method(s) of
transmission are commercially reasonable.
(c) The Trustee shall be entitled to rely upon the
continued authority of any Authorized Person to give Instructions
until the Trustee receives notice from the Company to the
contrary; and the Trustee shall be entitled to rely upon any
Instructions it believes in good faith to have been given by an
Authorized Person.
(d) The Trustee is further authorized to rely upon any
Instructions received by any other means and identified as having
been given or authorized by any Authorized Person, regardless of
whether such Instructions shall in fact have been authorized or
given by any of such Authorized Persons, provided that the
Trustee and the Company shall have agreed upon the means of
transmission and the method of identification for such
Instructions. Instructions received by any other means shall
include but shall not be limited to verbal Instructions only in
connection with delivery against payment or receipt against
payment transactions and transfers from one account within the
Trust Account to another account within the Trust Account and
provided that such verbal Instructions are promptly confirmed in
writing by the Company. Notwithstanding the foregoing, in the
event that verbal Instructions are not subsequently confirmed in
writing as provided above, the Company agrees to hold the Trustee
harmless and without liability for any claims or losses in
connection with such verbal Instructions.
(e) The Company agrees to be bound by any Instruction,
whether or not authorized, given to the Trustee in its name and
accepted by the Trustee in accordance with the provisions hereof
(including but not limited to the Funds Transfer Procedures) and
further agrees to indemnify and hold the Trustee harmless from
and against any loss, liability, claim or expense (including
legal fees and expenses) associated with the Trustee's acting
upon such Instructions as provided herein, except such as may
arise from the Trustee's own negligence, bad faith or willful
misconduct.
(f) If the Company should choose to have telecommunications
or other means of electronic access to the Trustee's reporting
system for Trust Property in the Trust Account, pursuant to
paragraph (f) of Section 5, the Trustee is also authorized to
rely and act upon any Instructions received by it through a
terminal device, provided that such Instructions are accompanied
by code words which the Trustee has furnished to the Company or
an Authorized Person by any method mutually agreed to by the
Trustee and the Company, and provided that the Trustee has not
been notified by the Company or any such Authorized Person to
cease to
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recognize such code words, regardless of whether such
Instructions shall in fact have been given or authorized by the
Company or any such Authorized Person.
9. FEES AND EXPENSES AND INDEMNITY.
(a) Fees and expenses for the services rendered under this
Agreement shall be as separately agreed upon by the parties by
letter agreement. The Trustee shall be entitled to debit the
Trust Account for such fees and expenses.
(b) The Trustee and its agents shall be indemnified by the
Company from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims,
and reasonable and documented costs, expenses or disbursements of
any kind whatsoever which may at any time be imposed on, incurred
by or asserted against the Trustee or such agents in any way
relating to or arising out of this Agreement or any documents
contemplated by or referred to herein or the transactions
contemplated hereby or any action taken or omitted by the Trustee
and its agents under or in connection with any of the foregoing;
provided, however, that the Company shall not be liable for the
payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from an act of negligence, bad
faith or willful misconduct of the Trustee or its agent. This
Section 9 shall survive the termination of this Agreement and/or
the resignation or removal of the Trustee.
10. LIEN.
The Trustee shall have a lien on the Trust Property in the
Trust Account to secure payment of such fees and expenses of the
services rendered under this Agreement. If the Trustee or its
nominee shall incur or be assessed any taxes, charges, expenses,
assessments, claims or liabilities in connection with the
performance of its duties hereunder, except such as may arise
from its or its nominee's negligent action, negligent failure to
act or willful misconduct, any Trust Property at any time held
for the Trust Account shall be security therefor and the Company
hereby grants to the Trustee a security interest therein. The
Company shall promptly reimburse the Trustee for any such advance
of cash or Securities or any such taxes, charges, expenses,
assessments, claims or liabilities upon request for payment, but
should the Company fail to reimburse the Trustee, the Trustee
shall be entitled to dispose of such Trust Property to the extent
necessary to obtain reimbursement. The Trustee shall be entitled
to debit and/or charge the Trust Account and/or the Company, as
the case may be, in connection with any such advance and any
interest on such advance as the Trustee deems reasonable.
11. TAX STATUS/WITHHOLDING TAXES.
(a) The Company's U.S. Tax Identification Number is 000000000.
(b) The Company may be required from time to time to file
such proof of taxpayer status or residence, to execute such
certificates and to make such representations and warranties, or
to provide any other information or documents, as the Trustee may
deem necessary or proper to fulfill the Trustee's obligations
under applicable law. The Company shall provide the Trustee, in a
timely manner, with copies of originals if necessary and
appropriate, or any such proofs of
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residence, taxpayer status, beneficial ownership and any other
information or documents which the Trustee may reasonably
request.
(c) If any tax or other governmental charge or assessment
shall become payable with respect to any payment due to the
Company ("Taxes"), such Taxes shall be withheld from such payment
in accordance with applicable law. The Trustee may withhold any
interest, any dividends or other distributions or securities
receivable in respect of Securities, proceeds from the sale or
distribution of Securities ("Payments"), or may sell for the
account of the Company any part thereof or all of the Securities,
and may apply such Payment in satisfaction of such Taxes, the
Company remaining liable for any deficiency. If any Taxes shall
become payable with respect to any payment made to the Company by
the Trustee in a prior year, the Trustee may withhold Payments in
satisfaction of such prior year's Taxes. The Company shall
indemnify and hold harmless the Trustee, its officers, employees,
agents and affiliated companies against any Taxes, penalties,
additions to tax, and interest, and costs and expenses related
thereto, arising out of claims against the Trustee by any
governmental authority for failure to withhold Taxes or arising
out of any reclaim or refund of taxes or other tax benefit
obtained by the Trustee for the Company.
(d) This Section 11 shall survive the termination of this
Agreement and continue in force until the time for assessment of
all Taxes expires.
12. AMENDMENT
This Agreement may not be amended except by mutual written
agreement between both parties hereto.
13. ELIGIBILITY REQUIREMENTS FOR TRUSTEE.
The Trustee hereunder shall at all times be a "bank" as
defined in the United States Investment Company Act of 1940, as
amended, having a corporate trust office in the United States and
organized and doing business under the laws of the United States
or any state of the United States, authorized under applicable
law to exercise corporate trust powers, and having an aggregate
capital, surplus and undivided profits of at least $50,000,000
and subject to supervision or examination by United States
Federal or state authorities. Such bank shall maintain a banker's
blanket bond or similar insurance coverage against loses arising
out of the infidelity of its employees engaged in trust or other
fiduciary capacities of the type and in the amount and with the
deductibles that are customary for its business and size. If such
bank publishes reports of condition at least annually pursuant to
law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 13,
the aggregate capital, surplus and undivided profits of such
corporation shall be deemed to be its aggregate capital, surplus
and undivided profits as set forth in its most recent report of
condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provision of this
Section 13, the Trustee shall resign immediately in the manner
and with the effect specified in Xxxxxxx 00.
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00. XXXXXXXXXXX
(x) The Trustee may at any time resign upon 90 days'
written notice thereof to the Company or be removed with cause
from the Trust upon 90 days' written notice thereof from the
Company. Before such resignation or removal shall become
effective, the Company shall appoint a successor Trustee by
written instrument, one copy of which instrument shall be
delivered to each of the resigning Trustee and the successor
Trustee. If no successor Trustee shall have been so appointed and
have accepted appointment within 90 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.
(b) If at any time the Trustee shall cease to be eligible
with respect to the Trust in accordance with the provisions of
Section 13 and shall fail to resign after written request
therefor by the Company, or if at any time the Trustee shall be
legally unable to act, 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 purposes of
rehabilitation, conservation or liquidation, then the Company may
remove the Trustee. In the event the Trustee demonstrates itself
unwilling to fulfill its duties hereunder, the Company may remove
the Trustee. If the Trustee is removed under the authority of
either of the two immediately preceding sentences, the Company
shall promptly appoint a successor Trustee (other than the
outgoing Trustee) by written instrument, one copy of which
instrument shall be delivered to each of the Trustee so removed
and the successor Trustee. If no successor Trustee shall have
been appointed and have accepted appointment within 90 days after
a determination to remove the Trustee, the Trustee whose removal
is sought may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(c) Any resignation or removal of the Trustee and
appointment of a successor Trustee pursuant to any of the
provisions of this Section 14 shall not become effective until
acceptance of appointment by the successor Trustee and transfer
of the Trust Property to the successor Trustee as provided in
Section 14(d).
(d) Any successor Trustee appointed as provided in this
Section 14 shall execute, acknowledge and deliver to the Company
and to its predecessor Trustee an instrument accepting such
appointment under this Agreement and the transfer of the property
of the Trust to such successor Trustee and thereupon the
resignation or removal of the predecessor Trustee shall become
effective and such successor Trustee, without further act, deed
or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor under this
Agreement and with like effect as if originally named as Trustee.
The predecessor Trustee shall deliver or cause to be delivered to
the successor Trustee or its designee the Securities, any other
Trust Property and any related documents and statements held by
it under this Agreement, and the Company and the predecessor
Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Trustee all
such rights, powers, duties and obligations. No successor Trustee
shall accept appointment as provided in this Section 14(d) unless
at the time of such acceptance such successor Trustee is eligible
under the provisions of Section 13.
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(e) The obligations of the Trustee hereunder and the Trust
created by this Agreement shall terminate upon receipt by the
Trustee of a written certification from the Company certifying
that the Company has redeemed all of its outstanding preferred
securities, provided, however, that in no event shall the Trust
created by this Agreement continue beyond the expiration of 21
years from the death of the last survivor of the descendants of
Xxxxxx Xxxxxxx, late Ambassador to the Court of St. Xxxxx
(England), living on the date of this Agreement. Upon a
termination of the Trust pursuant to this Section 14(e), the
Trustee shall transfer all Trust Property to the Company.
15. CONFIDENTIALITY.
Subject to the foregoing provisions of this Agreement and
subject to any applicable law, the Company and the Trustee shall
each use best efforts to maintain the confidentiality of matters
concerning Trust Property in the Trust Account.
16. NOTICES.
All notices and other communications hereunder, except for
Instructions and reports relating to the Trust Property which are
submitted through the Trustee's reporting system for Trust
Property in the Trust Account, shall be in writing, telex, fax or
copy, or if verbal, shall be promptly confirmed in writing, and
shall be hand-delivered, telexed, faxed, telecopied or mailed by
prepaid first class mail (except that notice of termination, if
mailed, shall be prepaid registered or certified mail) to each
party at its address set forth above, if to the Company, marked
"Attention: Treasurer" and if to the Trustee, marked Citibank as
Trustee for Securityholders of BNP U.S. Funding L.L.C.,
Attention: Xxxx Xxxxxxxx/Account Management, 000 Xxxx Xxxxxx,
00xx xxxxx, Xxx Xxxx, XX 00000, or at such other address as each
party may give written notice of to the other party.
17. ASSIGNMENT.
Neither party may assign, transfer or change all or any of
its rights and benefits hereunder without the written consent of
the other. Any purported assignments made in contravention of
this Section shall be null and void and of no effect whatsoever.
18. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
ACCORDING TO, THE LAWS OF THE STATE OF NEW YORK AND THE PARTIES
AGREE THAT XXX XXXXXX XX XXX XXXXX XX XXX XXXX SHALL HAVE
JURISDICTION TO HEAR AND DETERMINE ANY SUIT, ACTION OR PROCEEDING
AND TO SETTLE ANY DISPUTES WHICH MAY ARISE OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, AND, FOR SUCH PURPOSES, EACH
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF SUCH
COURTS.
-12-
19. MISCELLANEOUS.
(a) This Agreement may be executed in several counterparts,
each of which shall be an original, but all of which shall
constitute one and the same instrument.
(b) This Agreement contains the entire agreement between the
Company and the Trustee relating to the Trust Property and
supersedes all prior agreements on this subject.
(c) The captions of the various sections and subsections of
this Agreement have been inserted only for the purposes of
convenience, and shall not be deemed in any manner to modify,
explain, enlarge or restrict any of the provisions of this
Agreement.
-13-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized.
Citibank N.A. BNP U.S. Funding L.L.C.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxxx
---------------------- ----------------------
Name: Xxxx Xxxxxx Name: Xxxx Xxxxxx
Title: Vice President Title: President
By: /s/ Xxxx Xxxxxxx
----------------------
Name: Xxxx Xxxxxxx
Title: Treasurer
ANNEX 1 to the Trust Agreement
SECURITIES SCHEDULE
Unpaid Current Stated
Series Principal Balance Coupon (%) Maturity
------- ----------------- ----------- ----------
XXXXXX MAE 1993-210 FB..... 46,251,185 6.05625 10/25/2022
FHLMC-GNMA 38 F............ 8,262,208 6.250 08/25/2023
XXXXXX XXX 1997-28 FA...... 27,740,856 6.02429 05/18/2027
XXXXXX MAE 1996-51 FA...... 16,131,369 6.250 03/18/2025
XXXXXXX MAC 1993 FR........ 8,383,363 6.250 09/15/2020
XXXXXX MAE 1990-121 F...... 22,134,413 6.45625 10/25/2020
Collateralized Mortgage
Obligation Trust 66 F.... 1,627,321 6.225 09/20/2006
XXXXXXX MAC 1382 LC........ 4,372,567 6.150 11/15/2018
XXXXXX XXX 1992-141 FA..... 8,184,953 6.156 08/25/2007
XXXXXXX MAC 1256 CA........ 6,413,824 6.450 01/15/2022
Xxxxxx Xxxxxxx Mortgage
Trust 41 Class 1......... 7,994,598 6.275 02/20/2022
XXXXXX MAE 1993-155 FG..... 5,300,309 6.15625 06/25/2023
XXXXXXX MAC 1040 H......... 23,113,008 6.700 02/15/2021
XXXXXX MAE 1997-37 F....... 32,112,088 6.150 06/18/2027
XXXXXX XXX 1997-52 F....... 9,544,000 6.21875 02/20/2024
XXXXXX MAE 1997-42 F....... 9,451,590 6.250 12/18/2027
XXXXXX XXX 1997-44 F....... 9,780,304 6.150 07/18/2027
XXXXXX MAE 1997-56 PE...... 46,839,000 6.500 06/18/2026
XXXXXX XXX 1997-67 FB...... 21,518,739 6.150 10/18/2012
FN 394850.................. 37,138,904 6.064 07/01/2027
FN 397901.................. 46,070,931 5.888 08/01/2027
FH 846384.................. 15,097,384 6.795 12/01/2026
FN 374773.................. 13,403,266 5.839 03/01/2027
Unpaid Current Stated
Series Principal Balance Coupon (%) Maturity
------- ----------------- ----------- ----------
FN 374711............ 9,008,132 5.716 07/01/2027
FH 410544............ 6,439,952 5.908 09/01/2027
FH 610727............ 12,404,856 5.735 05/01/2027
G2 080094............ 49,648,042 6.000 07/20/2027
FN 313242............ 8,533,007 7.718 11/01/2026
FN 367349............ 13,584,491 5.929 12/01/2026
FN 313311............ 8,123,100 7.408 12/01/2026
FN 363057............ 10,889,625 5.450 02/01/2027
FN 313190............ 8,498,927 7.909 09/01/2026
FN 363070............ 6,397,026 5.495 03/01/2027
FN 313377............ 25,102,809 6.105 02/01/2027
FN 370479............ 9,880,086 5.329 03/01/2027
FN 378243............ 4,269,516 6.221 07/01/2027
FN 313432............ 34,625,349 5.954 02/01/2027
FN 370478............ 10,420,918 5.353 02/01/2027
FN 396355............ 8,761,919 5.797 08/01/2027
FN 374774............ 8,274,399 5.427 03/01/2027
FN 391247............ 21,832,800 6.560 04/01/2027
FN 345856............ 17,147,762 6.859 08/01/2036
FN 374138............ 17,770,190 6.349 03/01/2027
FN 361370............ 48,860,336 7.556 07/01/2026
FN 397136............ 13,193,288 7.756 06/01/2027
FN 361372............ 69,995,932 7.880 07/01/2026
FN 312824............ 9,226,576 7.375 06/01/2025
Tnote 6.625 05/15/07. 70,000,000 6.625 05/15/2007
Tnote 6.5 10/15/06... 70,000,000 6.500 10/15/2006
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