CorTS® SUPPLEMENT 2004-5
between
STRUCTURED PRODUCTS CORP.,
as Depositor
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee and Securities Intermediary
CorTS® Trust II For Xxxxxxx Xxxxx Capital I
TABLE OF CONTENTS
Page
1
Preliminary Statement........................................................1
Section 1 Certain Defined Terms............................................1
Section 2 Creation and Declaration of Trust; Sale of Term Assets; Acceptance by
Trustee..........................................................7
Section 3 Designation......................................................8
Section 4 Date of the Certificates.........................................8
Section 5 Class A Certificate Principal Balance and Denominations; Class B
Certificates; Additional Term Assets.............................9
Section 6 Currency of the Certificates.....................................9
Section 7 Form of Securities...............................................9
Section 8 Call Warrants...................................................12
Section 9 Certain Provisions of Base Trust Agreement Not Applicable.......13
Section 10 Distributions...................................................13
Section 11 Termination of Trust............................................18
Section 12 Limitation of Powers and Duties.................................18
Section 13 Compensation of Trustee.........................................20
Section 14 Modification or Amendment.......................................20
Section 15 Accounting......................................................21
Section 16 No Investment of Amounts Received on Term Assets................21
Section 17 No Event of Default.............................................21
Section 18 Notices.........................................................21
Section 19 Access to Certain Documentation.................................22
Section 20 Advances........................................................22
Section 21 Withholding Taxes...............................................22
Section 22 Ratification of Agreement.......................................22
Section 23 Counterparts....................................................22
Section 24 Governing Law...................................................22
Section 25 Establishment of Certificate Account............................22
Section 26 Certificate of Compliance.......................................23
Section 27 Appointment of Co-Trustee.......................................23
Section 28 Securities Provisions for Class B Certificates..................23
Section 29 Reporting Obligations...........................................24
Section 30 Statement of Intent.............................................24
Section 31 Filing of Partnership Returns...................................24
Section 32 "Financial Assets" Election.....................................24
Section 33 Trustee's Entitlement Orders....................................24
Section 34 Conflict with Other Agreements..................................24
Section 35 Additional Trustee and Securities Intermediary Representations..25
Section 36 Additional Depositor Representations............................25
Section 37 Report to Certificateholders....................................26
Section 38 Certification Requirements......................................26
Exhibit A -- Identification of the Term Assets as of Closing Date
Exhibit B -- Terms of the Class A Certificates as of Closing Date
Exhibit C -- Terms of the Class B Certificates as of Closing Date
Exhibit D -- Form of Class A Certificate
Exhibit E -- Form of Call Warrant
Exhibit F -- Form of Class B Certificate
2
CorTS® SUPPLEMENT 2004-5, dated as of April 15, 2004 (this "Series
Supplement"), between STRUCTURED PRODUCTS CORP., a Delaware
corporation, as depositor (the "Depositor"), and U.S. Bank TRUST
National Association, a national banking association, as trustee
(the "Trustee") and as securities intermediary (the "Securities
Intermediary").
PRELIMINARY STATEMENT
Pursuant to the Base Trust Agreement, dated as of December 15, 2000 (the "Base
Trust Agreement" and, as supplemented pursuant to the Series Supplement, the "Agreement"),
between the Depositor and the Trustee, such parties may at any time and from time to time
enter into a series supplement supplemental to the Base Trust Agreement for the purpose of
creating a trust. Section 5.13 of the Base Trust Agreement provides that the Depositor may
at any time and from time to time direct the Trustee to authenticate and deliver, on behalf
of any such trust, a new Series of trust certificates. Each trust certificate of such new
Series of trust certificates will represent a fractional undivided beneficial interest in
such trust subject to the terms hereof. Certain terms and conditions applicable to each
such Series are to be set forth in the related series supplement to the Base Trust
Agreement.
Pursuant to this Series Supplement, the Depositor and the Trustee shall create
and establish a new trust to be known as CorTS® Trust II For Xxxxxxx Xxxxx Capital I, and a
new Series of trust certificates to be issued thereby, which certificates shall be known as
the CorTS® Certificates, and the Depositor and the Trustee shall herein specify certain
terms and conditions in respect thereof.
The Certificates shall be Fixed Rate Certificates issued in two Classes, the
Class A Certificates (the "Class A Certificates") and the Class B Certificates (the "Class
B Certificates" and, together with the Class A Certificates, the "Certificates"). The
Trust also is issuing call options with respect to $90,000,000 principal amount of Term
Assets (the "Call Warrants").
On behalf of and pursuant to the authorizing resolutions of the Board of
Directors of the Depositor, an authorized officer of the Depositor has authorized the
execution, authentication and delivery of the Certificates, and has authorized the Base
Trust Agreement and this Series Supplement in accordance with the terms of Section 5.13 of
the Base Trust Agreement.
Section 1 Certain Defined Terms. (a) All terms used in this Series Supplement that are
defined in the Base Trust Agreement, either directly or by reference therein, have the
meanings assigned to such terms therein, except to the extent such terms are defined or
modified in this Series Supplement or the context requires otherwise. The Base Trust
Agreement also contains rules as to usage which shall be applicable hereto.
(b) Pursuant to Article I of the Base Trust Agreement, the meaning of certain defined
terms used in the Base Trust Agreement shall, when applied to the trust certificates of a
particular Series, be as defined in Article I but with such additional provisions and
modifications as are specified in the related series supplement. With respect to the
Certificates, the following definitions shall apply:
"761 Election": 761 Election shall have the meaning set forth in Section 30 of
this Series Supplement.
"Acceleration": The acceleration of the maturity of the Term Assets after the
occurrence of any default on the Term Assets other than a Payment Default.
"Agreement": Agreement shall have the meaning specified in the Preliminary
Statement to this Series Supplement.
"Base Trust Agreement": Base Trust Agreement shall have the meaning specified
in the Preliminary Statement to this Series Supplement.
"Business Day": Any day other than a Saturday, Sunday or a day on which
banking institutions in New York, New York are authorized or obligated by law, executive
order or governmental decree to be closed.
"Call Warrant": Call Warrant shall have the meaning specified in the
Preliminary Statement to this Series Supplement.
"Certificate Account": With respect to this Series, the Eligible Account,
which shall be a securities account established and maintained by the Securities
Intermediary in the Trustee's name, to which the Term Assets and all payments made on or
with respect to the related Term Assets shall be credited.
"Certificateholder" or "Holder": With respect to any Certificate, the holder
thereof.
"Certificateholders" or "Holders": The holders of the Certificates.
"Class A Certificateholders": The Holders of the Class A Certificates.
"Class A Fixed Payment": A portion of each equal semiannual installment of
interest payable on the Term Assets on each February 15 and August 15 or, if any such day
is not a Business Day, then the immediately following Business Day (provided that a
deferral of interest payments on the Term Assets has not occurred), except that the final
installment of interest will be payable on February 15, 2034, commencing on August 15, 2004
through and including February 15, 2034, such that the Class A Certificates receive
interest distributions at a rate per annum equal to 6.000% on their Certificate Principal
Balance.
"Class A Maturity Date": February 15, 2034.
"Class A Proportion": The sum of the present values (discounted at the rate of
6.000% per annum) of (i) any unpaid interest distributions due or to become due on the
Class A Certificates and (ii) the outstanding principal amount of the Class A Certificates
(in each case assuming that the Class A Certificates are paid when due and are not redeemed
prior to the Class A Maturity Date).
"Class B Certificateholders": The Holders of the Class B Certificates.
"Class B Fixed Payment": A portion of each equal semiannual installment of
interest payable on the Term Assets on each February 15 and August 15 or, if any such day
is not a Business Day, then the immediately following Business Day (provided that a
deferral of interest payments on the Term Assets has not occurred), except that the final
installment of interest will be payable on February 15, 2034, commencing on August 15, 2004
through and including February 15, 2034, such that the Class B Certificates receive
interest distributions at a rate per annum equal to 0.345% on their Notional Amount.
"Class B Maturity Date": February 15, 2034.
"Class B Proportion": The present value (discounted at the rate of 6.000% per
annum) of any unpaid interest distributions due or to become due on the Class B
Certificates (assuming for purposes of such calculation, that the Term Assets would have
been paid in full at their stated maturity, that such acceleration or default had not
occurred and that no portion of the Term Assets would have been redeemed prior to such
stated maturity date).
"Clearstream Banking": Clearstream Banking (or any successor securities
clearing agency).
"Closing Date": April 15, 2004.
"Collection Period": The period from (but excluding) the preceding
Distribution Date (or, in the case of the first Distribution Date, from and including the
Closing Date), through and including the current Distribution Date.
"Corporate Trust Office": U.S. Bank Trust National Association, 000 Xxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust or such other
corporate trust office as the Trustee shall designate in writing to the Depositor and the
Certificateholders.
"Depositary": The Depository Trust Company.
"Distribution Date": Any Scheduled Distribution Date, the Class A Maturity
Date, the Class B Maturity Date, any Term Assets Default Distribution Date or any Term
Assets Redemption Distribution Date.
"DTC": The Depository Trust Company.
"Euroclear": Euroclear Bank S.A./N.V., as operator of Euroclear (or any
successor thereto).
"Extension Period": The period, which may have a duration of up to ten (10)
consecutive semiannual interest periods on the Junior Debentures, but not to extend beyond
February 15, 2034, in which Goldman defers interest distributions on the Junior Debentures,
and consequently the Term Assets Issuer defers interest distributions on the Term Assets.
There is no limitation on the number of times Goldman may elect to begin an Extension
Period.
"Global Certificate": The meaning set forth in Section 7(b).
"Goldman": The Xxxxxxx Xxxxx Group, Inc.
"Interest Collections": With respect to any Distribution Date, all payments
received by the Trustee, during the Collection Period ending on such Distribution Date, in
respect of (i) interest on the Term Assets and (ii) penalties or other amounts required to
be paid because of late payments on the Term Assets.
"Investment Company Event": The receipt by the Term Assets Issuer of an
opinion of counsel experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in, the laws or any
regulations under the laws of the United States or of any political subdivision or
governmental agency or regulatory authority of or in the United States, or as a result of
any official administrative pronouncement, including any interpretation, release, no-action
letter, regulatory procedure, notice or announcement (including any notice or announcement
of an intent to adopt any interpretation, procedures or regulations) or action or any
judicial decision interpreting or applying such laws or regulations, whether or not the
pronouncement, action or decision is issued to or in connection with a proceeding involving
Goldman or the Term Assets Issuer or is subject to review or appeal, which amendment or
change is effective, or which pronouncement, action or decision is announced or occurs, on
or after the date of the issuance of the Term Assets, there is more than an insubstantial
risk that the Term Assets Issuer is or will be considered an "investment company" that is
required to be registered under the Investment Company Act.
"Investment Company Act": The Investment Company Act of 1940, as amended.
"Junior Debentures": The 6.345% Junior Subordinated Debentures due February
15, 2034 issued by Goldman.
"Maturity Date": The Class A Maturity Date and the Class B Maturity Date, as
the context requires.
"Notional Amount": The notional amount set forth on a Class B Certificate;
provided that the aggregate notional amount of all Class B Certificates issued on the
Closing Date shall equal the principal amount of the Term Assets held in the Trust on the
Closing Date.
"Optional Redemption": The meaning set forth in Section 10(h).
"Payment Default": A default by the Term Assets Issuer in the payment of any
amount due on the Term Assets after the same becomes due and payable (and the expiration of
any applicable grace period on the Term Assets).
"Place of Distribution": New York, New York.
"QIB": A "qualified institutional buyer" as defined in Rule 144A under the
Securities Act.
"Rating Agency": Each of Xxxxx'x Investors Service, Inc. ("Moody's"), and
Standard&Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P"),
and any successor to either of the foregoing. References to "the Rating Agency" in the
Agreement shall be deemed to be each such credit rating agency.
"Record Date": With respect to any Distribution Date, the day immediately
preceding such Distribution Date.
"Regulation S Global Certificate": The meaning set forth in Section 7(b).
"Regulation S Temporary Global Certificate": The meaning set forth in Section
7(b).
"Restricted Global Certificate": The meaning set forth in Section 7(b).
"Rule 144A Certificates": The meaning set forth in Section 7(b).
"Scheduled Distribution Date": The fifteenth day of each February and August
or, if any such day is not a Business Day, then the immediately following Business Day,
except that the final Scheduled Distribution Date shall be February 15, 2034, commencing
August 15, 2004 through and including February 15, 2034; provided, however, in each case,
that payment on each Scheduled Distribution Date shall be subject to prior payment of
interest or principal, as applicable, on the Term Assets.
"SEC Reporting Failure": SEC Reporting Failure shall have the meaning given to
such term in Section 10(j).
"Special Event Redemption": The meaning set forth in Section 10(h).
"Specified Currency": United States Dollars.
"Tax Change": Any of the following:
(i) any amendment to or change, including any announced prospective change,
in the laws or any regulations under the laws of the United States or of any political
subdivision or taxing authority of or in the United States, if the amendment or change is
effective on or after the date the Term Assets were issued; or
(ii) any official administrative pronouncement, including any private letter
ruling, technical advice memorandum, field service advice, regulatory procedure, notice or
announcement (including any notice or announcement of intent to adopt any procedures or
regulations) or action or any judicial decision interpreting or applying such laws or
regulations, whether or not the pronouncement, action or decision is issued to or in
connection with a proceeding involving Goldman or the Term Assets Issuer or is subject to
review or appeal, if the pronouncement, action or decision is announced or occurs on or
after the date the Term Assets were issued.
"Tax Event": The receipt by the Term Assets Issuer of an opinion of counsel to
the effect that, as a result of any Tax Change, there is more than an insubstantial risk
that any of the following will occur:
(i?) the Term Assets Issuer is, or will be within 90 days after the date of
the opinion of counsel, subject to U.S. federal income tax on income received or accrued on
the Junior Debentures;
(ii) interest payable by Goldman on the Junior Debentures is not, or within 90
days after the opinion of counsel will not be, deductible by Goldman, in whole or in part,
for U.S. federal income tax purposes; or
(iii) the Term Assets Issuer is, or will be within 90 days after the date of
the opinion of counsel, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
"Term Assets": As of the Closing Date, $90,000,000 aggregate principal amount
of 6.345% Capital Securities, issued by the Term Assets Issuer, sold to the Trustee by the
Depositor and identified on Exhibit A hereto. Additional Term Assets may also be sold to
the Trustee from time to time pursuant to Section 5 of this Series Supplement.
"Term Assets Default": A Payment Default or an Acceleration with respect to
the Term Assets, or an SEC Reporting Failure.
"Term Assets Default Distribution Date": The date on which the Trustee makes a
distribution of the proceeds received in connection with a recovery on the Term Assets or
distribution in-kind of the Term Assets, following a Term Assets Default.
"Term Assets Issuer": Xxxxxxx Xxxxx Capital I, the sole assets of which are
the Junior Debentures.
"Term Assets Payment Date": Unless an Extension Period is in effect, the
fifteenth day of each February and August, commencing on August 15, 2004 and ending on
February 15, 2034; provided, however, that if any Term Assets Payment Date would otherwise
fall on a day that is not a Business Day, such Term Assets Payment Date will be the
following Business Day.
"Term Assets Prospectus": Collectively, the prospectus supplement dated
February 12, 2004 related to the prospectus dated February 6, 2004.
"Term Assets Redemption Distribution Date": The date on which the Trustee
receives payment for a redemption of Term Assets in accordance with their terms; provided,
however, if the Trustee receives such payment after 10:00 A.M. (New York City time) on such
date, the Term Assets Redemption Distribution Date shall be on the next Business Day.
"Term Assets Trustee": The trustee for the Term Assets.
"Trust": CorTS® Trust II For Xxxxxxx Xxxxx Capital I.
"Trust Assets": (i) The Term Assets, (ii) all payments on or collections in
respect of the Term Assets accrued on or after the Closing Date and (iii) all proceeds of
the foregoing.
"Trust Termination Event": (a) the payment in full at maturity or upon early
redemption of the Certificates, (b) the distribution of the proceeds received upon a
recovery on the Term Assets (after deducting the costs incurred in connection therewith)
after a Payment Default or an Acceleration thereof (or other default with respect to the
Term Assets), (c) the sale by the Trustee in accordance with the Call Warrants of all the
Term Assets and the distribution in full of all amounts due to Certificateholders, or (d)
the liquidation or distribution in-kind of the Term Assets in accordance with Section 10(j)
of this Agreement in the event of an SEC Reporting Failure by Goldman.
"Voting Rights": The Class A Certificateholders shall have 100% of the total
Voting Rights with respect to the Certificates, which Voting Rights shall be allocated
among all Holders of Class A Certificates in proportion to the principal balances held by
such Holders on any date of determination.
"Warrant Agent Agreement": The Warrant Agent Agreement, dated as of the date
hereof, between the Depositor and U.S. Bank Trust National Association, as Warrant Agent
and as Trustee, as the same may be amended or modified from time to time.
"Warrant Class B Purchase Price": The present value of any scheduled interest
distributions due from the Warrant Exercise Date (assuming that the Class B Certificates
are paid when due and are not redeemed prior to the Class B Maturity Date and excluding
accrued and unpaid interest thereon to the Warrant Exercise Date) on the Class B
Certificates with a Notional Amount equal to the principal amount of the Term Assets to be
purchased, discounted to the Warrant Exercise Date on a semiannual basis at a rate of
6.000% per annum.
"Warrant Exercise Date": Warrant Exercise Date shall have the meaning given to
such term in the Call Warrant.
"Warrant Exercise Purchase Price": An amount paid by the Warrantholder on each
Warrant Exercise Date equal to the sum of (i) the principal amount of the Term Assets being
purchased pursuant to the exercise of the Call Warrants plus accrued and unpaid interest
thereon to and including the Warrant Exercise Date and (ii) the Warrant Class B Purchase
Price.
"Warrantholder": Warrantholder shall have the meaning given to such term in
the Call Warrant.
Section 2 Creation and Declaration of Trust; Sale of Term Assets; Acceptance by Trustee.
(a) The Trust, of which the Trustee is the trustee, is hereby created under the laws of the
State of New York for the benefit of the holders of the Certificates. The Trust shall be
irrevocable.
(b) The Depositor, concurrently with the execution and delivery hereof and
pursuant to Section 2.1 of the Base Trust Agreement, has delivered or caused to be
delivered to the Trustee the Term Assets.
(c) The Depositor does hereby sell, transfer, assign, set over and otherwise
convey to the Trustee on behalf and for the benefit of the holders of the Certificates and
the Trust, without recourse, the Term Assets. The Trustee shall pay the purchase price for
the Term Assets by delivering to, or at the direction of, the Depositor, all of the
Certificates and the Call Warrants on the Closing Date and making the payments identified
in Section 10(l) of this Series Supplement.
(d) The Trustee hereby (i) acknowledges such sale, deposit and delivery,
pursuant to subsections (b) and (c) above, and receipt by it of the Term Assets, (ii)
accepts the trusts created hereunder in accordance with the provisions hereof and of the
Base Trust Agreement but subject to the Trustee's obligation, as and when the same may
arise, to make any payment or other distribution of the assets of the Trust as may be
required pursuant to this Series Supplement, the Call Warrants, the Base Trust Agreement
and the Certificates, and (iii) agrees to perform the duties herein or therein required and
any failure to receive reimbursement of expenses and disbursements under Section 13 hereof
shall not release the Trustee from its duties herein or therein.
Section 3 Designation. There is hereby created a Series of trust certificates to be
issued pursuant to the Base Trust Agreement and this Series Supplement to be known as the
"CorTS® Certificates." The Certificates shall be issued in two classes, in the amount set
forth in Section 5 and with the additional terms set forth in Exhibits B and C to this
Series Supplement. The Class A Certificates and the Class B Certificates shall be issued
in substantially the forms set forth in Exhibit D and Exhibit F, respectively, to this
Series Supplement with such necessary or appropriate changes as shall be approved by the
Depositor and the Trustee, such approval to be manifested by the execution and
authentication thereof by the Trustee. The Certificates shall evidence undivided ownership
interests in the assets of the Trust, subject to the liabilities of the Trust and shall be
payable solely from payments or property received by the Trustee on or in respect of the
Trust Assets. The Class A Certificates, except as set forth in Section 10, will represent
the entire beneficial ownership interest in the principal and redemption premium, if any,
of the Term Assets, and will represent a beneficial ownership interest in the interest
received on the Term Assets equal to the Class A Fixed Payments. The Class B Certificates
will represent a beneficial ownership interest in the interest received on the Term Assets
equal to the Class B Fixed Payments and, as set forth in Section 10, will represent a
beneficial ownership interest in the principal and redemption premium, if any, of the Term
Assets. The Class A Certificates and Class B Certificates will rank pari passu with
respect to their respective beneficial ownership interest in the scheduled interest
payments on the Term Assets and will share proportionately in such interest based upon the
accrued and unpaid Class A Fixed Payments and the accrued and unpaid Class B Fixed Payments.
Section 4 Date of the Certificates. The Certificates that are authenticated and
delivered by the Trustee to or upon Depositor Order on the Closing Date shall be dated the
Closing Date. All other Certificates that are authenticated after the Closing Date for any
other purpose under the Agreement shall be dated the date of their authentication.
Section 5 Class A Certificate Principal Balance and Denominations; Class B Certificates;
Additional Term Assets. On the Closing Date, 3,600,000 Class A Certificates with a
Certificate Principal Balance of $90,000,000 shall be authenticated and delivered under the
Base Trust Agreement and this Series Supplement. In addition, on the Closing Date, Class B
Certificates with a Notional Amount of $90,000,000 shall be authenticated and delivered
under the Base Trust Agreement and this Series Supplement. The Certificate Principal
Balance of the Class A Certificates and the Notional Amount of the Class B Certificates
shall each initially equal the initial principal amount of Term Assets sold to the Trustee
and deposited in the Trust. Such Certificate Principal Balance and Notional Amount shall
be calculated without regard to Class A Certificates and Class B Certificates,
respectively, authenticated and delivered upon registration of, transfer of, or in exchange
for, or in lieu of, other Class A Certificates or Class B Certificates pursuant to Sections
5.3, 5.4 or 5.5 of the Base Trust Agreement. The Depositor may sell to the Trustee
additional Term Assets on any date hereafter upon at least five (5) Business Days notice to
the Trustee and upon (i) satisfaction of the Rating Agency Condition and (ii) delivery of
an Opinion of Counsel to the effect that the sale of such additional Term Assets will not
materially increase the likelihood that the Trust would fail to qualify as a grantor trust
under the Code and, in any event, that the Trust will not fail to qualify as either a
grantor trust or partnership (other than a publicly traded partnership treated as a
corporation) under the Code. Each condition to be satisfied with respect to a sale of Term
Assets on or prior to the Closing Date shall be satisfied with respect to a sale of
additional Term Assets no later than the date of sale thereof, each representation and
warranty set forth in the Agreement to be made on the Closing Date shall be made on such
date of sale with respect to the additional Term Assets, and from and after such date of
sale, all Term Assets held by the Trustee shall be held on the same terms and conditions.
Upon such sale to the Trustee, the Trustee shall credit such additional Term Assets to the
Certificate Account, and shall authenticate and deliver to the Depositor, or its order,
Class A Certificates in a Certificate Principal Balance and Class B Certificates in a
Notional Amount equal to the principal amount of such additional Term Assets. Any such
additional Class A Certificates and Class B Certificates authenticated and delivered shall
rank pari passu with any Class A Certificates or Class B Certificates, respectively,
previously issued in accordance with this Series Supplement, and any such Term Assets will
be subject to Call Warrants as set forth in Section 8 hereof.
Section 6 Currency of the Certificates. All distributions on the Certificates will be
made in the Specified Currency.
Section 7 Form of Securities. (a) The Trustee shall execute and deliver the Class A
Certificates in the form of one or more global certificates registered in the name of DTC
or its nominee.
(b) Class B Certificates that are Rule 144A Certificates initially shall be
represented by one or more certificates in registered, global form without interest coupons
(collectively, the "Restricted Global Certificate"). The Restricted Global Certificate
shall be deposited with, or on behalf of, DTC, and initially registered in the name of Cede
& Co., as nominee for DTC. Class B Certificates that are Regulation S Certificates
initially shall be represented by one or more temporary global certificates in registered,
global form without interest coupons (collectively, the "Regulation S Temporary Global
Certificate"). The Regulation S Temporary Global Certificate shall be deposited on behalf
of the subscribers thereof with a custodian for DTC. The Regulation S Temporary Global
Certificate shall be registered in the name of a nominee of DTC for credit to the
subscribers' respective accounts at Euroclear or Clearstream Banking.
Within a reasonable period of time after the expiration of the period of 40
days commencing on the day after the later of (i) the commencement of the offering made
hereby and (ii) the Closing Date (such period through and including such 40th day, the
"Restricted Period"), the Regulation S Temporary Global Certificates shall be exchanged for
one or more permanent global certificates (collectively, the "Permanent Regulation S Global
Certificate" and, together with the Regulation S Temporary Global Certificate, the
"Regulation S Global Certificate" (the Regulation S Global Certificate and the Restricted
Global Certificate, collectively, being the "Global Certificates")), upon delivery to DTC
of certification of compliance with the transfer restrictions applicable to the Class B
Certificates and pursuant to Regulation S. During the Restricted Period, beneficial
interests in the Regulation S Temporary Global Certificate may be held only through
Euroclear or Clearstream Banking (as indirect participants in DTC), unless transferred to a
person that takes delivery through the Restricted Global Certificate in accordance with the
certification requirements described below. Beneficial interests in the Restricted Global
Certificate may not be exchanged for beneficial interests in the Regulation S Global
Certificate at any time except in the limited circumstances described below.
Except as set forth below, the Global Certificates may be transferred, in whole
and not in part, only to another nominee of DTC or to a successor of DTC or its nominee.
Beneficial interests in the Global Certificates may not be exchanged for Certificates in
certificated form except in the limited circumstances described below.
Rule 144A Certificates (including beneficial interests in the Restricted Global
Certificate) shall be subject to certain restrictions on transfer and shall bear a
restrictive legend as set forth on Exhibit F hereto. In addition, transfer of beneficial
interests in the Global Certificates shall be subject to the applicable rules and
procedures of DTC and its direct or indirect participants (including, if applicable, those
of Euroclear and Clearstream Banking), which may change from time to time.
No Certificateholder shall be entitled to receive a certificate representing
such Certificateholder's interest, except as set forth herein. Unless and until definitive
Certificates are issued under the limited circumstances described herein, all references to
actions by Certificateholders with respect to any such Certificates shall refer to action
to be taken by DTC upon instructions from its Participants.
Under the rules, regulations and procedures creating and effecting DTC and its
operations, DTC shall take action permitted to be taken by a Certificateholder under the
Agreement only at the direction of one or more Participants to whose DTC account such
Certificates are credited.
(c) Prior to the expiration of the Restricted Period, a beneficial interest
in a Regulation S Temporary Global Certificate may be transferred to a person who takes
delivery in the form of an interest in the corresponding Restricted Global Certificate only
upon receipt by the Trustee of a written certification from the transferor in the form
required by the Trustee to the effect that such transfer is being made (i) (a) to a person
whom the transferor reasonably believes is a QIB in a transaction meeting the requirements
of Rule 144A or (b) pursuant to another exemption from the registration requirements under
the Securities Act (such certification being accompanied by an opinion of counsel regarding
the availability of such exemption) and (ii) in accordance with all applicable securities
laws of any state of the United States or any other jurisdiction.
Beneficial interests in the Restricted Global Certificate may be transferred to
a person who takes delivery in the form of an interest in the Regulation S Global
Certificate, whether before or after the expiration of the Restricted Period, only if the
transferor first delivers to the Trustee a written certificate to the effect that such
transfer is being made in accordance with Rule 903 or 904 of Regulation S or Rule 144 (if
available) and that, if such transfer occurs prior to the expiration of the Restricted
Period, the interest transferred shall be held immediately thereafter through Euroclear or
Clearstream Banking.
Any beneficial interest in one of the Global Certificates that is transferred
to a person who takes delivery in the form of an interest in another Global Certificate
shall, upon transfer, cease to be an interest in such Global Certificate and become an
interest in such other Global Certificate and, accordingly, shall thereafter be subject to
all transfer restrictions and other procedures applicable to beneficial interests in such
other Global Certificate for as long as it remains such an interest.
Transfers involving an exchange of a beneficial interest in the Regulation S
Global Certificate for a beneficial interest in the Restricted Global Certificate or vice
versa shall be effected in DTC by means of an instruction originated by the Trustee through
the DTC/Deposit Withdrawal at Custodian ("DWAC") system. Accordingly, in connection with
such transfer, appropriate adjustments shall be made to reflect a decrease in the principal
amount of the Regulation S Global Certificate and a corresponding increase in the principal
amount of the Restricted Global Certificate or vice versa, as applicable.
(d) Definitive certificates shall be issued to owners of Certificates or
their nominees, respectively, rather than to DTC or its nominee, only if (i) the Depositor
advises the Trustee in writing that DTC is no longer willing or able to discharge properly
its responsibilities as Clearing Agency with respect to the Certificates and the Depositor
is unable to locate a qualified successor or (ii) the Depositor, at its option, elects to
terminate the book-entry system through DTC.
Upon the occurrence of any event described in the immediately preceding
paragraph, the Trustee is required to notify all Participants of the availability through
DTC of definitive certificates. Upon surrender by DTC of the definitive certificates
representing the Certificates and receipt of instructions for re-registration, the Trustee
shall reissue such Certificates as definitive certificates issued in the respective
principal amounts owned by the individual owners of such Certificates, and thereafter the
Trustee will recognize the holders of such definitive certificates as Certificateholders
under the Trust Agreement.
Section 8 Call Warrants. (a) Concurrently with the execution of this Series Supplement,
the Trustee, on behalf of the Trust, shall execute the Warrant Agent Agreement and one or
more Call Warrants, dated as of the date hereof and substantially in the form of Exhibit E
hereto, initially evidencing all of the Call Warrants. The Trustee shall perform the
Trust's obligations under the Warrant Agent Agreement and the Call Warrants in accordance
with their respective terms. In addition, the Trustee shall execute and deliver additional
Call Warrants, substantially in the form of Exhibit E hereto, with respect to any
additional Term Assets sold to the Trustee pursuant to Section 5 of this Series Supplement.
(b) The Trustee shall notify the Certificateholders and the Rating Agencies
upon receipt of any notice, pursuant to the provision of the Call Warrants, of a
Warrantholder's intent to exercise its Call Warrants. Such notice from the Trustee shall
state (i) the Warrant Exercise Date, (ii) that such exercise of the Call Warrant is
conditional upon receipt by the Trustee of the Warrant Exercise Purchase Price with respect
to such exercise, (iii) that the Trustee will select by lot for redemption a principal
amount of Class A Certificates equal to the principal amount of Term Assets to be purchased
and that such redemption of the Class A Certificates will occur on the Warrant Exercise
Date at a price equal to $25 per Class A Certificate plus accrued and unpaid interest
thereon to the date of redemption and (iv) that on the date of redemption, so long as the
Class B Certificates are outstanding, the Class B Certificateholders will be paid the
Warrant Class B Purchase Price plus accrued and unpaid interest, if any, to the date of
redemption on the Notional Amount of the Class B Certificates to be reduced and that
following such payment on the Class B Certificates the Notional Amount of the Class B
Certificates will be reduced by the principal amount of Term Assets purchased. The Trustee
shall promptly notify Certificateholders of any rescission of such a notice and that the
redemption of Certificates in connection with such exercise is also rescinded.
(c) Upon the exercise of any Call Warrant in accordance with the terms of the
Call Warrants, the Trustee, after receipt of the Warrant Exercise Purchase Price and the
Call Warrants being exercised, shall deliver or cause to be delivered upon the written
direction of the Warrant Agent, by 1:00 p.m. (New York City time) on the related Warrant
Exercise Date, the Term Assets as specified in the exercised Call Warrant by instructing
the Depositary to credit such Term Assets to the account of the exercising Warrantholder or
its nominee, provided that the Trustee shall have received notice of the exercise of such
Call Warrant from the Warrant Agent in accordance with the terms of the Call Warrants and
shall have received from the Warrant Agent an amount, in immediately available funds in a
form acceptable to the Trustee, equal to the Warrant Exercise Purchase Price for such Term
Assets by 1:00 p.m. (New York City time) on the related Warrant Exercise Date. If any Call
Warrant is exercised in connection with a partial redemption of Term Assets, the Trustee
shall, to the extent possible, deliver to the exercising Warrantholder, Term Assets that
have been selected for redemption.
(d) Upon receipt of the Warrant Exercise Purchase Price pursuant to the Call
Warrants being exercised, the Trustee shall credit the amount of the Warrant Exercise
Purchase Price to the Certificate Account on or before the related Warrant Exercise Date
and pay to the Class A Certificateholders and the Class B Certificateholders the amount
described in Section 8(b)(iii) and (iv) above. The Class A Certificates to be redeemed
will be selected by the Trustee or DTC by lot and will be paid for on the Warrant Exercise
Date, payment of the Warrant Class B Purchase Price will be made and the Notional Amount of
the Class B Certificates will be reduced pro rata based upon the Notional Amount of Class B
Certificates held by a Class B Certificateholder.
Section 9 Certain Provisions of Base Trust Agreement Not Applicable. The provisions of
Sections 2.3, 3.2, 3.3, 3.4, 3.5, 3.6, 3.8, 3.10, 3.11, 3.12, 3.13, 3.15, 3.16, 4.3, 5.16,
5.17, 6.1, 6.6 and 9.1 of the Base Trust Agreement and any other provision of the Base
Trust Agreement, which imposes obligations on, or creates rights in favor of, the Trustee
or the Certificateholders as a result of or in connection with an "Event of Default" or
"Administrative Agent Termination Event" shall be inapplicable with respect to the
Certificates. In addition, there is no "Administrative Agent" or "Calculation Agent"
specified herein, and all references to "Administrative Agent" or "Calculation Agent" in
the Base Trust Agreement, therefor shall be inapplicable with respect to the Certificates.
Section 10 Distributions.
(a) On each Scheduled Distribution Date, subject to the existence of an Extension Period
as described below, the Trustee shall distribute to the Class A Certificateholders the
related Class A Fixed Payment and shall distribute to the Class B Certificateholders the
related Class B Fixed Payment, in each case, to the extent of Interest Collections.
Subject to the exercise of the Call Warrants (in which case the provisions of Section 8 of
this Series Supplement shall apply) and the terms of this Section 10, on the Class A
Maturity Date the Trustee shall distribute to the Class A Certificateholders the principal
balance of the Class A Certificates (in the amount of $90,000,000), to the extent the
principal of the Term Assets is received by the Trustee on such date, and shall distribute
all other amounts held in the Trust pursuant to Section 10(k) of this Series Supplement.
If any payment with respect to the Trust Assets as described in this Section 10(a) is made
to the Trustee after the Scheduled Distribution Date on which such payment was due, the
Trustee shall distribute such amount received on the Business Day following such receipt.
In the event an Extension Period is in effect, interest on the Certificates will continue
to accrue so long as interest on the Junior Debentures continues to so accrue, but the
Trustee shall not be required to make any distributions on the Certificates until the
Business Day following the date it receives payment on the Term Assets.
(b) In the event of a Payment Default, the Trustee shall proceed against the Term Assets
Issuer or Goldman on behalf of the Certificateholders to enforce the Term Assets or
otherwise to protect the interests of the Certificateholders, subject to the receipt of
indemnity in form and substance satisfactory to the Trustee; provided that, holders of the
Class A Certificates representing a majority of the Voting Rights on the Class A
Certificates will be entitled to direct the Trustee in any such proceeding or direct the
Trustee to sell the Term Assets, subject to the Trustee's receipt of satisfactory
indemnity. If the Trustee is directed to sell the Term Assets, the Trustee shall solicit
bids for the sale of the Term Assets with settlement thereof on or before the third (3rd)
Business Day after such sale from three leading dealers in the relevant market. Any of the
following dealers shall be deemed to qualify as leading dealers: (1) Credit Suisse First
Boston LLC, (2) Xxxxxxx, Sachs&Co., (3) Xxxxxx Brothers Inc., (4) Xxxxxxx Lynch, Pierce,
Fenner&Smith Incorporated, (5) UBS Securities LLC and (6) Citigroup Global Markets Inc.;
provided, however, that no bid from Citigroup Global Markets Inc. or any affiliate thereof
shall be accepted unless such bid equals the then fair market value of such Term Assets.
The Trustee shall not be responsible for the failure to obtain a bid so long as it has made
reasonable efforts to obtain bids. If a bid for the sale of the Term Assets has been
accepted by the Trustee but the sale has failed to settle on the proposed settlement date,
the Trustee shall request new bids from such leading dealers. In the event of an
Acceleration and a corresponding payment on the Term Assets, the Trustee will distribute
the proceeds to the Class A Certificateholders and the Class B Certificateholders such that
(i) Class A Certificateholders will receive an amount equal to $25 per Class A Certificate
plus accrued and unpaid interest thereon and (ii) Class B Certificateholders will receive
accrued and unpaid interest on the Class B Certificates on the notional amount of the Class
B Certificates. If such proceeds are less than the principal amount of, and accrued
interest on, the Term Assets, the proceeds will be distributed such that the percentage of
such proceeds received by the Class A Certificateholders equals the Class A Proportion
divided by the sum of the Class A Proportion plus the Class B Proportion and the percentage
of such proceeds received by the Class B Certificateholders equals the Class B Proportion
divided by the sum of the Class A Proportion plus the Class B Proportion no later than two
Business Days after the receipt of immediately available funds (in each case, after
deducting the costs incurred in connection therewith and subject to clause(l) of this
Section 10); provided that it is expected that in no case will Class A Certificateholders
receive less than 95% of such proceeds or distribution. Such proceeds will be distributed
as described above in full satisfaction of the claim of the Class A Certificates and the
Class B Certificates.
(c) In the event that the Trustee receives money or other property in respect of the Term
Assets as a result of a Payment Default on the Term Assets (including from the sale
thereof), the Trustee will promptly give notice as provided in Section 18(c) to the
Depositary, or for any Certificates which are not then held by DTC or any other depository,
directly to the registered holders of the Certificates then outstanding and unpaid. Such
notice shall state that, not later than 30 days after the receipt of such moneys or other
property, the Trustee will allocate and distribute such moneys or other property to the
Class A Certificateholders and the Class B Certificateholders such that the percentage of
such distribution received by the Class A Certificateholders equals the Class A Proportion
divided by the sum of the Class A Proportion plus the Class B Proportion and the percentage
of such distribution received by the Class B Certificateholders equals the Class B
Proportion divided by the sum of the Class A Proportion plus the Class B Proportion (in
each case, after deducting the costs incurred in connection therewith and subject to
clause(l) of this Section 10); provided that it is expected that in no case will Class A
Certificateholders receive less than 95% of such proceeds or distribution. Property other
than cash will be liquidated by the Trustee, and the proceeds thereof distributed in cash,
only to the extent necessary to avoid distribution of fractional securities to Class A
Certificateholders. Other than as provided in clause (l) below, no amount will be
distributed to the Depositor in respect of the Term Assets.
(d) Distributions to the Certificateholders on each Distribution Date will be made to the
Certificateholders of record on the Record Date.
(e) All distributions to Class A Certificateholders shall be allocated pro rata among the
Class A Certificates based on their respective principal balances as of the Record Date.
All distributions to Class B Certificateholders shall be allocated pro rata among the Class
B Certificates based on their respective Notional Amounts as of the Record Date.
(f) Notwithstanding any provision of the Agreement to the contrary, to the extent funds
are available, the Trustee will initiate payment in immediately available funds by 10:00
A.M. (New York City time) on each Distribution Date of all amounts payable to each
Certificateholder with respect to any Certificate held by such Certificateholder or its
nominee (without the necessity for any presentation or surrender thereof or any notation of
such payment thereon) in the manner and at the address as each Certificateholder may from
time to time direct the Trustee in writing fifteen (15) days prior to such Distribution
Date requesting that such payment will be so made and designating the bank account to which
such payments shall be so made. The Trustee shall be entitled to rely on the last
instruction delivered by the Certificateholder pursuant to this Section 10(f) unless a new
instruction is delivered fifteen (15) days prior to a Distribution Date.
(g) Upon receipt by the Trustee of a notice that all or a portion of the Term Assets are
to be redeemed (whether as a result of an Optional Redemption or Special Event Redemption),
the Trustee shall select by lot for redemption a principal amount of Class A Certificates
and reduce the Notional Amount of the Class B Certificates equal to the principal amount of
the Term Assets to be redeemed on the Term Assets Redemption Distribution Date. The
Trustee shall promptly give notice of such redemption to the Warrantholder. Notice of such
redemption shall also be given by the Trustee to the registered Certificateholders not less
than fifteen (15) days prior to the Term Assets Redemption Distribution Date by mail to
each registered Certificateholder at such registered Certificateholder's last address on
the register maintained by the Trustee; provided, however, that the Trustee shall not be
required to give any notice of redemption prior to the third business day after the date it
receives notice of such redemption.
Upon the occurrence of a redemption of the Term Assets (whether as a result of
an Optional Redemption or Special Event Redemption) by the Term Assets Issuer, redemption
proceeds (to the extent of funds available) will be allocated in the following order of
priority: (i) Class A Certificates selected for redemption, in an aggregate principal
amount equal to the principal amount of the Term Assets to be redeemed, will be redeemed at
a price equal to $25 per Class A Certificate plus accrued and unpaid interest thereon; (ii)
Class B Certificateholders will receive accrued and unpaid interest on the Class B
Certificates on the Notional Amount of the Class B Certificates to be reduced; (iii) (to
the extent of funds available) the Class B Certificateholders will receive an amount equal
to the present value of any scheduled interest distributions due from the date of
redemption (assuming the Class B Certificates would have been paid when due and would not
have been redeemed prior to the Class B Maturity Date, and excluding accrued and unpaid
interest thereon to the date of redemption) on the Class B Certificates with a Notional
Amount equal to the principal amount of the Term Assets to be redeemed, discounted to the
date of redemption on a semiannual basis at a rate of 6.000% per annum, and, in either
case, the Notional Amount of such Class B Certificates will be reduced by an amount equal
to the principal amount of the Term Assets to be redeemed; and (iv) Call Warrants
proportionate to the amount of Term Assets to be redeemed will become immediately
exercisable on a pro rata basis for each holder of Call Warrants and, if in the money, will
be deemed to be exercised and will be cash settled for an amount equal to any remaining
redemption proceeds after the payments made pursuant to clauses (i) through (iii) above.
All payments to Class B Certificateholders and reductions to the notional
amount of Class B Certificates pursuant to clauses (ii) and (iii) above shall be made on a
pro rata basis based upon the Notional Amount of Class B Certificates held by a Class B
Certificateholder.
(h) Goldman has the right to redeem the Junior Debentures in whole at any
time or in part from time to time (provided that no partial redemption may occur during an
Extension Period) (an "Optional Redemption"), or in whole at any time within 90 days after
the occurrence of a Tax Event or Investment Company Event (a "Special Event Redemption"),
in each case, at a price equal to the greater of (i) 100% of the principal amount of the
Junior Debentures to be redeemed or (ii) the sum of the present values of the remaining
scheduled payments of principal and interest thereon that would be due from the redemption
date to the maturity date, discounted to the redemption date on a semiannual basis at a
certain treasury rate plus (a) 20 basis points, in the case of an Optional Redemption or
(b) 50 basis points, in the case of a Special Event Redemption, plus in each case, accrued
and unpaid interest on the principal amount of the Junior Debentures being redeemed to the
date of redemption.
Upon any redemption of the Junior Debentures (whether as a result of an
Optional Redemption or a Special Event Redemption), a like amount of the Term Assets will
be mandatorily redeemed.
(i) [Reserved].
(j) (A) If Goldman ceases to file periodic reports under the Exchange Act and
the Depositor determines in its sole discretion, after consultation with the Securities and
Exchange Commission, that under applicable securities laws, rules or regulations the Trust
must be liquidated or the Term Assets distributed (an "SEC Reporting Failure"), then the
Trustee shall liquidate or distribute in kind, as directed by the Depositor, any remaining
Term Assets and distribute any proceeds thereof. The Trustee shall notify each Rating
Agency of any such liquidation or distribution of the Trust. The distribution (whether of
proceeds or Term Assets) will be allocated between the Class A Certificateholders and the
Class B Certificateholders such that the percentage received by the Class A
Certificateholders of the total distribution equals the Class A Proportion divided by the
sum of the Class A Proportion plus the Class B Proportion and the percentage received by
the Class B Certificateholders of the total distribution equals the Class B Proportion
divided by the sum of the Class A Proportion plus the Class B Proportion (in each case,
after deducting the costs incurred in connection therewith and subject to clause(l) of
this Section 10); provided that it is expected that in no case will Class A
Certificateholders receive less than 95% of such distribution. To the extent permitted by
applicable law, the Trustee or the Depositor shall notify the Warrantholders promptly after
consultation with the Securities and Exchange Commission as described above.
(B) Notwithstanding the foregoing, the Call Warrants will become immediately
exercisable upon an SEC Reporting Failure (whether such SEC Reporting Failure occurs before
or after April 15, 2009) and, if the Call Warrants are in the money, as defined below, they
will be deemed to be exercised without further action by the Warrantholders and will be
cash settled concurrently with the distribution to Class A Certificateholders and Class B
Certificateholders. If the Call Warrants are in the money and are cash settled, the
allocation between the Class A Certificates and the Class B Certificates described in
paragraph (A) above shall not apply, the Term Assets will be liquidated as set forth below
and the Class A Certificates will receive liquidation proceeds in an amount equal to $25
per Class A Certificate plus accrued and unpaid interest thereon, and the Class B
Certificates will receive liquidation proceeds in an amount equal to accrued and unpaid
interest thereon.
(C) If an SEC Reporting Failure occurs, the Trustee shall solicit bids for the
sale of the Term Assets with settlement thereof on or before the third (3rd) Business Day
after such sale from three leading dealers in the relevant market and the Warrantholders,
and may solicit additional bids from such other parties as the Depositor deems
appropriate. For purposes of this Section 10(j), the Call Warrants will be deemed to be in
the money if the highest firm bid received with respect to all Term Assets held by the
Trust exceeds the Warrant Exercise Purchase Price for such Term Assets, and cash settlement
shall be made in an amount equal to such excess (but only if the Term Assets are actually
sold at a price equal to the amount of such bid). Any of the following dealers shall be
deemed to qualify as leading dealers: (1) Credit Suisse First Boston LLC, (2) Xxxxxxx,
Xxxxx &Co., (3) Xxxxxx Brothers Inc., (4) Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, (5) UBS Securities LLC and (6) Citigroup Global Markets Inc.; provided,
however, that no bid from Citigroup Global Markets Inc. or any affiliate thereof shall be
accepted unless such bid equals the then fair market value of such Term Assets. The
Trustee shall not be responsible for the failure to obtain a bid so long as it has made
reasonable efforts to obtain bids. If a bid for the sale of the Term Assets has been
accepted by the Trustee but the sale has failed to settle on the proposed settlement date,
the Trustee shall request new bids from such leading dealers.
(D) Notwithstanding the foregoing, if an SEC Reporting Failure occurs on or
after April 15, 2009, Warrantholders will continue to have the right to exercise the Call
Warrants in accordance with Section 8 so long as the Call Warrants are exercised prior to
the liquidation or distribution of the Term Assets. Any payments to Class A
Certificateholders and Class B Certificateholders in connection with such exercise shall be
made as set forth in Section 8.
(k) The rights of the Certificateholders to receive distributions in respect
of the Certificates, and all interests of the Certificateholders in such distributions,
shall be as set forth in this Series Supplement. Notwithstanding anything in the Agreement
to the contrary, to the extent there remains on deposit monies or property in the Trust
after all required payments and distributions have been made in accordance with this Series
Supplement (including without limitation Section 8 and this Section 10), such remaining
monies or property shall be distributed to the Class B Certificateholders on a pro rata
basis based on the Notional Amount of Class B Certificates held on the date the final Class
B Fixed Payment was made on the Class B Certificates. The Trustee shall in no way be
responsible or liable to the Certificateholders nor shall any Certificateholder in any way
be responsible or liable to any other Certificateholder in respect of amounts previously
distributed on the Certificates based on their respective principal balances or Notional
Amounts, as the case may be.
(l) On the Closing Date, as partial payment for the Term Assets, the Trustee
shall deliver to, or at the direction of, the Depositor all of the Certificates and the
Call Warrants. On August 15, 2004, as payment of the balance of the purchase price for the
Term Assets, the Trustee shall pay to the Depositor from the scheduled interest
distributions received on the Term Assets on such date, the amount of the interest accrued
on the Term Assets from February 15, 2004 to but not including the Closing Date, which
amount equals $872,437.50. In the event such amounts are not received by the Trustee on
such date or otherwise are insufficient to pay such amount of accrued interest to the
Depositor, the Depositor shall have a claim for the unpaid portion of such amount and shall
share pari passu with the Certificateholders to the extent of such claim in the proceeds
from the sale or recovery of the Term Assets.
(m) In the event the Junior Debentures are distributed to the Trust as a
result of the liquidation of the Term Assets Issuer, such distribution will not cause the
Certificates to be redeemed. Instead, the Trust will hold the Junior Debentures for the
Certificateholders in accordance with the terms hereof and the Base Trust Agreement.
(n) Any interest that accrues on the Junior Debentures during an Extension
Period will be distributed on the date of receipt by the Trustee to Class A
Certificateholders and the Class B Certificateholders on a pari passu basis as follows: (i)
to Class A Certificateholders all Class A Fixed Payments which have not been paid during
the Extension Period plus interest on each such Class A Fixed Payment calculated at the
stated rate of interest on the Class A Certificates from the respective Scheduled
Distribution Date for each such Class A Fixed Payment to the date of distribution by the
Trustee and (ii) to the Class B Certificates all Class B Fixed Payments which have not been
paid during the Extension Period plus interest on each such Class B Fixed Payment
calculated at the stated rate of interest on the Class B Certificates from the respective
Scheduled Distribution Date for each such Class B Fixed Payment to the date of distribution
by the Trustee. Any monies which remain on deposit after taking the actions described in
clause (i) and (ii) shall be distributed to the Class B Certificateholders in the manner
set forth in Section 10(k).
Section 11 Termination of Trust. (a) The Trust shall terminate upon the occurrence of
any Trust Termination Event.
(b) Except for any reports and other information required to be provided to
Certificateholders hereunder and under the Base Trust Agreement and except as otherwise
specified herein and therein, the obligations of the Trustee will terminate upon the
distribution to Certificateholders of all amounts required to be distributed to them and
the disposition of all Term Assets held by the Trustee. The Trust shall thereupon
terminate, except for surviving rights of indemnity.
Section 12 Limitation of Powers and Duties. (a) The Trustee shall administer the
Trust and the Term Assets solely as specified herein and in the Base Trust Agreement.
(b) The Trust is constituted solely for the purpose of (i) acquiring and holding the Term
Assets, (ii) issuing the Certificates and Call Warrants, (iii) entering into and performing
its obligations and enforcing its rights under the Agreement, this Series Supplement and
the Call Warrants and (iv) taking the other actions required hereunder. The Trustee is not
authorized to acquire any other investments or engage in any activities not authorized
herein and, in particular, unless expressly provided in the Agreement, the Trustee is not
authorized (i) to sell, assign, transfer, exchange, pledge, set-off or otherwise dispose of
any of the Term Assets, once acquired, or interests therein, including to
Certificateholders, (ii) to merge or consolidate the Trust with any other entity, or (iii)
to do anything that would materially increase the likelihood that the Trust will fail to
qualify as a grantor trust for United States federal income tax purposes. In addition, the
Trustee has no power to create, assume or incur indebtedness or other liabilities in the
name of the Trust other than as contemplated herein and in the Base Trust Agreement.
(c) The parties acknowledge that the Trustee, as the holder of the Term Assets, has the
right to vote and give consents and waivers in respect of the Term Assets and enforce the
other rights, if any, of a holder of the Term Assets, except as otherwise limited by the
Base Trust Agreement or this Series Supplement. In the event that the Trustee receives a
request from the Term Assets Trustee, the Term Assets Issuer or, if applicable, the
Depositary with respect to the Term Assets, for the Trustee's consent to any amendment,
modification or waiver of the Term Assets, or any document relating thereto, or receives
any other solicitation for any action with respect to the Term Assets, the Trustee shall
within two (2) Business Days mail a notice of such proposed amendment, modification, waiver
or solicitation to each Class A Certificateholder and Class B Certificateholder of record
as of the date of such request. The Trustee shall request instructions from the Class A
Certificateholders as to what action to take in response to such request and shall be
protected in taking no action if no direction is received. Except as otherwise provided
herein, the Trustee shall consent or vote, or refrain from consenting or voting, in the
same proportion (based on the relative principal balances of the Class A Certificates) as
the Class A Certificates of the Trust were actually voted or not voted by the Holders
thereof as of the date determined by the Trustee prior to the date such vote or consent is
required; provided, however, that, notwithstanding anything to the contrary in the Base
Trust Agreement or this Series Supplement, the Trustee shall at no time vote in favor of or
consent to any matter (i) which would alter the timing or amount of any payment on the Term
Assets (including, without limitation, any demand to accelerate the Term Assets) or (ii)
which would result in the exchange or substitution of any Term Asset whether or not
pursuant to a plan for the refunding or refinancing of such Term Asset, except in each case
with the unanimous consent of the Certificateholders, and subject to the requirement that
such vote or consent would not materially increase the likelihood that the Trust will fail
to qualify as a grantor trust for federal income tax purposes, and, in any event, that the
Trust will not fail to qualify as either a grantor trust or partnership (other than a
publicly traded partnership treated as a corporation) under the Code, such determination to
be based solely on an Opinion of Counsel. The Trustee shall not be obligated to follow any
instruction that would cause the Trust to violate the terms of any agreement or other
obligation to which the Trust is a party, including the Warrant Agent Agreement. The
Trustee shall have no liability for any failure to act or to refrain from acting resulting
from the Certificateholders' late return of, or failure to return, directions requested by
the Trustee from the Certificateholders.
(d) Notwithstanding any provision of the Agreement to the contrary, the Trustee may
require from the Certificateholders prior to taking any action at the direction of the
Certificateholders, an indemnity agreement of a Certificateholder or any of its Affiliates
to provide for security or indemnity against the costs, expenses and liabilities the
Trustee may incur by reason of any such action. An unsecured indemnity agreement, if
acceptable to the Trustee, shall be deemed to be sufficient to satisfy such security or
indemnity requirement.
(e) Notwithstanding any provision of the Agreement to the contrary, the Trustee shall act
as the sole Authenticating Agent, Paying Agent and Certificate Registrar.
Section 13 Compensation of Trustee. Each of the Trustee and U.S. Bank National
Association, as co-trustee (the "co-trustee"), shall be entitled to receive from the
Depositor as compensation for its services hereunder, trustee's fees pursuant to a separate
agreement among the Trustee, the co-trustee, and the Depositor, and shall be reimbursed for
all reasonable expenses, disbursements and advances incurred or made by it (including the
reasonable compensation, disbursements and expenses of its counsel and other persons not
regularly in its employ). The Depositor shall indemnify and hold harmless each of the
Trustee and the co-trustee, and its successors, assigns, agents and servants against any
and all loss, liability or reasonable expense (including attorneys' fees) incurred by it in
connection with the administration of this trust and the performance of its duties
thereunder. The Trustee and the co-trustee shall notify the Depositor promptly of any
claim for which they may seek indemnity. Failure by the Trustee or the co-trustee to so
notify the Depositor shall not relieve the Depositor of its obligations hereunder. The
Depositor need not reimburse any expense or indemnify against any loss, liability or
expense incurred by the Trustee or the co-trustee through the Trustee's or the co-trustee's
own willful misconduct, gross negligence or bad faith. The indemnities contained in this
Section 13 shall survive the resignation or termination of the Trustee or the co-trustee,
or the termination of this Agreement.
Failure by the Depositor to pay, reimburse or indemnify the Trustee or the
co-trustee shall not entitle the Trustee or the co-trustee to any payment, reimbursement or
indemnification from the Trust, nor shall such failure release either the Trustee or the
co-trustee from the duties it is required to perform under this Series Supplement. Any
unpaid, unreimbursed or unindemnified amounts shall not be borne by the Trust and shall not
constitute a claim against the Trust, but shall be borne by each of the Trustee and the
co-trustee in its individual capacity, and the Trustee and the co-trustee shall have no
recourse against the Trust with respect thereto.
The Trustee hereby agrees that it shall not receive any additional compensation
for the performance of its duties, as warrant agent under the Warrant Agent Agreement.
Section 14 Modification or Amendment. (a) The Trustee shall not enter into any
modification or amendment of the Base Trust Agreement or this Series Supplement unless such
modification or amendment is in accordance with Section 10.1 of the Base Trust Agreement.
Pursuant to Section 5 of this Series Supplement, the Depositor may sell to the Trustee
additional Term Assets from time to time without violation or trigger of this Section 14.
Notwithstanding anything to the contrary contained in Section 10.1(a) of the Base Trust
Agreement, the Base Trust Agreement or this Series Supplement may not be amended or
modified for the purposes contained in items (v) through (viii) in Section 10.1 of the Base
Trust Agreement unless the Trustee has received written confirmation from each Rating
Agency that such amendment will not cause such Rating Agency to reduce or withdraw the
then current rating thereof.
(b) As referenced in Section 10.1(b) of the Base Trust Agreement, the Required
Percentage-Amendment required if the Rating Agency Condition is not satisfied with respect
to a modification or amendment shall be 100%.
Section 15..Accounting. Notwithstanding Section 3.16 of the Base Trust
Agreement, no such accounting reports shall be required. Pursuant to Section 4.2 of the
Base Trust Agreement, the Trustee shall cause the statements to be prepared and forwarded
as provided therein.
Section 16..No Investment of Amounts Received on Term Assets. All amounts
received on or with respect to the Term Assets shall be held uninvested by the Trustee.
Section 17..No Event of Default. There shall be no Events of Default defined
with respect to the Certificates.
Section 18..Notices. (a) All directions, demands and notices hereunder and
under the Base Trust Agreement shall be in writing and shall be deemed to have been duly
given when received if personally delivered or mailed by first class mail, postage prepaid
or by express delivery service or by certified mail, return receipt requested or delivered
in any other manner specified herein, (i) in the case of the Depositor, to Structured
Products Corp., 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Secretary, or such other address as may hereafter be furnished to the Trustee in writing by
the Depositor, and (ii) in the case of the Trustee, to U.S. Bank Trust National
Association, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Trust, facsimile number (000) 000-0000, or such other address as may hereafter be furnished
to the Depositor in writing by the Trustee.
(b) For purposes of delivering notices to the Rating Agency under Section 10.7 of the
Base Trust Agreement, or otherwise, such notices shall be mailed or delivered as provided
in such Section 10.7, to: Standard&Poor's Ratings Services, 00 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000; and Xxxxx'x Investors Service, Inc., Structured Derivative Products, 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; or such other address as the Rating Agency may
designate in writing to the parties hereto.
(c) In the event a Payment Default or an Acceleration occurs, the Trustee shall promptly
give notice to the Depositary or, for any Certificates which are not then held by the
Depositary or any other depository, directly to the registered holders of the Certificates
thereof. Such notice shall set forth (i) the identity of the issue of Term Assets, (ii)
the date and nature of such Payment Default or Acceleration, (iii) the amount of the
interest or principal in default, (iv) the Certificates affected by the Payment Default or
Acceleration, and (v) any other information which the Trustee may deem appropriate.
(d) Notwithstanding any provisions of the Agreement to the contrary, the Trustee shall
deliver all notices or reports required to be delivered to or by the Trustee or the
Depositor to the Certificateholders without charge to such Certificateholders.
(e) The Trustee shall, in connection with any required delivery of any
document or notice to the Certificateholders (whether or not such delivery is required
pursuant to the Agreement), provide, on behalf of the Certificateholders, such document or
notice to the Warrantholders concurrently with the delivery thereof to the
Certificateholders.
Section 19..Access to Certain Documentation. Access to documentation regarding
the Term Assets will be afforded without charge to any Certificateholder so requesting
pursuant to Section 3.17 of the Base Trust Agreement. Additionally, the Trustee shall
provide at the request of any Certificateholder without charge to such Certificateholder
the name and address of each Certificateholder of Certificates hereunder as recorded in the
Certificate Register for purposes of contacting the other Certificateholders with respect
to their rights hereunder or for the purposes of effecting purchases or sales of the
Certificates, subject to the transfer restrictions set forth herein.
Section 20..Advances. There is no Administrative Agent specified herein; hence
no person (including the Trustee) shall be permitted or obligated to make Advances as
described in Section 4.3 of the Base Trust Agreement.
Section 21..Withholding Taxes. The Trustee shall withhold, and remit to the
Internal Revenue Service, a 30% U.S. federal withholding tax (or other required amount) on
the payments made in respect of the Certificates to non-U.S. Persons who are
Certificateholders unless the non-U.S. Person establishes an exemption from such
withholding tax satisfactory to the Depositor and the Trustee. The Trustee shall not have
any obligation to comply with the provisions of this Section 21 if the Trustee does not
actual knowledge that Certificates are held by non-U.S. Persons.
Section 22..Ratification of Agreement. With respect to the Series issued
hereby, the Base Trust Agreement (including the grant of a security interest in Section
10.8 of the Agreement with respect to the Term Assets conveyed hereunder), as supplemented
by this Series Supplement, is in all respects ratified and confirmed, and the Base Trust
Agreement as so supplemented by this Series Supplement shall be read, taken and construed
as one and the same instrument. To the extent there is any inconsistency between the terms
of the Base Trust Agreement and this Series Supplement, the terms of this Series Supplement
shall govern.
Section 23..Counterparts. This Series Supplement may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original, but all of
such counterparts shall together constitute but one and the same instrument.
Section 24..Governing Law. This Series Supplement and each Certificate issued
hereunder shall be governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed entirely therein without
reference to such State's principles of conflicts of law to the extent that the application
of the laws of another jurisdiction would be required thereby, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with such laws.
The State of New York is the securities intermediary's jurisdiction of the Securities
Intermediary for purposes of the UCC.
Section 25..Establishment of Certificate Account. The Securities Intermediary
and the Trustee hereby represent and warrant that:
(a) The Certificate Account for the Trust is a "securities account" within the meaning of
Section 8-501 of the UCC and is held only in the name of the Trustee on behalf of the
Trust. The Securities Intermediary is acting in the capacity of a "securities intermediary"
within the meaning of Section 8-102(a)(14) of the UCC;
(b) All Term Assets have been credited to the Certificate Account by the Securities
Intermediary; and
(c) The Certificate Account is an account to which financial assets are or
may be credited, and the Securities Intermediary shall treat the Trustee as entitled to
exercise the rights that comprise any financial asset credited to the Certificate Account.
Section 26..Certificate of Compliance. The Depositor shall deliver to the
Trustee on or prior to June 30 of each year prior to a Trust Termination Event the
Officer's Certificate as to compliance as required by Section 6.1(b) of the Base Trust
Agreement.
Section 27..Appointment of Co-Trustee. The Depositor and the Trustee hereby
appoint U.S. Bank National Association, a national banking association, as co-trustee under
the Agreement. Any action required to be taken by the Trustee may be taken by U.S. Bank
National Association, as co-trustee, in full satisfaction of the obligations of the
Trustee, provided, however, the Term Assets shall be transferred to the Trustee, and the
Trustee shall pay the full purchase price thereof in accordance with the terms hereof. By
its acceptance of this Series Supplement, U.S. Bank National Association hereby accepts its
appointment as co-trustee under the Agreement.
Section 28..Securities Provisions for Class B Certificates . Class B
Certificates sold in the United States or to U.S. Persons (as defined in Regulation S under
the Securities Act) shall be offered solely to persons that are "qualified institutional
buyers" as defined in Rule 144A under the Securities Act in accordance with Rule 144A.
Each purchaser of the Class B Certificates that is a U.S. Person will be deemed to have
represented that it constitutes a "qualified institutional buyer" as defined in Rule 144A
under the Securities Act.
At any time when the Trust is not subject to Section 13 or 15(d) of the United
States Securities Exchange Act of 1934, as amended, upon the request of any Class B
Certificateholder, the Trustee on behalf of the Trust shall promptly furnish to such Class
B Certificateholder or to a prospective purchaser of any Class B Certificate designated by
such Class B Certificateholder, as the case may be, the information which the Depositor
determines to be required to be delivered pursuant to Rule 144A(d)(4) under the Securities
Act ("Rule 144A Information") in order to permit compliance by such Class B
Certificateholder with Rule 144A in connection with the resale of such Class B Certificate
by such Class B Certificateholder; provided, however, that the Trust shall not be required
to provide audited financial statements more than once a year or to furnish Rule 144A
Information in connection with any request made on or after the date that is two years from
the later of (i) the date such Class B Certificate (or any predecessor Class B Certificate)
was acquired from the Trust or (ii) the date such Class B Certificate (or any predecessor
Class B Certificate) was last acquired from an "affiliate" of the Trust within the meaning
of Rule 144, in each case as determined by the Depositor.
Class B Certificates sold to non-U.S. Persons shall be sold solely in
accordance with Regulation S under the Securities Act.
Section 29..Reporting Obligations. The Depositor shall advise and reasonably
cooperate with the Trustee as to what information, if any, is required by Rule 144A(d)(4)
under the Securities Act and the Trustee shall be entitled to rely on such advice of the
Depositor.
Section 30..Statement of Intent. It is the intention of the parties hereto
that, for purposes of federal income taxes, state and local income and franchise taxes and
any other taxes imposed upon, measured by or based upon gross or net income, the Trust
shall be treated as a grantor trust, but failing that, as a partnership (other than a
publicly traded partnership treated as a corporation). The parties hereto agree that,
unless otherwise required by appropriate tax authorities, the Trust shall file or cause to
be filed annual or other necessary returns, reports and other forms consistent with such
intended characterization. In the event that the Trust is characterized by appropriate tax
authorities as a partnership for federal income tax purposes, each Certificateholder, by
its acceptance of its Certificate, agrees to report its respective share of the items of
income, deductions, and credits of the Trust on its respective returns (making such
elections as to individual items as may be appropriate) in accordance with Treasury
Regulations Section 1.761-2(b) (the "761 Election") and in a manner consistent with the
exclusion of the Trust from partnership tax accounting. The terms of the Agreement shall be
interpreted to further these intentions of the parties. In mutual consideration for each
Certificateholder's purchase of a Certificate, each such Certificateholder is deemed to
agree not to delegate (for a period of more than one year) authority to purchase, sell to
exchange its Certificate to any person.
Each Certificateholder (and each beneficial owner of a Certificate) by
acceptance of its Certificate (or its beneficial interest therein) agrees, unless otherwise
required by appropriate tax authorities, to file its own tax returns and reports in a
manner consistent with the characterization indicated above.
Section 31..Filing of Partnership Returns. In the event that the Trust is
characterized (by appropriate tax authorities) as a partnership for United States federal
income tax purposes, and the 761 Election is ineffective, the Depositor agrees to reimburse
the Trust for any expenses associated with the filing of partnership returns (or returns
related thereto).
Section 32.."Financial Assets" Election. The Securities Intermediary hereby
agrees that the Term Assets credited to the Certificate Account shall be treated as a
"financial asset" within the meaning of Section 8-102(a)(9) of the UCC.
Section 33..Trustee's Entitlement Orders. If at any time the Securities
Intermediary shall receive any order from the Trustee directing the transfer or redemption
of any Term Assets credited to the Certificate Account, the Securities Intermediary shall
comply with such entitlement order without further consent by the Depositor or any other
Person. The Securities Intermediary shall take all instructions (including without
limitation all notifications and entitlement orders) with respect to the Certificate
Account solely from the Trustee.
Section 34..Conflict with Other Agreements. The Securities Intermediary hereby
confirms and agrees that:
(a) There are no other agreements entered into between the Securities
Intermediary and the Depositor with respect to the Certificate Account. The Certificate
Account and all property credited to the Certificate Account is not subject to, and the
Securities Intermediary hereby waives, any lien, security interest, right of set off, or
encumbrance in favor of the Securities Intermediary or any Person claiming though the
Securities Intermediary (other than the Trustee);
(b) It has not entered into, and until the termination of the Agreement will
not enter into, any agreement with any other Person relating to the Certificate Account
and/or any financial assets credited thereto pursuant to which it has agreed to comply with
entitlement orders of any Person other than the Trustee; and
(c) It has not entered into, and until the termination of the Agreement will
not enter into, any agreement with any Person purporting to limit or condition the
obligation of the Securities Intermediary to comply with entitlement orders as set forth in
Section 32 hereof.
Section 35..Additional Trustee and Securities Intermediary Representations.
The Trustee and the Securities Intermediary each hereby represents and warrants as follows:
(a) The Trustee and the Securities Intermediary each maintains its books and
records with respect to its securities accounts in the State of New York;
(b) The Trustee and the Securities Intermediary each has not granted any lien
on the Term Assets nor are the Term Assets subject to any lien on properties of the Trustee
or the Securities Intermediary in its individual capacity; the Trustee and the Securities
Intermediary each has no actual knowledge and has not received actual notice of any lien on
the Term Assets (other than any liens of the Trustee in favor of the beneficiaries of the
Trust Agreement); other than the interests of the Trustee and the Certificateholders and
the potential interests of the Warrantholders, the books and records of the Trustee and the
Securities Intermediary each do not identify any Person as having an interest in the Term
Assets; and
(c) The Trustee and the Securities Intermediary each makes no representation as
to (i) the validity, legality, sufficiency or enforceability of any of the Term Assets or
(ii) the collectability, insurability, effectiveness or suitability of any of the Term
Assets.
Section 36..Additional Depositor Representations. The Depositor hereby
represents and warrants to the Trustee as follows:
(a) Immediately prior to the sale of the Term Assets to the Trust, the
Depositor owned and had good and marketable title to the Term Assets free and clear of any
lien, claim or encumbrance of any Person.
(b) The Depositor has received all consents and approvals required by the
terms of the Term Assets to the sale to the Trustee of its interest and rights in the Term
Assets as contemplated by the Agreement; and
(c) The Depositor has not assigned, pledged, sold, granted a security
interest in or otherwise conveyed any interest in the Term Assets (or, if any such interest
has been assigned, pledged or otherwise encumbered, it has been released), except such
interests sold pursuant to the Agreement. The Depositor has not authorized the filing of
and is not aware of any financing statements against the Depositor that includes a
description of the Term Assets, other than any such filings pursuant to the Agreement. The
Depositor is not aware of any judgment or tax lien filings against Depositor.
Section 37 Report to Certificateholders. Section 4.2 of the Base Trust
Agreement is hereby amended by deleting the following line from paragraph (v): "the current
rating assigned by the Rating Agency thereon."
Section 38..Certification Requirements. The Trustee agrees to obtain, at the
Depositor's direction and expense, a report of an independent public accountant sufficient
for the Depositor on behalf of the Trust to satisfy its obligations with respect to
certification requirements under Rules 13a-14 and 15d-14 of the Exchange Act.
1
IN WITNESS WHEREOF, the parties hereto have caused this Series Supplement to be
executed by their respective duly authorized officers as of the date first above written.
STRUCTURED PRODUCTS CORP.
By: _/s/ Xxxx X. Xxxxxx___________________
Authorized Signatory
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By: _/s/ Xxxxxxx Xxxxx___________________
Responsible Officer
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Securities Intermediary
By: _/s/ Xxxxxxx Xxxxx___________________
Responsible Officer
1
ACCEPTED AND ACKNOWLEDGED BY:
U.S. BANK NATIONAL ASSOCIATION,
as Co-Trustee
By:_/s/ Xxxxxxx Xxxxx___________________
Responsible Officer
A-1
EXHIBIT A
IDENTIFICATION OF THE TERM ASSETS AS OF CLOSING DATE
Term Assets Issuer: Xxxxxxx Xxxxx Capital I
Term Assets: 6.345% Capital Securities due February 15, 2034
Original Principal Amount $2,750,000,000
Issued:
CUSIP No.: 00000XXX0
Stated Interest Rate: 6.345% per annum
Interest Payment Dates: February 15 and August 15
Maturity Date: February 15, 2034
Redemption: Goldman has the right to redeem the Junior
Debentures in whole at any time or in part from
time to time (provided that no partial
redemption may occur during an Extension
Period) (an "Optional Redemption"), or in whole
at any time within 90 days after the occurrence
of a Tax Event or Investment Company Event
(each such term defined herein) (a "Special
Event Redemption"), in each case, at a price
equal to the greater of (i) 100% of the
principal amount of the Junior Debentures to be
redeemed or (ii) the sum of the present values
of the remaining scheduled payments of
principal and interest thereon that would be
due from the redemption date to the maturity
date, discounted to the redemption date on a
semiannual basis at a certain treasury rate
plus (a) 20 basis points, in the case of an
Optional Redemption or (b) 50 basis points, in
the case of a Special Event Redemption, plus in
each case, accrued and unpaid interest on the
principal amount of the Junior Debentures being
redeemed to the date of redemption. Upon any
redemption of the Junior Debentures (whether as
a result of an Optional Redemption or a Special
Event Redemption), a like amount of the Term
Assets will be mandatorily redeemed.
Minimum Denomination: $1,000
Currency of Denomination: U.S. dollars
Form: Book-Entry
Term Assets Prospectus: Prospectus supplement dated February 12, 2004
related to a prospectus dated February 6, 2004
Term Assets Registration 333-112367
Statement:
Principal Amount of Term $90,000,000
Assets Deposited Under Trust
Agreement:
The Term Assets will be held by the Trustee as security entitlements credited to an
account of the Trustee or its agent at The Depository Trust Company, New York, New York
("DTC").
B-1
EXHIBIT B
TERMS OF THE CLASS A CERTIFICATES AS OF CLOSING DATE
Maximum Number of Class A
Certificates 3,600,000
Aggregate Principal Amount
of Class A Certificates: $90,000,000
Authorized Denomination: $25 and integral multiples thereof
Rating Agencies: Standard & Poor's Ratings Services, and
Xxxxx'x Investors Service, Inc.
Closing Date: April 15, 2004
Distribution Dates: Any Scheduled Distribution Date, the Class A
Maturity Date, any Term Assets Redemption
Distribution Date or any Term Assets Default
Distribution Date.
Interest Rate: 6.000%
Class A Maturity Date: February 15, 2034
Record Date: With respect to any Distribution Date, the
day immediately preceding such Distribution
Date.
Trustee's Fees: The Trustee's fees shall be payable by the
Depositor pursuant to a separate fee
agreement between the Trustee and the
Depositor.
Initial Certificate Registrar: U.S. Bank Trust National Association
Corporate Trust Office: U.S. Bank Trust National Association
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department,
Regarding CorTS® Trust II For Xxxxxxx Xxxxx
Capital I
EXHIBIT C
TERMS OF THE CLASS B CERTIFICATES AS OF CLOSING DATE
Aggregate Notional Amount
of Class B Certificates: $90,000,000
Authorized Denomination: $100,000 and integral multiples of $1,000 in
excess thereof
Rating Agencies: Standard & Poor's Ratings Services, and
Xxxxx'x Investors Service, Inc.
Closing Date: April 15, 2004
Distribution Dates for As applicable, any Scheduled Distribution
the Class B Certificates: Date, the Class B Maturity Date, any Term
Assets Redemption Distribution Date or any
Term Assets Default Distribution Date.
Interest Rate: 0.345%
Class B Maturity Date February 15, 2034
Record Date: With respect to any Distribution Date, the
day immediately preceding such Distribution
Date.
Trustee's Fees: The Trustee's fees shall be payable by the
Depositor pursuant to a separate fee
agreement between the Trustee and the
Depositor.
Initial Certificate Registrar: U.S. Bank Trust National Association
Corporate Trust Office: U.S. Bank Trust National Association
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department,
Regarding CorTS® Trust II For Xxxxxxx Xxxxx
Capital I
D-1
EXHIBIT D
FORM OF CLASS A CERTIFICATE
THIS CLASS A CERTIFICATE REPRESENTS AN UNDIVIDED INTEREST IN THE TRUST AND DOES NOT
EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND IS NOT GUARANTEED BY THE DEPOSITOR OR THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CLASS A CERTIFICATE NOR THE
TRUST ASSETS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
UNLESS THIS CLASS A CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CLASS A CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE&CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE&CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE&
CO., HAS AN INTEREST HEREIN.
CERTIFICATE NUMBER Class A Certificates
CUSIP: Certificate Principal Balance
CORTS® CLASS A CERTIFICATES
evidencing an undivided interest in the Trust, as defined below, the assets of which
include 6.345% Capital Securities, due February 15, 2034, issued by Xxxxxxx Xxxxx Capital I.
This Class A Certificate does not represent an interest in or obligation of the Depositor
or any of its affiliates.
THIS CERTIFIES THAT Cede & Co. is the registered owner of a nonassessable,
fully-paid, fractional undivided interest in CorTS® Trust II For Xxxxxxx Xxxxx Capital I
(the "Trust") formed by Structured Products Corp., as depositor (the "Depositor").
The Trust was created pursuant to a Base Trust Agreement, dated as of December 15,
2000 (as amended and supplemented, the "Agreement"), between the Depositor and U.S. Bank
Trust National Association, a national banking association, not in its individual capacity
but solely as Trustee (the "Trustee"), as supplemented by the CorTS® Supplement 2004-5,
dated as of April 15, 2004 (the "Series Supplement" and, together with the Agreement, the
"Trust Agreement"), between the Depositor and the Trustee. This Class A Certificate does
not purport to summarize the Trust Agreement and reference is hereby made to the Trust
Agreement for information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and obligations of the Trustee
with respect hereto. A copy of the Trust Agreement may be obtained from the Trustee by
written request sent to the Corporate Trust Office. Capitalized terms used but not defined
herein have the meanings assigned to them in the Trust Agreement.
This Class A Certificate is one of the duly authorized Certificates designated as
"CorTS® Class A Certificates" (herein called the "Class A Certificate" or "Class A
Certificates"). This Class A Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the Holder of
this Class A Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. The assets of the Trust include the Term Assets and all proceeds of the
Term Assets. Additional Term Assets may be sold to the Trustee and additional Class A
Certificates may be authenticated and delivered from time to time as provided in the Trust
Agreement, which additional Class A Certificates shall rank pari passu with all other Class
A Certificates issued in accordance with the Series Supplement.
Under the Trust Agreement, there shall be distributed on the dates specified in the
Trust Agreement (a "Distribution Date"), to the person in whose name this Class A
Certificate is registered at the close of business on the related Record Date, such Class A
Certificateholder's fractional undivided interest in the amount of distributions of the
Trust Assets to be distributed to Class A Certificateholders on such Distribution Date.
Unless an Extension Period is in effect, the Term Assets will pay interest on February 15
and August 15 of each year, except that the final payment of interest will be on February
15, 2034, with the first interest payment date occurring on August 15, 2004. The principal
of the Term Assets is scheduled to be paid on February 15, 2034.
The distributions in respect of this Class A Certificate are payable in such coin or
currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts as set forth in the Series Supplement.
The Term Assets held by the Trust are subject to the rights of the Warrantholders, as
provided for in the Series Supplement, and each Class A Certificateholder, by accepting its
Class A Certificate, acknowledges such rights and the possibility of an early redemption of
the Class A Certificates in accordance with the terms of the Series Supplement.
It is the intent of the Depositor, the Class A Certificateholders and the Class B
Certificateholders that the Trust will be classified as a grantor trust under subpart E,
Part I of subchapter J of the Internal Revenue Code of 1986, as amended, and failing that,
as a partnership (other than a publicly traded partnership treated as a corporation). In
the event that the Trust is characterized by appropriate tax authorities as a partnership
for federal income tax purposes, each Certificateholder, by its acceptance of its
Certificate, agrees to report its respective share of the items of income, deductions, and
credits of the Trust on its respective returns (making such elections as to individual
items as may be appropriate) in accordance with Treasury Regulations Section 1.761-2(b)
(i.e., in a manner consistent with the exclusion of the Trust from partnership tax
accounting). In mutual consideration for each Certificateholder's purchase of a
Certificate, each such Certificateholder is deemed to agree not to delegate (for a period
of more than one year) authority to purchase, sell or exchange its Certificate to any
person. Except as otherwise required by appropriate taxing authorities, the Depositor and
the Trustee, by executing the Trust Agreement, and each Class A Certificateholder, by
acceptance of a Class A Certificate, agrees to treat, and to take no action inconsistent
with such intentions and the provisions of the Trust Agreement shall be interpreted to
further these intentions of the parties.
Each Class A Certificateholder, by its acceptance of a Class A Certificate, covenants
and agrees that such Class A Certificateholder shall not, prior to the date which is one
year and one day after the termination of the Trust Agreement, acquiesce, petition or
otherwise invoke or cause the Depositor to invoke the process of any court or governmental
authority for the purpose of commencing or sustaining a case against the Depositor under
any federal or state bankruptcy, insolvency, reorganization or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Depositor or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Depositor.
The Trust Agreement permits the amendment thereof, in certain circumstances, without
the consent of the Holders of any of the Class A Certificates.
Unless the certificate of authentication hereon shall have been executed by an
authorized officer of the Trustee by manual signature, this Class A Certificate shall not
entitle the Holder hereof to any benefit under the Trust Agreement or be valid for any
purpose.
A copy of the Trust Agreement is available upon request and all of its terms and
conditions are hereby incorporated by reference and made a part hereof.
THIS CLASS A CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
IN WITNESS WHEREOF, the Trustee has caused this Class A Certificate to be duly
executed by its manual or facsimile signature.
U.S. BANK TRUST NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee and
Authenticating Agent
By:
Authorized Signatory
E-3
E-1
EXHIBIT E
FORM OF CALL WARRANT
CORTS® TRUST II FOR XXXXXXX XXXXX CAPITAL I
Call Warrant
Dated as of April 15, 2004
THIS CALL WARRANT HAS NOT BEEN, AND THE WARRANTS REPRESENTED HEREBY HAVE NOT BEEN,
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED, SOLD
OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION UNDER SUCH ACT IS IN EFFECT OR
PURSUANT TO AN EXEMPTION THEREFROM UNDER SUCH ACT. THIS CALL WARRANT AND ANY WARRANT
REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH THE CONDITIONS SPECIFIED IN
THIS CALL WARRANT AND MAY NOT BE TRANSFERRED TO CITIGROUP GLOBAL MARKETS INC. OR STRUCTURED
PRODUCTS CORP.
CORTS® TRUST II FOR XXXXXXX XXXXX CAPITAL I
Call Warrant
_________ Warrants; Each Warrant Relating to $1,000 principal amount of Term Assets
No. ______ ...... April 15, 2004
CORTS® Trust II For Xxxxxxx Xxxxx Capital I (the "Trust"), a trust created under the
laws of the State of New York pursuant to a Base Trust Agreement, dated as of December 15,
2000 (the "Agreement"), between Structured Products Corp. (the "Depositor") and U.S. Bank
Trust National Association, a national banking association, not in its individual capacity
but solely as Trustee (the "Trustee"), as supplemented by the CorTS® Supplement 2004-5,
dated as of April 15, 2004 (the "Series Supplement" and, together with the Agreement, the
"Trust Agreement"), between the Depositor and the Trustee, for value received, hereby
certifies that ____________________ or registered assigns, is entitled to purchase
$___________ principal amount of the assets set forth on Schedule 1 hereto in whole or in
part on any Warrant Exercise Date (as defined below) designated by the holder of this
instrument (this "Call Warrant") at a purchase price equal to the Warrant Exercise Purchase
Price (as defined below), all subject to the terms and conditions set forth below.
Certain capitalized terms used in this Call Warrant are defined in Article IV hereof;
capitalized terms used but not defined herein shall have the respective meanings set forth
in the Trust Agreement; references to an "Exhibit" are, unless otherwise specified, to one
of the Exhibits attached to this Call Warrant and references to a "Section" are, unless
otherwise specified, to one of the sections of this Call Warrant.
Article I
Exercise of Warrants
Section I.1 Manner of Exercise. (a) This Call Warrant may be exercised by the
holder hereof (each, a "Warrantholder"), in whole or in part, on any Warrant Exercise Date,
set forth in the prior written notice to the Warrant Agent and the Trustee delivered at any
time on or before the Business Day that is at least fifteen (15) days before such Warrant
Exercise Date, by surrender of this Call Warrant to the Warrant Agent at its office set
forth in Section VI.3 hereof no later than 11:00 a.m. (New York City time) on such Warrant
Exercise Date; provided that such holder shall have made payment to the Warrant Agent, by
wire transfer or other immediately available funds acceptable to the Warrant Agent, in the
amount of the applicable Warrant Exercise Purchase Price, in a manner such that funds are
available to the Warrant Agent no later than 11:00 a.m. (New York City time) on such
Warrant Exercise Date, and such holder shall thereupon be entitled to delivery of the Term
Assets equal to $1,000 per Call Warrant purchased hereunder in accordance with this Article
I; provided further that the Warrantholder may not exercise this Call Warrant at any time
when such Warrantholder is insolvent, and in connection therewith, such Warrantholder shall
be required to certify that it is solvent at the time of exercise settlement, by completing
the Form of Subscription attached to this Call Warrant and delivering such completed Form
of Subscription to the Trustee on or prior to the Warrant Exercise Date.
(b) The Warrant Agent shall notify the Trustee immediately upon receipt by the
Warrant Agent of a notice by the holder of this Call Warrant and upon receipt of payment of
the applicable Warrant Exercise Purchase Price from such holder pursuant to clause (a) of
this Section I.1. The Warrant Agent shall transfer each payment made by the holder hereof
pursuant to clause (a) of this Section I.1 to the Trustee in immediately available funds,
for application pursuant to the Trust Agreement no later than 1:00 p.m. (New York City
time) on the applicable Warrant Exercise Date (and, pending such transfer, shall hold each
such payment for the benefit of the holder hereof in a segregated trust account).
(c) A notice by the holder of a Call Warrant does not impose any obligations
on a holder of a Call Warrant in any way to pay any Warrant Exercise Purchase Price. If,
by 11:00 a.m. (New York City time) on the Warrant Exercise Date, the holder of the Call
Warrant being exercised has not paid the Warrant Exercise Purchase Price, then such notice
shall automatically expire and none of the holder of such Call Warrant, the Warrant Agent
and the Trustee shall have any obligations with respect to such notice by the holder of
such Call Warrant. The expiration of a notice by the holder of this Call Warrant shall in
no way affect a holder of a Call Warrant's right to subsequently deliver a notice which
satisfies the terms of the Trust Agreement.
(d) In the event of a partial redemption of the Term Assets by the Term Assets
Issuer, if the holders of the Call Warrants fail to exercise their Call Warrants with
respect to all Term Assets redeemed in such partial redemption (or such Call Warrants are
not deemed to be exercised automatically), the number of outstanding Warrants held by each
Warrantholder shall be reduced proportionately so that the amount of Term Assets callable
by the exercise of Call Warrants equals the amount of Term Assets remaining in the Trust.
The Warrant Agent shall make such adjustments to its records as shall be necessary to
reflect such reductions and shall notify each Warrantholder of such adjustments.
(e) The Call Warrants will become immediately exercisable upon an SEC
Reporting Failure (whether such SEC Reporting Failure occurs before or after April 15,
2009) and, if the Call Warrants are in the money, as defined in the Trust Agreement, they
will be deemed to be exercised without further action by the Warrantholders and will be
cash settled concurrently with the distribution to Certificateholders, as provided in
Section 10(j) of the Trust Agreement.
(f) Upon the occurrence of a redemption of the Term Assets by the Term Assets
Issuer (whether as a result of an Optional Redemption or a Special Event Redemption and
whether such redemption occurs before or after April 15, 2009), Call Warrants proportionate
to the amount of Term Assets to be redeemed will become immediately exercisable, on a pro
rata basis for each holder of Call Warrants and, if in the money, will be deemed to be
exercised and will be cash settled for an amount equal to any remaining redemption proceeds
after the payments made pursuant to clauses (i) through (iii) in Section 10(g) of the Trust
Agreement. In the event of a partial redemption of the Term Assets, the number of
outstanding Warrants held by each Warrantholder shall be reduced proportionately so that
the amount of Term Assets callable by the exercise of Call Warrants equals the amount of
Term Assets remaining in the Trust.
Section I.2 Transfer of Term Assets. (a) As soon as practicable after each
surrender of this Call Warrant, in whole or in part, and no later than 11:00 a.m. (New York
City time) on the Warrant Exercise Date and upon satisfaction of all other requirements
described in this Call Warrant, the Warrant Agent shall instruct the Trustee to cause the
Term Assets represented by the number of Warrants being exercised hereunder to be
registered on the book-entry system of the related depositary in the registered name or
names furnished by the holder, and, in case such exercise is in part only, a new Call
Warrant of like tenor, representing the remaining outstanding Warrants of the holder, shall
be delivered by the Warrant Agent to the holder hereof. The Trustee shall cause the
delivery of such portion of the Term Assets to the holder or its nominee no later than 1:00
p.m. (New York City time) on the applicable Warrant Exercise Date in accordance with
Section 8(c) of the Trust Agreement.
(b) If any Call Warrant is exercised in connection with a partial redemption of Term
Assets, the Trustee shall, to the extent possible, deliver to the exercising Warrantholder,
Term Assets that have been selected for redemption.
Section I.3 Cancellation and Destruction of Call Warrant. All Call Warrants
surrendered to the Warrant Agent for the purpose of exercise (in whole or in part) pursuant
to Section I.1 and actually exercised, or for the purpose of transfer or exchange pursuant
to Article III, shall be cancelled by the Warrant Agent, and no Call Warrant shall be
issued in lieu thereof (other than that reflecting any such transfer or exchange). The
Warrant Agent shall destroy all cancelled Call Warrants.
Section I.4 No Rights as Holder of Term Assets Conferred by Warrants. Prior to the
exercise hereof, this Call Warrant shall not entitle the holder hereof to any of the rights
of a holder of the Term Assets, including, without limitation, the right to receive the
payment of any amount on or in respect of the Term Assets or to enforce any of the
covenants of the Trust Agreement.
Article II
Restrictions on Transfer
Section II.1......Restrictive Legends. Except as otherwise permitted by this Article
II, each Call Warrant (including each Call Warrant issued upon the transfer of any Call
Warrant) shall be issued with a legend in substantially the following form:
"This Call Warrant has not been, and the Warrants represented hereby have not
been, registered under the Securities Act of 1933, as amended, and may not be transferred,
sold or otherwise disposed of except while a registration under such Act is in effect or
pursuant to an exemption therefrom under such Act. This Call Warrant and any Warrant
represented hereby may be transferred only in compliance with the conditions specified in
this Call Warrant and may not be transferred to Citigroup Global Markets Inc. or Structured
Products Corp."
Section II.2......Notice of Proposed Transfer; Opinions of Counsel. Prior to any
transfer of any Call Warrant or portion thereof, the holder hereof will give five (5)
Business Days (or such lesser period acceptable to the Warrant Agent) prior written notice
to the Warrant Agent of such holder's intention to effect such transfer and to comply in
all other respects with this Section II.2. Each transfer of a portion of a Call Warrant
must be for a whole number of Warrants.
(a) If such transfer of Call Warrants is being made pursuant to Rule 144A under the
Securities Act, as a condition precedent to the proposed transfer, the prospective
transferee must certify that it is a "qualified institutional buyer" as such term is
defined in Rule 144A under the Securities Act; and
(b) If such transfer of Call Warrants is not being made pursuant to Rule 144A, each
notice of a proposed transfer (i) shall describe the manner and circumstances of the
proposed transfer in sufficient detail to enable counsel for the holder to render the
opinions referred to below, and (ii) shall designate counsel for the holder giving such
notice. The holder giving such notice will submit a copy thereof to the counsel designated
in such notice. If (A) in the opinion of such counsel for the holder the proposed transfer
may be effected without registration of such Call Warrant under the Securities Act (such
opinion stating the basis for such determination) and (B) such opinion is in form and
substance reasonably satisfactory to the Depositor and the Warrant Agent, such holder shall
thereupon be entitled to transfer such Call Warrant in accordance with the terms of the
notice delivered by such holder to the Warrant Agent. No such opinion of counsel shall be
required in the event the transfer is being made to a "qualified institutional buyer" as
defined in Rule 144A under the Securities Act as contemplated in clause (a) of this Section
II.2.
Each instrument representing such Call Warrant or portion thereof issued upon or in
connection with such transfer shall bear the restrictive legend required by Section II.1,
unless the Warrant Agent shall have received an opinion of counsel reasonably satisfactory
to the Warrant Agent and the Depositor that such legend is no longer required to ensure
compliance with the Securities Act.
Article III
Registration and Transfer of Call Warrants, etc.
Section III.1.....Warrant Register; Ownership of Call Warrants. The Warrant Agent
will keep a register in which the Warrant Agent will provide for the registration of Call
Warrants and the registration of transfers of Call Warrants representing whole numbers of
Warrants. The Trustee and the Warrant Agent may treat the Person in whose name any Call
Warrant is registered on such register as the owner thereof for all purposes, and the
Trustee and the Warrant Agent shall not be affected by any notice to the contrary.
Section III.2.....Transfer and Exchange of Call Warrants. Upon surrender of any Call
Warrant for registration of transfer or for exchange to the Warrant Agent, the Warrant
Agent shall (subject to compliance with Article II) execute and deliver, and cause the
Trustee, on behalf of the Trust, to execute and deliver, in exchange therefor, a new Call
Warrant of like tenor and evidencing a like whole number of Warrants, in the name of such
holder or as such holder (upon payment by such holder of any applicable transfer taxes or
government charges) may direct.
Section III.3.....Replacement of Call Warrants. Upon receipt of evidence reasonably
satisfactory to the Warrant Agent of the loss, theft, destruction or mutilation of any Call
Warrant and, in the case of any such loss, theft or destruction of any Call Warrant, upon
delivery of an indemnity bond in such reasonable amount as the Warrant Agent may determine,
or, in the case of any such mutilation, upon the surrender of such Call Warrant for
cancellation to the Warrant Agent, the Warrant Agent shall execute and deliver, and cause
the Trustee, on behalf of the Trust, to execute and deliver, in lieu thereof, a new Call
Warrant of like tenor bearing a number not contemporaneously outstanding.
Section III.4.....Execution and Delivery of Call Warrants by Trustee. The Trustee,
on behalf of the Trust, hereby agrees (subject to compliance with Article II) to execute
and deliver such new Call Warrants issued in accordance with Section I.2 or this Article
III as the Warrant Agent shall request in accordance herewith.
Article IV
Definitions
As used herein, unless the context otherwise requires, the following terms have the
following respective meanings:
"Business Day": As defined in the Trust Agreement.
"Call Warrant": This instrument.
"Closing Date": April 15, 2004.
"Depositor": As defined in the introduction to this Call Warrant, or any
successor thereto under the Trust Agreement.
"Depositor Order": As defined in the Trust Agreement.
"Person": Any individual, corporation, partnership, joint venture,
association, joint stock company, trust (including any beneficiary thereof), unincorporated
organization or government or any agency or political subdivision thereof.
"Rating Agencies": Standard&Poor's Ratings Services and Xxxxx'x Investors
Service, Inc. and any successor thereto.
"Responsible Officer": As defined in the Trust Agreement.
"Securities Act": The Securities Act of 1933, or any similar federal statute,
and the rules and regulations of the Commission thereunder, all as the same shall be in
effect at the time.
"Trust": As defined in the introduction to this Call Warrant.
"Trust Agreement": The Base Trust Agreement, dated as of December 15, 2000,
between the Depositor and the Trustee, as supplemented by the CorTS® Supplement 2004-5,
dated as of April 15, 2004, between the Depositor and the Trustee, incorporating by
reference the definitions and assumptions thereto, as the same may be amended or modified
from time to time.
"Trustee": As defined in the introduction to this Warrant, or any successor
thereto under the Trust Agreement.
"Warrant": The right to purchase, on a pro rata basis, an aggregate of $1,000
in par amount of the Term Assets.
"Warrant Agent": U.S. Bank Trust National Association, a national banking
association, in its capacity as warrant agent hereunder, or any successor thereto hereunder.
"Warrant Class B Purchase Price": The present value of any scheduled interest
distributions due from the Warrant Exercise Date (assuming that the Class B Certificates
are paid when due and are not redeemed prior to the Class B Maturity Date and excluding
accrued and unpaid interest thereon to the Warrant Exercise Date) on the Class B
Certificates with a Notional Amount equal to the principal amount of the Term Assets to be
purchased, discounted to the Warrant Exercise Date on a semiannual basis at a rate of
6.000% per annum.
"Warrant Exercise Date": Any Business Day on or after April 15, 2009, any
Business Day after the Term Assets Issuer gives notice indicating its intention to redeem
the Term Assets (whether as a result of an Optional Redemption or a Special Event
Redemption) as set forth in the notice from the Warrantholder to the Warrant Agent and the
Trustee.
"Warrant Exercise Purchase Price": An amount paid by the Warrantholder on each
Warrant Exercise Date equal to the sum of (i) the principal amount of the Term Assets being
purchased pursuant to the exercise of the Call Warrants plus accrued and unpaid interest
thereon to and including the Warrant Exercise Date and (ii) the Warrant Class B Purchase
Price.
Article V
Warrant Agent
Section V.1 Limitation on Liability. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken, suffered or omitted by it in
connection with its administration of the Call Warrants in reliance upon any instrument of
assignment or transfer, power of attorney, endorsement, affidavit, letter, notice,
direction, consent, certificate, statement or other paper or document in good faith
believed by it to be genuine and to be signed, executed and, where necessary, verified and
acknowledged, by the proper Person or Persons.
Section V.2 Duties of Warrant Agent. The Warrant Agent undertakes only the specific
duties and obligations imposed hereunder upon the following terms and conditions, by all of
which the Depositor, the Trust, the Trustee and each holder of a Call Warrant shall be
bound:
(a) The Warrant Agent may consult with legal counsel (who may be legal
counsel for the Depositor), and the opinion of such counsel shall be full and complete
authorization and protection to the Warrant Agent as to any action taken or omitted by it
in good faith and in accordance with such opinion, provided the Warrant Agent shall have
exercised reasonable care in the selection by it of such counsel.
(b) Whenever in the performance of its duties hereunder, the Warrant Agent
shall deem it necessary or desirable that any fact or matter be proved or established by
the Depositor or the Trustee prior to taking or suffering any action hereunder, such fact
or matter may be deemed to be conclusively proved and established by a Depositor Order or a
certificate signed by a Responsible Officer of the Trustee and delivered to the Warrant
Agent; and such certificate shall be full authorization to the Warrant Agent for any action
taken or suffered in good faith by it hereunder in reliance upon such certificate.
(c) The Warrant Agent shall be liable hereunder only for its own gross
negligence, willful misconduct or bad faith.
(d) The Warrant Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained herein or be required to verify the same.
(e) The Warrant Agent shall not have any responsibility in respect of and
makes no representation as to the validity of this Call Warrant or the execution and
delivery hereof (except the due execution hereof by the Warrant Agent); nor shall it be
responsible for any breach by the Trust of any covenant or condition contained in this Call
Warrant; nor shall it by any act hereunder be deemed to make any representation or warranty
as to the Term Assets to be purchased hereunder.
(f) The Warrant Agent is xxxxxx authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the Chairman of
the Board, the Chief Executive Officer, Chief Financial Officer, Chief Operating Officer,
President, a Vice President, its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary of the Depositor, and any Responsible Officer of the Trustee, and to
apply to such officers for advice or instructions in connection with its duties, and it
shall not be liable for any action taken or suffered to be taken by it in good faith in
accordance with instructions of any such officer.
(g) The Warrant Agent and any shareholder, director, officer or employee of
the Warrant Agent may buy, sell or deal in any of the Call Warrants or other securities of
the Trust or otherwise act as fully and freely as though it were not Warrant Agent
hereunder, so long as such persons do so in full compliance with all applicable laws.
Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the
Trust, the Depositor or for any other legal entity.
(h) The Warrant Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either itself or by or through its
attorneys or agents.
(i) The Warrant Agent shall act solely as the agent of the Warrantholders
hereunder. The Warrant Agent shall not be liable except for the failure to perform such
duties as are specifically set forth herein, and no implied covenants or obligations shall
be read into this Call Warrant against the Warrant Agent, whose duties shall be determined
solely by the express provisions hereof. The Warrant Agent shall not be deemed to be a
fiduciary.
(j) The Warrant Agent shall not have any duty to calculate or determine any
adjustments with respect either to the Warrant Exercise Purchase Price or to the kind and
amount of property receivable by holders of Call Warrants upon the exercise thereof.
(k) The Warrant Agent shall not be responsible for any failure on the part of
the Trustee to comply with any of its covenants and obligations contained herein.
(l) The Warrant Agent shall not be under any obligation or duty to institute,
appear in or defend any action, suit or legal proceeding in respect hereof, unless first
indemnified to its satisfaction, but this provision shall not affect the power of the
Warrant Agent to take such action as the Warrant Agent may consider proper, whether with or
without such indemnity. The Warrant Agent shall promptly notify the Depositor and the
Trustee in writing of any claim made or action, suit or proceeding instituted against it
arising out of or in connection with this Call Warrant.
(m) The Trustee will perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such further acts, instruments and
assurances as may be required by the Warrant Agent in order to enable it to carry out or
perform its duties hereunder.
Section V.3 Change of Warrant Agent. The Warrant Agent may resign and be discharged
from its duties hereunder upon thirty (30) days notice in writing mailed to the Depositor
and the Trustee by registered or certified mail, and to the holders of the Call Warrants by
first-class mail at the expense of the Depositor; provided that no such resignation or
discharge shall become effective until a successor Warrant Agent shall have been appointed
hereunder. The Depositor may remove the Warrant Agent or any successor Warrant Agent upon
thirty (30) days notice in writing, mailed to the Warrant Agent or successor Warrant Agent,
as the case may be, and upon fifteen (15) days notice to the holders of the Call Warrants
by first-class mail, and absent the objection of the holders of a majority of the Warrants
outstanding, within such fifteen (15) day period; provided further that no such removal
shall become effective until a successor Warrant Agent shall have been appointed
hereunder. If the Warrant Agent shall resign or be removed or shall otherwise become
incapable of acting, the Depositor shall promptly appoint a successor to the Warrant Agent,
which may be designated as an interim Warrant Agent. If an interim Warrant Agent is
designated, the Depositor shall then appoint a permanent successor to the Warrant Agent,
which may be the interim Warrant Agent. If the Depositor shall fail to make such
appointment of a permanent successor within a period of thirty (30) days after such removal
or within sixty (60) days after notification in writing of such resignation or incapacity
by the resigning or incapacitated Warrant Agent or by the holder of a Call Warrant, then
the Warrant Agent or registered holder of any Warrant may apply to any court of competent
jurisdiction for the appointment of such a successor. Any successor to the Warrant Agent
appointed hereunder must be rated in one of the four highest rating categories by the
Rating Agencies. Any entity which may be merged or consolidated with or which shall
otherwise succeed to substantially all of the trust or agency business of the Warrant Agent
shall be deemed to be the successor Warrant Agent without any further action.
Article VI
Miscellaneous
Section VI.1......Remedies. The remedies at law of the holder of this Call Warrant
in the event of any default or threatened default by the Warrant Agent in the performance
of or compliance with any of the terms of this Call Warrant are not and will not be
adequate and, to the fullest extent permitted by law, such terms may be specifically
enforced by a decree for the specific performance of any agreement contained herein or by
an injunction against a violation of any of the terms hereof or otherwise.
Section VI.2......Limitation on Liabilities of Holder. Nothing contained in this Call
Warrant shall be construed as imposing any obligation on the holder hereof to purchase any
of the Term Assets except in accordance with the terms hereof.
Section VI.3......Notices. All notices and other communications under this Call
Warrant shall be in writing and shall be delivered, or mailed by registered or certified
mail, return receipt requested, by a nationally recognized overnight courier, postage
prepaid, addressed (a) if to any holder of any Call Warrant, at the registered address of
such holder as set forth in the register kept by the Warrant Agent, or (b) if to the
Warrant Agent, to 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Corporate Trust or to such other address notice of which the Warrant Agent shall have given
to the holder hereof and the Trustee or (c) if to the Trust or the Trustee, to the
Corporate Trust Office (as set forth in the Trust Agreement); provided that the exercise of
any Call Warrant shall be effective in the manner provided in Article I.
Section VI.4......Amendment. (a) This Call Warrant may be amended from time to time
by the Depositor, the Trustee and the Warrant Agent without the consent of the holder
hereof, upon receipt of an opinion of counsel satisfactory to the Warrant Agent that the
provisions hereof have been satisfied and that such amendment would not alter the status of
the Trust as a grantor trust under the Code, for any of the following purposes: (i) to
cure any ambiguity or to correct or supplement any provision herein which may be defective
or inconsistent with any other provision herein or to provide for any other terms or modify
any other provisions with respect to matters or questions arising under this Warrant which
shall not adversely affect in any material respect the interests of the holder hereof or
any holder of a Certificate or (ii) to evidence and provide for the acceptance of
appointment hereunder of a Warrant Agent other than U.S. Bank Trust National Association.
(b) Without limiting the generality of the foregoing, this Call Warrant may
also be modified or amended from time to time by the Depositor, the Trustee and the Warrant
Agent with the consent of the holders of 66-2/3% of the Warrants, upon receipt of an
opinion of counsel satisfactory to the Warrant Agent that the provisions hereof (including,
without limitation, the following proviso) have been satisfied, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions of this
Call Warrant or of modifying in any manner the rights of the holders of this Call Warrant;
provided, however, that no such amendment shall (i) adversely affect in any material
respect the interests of holders of Certificates without the consent of the holders of
Certificates evidencing not less than the Required Percentage-Amendment of the aggregate
Voting Rights of such affected Certificates (as such terms are defined in the Trust
Agreement) and without written confirmation from the Rating Agencies that such amendment
will not result in a downgrading or withdrawal of its rating of the Certificates; (ii)
alter the dates on which Warrants are exercisable or the amounts payable upon exercise of a
Warrant without the consent of the holders of Certificates evidencing not less than 100% of
the aggregate Voting Rights of such affected Certificates and the holders of 100% of the
affected Warrants or (iii) reduce the percentage of aggregate Voting Rights required by (i)
or (ii) without the consent of the holders of all such affected Certificates.
Notwithstanding any other provision of this Warrant, this Section VI.4(b) shall not be
amended without the consent of the holders of 100% of the affected Warrants.
(c) Promptly after the execution of any such amendment or modification, the
Warrant Agent shall furnish a copy of such amendment or modification to each holder of a
Call Warrant, to each holder of a Certificate and to the Rating Agencies. It shall not be
necessary for the consent of holders of Warrants or Certificates under this Section to
approve the particular form of any proposed amendment, but it shall be sufficient if such
consent shall approve the substance thereof. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof shall be subject to such reasonable
regulations as the Warrant Agent may prescribe.
Section VI.5......Expiration. The right to exercise this Call Warrant shall expire
on the earliest to occur of (a) the cancellation hereof, (b) the termination of the Trust
Agreement or (c) the liquidation, disposition, or maturity of all of the Term Assets.
Section VI.6......Descriptive Headings. The headings in this Call Warrant are for
purposes of reference only and shall not limit or otherwise affect the meaning hereof.
Section VI.7......GOVERNING LAW. THIS WARRANT INSTRUMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
Section VI.8......Judicial Proceedings; Waiver of Jury. Any judicial proceeding
brought against the Trust, the Trustee or the Warrant Agent with respect to this Call
Warrant may be brought in any court of competent jurisdiction in the County of New York,
State of New York or of the United States of America for the Southern District of New York
and, by execution and delivery of this Call Warrant, the Trustee on behalf of the Trust and
the Warrant Agent (a) accept, generally and unconditionally, the nonexclusive jurisdiction
of such courts and any related appellate court, and irrevocably agree that the Trust, the
Trustee and the Warrant Agent shall be bound by any judgment rendered thereby in connection
with this Call Warrant, subject to any rights of appeal, and (b) irrevocably waive any
objection that the Trust, the Trustee or the Warrant Agent may now or hereafter have as to
the venue of any such suit, action or proceeding brought in such a court or that such court
is an inconvenient forum.
Section VI.9......Nonpetition Covenant; No Recourse. Each of (i) the holder of this
Call Warrant by its acceptance hereof, and (ii) the Warrant Agent agrees, that it shall not
(and, in the case of the holder, that it shall not direct the Warrant Agent to), until the
date which is one year and one day after the payment in full of the Certificates and all
other securities issued by the Trust, the Depositor or entities formed, established or
settled by the Depositor, acquiesce, petition or otherwise invoke or cause the Trust, the
Depositor, or any such other entity to invoke the process of the United States of America,
any State or other political subdivision thereof or any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining to
government for the purpose of commencing or sustaining a case by or against the Trust, the
Depositor or any such other entity under a federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Trust, the Depositor or any such other entity
or all or any part of the property or assets of Trust, the Depositor or any such other
entity or ordering the winding up or liquidation of the affairs of the Trust, the Depositor
or any such other entity.
Section VI.10 Amendments to the Trust Agreement. The Trustee hereby agrees not to
consent to any amendments to the Trust Agreement which will adversely affect the rights of
the Warrantholders in a material manner without the consent of the Warrantholders.
Section VI.11.....Reporting Obligations. During any period in which the Trust is not
subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the
Trustee, on behalf of the Trust, shall promptly furnish to holders of Call Warrants and
prospective purchasers of Call Warrants designated by such holders, upon request of such
holders or prospective purchasers, the information required to be delivered pursuant to
Rule 144A(d)(4) of the Securities Act of 1933, as amended, to permit compliance with Rule
144A in connection with the resale of Call Warrants; provided, however, that the Trust
shall not (a) be required to provide audited financial statements of the Trust or (b) be
required to furnish Rule 144A Information in connection with any request made on or after
the date that is two years from the later of (i) the date such Call Warrant (or any
predecessor Call Warrant) was acquired from the Trust or (ii) the date such Call Warrant
(or any predecessor Call Warrant) was last acquired from an "affiliate" of the Trust within
the meaning of Rule 144.
Each of (i) the holder of this Call Warrant, by its acceptance hereof, and (ii) the
Warrant Agent agrees, that it shall not have any recourse to the Term Assets or against the
Trust.
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Trustee and Authenticating Agent
By:
Authorized Signatory
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Warrant Agent
By:
Authorized Signatory
FORM OF SUBSCRIPTION
[To be executed only upon exercise of Warrants]
To CorTS® Trust II For Xxxxxxx Xxxxx Capital I
U.S. Bank Trust National Association, as Trustee
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust
The undersigned registered holder of the within Call Warrant, having previously given
notice thereof in accordance with the terms of the Call Warrant, hereby irrevocably
exercises Warrant(s) for, and purchases pursuant thereto, the Term Assets receivable upon
such exercise, and herewith makes payment of the Warrant Exercise Purchase Price for $1,000
of Term Assets per Warrant therefor, and requests that such Term Assets be transferred to
[insert information required for transfer of
Term Assets]. In connection therewith, the undersigned hereby certifies that it is solvent
as of the date hereof, as required by Section I.1 of the Call Warrant.
Dated:
(Signature must conform in all respects to name of holder as specified on the
face of Warrant)
(Street Address)
(City)(State)(Zip Code)
FORM OF ASSIGNMENT
[To be executed only upon transfer of Call Warrant]
For value received, the undersigned registered holder of the within Call Warrant hereby
sells, assigns and transfers unto the
Warrant(s) [Must be whole number] to purchase Term Assets to which
such Call Warrant relates, and appoints Attorney to make such transfer on the books of the
Warrant Agent maintained for such purpose, with full power of substitution in the premises.
Dated:
(Signature must conform in all respects to name of holder as specified on the
face of Warrant)
(Street Address)
(City)(State)(Zip Code)
Signed in the presence of:
Schedule 1
To the Call Warrant
$_________ aggregate principal amount of 6.345% Capital Securities, due February 15, 2034
issued by Xxxxxxx Xxxxx Capital I.
F-1
EXHIBIT F
FORM OF CLASS B CERTIFICATE
THIS CLASS B CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND HAS NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY REGULATORY AUTHORITY OF ANY
STATE. THIS CLASS B CERTIFICATE HAS BEEN OFFERED AND SOLD PRIVATELY. AS A RESULT, THE
CLASS B CERTIFICATE IS SUBJECT TO RESTRICTIONS ON TRANSFER. PERSONS THAT ARE (A) U.S.
PERSONS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) OR ACQUIRING ANY CLASS B
CERTIFICATE IN THE UNITED STATES MUST BE QUALIFIED INSTITUTIONAL BUYERS AS DEFINED IN RULE
144A PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED AND (B) NON-U.S. PERSONS OR
ACQUIRING THEIR CLASS B CERTIFICATES OUTSIDE THE UNITED STATES MUST DO SO IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT.
THIS CLASS B CERTIFICATE REPRESENTS AN UNDIVIDED INTEREST IN THE TRUST AND DOES NOT
EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND IS NOT GUARANTEED BY THE DEPOSITOR OR THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CLASS B CERTIFICATE NOR THE
TRUST ASSETS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
UNLESS THIS CLASS B CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CLASS B CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE&CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE&CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
CERTIFICATE NUMBER
CUSIP: Notional Amount
CORTS® CLASS B CERTIFICATES
evidencing an undivided interest in the Trust, as defined below, the assets of which
include 6.345% Capital Securities, due February 15, 2034, issued by Xxxxxxx Xxxxx Capital I.
This Class B Certificate does not represent an interest in or obligation of the Depositor
or any of its affiliates.
THIS CERTIFIES THAT Cede & Co. is the registered owner of a nonassessable,
fully-paid, fractional undivided interest in CorTS® Trust II For Xxxxxxx Xxxxx Capital I
(the "Trust") formed by Structured Products Corp., as depositor (the "Depositor").
The Trust was created pursuant to a Base Trust Agreement, dated as of December 15,
2000 (as amended and supplemented, the "Agreement"), between the Depositor and U.S. Bank
Trust National Association, a national banking association, not in its individual capacity
but solely as Trustee (the "Trustee"), as supplemented by the CorTS® Supplement 2004-5,
dated as of April 15, 2004 (the "Series Supplement" and, together with the Agreement, the
"Trust Agreement"), between the Depositor and the Trustee. This Class B Certificate does
not purport to summarize the Trust Agreement and reference is hereby made to the Trust
Agreement for information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and obligations of the Trustee
with respect hereto. A copy of the Trust Agreement may be obtained from the Trustee by
written request sent to the Corporate Trust Office. Capitalized terms used but not defined
herein have the meanings assigned to them in the Trust Agreement.
This Class B Certificate is one of the duly authorized Certificates designated as
"CorTS® Class B Certificates" (herein called the "Class B Certificate" or "Class B
Certificates"). This Class B Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the Holder of
this Class B Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. The assets of the Trust include the Term Assets and all proceeds of the
Term Assets. Additional Term Assets may be sold to the Trustee and additional Class B
Certificates may be authenticated and delivered from time to time as provided in the Trust
Agreement, which additional Class B Certificates shall rank pari passu with all other Class
B Certificates issued in accordance with the Series Supplement.
Under the Trust Agreement, there shall be distributed on the dates specified in the
Trust Agreement (a "Distribution Date"), to the person in whose name this Class B
Certificate is registered at the close of business on the related Record Date, such Class B
Certificateholder's fractional undivided interest in the amount of interest distributions
of the Trust Assets to be distributed to Class B Certificateholders on such Distribution
Date. The Class B Certificates will mature on February 15, 2034.
The distributions in respect of this Class B Certificate are payable in such coin or
currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts as set forth in the Series Supplement.
The Term Assets held by the Trust are subject to rights of the Warrantholders, as
provided for in the Series Supplement, and each Class B Certificateholder, by accepting its
Class B Certificate, acknowledges such rights and the possibility of an early redemption of
the Class B Certificates in accordance with the terms of the Series Supplement.
It is the intent of the Depositor, the Class A Certificateholders and the Class B
Certificateholders that the Trust will be classified as a grantor trust under subpart E,
Part I of subchapter J of the Internal Revenue Code of 1986, as amended, and failing that,
as a partnership (other than a publicly traded partnership treated as a corporation). In
the event that the Trust is characterized by appropriate tax authorities as a partnership
for federal income tax purposes, each Certificateholder, by its acceptance of its
Certificate, agrees to report its respective share of the items of income, deductions, and
credits of the Trust on its respective returns (making such elections as to individual
items as may be appropriate) in accordance with Treasury Regulations Section 1.761-2(b)
(i.e., in a manner consistent with the exclusion of the Trust from partnership tax
accounting). In mutual consideration for each Certificateholder's purchase of a
Certificate, each such Certificateholder is deemed to agree not to delegate (for a period
of more than one year) authority to purchase, sell or exchange its Certificate to any
person. Except as otherwise required by appropriate taxing authorities, the Depositor and
the Trustee, by executing the Trust Agreement, and each Class B Certificateholder, by
acceptance of a Class B Certificate, agrees to take no action inconsistent with such
intentions and the provisions of the Trust Agreement shall be interpreted to further these
intentions of the parties.
Each Class B Certificateholder, by its acceptance of a Class B Certificate, covenants
and agrees that such Class B Certificateholder shall not, prior to the date which is one
year and one day after the termination of the Trust Agreement, acquiesce, petition or
otherwise invoke or cause the Depositor to invoke the process of any court or governmental
authority for the purpose of commencing or sustaining a case against the Depositor under
any federal or state bankruptcy, insolvency, reorganization or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Depositor or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Depositor.
The Trust Agreement permits the amendment thereof, in certain circumstances, without
the consent of the Holders of any of the Class B Certificates.
Unless the certificate of authentication hereon shall have been executed by an
authorized officer of the Trustee by manual signature, this Class B Certificate shall not
entitle the Holder hereof to any benefit under the Trust Agreement or be valid for any
purpose.
A copy of the Trust Agreement is available upon request and all of its terms and
conditions are hereby incorporated by reference and made a part hereof.
THIS CLASS B CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
D-1
IN WITNESS WHEREOF, the Trustee has caused this Class B Certificate to be duly
executed by its manual or facsimile signature.
U.S. BANK TRUST NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee and
Authenticating Agent
By:
Authorized Signatory
