Exhibit 4.1
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BASE TRUST AGREEMENT
between
SYNTHETIC FIXED-INCOME SECURITIES, INC.
Trustor
and
U.S. BANK TRUST NATIONAL ASSOCIATION
Trustee
Dated as of September 8, 2006
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ASSUMPTIONS
Section 1.1 Definitions....................................................
Section 1.2 Rules of Construction..........................................
ARTICLE II
DECLARATION OF TRUSTS; ISSUANCE OF CERTIFICATES
Section 2.1 Creation and Declaration of Trusts; Assignment of
Underlying Securities.........................................
Section 2.2 Acceptance by Trustee..........................................
Section 2.3 Repurchase or Substitution of Certain Underlying
Securities by the Underlying Security Provider................
Section 2.4 Representations and Warranties of the Trustor and
Representations, Warranties and Covenants of the
Administrative Agent..........................................
Section 2.5 Breach of Representation, Warranty or Covenant.................
Section 2.6 Agreement to Authenticate and Deliver Certificates.............
Section 2.7 Statement of Intent............................................
ARTICLE III
ADMINISTRATION OF EACH TRUST
Section 3.1 Administration of each Trust...................................
Section 3.2 Sub-Administration Agreements Between Administrative
Agent or Trustee and Sub-Administrative Agents................
Section 3.3 Successor Sub-Administrative Agents............................
Section 3.4 Liability of the Administrative Agent..........................
Section 3.5 No Contractual Relationship Between Certain
Sub-Administrative Agents and Trustee or
Certificateholders............................................
Section 3.6 Assumption or Termination of Sub-Administration
Agreements by Trustee.........................................
Section 3.7 Collection of Certain Underlying Security Payments.............
Section 3.8 Collections by Sub-Administrative Agent........................
Section 3.9 Certificate Account............................................
Section 3.10 Investment of Funds in the Accounts............................
Section 3.11 Maintenance of Credit Support..................................
Section 3.12 Realization Upon Defaulted Underlying Securities...............
Section 3.13 Retained Interest..............................................
Section 3.14 Administrative Agent's Compensation and Reimbursement..........
Section 3.15 Statement as to Compliance.....................................
Section 3.16 Attestation by Independent Public Accountants..................
Section 3.17 Access to Certain Documentation................................
Section 3.18 Duties of the Administrative Agent.............................
Section 3.19 Trustor to Furnish Names and Addresses of Holders to
Trustee.......................................................
Section 3.20 Preservation of Information, Communications to Holders.........
Section 3.21 Reports by Trustee.............................................
ARTICLE IV
DISTRIBUTIONS AND REPORTS TO CERTIFICATEHOLDERS
Section 4.1 Distributions..................................................
Section 4.2 Reports to Certificateholders..................................
Section 4.3 Advances.......................................................
Section 4.4 Compliance with Withholding Requirements.......................
Section 4.5 Optional Exchange..............................................
ARTICLE V
THE CERTIFICATES
Section 5.1 The Certificates...............................................
Section 5.2 Execution, Authentication and Delivery.........................
Section 5.3 Temporary Certificates.........................................
Section 5.4 Registration; Registration of Transfer and Exchange............
Section 5.5 Mutilated, Destroyed, Lost and Stolen Certificates.............
Section 5.6 Distribution of Interest; Interest Rights Preserved............
Section 5.7 Persons Deemed Owners..........................................
Section 5.8 Cancellation...................................................
Section 5.9 Global Securities..............................................
Section 5.10 Notices to Depositary..........................................
Section 5.11 Definitive Certificates........................................
Section 5.12 Currency of Distributions in Respect of Certificates...........
Section 5.13 Conditions of Authentication and Delivery of New Series........
Section 5.14 Appointment of Paying Agent....................................
Section 5.15 Authenticating Agent...........................................
Section 5.16 Events of Default..............................................
Section 5.17 Control by Holders.............................................
Section 5.18 Waiver of Past Defaults........................................
ARTICLE VI
THE TRUSTOR AND THE ADMINISTRATIVE AGENT
Section 6.1 Preparation and Filing of Exchange Act Reports;
Obligations of the Trustor and the Administrative
Agent.........................................................
Section 6.2 Merger or Consolidation of the Trustor or the
Administrative Agent..........................................
Section 6.3 Limitation on Liability of the Trustor and the
Administrative Agent..........................................
Section 6.4 Limitation on Resignation of the Administrative Agent..........
Section 6.5 Rights of the Trustor in Respect of the Administrative
Agent.........................................................
Section 6.6 Trustor May Purchase Certificates..............................
Section 6.7 The Administrative Agent and Other Parties.....................
Section 6.8 Preferential Collection of Claims Against Trustor..............
ARTICLE VII
ADMINISTRATIVE AGENT TERMINATION EVENTS
Section 7.1 Administrative Agent Termination Events........................
Section 7.2 Trustee to Act; Appointment of Successor.......................
Section 7.3 Notification to Certificateholders.............................
Section 7.4 Waiver of Administrative Agent Termination Events..............
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.1 Duties of Trustee; Notice of Defaults..........................
Section 8.2 Certain Matters Affecting the Trustee..........................
Section 8.3 Trustee Not Liable for Recitals in Certificates or
Underlying Securities.........................................
Section 8.4 Trustee May Own Certificates...................................
Section 8.5 Trustee's Fees and Expenses; Indemnification;
Undertaking for Costs.........................................
Section 8.6 Eligibility Requirements for Trustee...........................
Section 8.7 Resignation or Removal of the Trustee..........................
Section 8.8 Successor Trustee..............................................
Section 8.9 Merger or Consolidation of Trustee.............................
Section 8.10 Appointment of Co-Trustee or Separate Trustee..................
Section 8.11 Appointment of Office or Agency................................
Section 8.12 Representations and Warranties of Trustee......................
Section 8.13 Trustee to Act Only in Accordance With This Agreement
or Pursuant to Instructions of Certificateholders.............
Section 8.14 Accounting and Reports to Certificateholders, Internal
Revenue Service and Others....................................
Section 8.15 Signature on Returns...........................................
Section 8.16 Grantor Trust Status...........................................
ARTICLE IX
TERMINATION
Section 9.1 Termination upon Purchase or Liquidation of All
Underlying Securities.........................................
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1 Amendment......................................................
Section 10.2 Counterparts...................................................
Section 10.3 Limitation on Rights of Certificateholders.....................
Section 10.4 Governing Law..................................................
Section 10.5 Notices........................................................
Section 10.6 Severability of Provisions.....................................
Section 10.7 Notice to Rating Agency........................................
Section 10.8 Grant of Security Interest.....................................
Section 10.9 Nonpetition Covenant...........................................
Section 10.10 No Recourse....................................................
Section 10.11 Article and Section References.................................
Section 10.12 Conflict with Trust Indenture Act..............................
Exhibit A Servicing Criteria to be Addressed in Assessment of Compliance
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE
ACT OF 1939 AND AGREEMENT PROVISIONS*
Trust Indenture Agreement
Act Section Section
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310(a)(1)......................................... 8.6(a)
(a)(2)............................................ 8.6(a)
(a)(3)............................................ 8.10
(a)(4)............................................ 8.1(d)
(a)(5)............................................ 8.6(a)
(b)............................................... 8.6(b), 8.7
(c)............................................... Not Applicable
311(a)............................................ 6.8
(b)............................................... 6.8
312(a)............................................ 3.19, 3.20(a)
(b)............................................... 3.20(b)
(c)............................................... 3.20(c)
313(a)............................................ 3.21
(b)............................................... 3.21
(c)............................................... 3.21
(d)............................................... 3.21
314(a)............................................ 6.1(a), 6.1(b)
(b)............................................... 6.1(c), 6.1(d)
(c)(1)............................................ 6.1(f)
(c)(2)............................................ 6.1(f)
(c)(3)............................................ 6.1(f)
(d)(1)............................................ 6.1(e)
(d)(2)............................................ 6.1(e)
(d)(3)............................................ Not Applicable
(e)............................................... 6.1(f)
315(a)............................................ 8.1(c)
(b)............................................... 8.1(f)
(c)............................................... 8.1(a)
(d)............................................... 8.1(c)
(d)(1)............................................ 8.1(c)
(d)(2)............................................ 8.1(c)
(d)(3)............................................ 8.1(c)
(e)............................................... 8.5(c)
316(a)(1)(A)...................................... 5.17
316(a)(1)(B)...................................... 5.18
316(a)(2)......................................... Not Applicable
316(b)............................................ 5.6(f), 4.1
316(c)............................................ 5.7
317(a)............................................ 3.12
317(b)............................................ 5.14
318(a)............................................ 10.12
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* This reconciliation and tie shall not, for any purpose, be deemed to be
part of the within agreement.
TRUST AGREEMENT, dated as of September 8, 2006 between SYNTHETIC
FIXED-INCOME SECURITIES, INC., a Delaware corporation, as Trustor, and U.S. BANK
TRUST NATIONAL ASSOCIATION, a national banking association, as Trustee.
PRELIMINARY STATEMENT
The Trustor and the Trustee have duly authorized the execution and
delivery of this Trust Agreement to provide for one or more Series (and one or
more Classes within each such Series) of Trust Certificates, issuable from time
to time as provided in this Agreement. Each such Series (or each Class within
such Series) of Certificates will be issued only under a separate Series
Supplement to this Agreement duly executed and delivered by the Trustor, the
Administrative Agent, if any, specified in the applicable Series Supplement, and
the Trustee. All representations, covenants and agreements made herein by each
of the Trustor, the Administrative Agent, if any, and the Trustee are for the
benefit and security of the Certificateholders and, to the extent provided in
the applicable Series Supplement, for the benefit and security of any Credit
Support Provider. The Trustor is entering into this Agreement, and the Trustee
is accepting the trusts created hereby, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged.
ARTICLE I
DEFINITIONS AND ASSUMPTIONS
Section 1.1 Definitions. Except as otherwise specified herein or in
the applicable Series Supplement or as the context may otherwise require, the
following terms have the respective meanings set forth below for all purposes of
this Agreement.
"Account": As defined in Section 3.10.
"Accounting Date": With respect to any Series, if applicable, as
defined in the related Series Supplement.
"Administrative Agent": With respect to any Series of Certificates,
the Person, if any, specified in the applicable Series Supplement for such
Series (which Person shall have agreed pursuant to such Series Supplement to
assume all the duties, obligations, responsibilities and liabilities of the
Administrative Agent as set forth in this Agreement and such Series Supplement
with respect to such Series), until a successor Person shall have become the
Administrative Agent pursuant to the applicable provisions of this Agreement and
such Series Supplement, and thereafter "Administrative Agent" shall mean such
successor Person.
"Accreted Amount": With respect to each Series, if applicable, as
defined in the related Series Supplement.
"Additional Servicers": Any Servicing Participant engaged by the
Trustee or the Administrative Agent in connection with this Agreement or the
applicable Series Supplement.
"Administrative Agent": With respect to each Series, if applicable,
as defined in the related Series Supplement.
"Administrative Agent Termination Event": As defined in Section 7.1.
"Administrative Fee": With respect to each Series, if applicable, as
defined in the related Series Supplement.
"Advance": As defined in Section 4.3.
"Affiliate": With respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agreement": With respect to any Series of Certificates, this Trust
Agreement and all amendments hereof and, unless the context otherwise requires,
the related Series Supplement.
"Authenticating Agent": As defined in Section 5.15.
"Authorized Newspaper": A newspaper in an official language of the
country of publication customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in such city or cities specified pursuant to Section 5.1
with respect to the Certificates of any Series. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day in such city.
"Available Funds": Unless otherwise specified in the applicable
Series Supplement, for any Distribution Date in respect of a given Series or
Class, the sum of (i) all amounts actually received on or with respect to the
Underlying Securities (including Liquidation Proceeds and investment income on
amounts in the Accounts) with respect to such Series during the related
Collection Period, (ii) all amounts received pursuant to any Credit Support
Instruments with respect to such Series for such Distribution Date and (iii) all
other amounts, if any, specified by the applicable Series Supplement.
"Basic Documents": With respect to any Series, if applicable, as
defined in the related Series Supplement.
"Board of Directors": Either the Board of Directors of the Trustor
or any executive or committee of such Board duly authorized under applicable law
to act on behalf of such Board.
"Board Resolution": A copy of a resolution certified by the
Secretary or an Assistant Secretary of the Trustor to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification and delivery to the Trustee.
"Business Day": With respect to any Series (or Class within such
Series) of Certificates, as defined in the related Series Supplement.
"Calculation Agent": With respect to each Series, as defined in the
related Series Supplement.
"Call Premium Percentage": With respect to any Series (or Class
within such Series), if applicable, as defined in the related Series Supplement.
"Certificate Account": As defined in Section 3.9.
"Certificate Owners": As defined in Section 5.9.
"Certificate Register" and "Certificate Registrar": As respectively
defined in Section 5.4.
"Certificateholder": Any Holder of a Certificate.
"Certificates": Any Trust Certificates authorized by, and
authenticated and delivered under, this Agreement.
"Class": With respect to any Series, any one of the classes of
Certificates of such Series, each consisting of Certificates having identical
terms.
"Closing Date": With respect to any Series, the day on which
Certificates of such Series are first executed, authenticated and delivered.
"Code": The Internal Revenue Code of 1986 and Treasury Regulations
promulgated thereunder.
"Collection Period": With respect to any Distribution Date for a
Series (or Class within such Series), the period specified in the related Series
Supplement.
"Commission": The Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act or, if at any time after the
execution and delivery of this Agreement such Commission is not existing and
performing the duties now assigned to it, then the body then performing such
duties.
"Corporate Trust Office": The principal corporate trust office of
the Trustee located at the address set forth in the related Series Supplement or
such other addresses as the Trustee may designate from time to time by notice to
the Holders, the Administrative Agent, if any, and the Trustor, or the principal
corporate trust office of any successor Trustee (or such other addresses as a
successor Trustee may designate from time to time by notice to the Holders, the
Administrative Agent, if any, and the Trustor).
"Credit Support": With respect to any Series (or any Class within
such Series), a letter of credit, surety bond, swap agreement, put or call
option or other asset intended to support or ensure the timely or ultimate
distributions of amounts due in respect of all or certain of the Underlying
Securities for such Series or Class, which in each case is specified as such in
the related Series Supplement.
"Credit Support Instrument": The instrument or document pursuant to
which the Credit Support for a given Series (or any Class within such Series) is
provided, as specified in the applicable Series Supplement.
"Credit Support Provider": With respect to any Series (or any Class
within such Series), the Person, if any, that will provide any Credit Support
with respect to all or a portion of the Underlying Securities for such Series or
Class as specified in the applicable Series Supplement.
"Currency": Dollars or Foreign Currency.
"Cut-off Date": With respect to any Series, the date specified as
such in the related Series Supplement. For purposes of this Agreement, any
Underlying Security acquired by the Trustor after the applicable Cut-off Date
but prior to the applicable Closing Date and included in the related Trust as of
such Closing Date shall be deemed to have been Outstanding as of such Cut-off
Date and references to the principal balance of such Underlying Security as of
such Cut-off Date shall be deemed to be to the principal balance of such
Underlying Security as of the date on which it was acquired by the Trustor.
"Definitive Certificates": As defined in Section 5.9.
"Deleted Underlying Security": An Underlying Security replaced or to
be replaced by a Qualified Substitute Underlying Security.
"Depositary": With respect to the Certificates of any Series (or
Class within such Series) issuable in whole or in part in the form of one or
more Global Securities, the Person designated as Depositary by the Trustor
pursuant to Section 5.1 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Agreement, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, "Depositary"
as used with respect to the Certificates of any such Series or Class shall mean
the Depositary with respect to the Certificates of that Series or Class.
"Depository Agreement": If applicable, the agreement pursuant to
which the Depositary will agree to act as Depositary with respect to any Series
(or Class within such Series) of Certificates in accordance with Section 5.9.
"Discount Certificate": Any Certificate that is issued with
"original issue discount" within the meaning of Section 1273(a) of the Code and
any other Certificate designated by the Trustor as issued with original issue
discount for United States federal income tax purposes.
"Distribution Date": With respect to any Series (or Class
within such Series) of Certificates, each date specified as a "Distribution
Date" for such Series (or Class) in the related Series Supplement.
"Dollar" or "$" or "USD": Such currency of the United States as at
the time of payment is legal tender for the payment of public and private debts.
"Eligible Account": Either (i) an account or accounts maintained
with a federal or state chartered depository institution or trust company the
long term unsecured debt obligations of which are rated by the Rating Agency the
higher of (x) at least the then current long-term rating of the Underlying
Securities or (y) in one of its two highest long-term rating categories (unless
otherwise specified in the Series Supplement) at the time any amounts are held
in deposit therein or (ii) a trust account or accounts maintained as a
segregated account or as segregated accounts and held by a federal or state
chartered depository institution, national banking association or trust company
in trust for the benefit of the Certificateholders provided, however, that such
depositary institution, national banking association or trust company (or its
parent) has a long-term rating in one of the four highest categories by the
Rating Agency.
"Event of Default": With respect to any Series (or Class within such
Series) of Certificates, as specified in the related Series Supplement.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exchange Rate Agent": With respect to any Series (or Class within
such Series) of Certificates, if applicable, the Trustor or its agent so
specified in the related Series Supplement.
"Executive Officer": With respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, President,
any Vice President, the Secretary or the Treasurer of such corporation; with
respect to any partnership, any general partner thereof.
"Extraordinary Trust Expense": With respect to any Series, as
specified in the related Series Supplement.
"Final Scheduled Distribution Date": With respect to each Series, as
defined in the Series Supplement.
"Fixed Pass Through Rate": With respect to any Fixed Rate
Certificate, as defined in the related Series Supplement.
"Fixed Rate Certificate": A Certificate that provides for a payment
of interest at a Fixed Pass Through Rate.
"Floating Pass Through Rate": With respect to any Floating Rate
Certificate, as defined in the related Series Supplement.
"Floating Rate Certificate": A Certificate that provides for the
payment of interest at a Floating Pass Through Rate determined periodically by
reference to a formula specified pursuant to Section 5.1 and the related Series
Supplement.
"Foreign Currency": A currency issued by the government of any
country other than the United States or a composite currency the value of which
is determined by reference to the values of the currencies of any group of
countries.
"Global Security": A Certificate evidencing all or part of a Series
(or Class within such Series) of Certificates, issued to the Depositary for such
Series or Class in accordance with Section 5.9 and bearing the legend prescribed
therein.
"Grantor Trust Provisions": Subpart E of Subchapter J and Section
7701 of the Code, and final Treasury Regulations, published rulings, notices and
announcements, promulgated thereunder, as the foregoing may be in effect from
time to time.
"Guaranteed Investment Contract": With respect to any Series (or
Class within such Series), a guaranteed investment contract or surety bond
provided for in the related Series Supplement, sold as part of the Trust or to
the Trustee for the benefit of the Certificateholders for such Series, providing
for the investment of funds in a related Account or related Accounts and
insuring a minimum or a fixed rate of return on the investment of such funds,
which contract or surety bond shall be an obligation of an insurance company or
other entity whose rating at the time of purchase of such guaranteed investment
contract or surety bond is no lower than the rating on the Underlying Securities
and shall satisfy any other requirements specified in such Series Supplement.
"Holder": The holder of a Certificate.
"Independent": When used with respect to any specified Person means
that the Person specifies he or she (1) is in fact independent of the Trustor
and the Administrative Agent, if any, and of any Affiliate of any of the
foregoing Persons, (2) does not have any direct or indirect financial interest
in the Trustor or the Administrative Agent, if any, or in any Affiliate of
either of the foregoing Persons which is material with respect to such Person
and (3) is not connected with the Trustor or the Administrative Agent, if any,
as an officer, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions.
"Independent Certificate": means a certificate of an Independent
Person, as required by the TIA.
"Letter of Credit": With respect to any Series or Class within such
Series, the letter of credit, if any, providing for the payment of all or a
portion of amounts due in respect of such Series or Class, issued to the Trustee
for the benefit of the Holders of such Series or Class, issued by the related
Credit Support Provider, all as specified in the related Series Supplement.
"Limited Guarantor": With respect to the Underlying Securities
relating to any Series (or Class within such Series), a Person specified in the
related Series Supplement as providing a guarantee or insurance policy or other
credit enhancement supporting the distributions in respect of such Series (or
Class) as and to the extent specified in such Series Supplement.
"Limited Guaranty": With respect to any Series or Class within such
Series, any guarantee of or insurance policy or other comparable form of credit
enhancement with respect to amounts required to be distributed in respect of
such Series or Class or payments under all or certain of the Underlying
Securities relating to such Series or Class, executed and delivered by a Limited
Guarantor in favor of the Trustee, for the benefit of the Certificateholders, as
specified in the related Series Supplement.
"Liquidation Proceeds": The amounts received by the Administrative
Agent, if any, or the Trustee in connection with (i) the liquidation of a
defaulted Underlying Security or collateral, if any, related thereto or (ii) the
repurchase, substitution or sale of an Underlying Security.
"Notional Amount": With respect to any Class of Certificates, if
applicable, the initial notional amount specified in the related Series
Supplement on which distributions of interest may be determined at the
applicable Pass Through Rate, as the same may be adjusted as specified in such
Series Supplement.
"Officer's Certificate": A certificate signed by any one (or, if
specified in this Agreement or any Series Supplement, more than one) Executive
Officer of the Trustor or Administrative Agent, as applicable, or, in the case
of the Trustee, a Responsible Officer.
"Opinion of Counsel": A written opinion of counsel, who may, except
as otherwise expressly provided in this Agreement, be counsel for the Trustor or
the Administrative Agent, if any, acceptable to the Trustee, except that any
opinion of counsel relating to the qualification of any account required to be
maintained pursuant to this Agreement as an Eligible Account must state that it
is an opinion of counsel who is in fact Independent of the Trustor and the
Administrative Agent, if any.
"Optional Exchange Date": With respect to any Series (or Class with
such Series), as defined, if applicable, in the related Series Supplement.
"Outstanding": With respect to Certificates of a specified Series
(or Class within such Series), as of any date of determination, all such
Certificates theretofore authenticated and delivered under this Agreement and
the related Series Supplement except:
(i) Certificates theretofore cancelled by the Certificate
Registrar or delivered to the Certificate Registrar for
cancellation; and
(ii) Certificates in exchange for or in lieu of which other
Certificates have been authenticated and delivered pursuant to this
Agreement, unless proof satisfactory to the Trustee is presented
that any such Certificates are held by a bona fide purchaser in
whose hands such Certificates are valid obligations of the Trust;
provided, however, that in determining whether the Holders of the required
percentage of the aggregate Voting Rights of the Certificates have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Certificates beneficially owned by the Trustor, or any Affiliate thereof, shall
be disregarded and deemed not to be Outstanding, and the Voting Rights to which
its Holder would otherwise be entitled shall not be taken into account in
determining whether the requisite percentage of aggregate Voting Rights
necessary to effect any such consent or take any such action has been obtained
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Certificates with respect to which the Trustor has provided the
Trustee an Officer's Certificate stating that such Certificates are so owned
shall be so disregarded. Certificates so owned that have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee by certifying to such effect in an Officer's
Certificate the pledgee's right so to act with respect to such Certificates and
that the pledgee is not, to the actual knowledge of the Trustee without any duty
of investigation, the Trustor, the Administrative Agent, if any, or any
Affiliate of any thereof so owned. The principal amount or notional amount, as
applicable, of a Discount Certificate that shall be deemed to be Outstanding for
the determination referred to in the foregoing proviso shall be the Stated
Amount or Certificate Notional Amount, as applicable, with respect thereto as of
the date of such determination, and the principal amount or notional amount, as
applicable, of a Certificate denominated in a Foreign Currency that shall be
deemed to be Outstanding for purposes of the determination referred to in the
foregoing provision shall be the amount calculated pursuant to Section 5.12(c).
"Participant": A broker, dealer, bank, other financial institution
or other Person for whom from time to time a Depositary effects book-entry
transfers and pledges of securities deposited with the Depositary.
"Pass Through Rate": With respect to any Series (or Class
within such Series) of Certificates (except certain Discount Certificates and
Certificates entitled to nominal or no interest distributions) the annual
rate at which interest accrues on the Certificates of such Series (or Class),
which may be a fixed rate or a floating rate of interest, determined upon the
basis and in the manner specified in the related Series Supplement.
"Paying Agent": As defined in Section 5.14.
"Percentage Interest": With respect to a Certificate of any Series
or Class within a Series, the portion of such Series or Class evidenced by such
Certificate, expressed as a percentage, equal to the product of (x) a fraction,
the numerator of which is the initial Stated Amount or Notional Amount, as
applicable, represented by such Certificate and the denominator of which is the
aggregate initial Stated Amount or Notional Amount, as applicable, of all the
Certificates of such Series or Class and (y) 100.
"Permitted Investments": With respect to any Series, unless
otherwise specified in the related Series Supplement, any one or more of the
following obligations or securities, provided that the total return specified
by the terms of each such obligation or security is at least equal to the
purchase price thereof:
(i) direct obligations of, and obligations fully guaranteed
by, the United States, the Federal Home Loan Mortgage Corporation,
the Federal National Mortgage Association, the Federal Farm Credit
System or any agency or instrumentality of the United States the
obligations of which are backed by the full faith and credit of the
United States of America; provided that obligations of, or
guaranteed by, the Federal Home Loan Mortgage Corporation, the
Federal National Mortgage Association or the Federal Farm Credit
System shall be Permitted Investments only if, at the time of
investment, it has the rating specified in such Series Supplement
for Permitted Investments;
(ii) demand and time deposits in, certificates of deposit of,
or banker's acceptances issued by any depository institution or
trust company (including the Trustee or any agent of the Trustee
acting in their respective commercial capacities) incorporated under
the laws of the United States or any State and subject to
supervision and examination by federal and/or state banking
authorities so long as the commercial paper and/or the short-term
debt obligations of such depository institution or trust company
(or, in the case of a depository institution which is the principal
subsidiary of a holding company, the commercial paper or other
short-term debt obligations of such holding company) at the time of
such investment or contractual commitment providing for such
investment have the rating specified in such Series Supplement for
Permitted Investments; provided, however, that such rating shall be
no lower than the rating on the Underlying Securities at the time of
purchase of the investments;
(iii) repurchase agreements with respect to (a) any security
described in clause (i) above or (b) any other security issued or
guaranteed by an agency or instrumentality of the United States,
with an entity having the credit rating specified in such Series
Supplement for Permitted Investments;
(iv) securities bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States
or any State that have the rating specified in such Series
Supplement for Permitted Investments at the time of such investment
or contractual commitment providing for such investment; provided,
however, that such rating shall be no lower than the rating on the
Underlying Securities;
provided further that securities issued by any particular corporation will not
be Permitted Investments to the extent that investment therein will cause the
then outstanding principal amount of securities issued by such corporation and
held as part of the Trust for such Series to exceed 10% of the aggregate
outstanding principal balances and amounts of all the Underlying Securities and
Permitted Investments held as part of the Trust for such Series;
(i) commercial paper having at the time of such investment the
rating specified in the Series Supplement for Permitted Investments;
and
(ii) a Guaranteed Investment Contract if and only if specified
in the related Series Supplement, provided that the Rating Agency
Condition is met.
"Person": Any individual, corporation, partnership, joint venture,
association, joint stock company, limited liability company, trust (including
any beneficiary thereof), unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Distribution": With respect to any Series (or Class within
such Series) of Certificates, the place or places where the principal of (and
premium, if any) and interest on the Certificates of such Series (or Class) are
distributable as specified pursuant to Section 5.1.
"Predecessor Certificate": With respect to any particular
Certificate, every previous Certificate evidencing all or a portion of the same
interest as that evidenced by such particular Certificate; and, for the purpose
of this definition, any Certificate authenticated and delivered under Section
5.5 in lieu of a lost, destroyed or stolen Certificate shall be deemed to
evidence the same interest as the lost, destroyed or stolen Certificate.
"Proceeding": Any suit in equity, action at law or other judicial or
administrative proceeding.
"Purchase Price": With respect to any Underlying Security required
to be repurchased by the Underlying Security Provider pursuant to Section 2.3
and as confirmed by an Officer's Certificate from the Administrative Agent, if
any, or the Trustor, as the case may be, to the Trustee, an amount equal to the
sum of (i) the greater of (x) 100% of the principal balance thereof as of the
date of such purchase or (y) if the Underlying Security was purchased at a
premium above face value, the price paid therefor, (ii) accrued and unpaid
interest thereon from the immediately preceding interest allocation date, or if
no interest has been paid to the Trust with respect thereto, from the Cut-off
Date, in each case at a rate equal to the Fixed Pass Through Rate or the then
applicable Floating Pass Through Rate, as the case may be, as specified in the
applicable Series Supplement, on the principal balance of such Underlying
Security as of the close of business on the Business Day immediately preceding
the date of purchase or such other day as may be specified in the applicable
Series Supplement on which such purchase is to occur, (iii) any unreimbursed
Advances and any unpaid Administrative Fees allocable to such Underlying
Security, (iv) expenses reasonably incurred or to be incurred by the
Administrative Agent, if any, or the Trustee in respect of the breach or defect
giving rise to the purchase obligation, including any expenses arising out of
the enforcement of the purchase obligation and (v) any realized losses
previously incurred with respect to such Underlying Security and allocated to
Certificateholders on or before the date of purchase.
"Qualified Substitute Underlying Security": With respect to any
Series, as defined, if applicable, in the related Series Supplement.
"Rating Agency": With respect to any Series (or Class within such
Series), as defined in the related Series Supplement.
"Rating Agency Condition": With respect to any action or occurrence,
unless otherwise specified in the applicable Series Supplement, that each Rating
Agency shall have been given 10 days (or such shorter period acceptable to each
Rating Agency) prior notice thereof and that each Rating Agency shall have
notified the Trustor, the Trustee and the Administrative Agent, if any, in
writing that such action or occurrence will not result in a reduction or
withdrawal of the then current rating of any Certificate of the applicable
Series.
"Record Date": With respect to any Distribution Date for any Series
(or Class within such Series) of Certificates, the date specified in the related
Series Supplement.
"Regulation AB": Subpart 2009.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (January 7, 2005))
or by the staff of the Commission, or as may be provided by the Commission or
its staff from time to time.
"Relevant Servicing Criteria": The Servicing Criteria applicable to
the various parties, as set forth on Exhibit A attached hereto and as reflected
on the Relevant Servicing Criteria delivered by such parties in connection with
each Series Supplement. With respect to a Servicing Participant engaged by the
Trustee and Administrative Agent, the term "Relevant Servicing Criteria" may
refer to a portion of the Relevant Servicing Criteria for the Trustee and the
Administrative Agent.
"Reporting Party": The Trustee or the Administrative Agent, as
applicable, in accordance with Sections 3.15 and 3.16 hereof.
"Required Interest": Unless otherwise specified in the related
Series Supplement, with respect to the Outstanding Certificates of any Series or
any Class thereof, the accrued and undistributed interest on the Stated Amount
or Notional Amount of such Outstanding Certificates computed at the applicable
Pass Through Rate.
"Required Percentage - Amendment": Unless otherwise specified in the
related Series Supplement, 66 2/3% of the aggregate Voting Rights of
Certificates of such Series (or of a designated Class or group of Classes within
such Series) (either voting as separate Classes or as a single Class) applicable
to such matter, all as specified in the applicable Series Supplement.
"Required Percentage - Definitive Certificates": Unless otherwise
specified in the related Series Supplement, greater than 50% of the aggregate
Voting Rights of Certificates of such Series.
"Required Percentage - Direction of Trustee": Unless otherwise
specified in the related Series Supplement, greater than 50% of the aggregate
Voting Rights of Certificates of such Series.
"Required Percentage - Remedies": Unless otherwise specified in the
related Series Supplement, 66 2/3% of the aggregate Voting Rights of
Certificates of such Series.
"Required Percentage - Removal of Trustee": Unless otherwise
specified in the related Series Supplement, greater than 50% of the aggregate
Voting Rights of Certificates of such Series.
"Required Percentage - Waiver": Unless otherwise specified in the
related Series Supplement, 66 2/3% of the aggregate Voting Rights of
Certificates of such Series.
"Required Premium": If applicable, unless otherwise specified in the
related Series Supplement, with respect to the Certificates of any Series or any
Class thereof, an amount equal to the product, as determined on any Distribution
Date with respect to such Series or Class, of (i) the Required Principal for
such Series or Class and (ii) the Call Premium Percentage for such Series or
Class.
"Required Principal": As determined for any Distribution Date for a
given Series (or Class within such Series), unless otherwise specified in the
related Series Supplement, the amounts on deposit in the Certificate Account
allocable to principal payments on the Underlying Securities (including from
Credit Support, if any, and Advances, if any, but excluding amounts in respect
of principal payments to the extent that Advances with respect thereto were
distributed as Required Principal on a prior Distribution Date) and required to
be distributed in respect of Certificates of such Series (or Class) in
accordance with the terms of such Certificates and such related Series
Supplement.
"Required Rating": With respect to any Series (or Class within such
Series), the rating category (or categories) specified in the Series Supplement
that, as a condition to the issuance of such Series or Class, is (or are) the
lowest category (or categories) in which the Certificates of such Series or
Class may be categorized by the Rating Agency.
"Requisite Reserve Amount": As of any date with respect to any
Series (or Class within such Series) of Certificates, the amount, if any,
required to be maintained in the Reserve Account, if any, for such Series or
Class as specified in or determined pursuant to the related Series Supplement.
"Reserve Account": An Eligible Account, if any, created and
maintained pursuant to Section 3.11.
"Responsible Officer": With respect to the Trustee, any officer
within the Corporate Trust Office of the Trustee, including any Vice President,
Assistant Vice President, Assistant Treasurer, Assistant Secretary or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
"Retained Interest": If applicable, with respect to any Underlying
Security, an ownership interest in and a right to a portion of the payments
thereon by the obligor thereof, as specified in the Underlying Securities
Schedule to the related Series Supplement, held by the Person so specified in
such Underlying Securities Schedule.
"Xxxxxxxx-Xxxxx Act": The Xxxxxxxx-Xxxxx Act of 2002 and the rules
and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
"Scheduled Final Distribution Date": With respect to any
Certificate, the date on which all the unpaid principal of (and premium, if any,
on) such Certificate is scheduled, without giving effect to any prepayment,
exchange or early termination, to become due and payable as provided therein and
in the applicable Series Supplement.
"Series": A separate series of Certificates issued pursuant to this
Agreement and a related Series Supplement, which series may be divided into two
or more Classes, as provided in such Series Supplement.
"Series Supplement": An agreement supplemental to this Agreement
that authorizes the issuance of a particular Series (and each Class within such
Series) of Certificates.
"Servicing Criteria": The "servicing criteria" set forth in Item
1122(d) of Regulation AB.
"Servicing Participant": Any Servicing Participant or any other
Person, other than the Trustee and Administrative Agent, that is performing
activities addressed by the Servicing Criteria, unless such Person's activities
relate only to 5% or less of the Underlying Assets.
"Specified Currency": As defined in the related Series Supplement.
"State": Any one of the 00 xxxxxx xx xxx Xxxxxx Xxxxxx or the
District of Columbia.
"Stated Amount": With respect to an Outstanding Certificate, as
determined at any time, the maximum amount that the Holder thereof is entitled
to receive as distributions allocable to principal payments on the Underlying
Securities. The Stated Amount, if any, of any Class within a given Series (other
than those Classes, if any, specified in the related Series Supplement), as of
any date of determination, shall be equal to the aggregate initial Stated Amount
thereof less the sum of (i) all amounts allocable to prior distributions made to
such Class in respect of principal of the Underlying Securities and (ii) any
reductions attributable to Certificates surrendered in exchange for Underlying
Securities, as and to the extent provided in the applicable Series Supplement.
"Sub-Administration Account": As defined in Section 3.8.
"Sub-Administration Agreement": The written contract, if any,
between the Administrative Agent, if any, specified in the applicable Series
Supplement, or Trustee and a Sub-Administrative Agent and any successor
Administrative Agent or Trustee or Sub-Administrative Agent relating to the
administration of an Underlying Security or certain Underlying Securities as
provided in Section 3.2.
"Sub-Administrative Agent": Any Person with which the Administrative
Agent, if any, specified in the applicable Series Supplement, or the Trustee has
entered into a Sub-Administration Agreement and which meets the qualifications
of a Sub-Administrative Agent pursuant to Section 3.2.
"Surety Bond": If so specified in the Series Supplement, with
respect to any Series (or Class within such Series) of Certificates, the surety
bond providing for the distribution under certain circumstances specified in
such Series Supplement of amounts to the Certificateholders of such Series (or
Class), which surety bond will be issued to the Trustee for the benefit of such
Certificateholders by the related Credit Support Provider, all as specified in
such Series Supplement.
"TIA": The Trust Indenture Act of 1939, as amended.
"Trust": With respect to any Series, the segregated asset or pool of
assets subject hereto, constituting the trust created hereby and by the related
Series Supplement and to be administered hereunder and thereunder, consisting of
those Underlying Securities and the Credit Support, if applicable, and all sums
distributed in respect thereof that are specified as being part of the Trust for
such Series in the related Series Supplement, all for the benefit of the
Certificateholders of such Series as of any particular time.
"Trust Termination Event": With respect to any Series, as specified
in the related Series Supplement.
"Trustee": With respect to any Series, the Person so specified in
the applicable Series Supplement (which Person shall have agreed pursuant to
such Series Supplement to assume all the duties, obligations, responsibilities
and liabilities of the Trustee as set forth in this Agreement and such Series
Supplement with respect to the related Series of Certificates) for such Series
or any co-trustee appointed pursuant to Section 8.10, until a successor Person
shall have become the Trustee pursuant to the applicable provisions of this
Agreement and the applicable Series Supplement, and thereafter "Trustee" shall
mean such successor Person.
"Trustor": Synthetic Fixed-Income Securities, Inc., a Delaware
corporation, and, if a successor Person shall have become the Trustor pursuant
to any applicable provisions of this Agreement, "Trustor" shall mean such
successor Person.
"Trustor Order" or "Trustor Request": A written order or request,
respectively, signed in the name of the Trustor by any of its Chief Executive
Officer, Chief Financial Officer, Chief Operating Officer, President, a Vice
President, its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary and delivered to the Trustee.
"Underlying Security Provider": With respect to any Underlying
Security purchased pursuant to an Underlying Security Purchase Agreement, each
entity specified as such in the applicable Series Supplement or its successor in
interest.
"Underlying Security Purchase Agreement": With respect to certain
Series of Certificates, as designated in the applicable Series Supplement, the
purchase agreement providing for the purchase by the Trustor of one or more
Underlying Securities for such Series, substantially in the form acceptable to
the Trustor, provided, that if required by the applicable Series Supplement,
such agreement shall provide for the repurchase of such Underlying Securities on
the terms set forth in Section 2.3.
"Underlying Securities": With respect to any Series, the asset or
assets sold as part of the Trust for such Series or acquired (or, in the case of
an agreement, entered into) by the Trustee for the benefit of the Holders of
such Series and, if and to the extent provided in the applicable Series
Supplement, for the benefit of any Credit Support Provider, all as identified in
the Underlying Securities Schedule to the related Series Supplement. The
Underlying Securities for any such Series or the related Trust shall not
constitute Underlying Securities for any other Series or any other Trust.
"Underlying Securities Issuer": As defined in the related Series
Supplement.
"Underlying Securities Schedule": With respect to any Series, a
listing of the Underlying Securities for such Series as of the Closing Date,
including, with respect to each Underlying Security, the obligor and the
principal balance thereof, which shall be attached to such Series Supplement as
Schedule A.
"Uniform Commercial Code": The Uniform Commercial Code as in effect
in the relevant jurisdiction.
"United States": The United States of America (including the
States), its territories, its possessions and other areas subject to its
jurisdiction.
"Voting Rights": With respect to any Series (or Class within such
Series) of Certificates, the portion of the aggregate voting rights of the
Certificates of such Series or Class which shall be allocated to any Certificate
as specified in the applicable Series Supplement.
Voting and consensual rights available to or in favor of Holders of
Certificates may be exercised only by a United States person (as defined in
section 7701(a)(30) of the Internal Revenue Code of 1986, as amended) that is a
beneficial owner of a Certificate or by a United States person acting as
irrevocable agent with discretionary powers for the beneficial owner of a
Certificate that is not a United States person. Certificateholders that are not
United States persons must irrevocably appoint a United States person with
discretionary powers to act as their agent with respect to such voting and
consensual rights.
Section 1.2 Rules of Construction. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles as in
effect in the United States from time to time;
(c) "or" is not exclusive;
(d) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision;
(e) "including" means including without limitation; and
(f) words in the singular include the plural and words in the plural
include the singular.
ARTICLE II
DECLARATION OF TRUSTS; ISSUANCE OF CERTIFICATES
Section 2.1 Creation and Declaration of Trusts; Assignment of
Underlying Securities. (a) The Trustor, concurrently with the execution and
delivery hereof, does hereby agree to (i) sell, assign, convey and set-over to
the Trustee, on behalf and for the benefit of the Certificateholders of each
given Series of Certificates and without recourse, all the right, title and
interest of the Trustor, including any security interest therein for the benefit
of the Trustor, in, to and under the Underlying Securities attributable to each
such Series (except for the Underlying Securities attributable to such Series
which are not sold by the Trustor, as specified in the Underlying Securities
Schedule to the applicable Series Supplement), in each case as identified on the
applicable Underlying Securities Schedule, and all other assets included or to
be included in the respective Trust for the benefit of the Certificateholders of
each such Series or (ii) deliver to the Trustee for deposit in the Certificate
Account an amount, in immediately available funds in a form acceptable to the
Trustee, sufficient to acquire the Underlying Securities attributable to such
Series, in each case as identified on the Underlying Security Schedule to the
applicable Series Supplement, and all other assets to be included in the
respective Trust for the benefit of the Certificateholders of each such Series.
Each such sale will include all interest, premium (if any) and principal
received by or on behalf of the Trustor of, on or with respect to any such
Underlying Securities due after the applicable Cut-off Date, and, unless
otherwise specified in the Series Supplement, will exclude (i) all interest,
premium (if any) and principal of, on or with respect to any such Underlying
Securities due on or before the applicable Cut-off Date and (ii) any Retained
Interest in any such Underlying Security.
(b) In connection with each sale referred to in the preceding
paragraph, the Trustor shall, not later than the applicable Closing Date, (i)
deposit the Underlying Securities for a given Series (except for the Underlying
Securities attributable to such Series which are to be acquired from a Person
other than the Trustor, as specified on the Underlying Securities Schedule to
the applicable Series Supplement) with the Trustee by physical delivery of such
Underlying Securities, duly endorsed, to the Trustee or by causing such
Underlying Securities to be registered by book entry in the name of the Trustee
and (ii) with respect to each such Underlying Security, deliver or cause to be
delivered to the Trustee all documents necessary to transfer ownership of each
such Underlying Security to the Trustee.
(c) Unless otherwise specified in the applicable Series Supplement,
the sale of such Underlying Securities by the Trustor for a given Series
accomplished hereby and by such Series Supplement is absolute and is intended by
the parties hereto as a sale and not a loan. The Trustor represents and
covenants that the Underlying Securities as of the respective Closing Dates will
be free and clear of any right, charge, security interest or lien or claim in
favor of the Trustor and, with respect to any sale of Underlying Securities,
that the Trustor will as of such respective Closing Date have the right to sell
the applicable Underlying Securities to the Trustee.
Section 2.2 Acceptance by Trustee. (a) With respect to each Series,
the Trustee will acknowledge receipt by it, or by a custodian on its behalf, of
the related Underlying Securities and the related documents referred to in
Section 2.1, now existing or hereafter acquired, and declares that it will hold
such Underlying Securities and documents and all other documents delivered to it
pursuant to this Agreement, and that it will hold all such assets and such other
assets (including Underlying Securities acquired from a Person other than the
Trustor) comprising the Trust for a given Series of Certificates, in trust for
the exclusive use and benefit of all present and future Certificateholders of
such Series and for the purposes and subject to the terms and conditions set
forth in this Agreement.
(b) The Trustee, or a custodian on its behalf, shall review all
documents received by it pursuant to Section 2.1 within 45 days after receipt
thereof. If in the process of reviewing such documents the Trustee or such
custodian discovers any document or documents to be missing or defective, the
Trustee shall promptly (but in any event within 10 Business Days) so notify the
Trustor and the Administrative Agent, if any. In addition, upon the discovery by
the Trustor, the Administrative Agent, if any, or the Trustee of a breach of any
of the representations and warranties made by any Underlying Security Provider
in the related Underlying Security Purchase Agreement, if any, in respect of any
Underlying Security that materially and adversely affects the interests of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the other parties hereto (but in any event within 10 Business Days).
Section 2.3 Repurchase or Substitution of Certain Underlying
Securities by the Underlying Security Provider. (a) If and to the extent
provided for in a Series Supplement relating to a given Series of Certificates,
upon discovery or receipt of notice pursuant to Section 2.2 that a document is
missing or defective, the Trustee shall immediately notify the Trustor, the
Administrative Agent, if any, and the Rating Agency that such document is
defective or missing and, unless the Trustor provides to the Trustee an
Officer's Certificate stating such missing or defective document will not have a
materially adverse effect on the related Trust, the Administrative Agent, if
any, or the Trustee shall immediately so notify the Underlying Security Provider
and require that the Underlying Security Provider deliver such missing document
or cure such defect within 60 days from the date on which such Underlying
Security Provider was first notified of such missing document or defect, and if
such Underlying Security Provider does not deliver such missing document or cure
such defect in all material respects during such period, the Administrative
Agent, if any, or the Trustee shall use its best efforts to enforce the
Underlying Security Provider's obligation, if any, under the related Underlying
Security Purchase Agreement to repurchase such Underlying Security from the
Trustee at the applicable Purchase Price within 90 days after the date on which
the Underlying Security Provider was first notified of such missing document or
defect. The Purchase Price for the repurchased Underlying Security shall be
delivered to the Administrative Agent, if any, or to the Trustee directly for
deposit in the Certificate Account and the Trustee, upon receipt either of
certification by the Administrative Agent, if any, of such deposit or of such
deposit directly, shall release to the Underlying Security Provider the related
documents in its possession and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be necessary to
vest in the Underlying Security Provider any Underlying Security released
pursuant hereto, and the Trustee shall have no further obligations with regard
to such documents. The foregoing notwithstanding, if and to the extent the
Series Supplement provides, the Underlying Security Provider may, as an
alternative to repurchasing any such Underlying Security as provided above, if
and to the extent so provided in the Underlying Security Purchase Agreement,
cause such Underlying Security to be removed from the Trust (in which case it
shall become a Deleted Underlying Security) by agreeing to substitute one or
more Qualified Substitute Underlying Securities in the manner and subject to the
limitations set forth in Section 2.3(b) and the related Series Supplement. It is
understood and agreed that the obligation of the Underlying Security Provider to
repurchase or substitute for any Underlying Security as to which a constituent
document is missing or a defect in a constituent document exists shall, if such
defect is not cured or such missing document is not provided, constitute (unless
otherwise specified in the applicable Series Supplement) the sole remedy
respecting such omission or defect available to the Certificateholders or the
Trustee on behalf of the Certificateholders. It is further understood and agreed
that, unless otherwise provided in the related Series Supplement, in no event
shall either the Trustor or the Administrative Agent, if any, be obligated to
repurchase or substitute for such an Underlying Security, regardless of whether
the Underlying Security Provider defaults on its obligation to repurchase or
substitute for such an Underlying Security.
(b) If and to the extent provided for in a Series Supplement
relating to a given Series of Certificates, with respect to any Deleted
Underlying Security for which the Trustor or the Underlying Security Provider
substitutes a Qualified Substitute Underlying Security or Assets, such
substitution shall be effected by the Trustor or Underlying Security Provider
delivering to the Trustee or a custodian on its behalf such Qualified Substitute
Underlying Security or Assets and such documents and agreements, with all
necessary endorsements thereon, as would be required under the terms of Section
2.1, together with an Officer's Certificate of the Trustor or relevant
Underlying Security Provider certifying that each such Qualified Substitute
Underlying Security satisfies the definition thereof and the requirements under
this Section. The Trustee or such custodian shall acknowledge receipt of such
Qualified Substitute Underlying Security or Assets and, within five Business
Days thereafter, review such documents in the manner specified in Section 2.2.
The Trustor shall give or cause to be given written notice to the
Certificateholders of such Series and the Rating Agency that such substitution
has taken place and shall amend the Underlying Security Schedule to reflect the
removal of such Deleted Underlying Security from the terms of this Agreement and
the substitution of the Qualified Substitute Underlying Security or Assets. Upon
such substitution, such Qualified Substitute Underlying Security or Assets shall
be subject to the terms of this Agreement in all respects, including those
related to the representations and warranties included in the Underlying
Security Purchase Agreement as of the date of substitution. The terms upon which
such substitution may be effected shall be specified in the applicable Series
Supplement.
(c) Unless otherwise provided in the Series Supplement, no
substitution of Underlying Securities allowed by the Series Supplement shall be
effected unless the Trustee obtains, at the expense of the Certificateholders,
an Opinion of Counsel to the effect that the substitution will not cause the
Trust to be taxable as a corporation for federal income tax purposes.
Section 2.4 Representations and Warranties of the Trustor and
Representations, Warranties and Covenants of the Administrative Agent. (a) The
Trustor hereby represents and warrants to the Trustee that as of the Closing
Date or as of such other date specifically provided herein or in the applicable
Series Supplement:
(i) the Trustor is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware;
(ii) with respect to each Series Supplement, to the Trustor's
knowledge, the information set forth in the Underlying Security
Schedule with respect to each Underlying Security is true and
correct in all material respects at the date or dates respecting
which such information is furnished;
(iii) the execution and delivery of this Agreement by the
Trustor and its performance of and compliance with the terms of this
Agreement will not violate the Trustor's articles of incorporation
or by-laws or constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, or
result in the breach or acceleration of, any material contract,
agreement or other instrument to which the Trustor is a party or
which may be applicable to the Trustor or any of its assets;
(iv) the Trustor has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement and has duly executed and delivered this Agreement. This
Agreement, upon its execution and delivery by the Trustor and
assuming due authorization, execution and delivery by the Trustee,
will constitute a valid, legal and binding obligation of the
Trustor, enforceable against it in accordance with the terms hereof,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws relating to
or affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is
considered a proceeding in equity or at law);
(v) the Trustor is not in violation, and the execution and
delivery of this Agreement by the Trustor and its performance and
compliance with the terms of this Agreement will not constitute a
violation, of any order or decree of any court or any order or
regulation of any federal, state, municipal or governmental agency
having jurisdiction over the Trustor or its properties, which
violation would reasonably be expected to have a material and
adverse effect on the condition (financial or otherwise) or
operations of the Trustor or its properties or on the performance of
its duties hereunder; and
(b) The Trustor shall make any additional representations and
warranties, if any, that may be specified in the applicable Series Supplement.
It is understood and agreed that the representations and warranties
of the Trustor set forth in this Sections 2.4(a) and 2.4(b) shall survive
delivery of the respective documents to the Trustee and shall inure to the
benefit of the Trustee on behalf of the Certificateholders notwithstanding any
restrictive or qualified endorsement or assignment. Upon discovery by any of the
Trustor, the Administrative Agent, if any, or the Trustee of a breach of any of
the foregoing representations and warranties which materially and adversely
affects the interests of the Certificateholders, the party discovering such
breach shall give prompt written notice thereof to the other parties.
(c) The Administrative Agent, if any, shall make such
representations, warranties, if any, and covenants that may be specified in the
applicable Series Supplement. Upon discovery by any of the Trustor, the
Administrative Agent, if any, or the Trustee of a breach of any of the foregoing
representations, warranties and covenants which materially and adversely affects
the interests of the Certificateholders, the party discovering such breach shall
give prompt written notice thereof to the other parties.
Section 2.5 Breach of Representation, Warranty or Covenant.
(a) Within 90 days of the earlier of discovery by the Trustor or receipt of
notice by the Trustor of a breach of any representation or warranty of the
Trustor set forth in Section 2.4(a) that materially and adversely affects the
interests of the Certificateholders of a given Series of Certificates, the
Trustor shall cure such breach in all material respects.
(b) With respect to an Administrative Agent appointed pursuant to
the applicable Series Supplement, within 30 days of the earlier of discovery by
such Administrative Agent or receipt of notice by such Administrative Agent of a
breach of any representation, warranty or covenant of such Administrative Agent
set forth in the applicable Series Supplement that materially and adversely
affects the interests of the Certificateholders, such Administrative Agent shall
cure such breach in all material respects.
Section 2.6 Agreement to Authenticate and Deliver Certificates. With
respect to each Series of Certificates and the related Trust, the Trustee hereby
agrees and acknowledges that it will, concurrently with the sale to and receipt
by it of the related Underlying Securities and delivery to it by the Trustor of
executed Certificates of such Series, cause to be authenticated and delivered to
or upon the order of the Trustor, in exchange for the Underlying Securities and
such other assets constituting the Trust for a given Series, Certificates duly
authenticated by or on behalf of the Trustee in authorized denominations
evidencing ownership of the entire Trust for such Series, all in accordance with
the terms and subject to the conditions of Sections 5.2 and 5.13.
Section 2.7 Statement of Intent. It is the intention of the parties
hereto that, for purposes of federal income taxes, state and local income and
franchise taxes and any other taxes imposed upon, measured by or based upon
gross or net income, the Trust shall be treated as a grantor trust, but failing
that, as a partnership and in no event, as a corporation or publicly traded
partnership taxable as a corporation. The terms of this Agreement shall be
interpreted to further this intention of the parties. The parties hereto agree
that, unless otherwise required by appropriate tax authorities, the Trustee
shall file or cause to be filed annual or other necessary returns, reports and
other forms consistent with such intended characterization. Each
Certificateholder and each beneficial owner of a Certificate by acceptance of
its Certificate (or its beneficial interest therein) agrees, unless otherwise
required by appropriate tax authorities, to file its own tax returns and reports
in a manner consistent with such characterization.
All provisions of this Agreement shall be construed and the affairs
of the Trust shall be conducted to achieve the aforementioned treatment for U.S.
federal income tax purposes.
ARTICLE III
ADMINISTRATION OF EACH TRUST
Section 3.1 Administration of each Trust. (a) The Trustee (and, to
the extent required in the applicable Series Supplement, any Administrative
Agent) shall administer the Underlying Securities for each given Trust for the
sole benefit of the Certificateholders of the related Series. In engaging in
such activities, the Trustee (or the Administrative Agent, if applicable) shall,
subject to the provisions of Article VI hereof, follow or cause to be followed
collection procedures in accordance with the terms of this Agreement and the
applicable Series Supplement, the respective Underlying Securities and any
applicable Credit Support Instruments. With respect to each Trust, and subject
only to the above-described standards and the terms of this Agreement, the
related Series Supplement and the respective Underlying Securities and
applicable Credit Support Instruments, if any, the Trustee (or the
Administrative Agent, if applicable) shall have full power and authority, acting
alone or through Sub-Administrative Agents as provided in Section 3.2, to do or
cause to be done any and all things in connection with such administration which
it deems necessary to comply with the terms of this Agreement and the applicable
Series Supplement.
(b) Without limiting the generality of the terms of paragraph (a) of
this Section 3.1, with respect to any Series of Certificates, the Administrative
Agent, if any, specified in the applicable Series Supplement shall be hereby
authorized and empowered by the Trustor, when such Administrative Agent believes
it appropriate in its reasonable judgment and when otherwise required by a
Series Supplement, in its own name or in the name of a Sub- Administrative
Agent, (i) to instruct the Trustee to make distributions or payments from the
Certificate Account or any other Account for such Series, as set forth herein or
in the related Series Supplement, and (ii) to the extent specified in the
related Series Supplement, to execute and deliver, on behalf of the
Certificateholders of such Series and the Trustee or any of them, and upon
notice to the Trustee, any and all instruments of satisfaction or cancellation,
or of partial or full release or discharge, and all other comparable
instruments, with respect to any of the Underlying Securities relating to such
Series.
(c) The duties of the Trustee and the Administrative Agent, if any,
shall be performed in accordance with applicable local, state and federal law,
and the Trustee (or, if specified in the applicable Series Supplement, the
Administrative Agent) shall make any and all filings, reports, notices or
applications with, and seek any comments and authorizations from, the Commission
and any State securities authority on behalf of the Trust for each Series. If
the applicable Series Supplement appoints an Administrative Agent, the Trustee,
in its capacity as Trustee, shall execute, at the direction of such
Administrative Agent, any powers of attorney and other documents necessary or
appropriate to enable the Administrative Agent to carry out any of its
administrative duties hereunder; provided, however, that the Trustee, in its
capacity as Trustee, shall not be accountable for the actions of the
Administrative Agent or any Sub- Administrative Agents under such powers of
attorney.
Section 3.2 Sub-Administration Agreements Between Administrative
Agent or Trustee and Sub-Administrative Agents. (a) Unless otherwise provided in
a Series Supplement, an Administrative Agent specified in the applicable Series
Supplement and the Trustee may enter into Sub- Administration Agreements with
one or more Sub-Administrative Agents in order to delegate their administrative
obligations with respect to a related Series under this Agreement to such
Sub-Administrative Agents; provided, however, that (i) such delegation shall not
release either such Administrative Agent or the Trustee, as applicable, from the
duties, obligations, responsibilities or liabilities arising under this
Agreement; (ii) the Rating Agency Condition shall have been satisfied with
respect to the entering into of any such agreement and (iii) such agreements are
consistent with the terms of this Agreement and, with respect to Certificates of
any Series, the related Series Supplement. With respect to any Series (or Class
within such Series) of Certificates, each Sub-Administration Agreement shall
impose on the Sub- Administrative Agent requirements conforming to the
provisions set forth in Section 3.1 and provide for administration of the
related Trust and all or certain specified Underlying Securities for such Series
consistent with the terms of this Agreement. Additional requirements relating to
the scope and contents of any Sub-Administration Agreement may be provided in
the applicable Series Supplement. Such Administrative Agent shall deliver to the
Trustee and the Trustor copies of all Sub-Administration Agreements which it
enters into, and any amendments or modifications thereof, promptly upon the
Administrative Agent's execution and delivery of any such instruments.
(b) As part of its duties hereunder, an Administrative Agent
specified in the applicable Series Supplement shall enforce the obligations of
each Sub-Administrative Agent under any related Sub-Administration Agreement
which it enters into and of the Underlying Security Provider, if any, under any
Underlying Security Purchase Agreement, for the benefit of the Trustee and the
Certificateholders of a given Series. Such enforcement, including the legal
prosecution of claims, the termination of Sub-Administration Agreements or
Underlying Security Purchase Agreements, as appropriate, and the institution of
Proceedings and the pursuit of other appropriate remedies, shall be in such form
and carried out to such an extent and at such time as the Administrative Agent,
in its good faith business judgment, deems necessary or advisable, subject in
all cases to the provisions of Article VI hereof.
Section 3.3 Successor Sub-Administrative Agents. An Administrative
Agent specified in the applicable Series Supplement and the Trustee shall each
be entitled to terminate any Sub-Administration Agreement which it enters into
and the rights and obligations of any Sub-Administrative Agent under any
Sub-Administration Agreement in accordance with the terms and conditions of any
such Sub-Administration Agreement. In the event of a termination of any
Sub-Administration Agreement, the Administrative Agent or the Trustee, as
applicable, shall simultaneously reassume direct responsibility for all
obligations delegated in such Sub- Administration Agreement without any act or
deed on the part of the applicable Sub- Administrative Agent, the Trustee or the
Administrative Agent, and the Administrative Agent or the Trustee, as
applicable, either shall administer directly the related Underlying Securities
or shall enter into a Sub-Administration Agreement with a successor
Sub-Administrative Agent which so qualifies under Section 3.2.
Section 3.4 Liability of the Administrative Agent. Notwithstanding
any Sub- Administration Agreement or any of the provisions of this Agreement
relating to agreements or arrangements between an Administrative Agent, if any,
or the Trustee and a Sub-Administrative Agent or references to actions taken
through a Sub-Administrative Agent or otherwise, the Administrative Agent, if
any is specified in the applicable Series Supplement, or the Trustee, as
applicable, shall remain obligated and primarily liable to the Trustee and the
Certificateholders for the administering of the Trust and the Underlying
Securities for each related Series of Certificates to the extent provided herein
and in the related Series Supplement in accordance with the provisions of
Section 3.1 without diminution of such obligation or liability by virtue of any
such Sub-Administration Agreements or arrangements or by virtue of
indemnification from the Sub-Administrative Agent and to the same extent and
under the same terms and conditions as if the Administrative Agent or the
Trustee, as applicable, alone were administering the Underlying Securities, and
the Administrative Agent or the Trustee, as applicable, shall not thereby be
released from any duties or responsibilities set forth in this Agreement or the
related Series Supplement. The Administrative Agent and the Trustee shall be
entitled to enter into any agreement with a Sub-Administrative Agent for
indemnification of the Administrative Agent or the Trustee by such
Sub-Administrative Agent for any liability or obligation sustained by the
Administrative Agent or the Trustee in connection with any act or failure to act
by the Sub- Administrative Agent, and nothing contained in this Agreement shall
be deemed to limit or modify such indemnification.
Section 3.5 No Contractual Relationship Between Certain
Sub-Administrative Agents and Trustee or Certificateholders. Any
Sub-Administration Agreement between an Administrative Agent specified in the
applicable Series Supplement and a Sub-Administrative Agent that may be entered
into and any transactions or services relating to the Underlying Securities
pursuant to such an agreement shall be deemed to be between the
Sub-Administrative Agent and the Administrative Agent alone, and the Trustee and
Certificateholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the
Sub-Administrative Agent except as set forth in Section 3.6. Except as set forth
in Section 3.6, the Administrative Agent shall be solely liable for all fees
owed by it to any Sub- Administrative Agent, irrespective of whether the
Administrative Agent's compensation pursuant to this Agreement is sufficient to
pay such fees; provided, however, that if so provided in the applicable Series
Supplement, a Sub-Administrative Agent shall be entitled to a Retained Interest
in certain Underlying Securities as and to the extent specified in the
Underlying Securities Schedule to such Series Supplement. Each such
Sub-Administrative Agent shall be reimbursed by the Administrative Agent for
expenditures made by such Sub-Administrative Agent to the same extent the
Administrative Agent would be reimbursed for such expenditures pursuant to the
terms of this Agreement.
Section 3.6 Assumption or Termination of Sub-Administration
Agreements by Trustee. Except as and to the extent otherwise provided in a
Series Supplement, in the event an Administrative Agent specified in the
applicable Series Supplement shall for any reason no longer be acting in such
capacity with respect to any Series, the Trustee or its designee shall thereupon
assume all the rights and obligations of the Administrative Agent under each
Sub- Administration Agreement that the Administrative Agent may have entered
into with respect to any Underlying Security or Assets related to such Series,
provided that the Trustee may elect to terminate any such Sub-Administration
Agreement in accordance with its terms. Except as otherwise provided in such a
Series Supplement, the Trustee, its designee or any successor Administrative
Agent shall be deemed to have assumed all the Administrative Agent's interest
therein and to have replaced the Administrative Agent as a party to each
Sub-Administration Agreement to the same extent as if each Sub-Administration
Agreement had been assigned to the assuming party; provided, however, that the
Administrative Agent shall not thereby be relieved of any liability or
obligations under any Sub-Administration Agreement and provided further, that
the Trustee shall in no event be obligated to make any Advances if it is
prohibited by law or regulation from doing so or from obligating itself to do
so. The Administrative Agent at its expense shall, upon request of the Trustee,
deliver to such assuming party all documents and records relating to each
Sub-Administration Agreement and the Underlying Securities then being
administered by it and an accounting of amounts collected and held by it and
otherwise use its best efforts to effect the orderly and efficient transfer of
the Sub-Administration Agreements to the assuming party.
Section 3.7 Collection of Certain Underlying Security Payments. With
respect to any Series or Class of Certificates, the Trustee (or the
Administrative Agent if specified in the related Series Supplement) shall make
reasonable efforts to collect all payments required to be made pursuant to the
terms of the Underlying Securities or any related Credit Support Instruments in
a manner consistent with the terms of this Agreement, the related Series
Supplement, such Underlying Securities and any related Credit Support
Instruments.
Section 3.8 Collections by Sub-Administrative Agent. Unless
otherwise provided in the applicable Series Supplement, in the event a
Sub-Administrative Agent is administering one or more Underlying Securities
pursuant to a Sub-Administration Agreement, the Sub-Administrative Agent shall
be required to immediately direct the Trustee to deposit into an Eligible
Account established by such Sub-Administrative Agent (a "Sub-Administration
Account") any amounts collected with respect thereto, and not later than the
Business Day after receipt thereof, all such amounts shall be deposited into the
related Certificate Account.
Section 3.9 Certificate Account. (a) For each Series of
Certificates, the Trustee shall establish and maintain one or more Eligible
Accounts (collectively, the "Certificate Account"), held in trust for the
benefit of the Certificateholders of such Series. The Trustee on behalf of such
Certificateholders shall possess all right, title and interest in all funds on
deposit from time to time in each Certificate Account and in all proceeds
thereof. With respect to each Series of Certificates, the Certificate Account
shall be under the sole dominion and control of the Trustee for the benefit of
the related Certificateholders. With respect to each Series of Certificates, the
Trustee shall deposit or the Administrative Agent, if any, specified in the
applicable Series Supplement shall direct the Trustee to deposit or cause to be
deposited in the Certificate Account no later than the Business Day after
receipt thereof all amounts collected with respect to the Underlying Securities,
any Credit Support and all Liquidation Proceeds related to such Series
including:
(i) all payments on account of principal of such Underlying
Securities;
(ii) all payments on account of interest on such Underlying
Securities;
(iii) all payments on account of premium (if any) on such Underlying
Securities;
(iv) any payments in respect of any such Credit Support;
(v) any Advances made as required pursuant to Section 4.3; and
(vi) any interest or investment income earned on funds deposited in
the related Accounts.
Unless otherwise specified in the applicable Series Supplement, it
is understood and agreed that payments in the nature of prepayment or redemption
penalties, late payment charges or assumption fees which may be received by the
Trustee or any Administrative Agent shall be deposited by the Trustee or the
Administrative Agent, as applicable, in the Certificate Account and shall not be
retained by the Trustee or the Administrative Agent for its own account.
If, at any time, the Certificate Account for any Series ceases to be
an Eligible Account, the Trustee shall within 10 Business Days (or such longer
period, not to exceed 30 calendar days, as to which the Rating Agency Condition
is met) establish a new Certificate Account meeting the conditions specified
above and transfer any cash and any investments on deposit in the Certificate
Account to such new Certificate Account, and from the date such new Certificate
Account is established, it shall be the Certificate Account for such Series.
(b) The Trustee shall give notice to the Administrative Agent, if
any, the Trustor and the Rating Agency of the location of each Eligible Account
constituting the Certificate Account and prior to any change thereof.
(c) The Administrative Agent, if any, shall instruct the Trustee as
to, or otherwise the Trustee shall determine, the appropriate application of
Available Funds with respect to any Distribution Date for which application is
to be made on any such Distribution Date in accordance with the terms of Section
4.1 and the related Series Supplement.
Section 3.10 Investment of Funds in the Accounts. The Trustor (or,
if so specified in the applicable Series Supplement, the Administrative Agent),
on behalf of the Trust, may direct the Trustee to direct any depository
institution maintaining the Certificate Account or the Reserve Account, if any,
for the applicable Series and any other segregated Eligible Account the contents
of which are held for the benefit of Certificateholders of such Series (each, an
"Account") to invest the funds therein in one or more Permitted Investments
bearing interest or sold at a discount, which shall be held to maturity unless
payable on demand and which funds shall not be reinvested upon the maturity or
demand for payment of such Permitted Investment. If the Trustor (or the
Administrative Agent, if applicable) does not provide any investment directions
to the Trustee, funds held in any Account will be invested in the Permitted
Investments specified in clause (ii) of the definition thereof. Investments of
such funds shall be invested in Permitted Investments that will mature so that
such funds will be available for distribution on the Distribution Date on which
such amounts are to be applied as distributions to Certificateholders. In the
event amounts on deposit in an Account are at any time invested in a Permitted
Investment payable on demand, the Trustee shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted Investment
may otherwise mature hereunder in an amount equal to the lesser of (1) all
amounts then payable thereunder and (2) the amount required to be withdrawn on
such date; and
(y) demand same day payment of all amounts due thereunder upon a
determination by the Trustee that such Permitted Investment would not constitute
a Permitted Investment in respect of funds thereafter on deposit in any Account.
It is the intent of the Trustee, any Administrative Agent, and the
Trustor that each Account shall be a securities account of the Trustee and not
an account of the Trustor or the Administrative Agent. Each Permitted Investment
that constitutes investment property shall be held by the Trustee through a
securities intermediary, which securities intermediary shall agree with the
Trustee that (A) such investment property at all times shall be credited to a
securities account of the Trustee, (B) all property credited to such securities
account shall be treated as a financial asset, (C) such securities intermediary
shall treat the Trustee as entitled to exercise the rights that comprise each
financial asset credited to such securities account, (D) such securities
intermediary shall comply with entitlement orders originated by the Trustee
without the further consent of any other person or entity, (E) such securities
intermediary shall not agree with any person or entity other than the Trustee to
comply with entitlement orders originated by any person or entity other than the
Trustee, (F) such securities account and all property credited thereto shall not
be subject to any lien, security interest, right of set-off, or encumbrance in
favor of such securities intermediary or anyone claiming through such securities
intermediary (other than the Trustee), and (G) such agreement between such
securities intermediary and the Trustee shall be governed by the laws of the
State of New York. Each Permitted Investment that does not constitute investment
property shall be held by the Trustee in the State of New York. Each term used
in the preceding two sentences and defined in the New York Uniform Commercial
Code shall have the meaning set forth in the New York Uniform Commercial Code.
Section 3.11 Maintenance of Credit Support. On the applicable
Closing Date, the Trustee or, if so specified in the applicable Series
Supplement, the Trustor or the Administrative Agent, shall, to the extent
specified in the applicable Series Supplement, establish and maintain, or enter
into, as applicable, in the name of the Trustee, either as a part of the related
Trust or outside it, for the benefit of the Certificateholders of the related
Series, the Credit Support specified in the applicable Series Supplement. To the
extent specified in the applicable Series Supplement, the Trustor or the
Administrative Agent, as the case may be, will make or cause to be made any
initial deposit to the Certificate Account or any Reserve Account for the
related Series as of the Closing Date. Unless the Series Supplement for a given
Series provides otherwise, if a Reserve Account exists for such Series,
collections with respect to the Underlying Securities for such Series not
distributed to the Certificateholders of such Series shall be deposited in the
Reserve Account. The Reserve Account, if any, will not be a part of or otherwise
includible in the Trust but will be held for the benefit of the Credit Support
Provider.
Amounts on deposit in the Reserve Account and amounts available
pursuant to any other Credit Support for such Series shall be applied by the
Trustee to make distributions of principal of and premium (if any) and interest
on the Certificates of such Series as required pursuant to Section 4.1 and the
applicable Series Supplement to the extent that funds are not otherwise
available for such purpose. If specified in such Series Supplement, immediately
after each Distribution Date, amounts on deposit in the Reserve Account for such
Series in excess of a specified amount shall be paid to the Person so specified
in such Series Supplement.
Section 3.12 Realization Upon Defaulted Underlying Securities. (a)
If:
(i) default is made in the payment of any installment of interest on
any Underlying Security when the same becomes due and payable, and such
default continues unremedied for the period specified in the indenture or
other authorizing document for such Underlying Security (or, if no such
period is specified, three days) after receipt by the Underlying
Securities Issuer of notice thereof from the Trustee or receipt by the
Underlying Securities Issuer and the Trustee of notice thereof from the
Holders of Outstanding Certificates representing at least 25% of the
Voting Rights; or
(ii) default is made in the payment of the principal of or any
installment of the principal of any Underlying Security when the same
becomes due and payable, and such default continues unremedied for the
period specified in the indenture or other authorizing document for such
Underlying Security (or, if no such period is specified, three (3) days)
after receipt by the Underlying Securities Issuer of notice thereof from
the Trustee or receipt by the Underlying Securities Issuer and the Trustee
of notice thereof from the Holders of Outstanding Certificates
representing at least 25% of the Voting Rights;
and the Underlying Securities Issuer shall, upon demand of the Trustee, fail to
pay forthwith to the Trustee, for the benefit of the Holders, the whole amount
then due and payable on such Underlying Securities for principal and interest,
with interest upon the overdue principal, at the rate borne by the Underlying
Securities and in addition thereto such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee and its agents
and counsel, to the extent permitted by law (such event, an "Issuer Payment
Default"), then the Trustee, in its own name and as trustee of an express trust,
subject to provision being made for indemnification against costs, expenses and
liabilities in a form satisfactory to the Trustee, shall institute a Proceeding
for the collection of the sums so due and unpaid, and shall prosecute such
Proceeding to judgment or final decree or settlement, and shall enforce the same
against the Underlying Securities Issuer or other obligor upon the Underlying
Securities and collect in the manner provided by law out of the property of the
Underlying Securities Issuer or other obligor upon the Underlying Securities
wherever situated, the moneys adjudged or decreed to be payable, unless
otherwise directed by Holders of the Required Percentage - Direction of the
Trustee. In connection therewith, the Trustee shall use its best reasonable
efforts in accordance with such normal and customary procedures it shall deem
necessary or advisable, and shall have the power and authority, acting alone, to
do any and all things in connection therewith and the administration of the
Trust as it may deem necessary or advisable.
(b) In the event that the Trustee receives money or other property
in respect of the Underlying Securities (other than a scheduled interest or
principal payment or the payment of any redemption premium on or with respect to
the earlier redemption of the Underlying Securities) as a result of a payment
default on the Underlying Securities or actual notice that such moneys or other
property will be paid to the Trustee, the Trustee shall promptly give notice (as
provided in Section 10.5 hereof) to the Depositary or, if the Certificates are
not then held by the Depositary, directly to the Holders of the Certificates
then outstanding and unpaid. Such notice shall state that, not later than thirty
(30) days after the receipt of such moneys or other property, the Trustee shall
allocate and distribute such moneys or other property to the Holders of the
Outstanding Certificates then unpaid, in proportion to the Stated Amount or
Accreted Amount, as applicable, of each class of Outstanding Certificates,
together with accrued interest to the date of distribution, if applicable, and
within each class pro rata by Stated Amount. Property received, other than cash,
shall be liquidated by the Trustee in a commercially reasonable manner and the
proceeds thereof, after deduction of all reasonable costs of such liquidation,
distributed in cash, only to the extent necessary to avoid distribution of
fractional securities.
(c) The Trustee (or, if and under the circumstances specified in the
applicable Series Supplement, the Administrative Agent), on behalf of the
Certificateholders, shall assert claims under each applicable Credit Support
Instrument, and shall take such reasonable steps, in addition to those described
in Section 3.12(a), as are necessary to receive payment or to permit recovery
thereunder with respect to any defaulted Underlying Securities, subject in all
cases to the provisions of Article VI hereof in the case of the Administrative
Agent and Article VIII hereof in the case of the Trustee.
(d) Unless otherwise provided in a Series Supplement, if the
Administrative Agent or the Trustee, as applicable, is unable to obtain full
recovery in respect of a defaulted Underlying Security and any related Credit
Support Instrument pursuant to Section 3.12(c), the Administrative Agent or the
Trustee, as applicable, shall follow or cause to be followed such normal
practices and procedures as it deems necessary or advisable to realize upon such
defaulted Underlying Security and such Credit Support Instrument, subject in all
cases to the provisions of Article VI hereof in the case of the Administrative
Agent and Article VIII hereof in the case of the Trustee.
Section 3.13 Retained Interest. The Retained Interest, if any, in
any Underlying Security shall initially be held by the Person so specified in
the related Series Supplement as and to the extent specified in Schedule A
thereof. With respect to each Underlying Security, the Retained Interest shall
be deducted by the Trustee, at the written direction of the Administrative
Agent, if any, or the Trustor from applicable collections in respect of such
Underlying Security. Unless otherwise provided in the applicable Series
Supplement, collections in respect of Retained Interest shall not be deposited
in the Certificate Account for the applicable Series and shall not constitute a
part of the Trust for such Series, but shall instead be distributed to the
holder of such Retained Interest, provided that the Series Supplement for any
Series with respect to which there is a Retained Interest may provide that,
notwithstanding the terms contained herein, commingled amounts received in
respect of assets inclusive of Underlying Securities and Retained Interest may
initially be deposited in a separate and discrete Eligible Account established
by the Trustee at the direction of the Administrative Agent, if any, or the
Trustor and such Series Supplement may provide for additional terms relating
thereto. Unless otherwise provided in the applicable Series Supplement, after
deduction of all applicable fees as provided for in this Agreement, on each
Distribution Date the Trustee shall allocate on a pari passu basis any partial
recovery on an Underlying Security between (a) the Retained Interest, if any,
and (b) distributions to Certificateholders of the applicable Series.
Section 3.14 Administrative Agent's Compensation and Reimbursement.
(a) As compensation for its activities, the Administrative Agent, if any,
specified in the applicable Series Supplement shall be entitled to the
Administrative Fee, which shall be paid on the dates, in the amounts, under the
circumstances and in the manner specified in the applicable Series Supplement.
(b) If, and only to the extent, provided in a Series Supplement, the
Administrative Agent, if any, shall be required to pay from its compensation
hereunder or otherwise all expenses incurred in connection with the Trust for
the related Series and its administration of the Underlying Securities for the
related Series, including payment of the fees and disbursements of the Trustee
(including the reasonable fees and expenses of its counsel and independent
accountants allocable to such Series), payment of expenses incurred in
connection with distributions and reports to Certificateholders of such Series,
payment of premiums on Credit Support Instruments related to such Series and
other expenses specified in such Series Supplement; provided, however, that
neither the Administrative Agent, if any, nor the Trustee will be responsible
for any federal, state, local or foreign income and franchise taxes, if any, and
any interest or penalties with respect thereto, assessed on the Trust for such
Series.
Section 3.15 Statement as to Compliance. (a) On or before noon
(Eastern Time) on March 15 of each year, commencing in March 2007, each of the
Trustee and the Administrative Agent, at its own expense, shall furnish to the
Trustor a report assessment of the Trustee's compliance with the Servicing
Criteria during the immediately preceding fiscal year that contains (i) a
statement by the Trustee and the Administrative Agent of its responsibility for
assessing compliance with the Servicing Criteria applicable to it, (ii) a
statement that the Trustee and the Administrative Agent used the Servicing
Criteria to assess compliance with the Relevant Servicing Criteria, (iii) such
Reporting Party's assessment of compliance with the Relevant Servicing Criteria
as of and for the period ending the end of the fiscal year covered by the Form
10 K required to be filed, including, if there has been any material instance of
noncompliance with the Relevant Servicing Criteria, a discussion of each such
failure and the nature and status thereof, and (iv) a statement that a
registered public accounting firm has issued an attestation report on such
Reporting Party's assessment of compliance with the Relevant Servicing Criteria
as of and for such period. Promptly after receipt of each such report, the
Trustor may review each such report and, if applicable, consult with the Trustee
and the Administrative Agent as to the nature of any material instance of
noncompliance with the Relevant Servicing Criteria by the Trustee, the
Administrative Agent or any Servicing Participant with which it has entered into
a servicing relationship with respect to the Underlying Securities.
Each such report shall be addressed to the Trustor and signed by an
authorized officer of the applicable company, and shall address each of the
Relevant Servicing Criteria specified on a certification substantially in the
form of Exhibit F attached to the applicable Series Supplement. Promptly after
receipt of each such report, (i) the Trustor may review each such report and, if
applicable, consult with the Trustee and the Administrative Agent as to the
nature of any material instance of noncompliance with the Relevant Servicing
Criteria (and each Servicing Participant engaged or utilized by the Trustee and
the Administrative Agent) and (ii) the Trustor shall confirm that the
assessments taken individually address the Relevant Servicing Criteria as set
forth on the applicable Exhibit F attached to the applicable Series Supplement
and notify the Trustee and the Administrative Agent of any exceptions. None of
the Trustee, the Administrative Agent or any Servicing Participant shall be
required to cause the delivery of any such assessments until March 15 in any
given year so long as it has received written confirmation from the Trustor that
a Report on Form 10 K is not required to be filed in respect of the Trust for
the preceding calendar year. To the extent each of the Trustee and the
Administrative Agent has actual knowledge of a deficiency in the reporting of
the Relevant Servicing Criteria (whether individually with respect to the
Relevant Servicing Criteria, or in the aggregate with respect to the Servicing
Criteria taken as a whole), the Trustee and the Administrative Agent, as
applicable, shall promptly notify the Trustor.
In connection with the execution of each Series Supplement, the
Trustee and the Administrative Agent (and any Servicing Participant with which
the Trustee or the Administrative Agent has entered into a servicing
relationship) shall furnish to the Trustor the Relevant Servicing Criteria, in
the form of Exhibit A hereto appropriately completed, which shall be subject to
the agreement of the Trustor.
No later than the end of each fiscal year for the Trust, the Trustee
and the Administrative Agent, as applicable, shall notify the Trustor as to the
name of each Servicing Participant utilized by it, and each such notice will
specify which Relevant Servicing Criteria will be addressed in the report on
assessment of compliance prepared by such Servicing Participant. When each of
the Trustee and the Administrative Agent, as applicable, submits its
assessments, it will also at such time include the assessment (and related
attestation pursuant) of each Servicing Participant engaged by it.
In the event that the Trustee or the Administrative Agent is
terminated or resigns pursuant to the terms of this Agreement or the applicable
Series Supplement, such party shall provide, and cause any Servicing Participant
engaged by it or formerly engaged by it to provide an annual assessment of
compliance pursuant to this Section 3.15(a), coupled with an attestation with
respect to the period of time that the Trustee and the Administrative Agent, as
applicable, was subject to this Agreement or the period of time that the
Additional Servicer was subject to such other servicing agreement.
(b) Each of the Trustee and the Administrative Agent, as applicable,
shall cause each Servicing Participant with which it has entered into a
relationship with respect to the Underlying Securities, to deliver to the
Trustor on or before March 15 of each year, commencing in March 2007, an
Officer's Certificate stating, as to the Trustee and the Administrative Agent,
as applicable, that (i) a review of such entity's activities during the
preceding calendar year or portion thereof and of such entity's performance
under this Agreement, or the applicable servicing agreement in the case of a any
Additional Servicer, has been made under such officer's supervision and (ii) to
the best of such officer's knowledge, based on such review, such entity has
fulfilled all its obligations under this Agreement, in all material respects
throughout such year or portion thereof, or, if there has been a failure to
fulfill any such obligation in any material respect, specifying each such
failure known to such officer and the nature and status thereof. Promptly after
receipt of each such Officer's Certificate, the Trustor may review such
Officer's Certificate and, if applicable, consult with the Trustee and the
Administrative Agent as to the nature of any failures by the Trustee.
The obligations of the Trustee and the Administrative Agent under
this Section apply to the Trustee and the Administrative Agent, whether or not
the Trustee and Administrative Agent is acting as the Trustee and Administrative
Agent, as applicable, at the time such Officer's Certificate is required to be
delivered.
In the event the Trustee or the Administrative Agent, as applicable,
is terminated or resigns pursuant to the terms of this Agreement, such party
shall provide, an annual statement of compliance pursuant to this Section 3.15
with respect to the period of time that the Trustee or the Administrative Agent,
as applicable, was subject to this Agreement.
Section 3.16 Attestation by Independent Public Accountants. (a) On
or before noon (Eastern Time) on March 15 of each year, commencing in March
2007, each of the Trustee and the Administrative Agent, as applicable, at its
own expense, shall cause, and each of the Trustee and the Administrative Agent,
as applicable, shall cause each Servicing Participant with which it has entered
into a relationship with respect to the Underlying Securities to cause, a
registered public accounting firm (which may also render other services to the
Trustee and the Administrative Agent, as applicable, or the applicable Servicing
Participant, as the case may be) and that is a member of the American Institute
of Certified Public Accountants to furnish a report to the Trustor, with a copy
to the Rating Agencies, to the effect that (i) it has obtained a representation
regarding certain matters from the management of such Reporting Party, which
includes an assertion that such Reporting Party has complied with the Relevant
Servicing Criteria and (ii) on the basis of an examination conducted by such
firm in accordance with standards for attestation engagements issued or adopted
by the Public Company Accounting Oversight Board, attests to and reports on such
Reporting Party's assessment of compliance with the Relevant Servicing Criteria.
In the event that an overall opinion cannot be expressed, such registered public
accounting firm shall state in such report why it was unable to express such an
opinion. Each such related accountant's attestation report shall be made in
accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act. Such report must be available for general
use and not contain restricted use language. Promptly after receipt of such
report from the Trustee and the Administrative Agent, as applicable, the Trustor
may review the report and, if applicable, consult with the Trustee and the
Administrative Agent, as applicable, as to the nature of any defaults by the
Trustee, the Administrative Agent or any Servicing Participant with which it has
entered into a servicing relationship with respect to the Underlying Securities
in the fulfillment of any of the Trustee's or the applicable Servicing
Participant's obligations hereunder or under the applicable servicing agreement.
The Trustee and the Administrative Agent, as applicable, shall not be required
to cause the delivery of such reports until April 15 in any given year so long
as it has received written confirmation from the Trustor that a Report on Form
10 K is not required to be filed in respect of the Trust for the preceding
calendar year. Each of the Trustee and the Administrative Agent, as applicable,
shall confirm that each accountants' attestation report submitted pursuant to
this Section relates to an assessment of compliance that on its face meets the
requirements of Section 3.15(a) and notify the Trustor of any exceptions.
(b) For so long as reports are required to be filed with the
Commission under the Exchange Act (any such reports, "Exchange Act Reports")
with respect to the Trust, the Trustee and the Administrative Agent shall
indemnify the Trustor and any Affiliate that could be determined to be a
"sponsor" of the Trust pursuant to Regulation AB and any officer or employee of
the Trustor that signs an Exchange Act Report and hold them harmless against any
and all claims, losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain in any way related to (i) the breach by
the Trustee or the Administrative Agent of its obligations set forth under
Sections 3.15, 3.16 or Section 6.1 or (ii) any erroneous, delinquent or missed
Exchange Act Reports or other filings required to be filed under the Exchange
Act which have occurred as the result of the Trustee's breach of any obligation
under this Agreement or the Trustee's negligence or willful misconduct;
provided, however, that the failure of the Trustee, through no fault of its own,
to deliver when required the accountants report pursuant to Section 3.16(a)
shall not give rise to an indemnification obligation by the Trustee pursuant to
this Section 3.16(b), unless such failure was due in part to the fault of the
Trustee; provided further, however, that such a failure to deliver the
applicable accountants report will be deemed to be an event of default by the
Trustee. Furthermore, the Trustee shall have no liability under this Section
3.16(b) for any failure by it to perform any of its obligations if such failure
was caused by a failure of the Trustor to perform any obligation required to be
performed by the Trustor hereunder that is necessary for the Trustee to be able
to perform any such obligation of the Trustee, including, but not limited to, a
failure by the Trustor to perform an obligation required of the Trustor under
Section 6.1 hereof. Notwithstanding the foregoing, in no event shall the Trustee
be liable for any consequential, indirect or punitive damages pursuant to this
Section 3.16(b). This indemnity shall survive the termination of this Agreement
or the earlier resignation or removal of the Trustee and the Administrative
Agent, as applicable.
(c) Each of the Trustee and the Administrative Agent shall
reasonably cooperate with the Trustor in connection with the satisfaction of the
Trust's reporting requirements under the Exchange Act. The parties hereto
acknowledge that interpretations of the requirements of Regulation AB may change
over time, whether due to interpretive guidance provided by the Commission or
its staff, and agree to comply with requests made by the Trustor, the Trustee
and the Administrative Agent in reasonable good faith for delivery of
information under these provisions on the basis of evolving interpretations of
Regulation AB. Each of the Trustee and Administrative Agent shall cooperate
fully with the Trustor, as applicable, to deliver to the Trustor, the Trustee or
the Administrative Agent, as applicable (including any of their assignees or
designees), any and all statements, reports, certifications, records and any
other information necessary in the reasonable good faith determination of the
Trustor, the Trustee and the Administrative Agent, as applicable, to permit the
Trustor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Trustee, as applicable, or the servicing of the
Underlying Securities, reasonably believed by the Trustor to be necessary in
order to effect such compliance; provided that such information is available to
such party without unreasonable effort or expense and within such timeframe as
may be reasonably required. The Trustee and the Administrative Agent shall have
a reasonable period of time to comply with any request made under this Section
3.16(c) but in any event, shall, upon reasonable advance request, provide
information in sufficient time to allow the Trustor to satisfy any related
filing requirements.
(d) Each of the Trustee and the Administrative Agent, as applicable,
shall (i) upon written request of the Trustor, confirm in writing within five
(5) Business Days of receipt of such request that the following is true and
correct, or if it is not true and correct to provide reasonable adequate
disclosure of the pertinent facts, in writing, to the Trustor of any of the
following, and (ii) as promptly as practicable following the Trustee and the
Servicing Participant (in each case on behalf of itself and any of its Servicing
Participants) obtaining actual knowledge shall use commercially reasonable
efforts to notify the Trustor that any of the following is not true and correct:
(A) the Trustee and the Administrative Agent has not been terminated as trustee
in a commercial mortgage loan securitization, either due to a servicing default
or to application of a servicing performance test or trigger, other than as
disclosed in the applicable Prospectus Supplement; (B) no material noncompliance
with the applicable Servicing Criteria with respect to other securitizations
involving the Trustee and Administrative Agent, as applicable, as servicer or
trustee has been disclosed or reported by the Trustee or Administrative Agent,
as applicable, other than as disclosed in the applicable Prospectus Supplement;
(C) no material changes to the Trustee's and Administrative Agent's, as
applicable, policies or procedures with respect to the servicing function or
trustee function it will perform under this Agreement for corporate bonds of a
type similar to the Underlying Securities have occurred during the three-year
period immediately preceding the Closing Date, other than as disclosed in the
applicable Prospectus Supplement; (D) there is no material risk that any aspects
of the Trustee's and Administrative Agent's, as applicable, financial condition
could have a material impact on the performance of the Underlying Securities or
the Certificates, other than as disclosed in the applicable Prospectus
Supplement; (E) there are no legal or governmental proceedings pending (or known
to be contemplated) against the Trustee or Administrative Agent, as applicable,
that would be material to Certificateholders other than as disclosed in the
applicable Prospectus Supplement; and (F) there are no affiliations,
relationships or transactions relating to the Trustee and Administrative Agent,
as applicable, with respect to the issuance of the Certificates and any party
thereto identified by the Trustor of a type described in Item 1119 of Regulation
AB other than as disclosed in the applicable Prospectus Supplement.
(e) Each of The Trustee and Administrative Agent shall promptly
provide (but in any event at least seven (7) Business Days prior to the date a
Form 10-D would be required to be filed) any necessary disclosure in addition to
the Distribution Date Statement that is required to be included on Form 10-D to
the extent such information relates to such party or its Affiliates. In
addition, the Trustor shall provide the Trustee any similar disclosure relating
to the Trustor and its affiliates that the Trustor has actual knowledge of in
connection with the preparation of the Form 10-D; provided that the Trustor's
failure to deliver such information shall not excuse the Trustee from the timely
filing the applicable Form 10-D and the Trustee shall be entitled to deem that
the Trustor has no such information in such event.
(f) Each of the parties acknowledges and agrees that one of the
purposes of this Agreement is to facilitate compliance by the Trustor with the
provisions of Regulation AB. Therefore, each of the parties agrees that (a) the
obligations of the parties hereunder shall be interpreted in such a manner as to
accomplish that purpose, (b) the parties' obligations hereunder will be
supplemented and modified as necessary to be consistent with any such
amendments, interpretive advice or guidance, convention or consensus among
active participants in the asset-backed securities markets, advice of counsel,
or otherwise in respect of the requirements of Regulation AB, (c) the parties
shall comply with requests made by the Trustor or the Administrative Agent, as
applicable, for delivery of additional or different information as the Trustee,
the Administrative Agent or the Trustor may determine in good faith is necessary
to comply with the provisions of Regulation AB, and (d) no amendment of this
Agreement shall be required to effect any such changes in the parties'
obligations as are necessary to accommodate evolving interpretations of the
provisions of Regulation AB.
(g) Each of the Trustee and the Administrative Agent shall execute a
reasonable reliance certificate to enable the Person who signs the reports
mandated by the Exchange Act (including any reports required under the
Xxxxxxxx-Xxxxx Act) (the "Certifying Person") on which the Certifying Person,
the entity for which the Certifying Person acts as an officer (if the Certifying
Person is an individual), and such entity's officers, directors and Affiliates
(collectively with the Certifying Person, "Certification Parties") to rely upon
each annual compliance statement provided pursuant to Section 3.15 and any
accountants report delivered pursuant to Section 3.16.
Section 3.17 Access to Certain Documentation. The Trustee and the
Administrative Agent, if any, shall provide to any federal, state or local
regulatory authority that may exercise authority over any Certificateholder
access to the documentation regarding the Underlying Securities required by
applicable laws and regulations. Such access shall be afforded without charge,
but only upon reasonable request and during normal business hours at the offices
of the Trustee and Administrative Agent, if any, designated by each of them. In
addition, access to the documentation regarding the Underlying Securities
related to a given Series (or Class within such Series) will be provided to any
Certificateholder of such Series (or Class) upon reasonable request during
normal business hours at the offices of the Trustee and Administrative Agent
designated by each of them at the expense of the Certificateholder requesting
such access.
Section 3.18 Duties of the Administrative Agent. Notwithstanding any
other provision of this Agreement, with respect to any Series, the applicable
Series Supplement may provide that any Administrative Agent appointed pursuant
to such Series Supplement shall have no rights and no duties, obligations or
liabilities except as provided in such Series Supplement and herein.
Section 3.19 Trustor to Furnish Names and Addresses of Holders to
Trustee. The Trustor shall furnish or cause to be furnished to the Trustee not
more than five days before each Distribution Date, and at such other times as
the Trustee may request in writing, a list, in such form as the Trustee may
reasonably require, to the extent such information is in the possession or
control of the Trustor or any of its paying agents, of the Holders of
Certificates as of the close of business on the applicable record date of the
Underlying Securities; provided, however, that so long as the Trustee maintains
the Certificate Register, no such list shall be required to be furnished.
Section 3.20 Preservation of Information, Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders of Certificates contained in
the most recent list furnished to the Trustee as provided in Section 3.20 and
the names and addresses of Holders of Certificates received by the Trustee in
its capacity as Certificate registrar. The Trustee may destroy any list
furnished to it as provided in such Section 3.20 upon receipt of a new list so
furnished.
(b) Holders shall have the right to communicate pursuant to TIA
Section 312(b) with other Holders with respect to their rights under this
Agreement or under the Certificates.
(c) The Trustor, the Trustee and the Certificate registrar shall
have the protection of TIA Section 312(c).
Section 3.21 Reports by Trustee. If required by TIA Section 313(a),
within 60 days after December 31 of each year, the Trustee shall mail to (i)
each Holder as required by TIA Section 313(c) and (ii) the Depositor, a brief
report dated as of such date that complies with TIA Section 313(a). The Trustee
also shall comply with TIA Section 313(b). A copy of any report delivered
pursuant to this Section 3.21 shall, at the time of its mailing to Holders and
the Depositor, be filed by the Trustee with the Commission and each stock
exchange, if any, on which the Certificates are listed. The Depositor shall
notify the Trustee if and when the Certificates are listed on any stock
exchange.
ARTICLE IV
DISTRIBUTIONS AND REPORTS TO CERTIFICATEHOLDERS
Section 4.1 Distributions. On each Distribution Date for a given
Series of Certificates, the Trustee shall apply funds in the Certificate Account
for such Series in the manner and priority set forth in the Series Supplement
for such Series. Notwithstanding any other provisions in this Agreement, the
right of the Holder of any Certificate to receive any such distributions in the
manner and priority set forth in the Series Supplement for such Series and to
institute suit for the enforcement of any such payment on or after the date such
payment is payable, shall not be impaired without the consent of such Holder.
Section 4.2 Reports to Certificateholders. Unless otherwise
specified in the applicable Series Supplement, on the next Business Day
following each such Distribution Date the Trustee or the Administrative Agent,
if any, as specified in such Series Supplement, shall forward or cause to be
forwarded to the Trustor, each Certificateholder of such Series and such other
Persons as may be specified in such Series Supplement, a statement setting
forth:
(i) the applicable record dates, accrual dates, determination dates
for calculating distributions and actual distribution dates for the
distribution period;
(ii) the amount of cash flows received and the sources thereof
relating to the distribution on such Distribution Date to
Certificateholders of each Class of such Series allocable to principal and
premium, if any, and interest on the Certificates of each such Class; and
the amount of aggregate unpaid interest accrued as of such Distribution
Date;
(iii) the amount of fees, compensation and expenses accrued and paid
and the party receiving such fees and expenses and such other customary
information as the Trustee and Administrative Agent, as applicable, deems
necessary or desirable, or that any such Certificateholder reasonably
requests, to enable such Certificateholders to prepare their tax returns;
(iv) the amount of payments accrued or paid relating to any provider
of Credit Support and the party receiving such payments;
(v) the amount of excess cash flow or excess spread, if any;
(vi) the original and thereafter, the number and the aggregate
stated principal amount and, if applicable, Notional Amount of the
Underlying Securities related to such Series at the close of business on
such Distribution Date;
(vii) the original and thereafter, the aggregate Stated Amount (or
Notional Amount, if applicable) of each Class of such Series for such
Distribution Date;
(viii) in the case of each Class of Floating Rate Certificates of
such Series, the respective Floating Pass Through Rate applicable to each
such Class on such Distribution Date, as calculated in accordance with the
method specified in such Certificates and the related Series Supplement;
(ix) [RESERVED]
(x) as to any Series (or any Class within such Series) for which
Credit Support has been obtained, the amount or Notional Amount of
coverage of each element of Credit Support (and rating, if any, thereof)
included therein as of the close of business on such Distribution Date;
(xi) the original and thereafter, the number and amount of
Underlying Securities for such Distribution Date;
(xii) the delinquency and loss information for such distribution
period, if applicable;
(xiii) if the Series Supplement provides for Advances, the aggregate
amount of Advances, if any, included in such distribution, and the
aggregate amount of unreimbursed Advances, if any, at the close of
business on such Distribution Date;
(xiv) if the Series Supplement provides for modifications,
extensions or waivers to the Underlying Securities terms, fees, penalties
or payments during the distribution period, descriptions of such material
extensions or waivers;
(xv) material breaches of Underlying Securities representations or
warranties or other transaction covenants of which the Trustee or
Administrative Agent has actual notice;
(xvi) if the Series Supplement provides for early amortization,
liquidation or other performance triggers, information on ratio,
information relating to coverage or other tests used for determining any
early amortization, liquidation or other performance triggers and whether
the trigger was met; and
(xvii) if the Series Supplement provides for the issuance of
securities secured by the Underlying Securities, material information
relating to such issuance.
In the case of information furnished pursuant to subclauses (ii) and
(iii) above, the amounts shall be expressed as a Dollar amount (or the
equivalent thereof in any other Specified Currency) per minimum denomination of
Certificates or for such other specified portion thereof. Within a reasonable
period of time after the end of each calendar year, the Trustee shall furnish to
each person who at any time during each such calendar year was a
Certificateholder a statement containing the information set forth in subclauses
(ii) and (iii) above, aggregated for such calendar year or the applicable
portion thereof during which such person was a Certificateholder. Such
obligation of the Trustee shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Trustee
pursuant to any requirements of the Code and the Treasury Regulations as are
from time to time in effect.
Section 4.3 Advances. (a) Unless otherwise specified in the
applicable Series Supplement, an Administrative Agent appointed pursuant to the
Series Supplement shall have no obligation to make Advances (as defined below)
with respect to the Underlying Securities or in favor of the Holders of any
Series (or Class within such Series) of Certificates. However, as and to the
extent provided in the Series Supplement for a given Series, and subject to the
terms of paragraphs (b) and (c) of this Section 4.3, on or prior to each
Distribution Date, such Administrative Agent shall advance or cause to be
advanced in immediately available funds to the Trustee for deposit in the
Certificate Account for such Series an advance (each, an "Advance") in an amount
equal, unless otherwise specified in the related Series Supplement, to the
aggregate of distributions of principal, premium (if any) and interest due on
the Underlying Securities for such Series (or Class) during the related
Collection Period, to the extent remaining unpaid at the time of such Advance.
In satisfaction of its obligation to make such Advances, the Administrative
Agent shall make such Advances from either (i) its own funds or (ii) funds with
respect to the Underlying Securities for such Series or Class on deposit in the
Certificate Account for such Series, if any, that do not constitute Available
Funds with respect to such Distribution Date; provided, however, that, to the
extent the Administrative Agent shall have made Advances from funds on deposit
in the applicable Certificate Account, the Administrative Agent shall
immediately deposit funds equal to the aggregate amount of such Advances into
such Certificate Account on any subsequent Distribution Date to the extent that
amounts on deposit in such Certificate Account on such Distribution Date are
less than the amount of distributions required to be made on such Distribution
Date pursuant to Section 4.1 and the related Series Supplement. The
Administrative Agent may recover Advances from late collections received by the
Trustee on the applicable Underlying Securities, proceeds from any applicable
Credit Support, if any, and Liquidation Proceeds with respect to the Underlying
Securities for such Series or Class, as specified in the related Series
Supplement, as to which any such unreimbursed Advance was made.
(b) Notwithstanding any provision herein to the contrary, no Advance
shall be required to be made hereunder if the Administrative Agent reasonably
believes that it will be unable to recover such Advance from related late
collections, Credit Support proceeds, if any, or Liquidation Proceeds with
respect to the applicable Underlying Securities. It is further understood and
agreed that the Administrative Agent shall not be obligated to make any Advances
in respect of reductions in the amount of collections on the Underlying
Securities due to bankruptcy proceedings with respect to the Underlying
Securities or the obligors thereof.
(c) Notwithstanding any provision herein to the contrary, unless
otherwise provided in the Series Supplement for a given Series, any Advances
made in respect of any Underlying Securities related to such Series (or Class
within such Series) that are subsequently deemed by the Administrative Agent to
be nonrecoverable from related late collections, Credit Support proceeds, if
any, or Liquidation Proceeds may be reimbursed to the Administrative Agent
through the application of amounts on deposit in the Certificate Account for
such Series allocable to any of such Underlying Securities prior to the
distributions of interest, premium (if any) and principal with respect to the
Certificates of such Series or Class.
Section 4.4 Compliance with Withholding Requirements. The Trustee
shall request, and, to the extent that it receives the same pursuant to such
request, be required to deliver all appropriate tax certifications and forms
necessary to enable the Trustee or its agents on behalf of the Trust, to satisfy
its obligations under this Agreement or determine its duties and liabilities
with respect to any taxes or other charges that they may be required to pay,
deduct or withhold in respect of the Certificateholders under any present or
future law or regulation of the United States or any present or future law or
regulation of any political subdivision thereof or taxing authority therein or
to comply with any reporting or other requirements under any law or regulation,
and to pay, deduct or withhold any such taxes or charges and remit them to the
relevant taxing authorities as required under law. Such certification may take
the form of a correct, complete and executed U.S. Internal Revenue Service Form
W-8BEN, W-8IMY, or W-9, (or any successors thereto), including appropriate
attachments, as applicable, that identifies the beneficial owner of the
Certificate. If any withholding tax is imposed on the payment (or allocations of
income) to any Certificateholder, such tax shall reduce the amount otherwise
distributable to such Holder. The Trustee is hereby authorized and directed to
retain from amounts otherwise distributable to any Holder sufficient funds for
the payment of any tax that is legally owed by the Trust (but such authorization
shall not prevent the Trustee from contesting any such tax in appropriate
proceedings and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings), or that the Trustee may otherwise determine it
is obligated to withhold under applicable law or regulation. The amount of any
withholding tax imposed with respect to any Holder shall be treated as cash
distributed to such Holder at the time it is withheld by the Trustee and
remitted to the appropriate taxing authority. If there is a possibility that
withholding tax is payable with respect to a distribution, the Trustee may in
its sole discretion withhold such amounts in accordance with this Section 4.4.
If any Holder wishes to apply for a refund of any such withholding tax, the
Trustee shall reasonably cooperate with such Holder in making such claim so long
as such Holder agrees to reimburse the Trustee for any out-of-pocket expenses
incurred. The Trustee shall use reasonable efforts to give notice to each Holder
of any such withholding requirement at least 10 days prior to the date of the
payment from which amounts are required to be withheld.
Section 4.5 Optional Exchange. (a) The terms and conditions, if any,
upon which Certificates of any Series (or Class within such Series) may be
exchanged for a pro rata portion of the Underlying Securities of the related
Trust will be specified in the related Series Supplement; provided that any
right of exchange shall be exercisable only to the extent that the Trustor
provides upon the Trustee's request an Opinion of Counsel that (i) such exchange
would not be inconsistent with the Trustor's and the Trust's continued
satisfaction of the applicable requirements for exemption under Rule 3a-7 (or
other applicable rule or exemption) under the Investment Company Act of 1940, as
amended, and all applicable rules, regulations and interpretations thereunder
and (ii) s such exchange would not cause the Trust to be taxable as a
corporation for federal income tax purposes. Such terms may relate to, but are
not limited to, the following:
(1) a requirement that the exchanging Holder tender to the Trustee
Certificates of each Class within such Series;
(2) a minimum Stated Amount or Notional Amount, as applicable, with
respect to Certificates being tendered for exchange by a single Holder;
(3) a requirement that the Stated Amount or Notional Amount, as
applicable, of each Certificate tendered for exchange be an integral
multiple of an amount specified in such Series Supplement;
(4) specified dates during which a Holder may effect such an
exchange (each, an "Optional Exchange Date");
(5) limitations on the right of an exchanging Holder to receive any
benefit upon exchange from any Credit Support or Underlying Securities
which are not debt securities; and
(6) adjustments to the value of the proceeds of any exchange based
upon required prepayment of future expense allocations and if provided for
in the applicable Series Supplement the establishment of a reserve for any
anticipated Extraordinary Trust Expenses.
(b) Unless otherwise provided in the applicable Series Supplement,
no Certificate may be exchanged pursuant to the preceding paragraph unless the
Trustee has received at least 30 days but not more than 45 days prior to an
Optional Exchange Date in accordance with delivery instructions specified in the
applicable Series Supplement (i) such Certificate with the form entitled "Option
to Elect Exchange" on the reverse thereof duly completed, or (ii) a telegram,
telex, facsimile transmission or letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc., the Depositary
(in accordance with its normal procedures) or a commercial bank or trust company
in the United States setting forth the name of the Holder of such Certificate,
the Stated Amount or Notional Amount of such Certificate to be exchanged and the
Certificate number or a description of the tenor and the terms of such
Certificate, a statement that the option to elect exchange is being exercised
thereby and an assurance that the Certificate to be exchanged with the form
entitled "Option to Elect Exchange" on the reverse of the Certificate duly
completed will be received by such Trustee not later than five Business Days
after the date of such telegram, telex, facsimile transmission or letter, and
such Certificate and form duly completed must be received by such Trustee by
such fifth Business Day. Any tender of a Certificate by the Holder thereof for
exchange shall be irrevocable. Unless otherwise provided in the applicable
Series Supplement, the exchange option may be exercised pursuant to this Section
by the Holder of a Certificate for less than the Stated Amount or Notional
Amount of such Certificate as long as the Stated Amount or Notional Amount
remaining Outstanding after such exchange is an authorized denomination and all
other exchange requirements set forth in the related Series Supplement are
satisfied. Upon such partial exchange, such Certificate shall be cancelled and a
new Certificate or Certificates for the remaining Stated Amount or Notional
Amount thereof shall be issued (which, in the case of any Certificate, shall be
in the name of the Holder of such exchanged Certificate).
(c) Upon the completion of any such Optional Exchange, the Trustee
shall give prompt written notice thereof to the Rating Agency.
ARTICLE V
THE CERTIFICATES
Section 5.1 The Certificates. The Certificates of any Series (or
Class within such Series) will be issued in fully registered form as
Certificates and shall be substantially in the form of the exhibits with respect
thereto attached to the applicable Series Supplement. The aggregate Stated
Amount or Notional Amount of Certificates which may be authenticated and
delivered under this Agreement is unlimited.
The Certificates may be issued in one or more Series, each of which
Series may be issued in one or more Classes, with such further particular
designations added or incorporated in such title for the Certificates of any
particular Series or Class within such Series as the Board of Directors may
determine. Each Certificate shall bear upon its face the designation so selected
for the Series and Class to which it belongs. All Certificates of the same
Series and Class shall be identical in all respects except for the denominations
thereof. All Certificates of all Classes within any one Series at any time
Outstanding shall be identical except for differences among the Certificates of
the different Classes within such Series specified in the applicable Series
Supplement. Except as otherwise provided in a Series Supplement, all
Certificates of a particular Series (and all Classes within such Series) issued
under this Agreement shall be in all respects equally and ratably entitled to
the benefits hereof without preference, priority or distinction on account of
the actual time or times of authentication and delivery, all in accordance with
the terms and provisions of this Agreement.
Each Series (and all Classes within such Series) of Certificates
shall be created by a Series Supplement authorized by the Board of Directors and
establishing the terms and provisions of such Series. The several Series may
differ as between Series and any Class may vary as between the other Classes
within any given Series in respect of any of the following matters:
(1) designation of such Series and Class;
(2) the dates on which or periods during which the Certificates of
such Series and Class may be issued;
(3) the number of Classes, the maximum Stated Amount or Notional
Amount of Certificates of each Class that may be issued and any priorities
or subordination among Classes of a Series with respect to distributions
from the Trust;
(4) for each Class of Certificates, the Pass Through Rate and, in
the case of each Class of Floating Rate Certificates, the method for
calculating such Pass Through Rate;
(5) the terms of the Letter of Credit, if any, or of the Surety
Bond, if any, or of any other Credit Support for the benefit of the
Certificateholders of such Series or Class or group of Classes;
(6) the places, if any, in addition to or instead of the Corporate
Trust Office of the Trustee (in the case of Certificates), where the
principal of (and premium, if any) and interest on Certificates of such
Series and Class shall be distributable;
(7) the authorized denominations (if other than $100,000 and
integral multiples of $1,000 in excess thereof) with respect to such
Series or Class;
(8) the Collection Periods, the Distribution Dates and the Scheduled
Final Distribution Dates for such Series and Class;
(9) the types of Underlying Securities that will be included in the
Trust for such Series and the manner and priorities of allocating
distributions with respect to collections of principal (and premium, if
any) and interest payments allocable to such Underlying Securities among
Holders of Certificates of different Classes (including whether the
Certificates of any such Class are to be entitled to receive principal
distributions with disproportionate, nominal or no interest distributions,
or interest distributions with disproportionate, nominal or no principal
distributions, and, in each case, the applicable terms thereof);
(10) the amount, if any, to be deposited on the Closing Date in the
Certificate Account for such Series;
(11) the manner in which the Reserve Account, if any, is to be
funded, the amount, if any, to be deposited therein on the Closing Date
and the Requisite Reserve Amount, if any, for such Series or Class;
(12) the terms of any Guaranteed Investment Contract sold as part of
the related Trust;
(13) the provisions, if any, for the optional exchange of the
Certificates of such Series by the Certificateholders of such Series and
the periods within which or the dates on which, and the terms and
conditions on which, such Certificates may be exchanged in whole or in
part for a pro rata portion of the Underlying Securities related to such
Series;
(14) whether the Certificates of such Series or Class are to be
issued as Discount Certificates and the amount of discount with which such
Certificates may be issued;
(15) whether the Certificates of such Series or Class are to be
issued in whole or in part in the form of one or more Global Securities
and, in such case, the Depositary for such Global Security or Securities
and the terms and conditions, if any, upon which interests in such Global
Security or Securities may be exchanged in whole or in part for the
individual Certificates represented thereby;
(16) if other than Dollars, the Currency in which Certificates of
such Series or Class shall be denominated or in which distributions of the
principal of (and premium, if any) and interest on such Certificates may
be made and any other terms concerning such payment;
(17) if the principal of (and premium, if any) or interest on
Certificates of such Series or Class are to be distributable, at the
election of the Trustor or a Holder thereof, in a Currency other than that
in which such Certificates are denominated or distributable without such
election, the periods within which and the terms and conditions upon which
such election may be made and the time and the manner of determining the
exchange rate between the Currency in which such Certificates are
denominated or distributable without such election and the Currency in
which such Certificates are to be distributed if such election is made;
(18) any additional Administrative Agent Termination Events or
representations, warranties or covenants provided for with respect to
Certificates of such Series;
(19) provisions with respect to the terms for which the definitions
set forth in Article I permit or require further specification in the
related Series Supplement, including:
(a) "Accounting Date";
(b) "Accreted Amount";
(c) "Administrative Agent";
(d) "Administrative Fee";
(e) "Available Funds";
(f) "Basic Documents";
(g) "Calculation Agent";
(h) "Call Premium Percentage";
(i) "Closing Date";
(j) "Collection Period";
(k) "Corporate Trust Office";
(l) "Credit Support";
(m) "Credit Support Instrument";
(n) "Credit Support Provider";
(o) "Cut-off Date";
(p) "Depositary";
(q) "Depository Agreement";
(r) "Discount Certificates";
(s) "Distribution Date";
(t) "Event of Default";
(u) "Extraordinary Trust Expense";
(v) "Final Scheduled Distribution Date";
(w) "Fixed Pass Through Rate";
(x) "Floating Pass Through Rate";
(y) "Floating Rate Certificate";
(z) "Global Securities";
(aa) "Guaranteed Investment Contract";
(bb) "Letter of Credit";
(cc) "Limited Guarantor";
(dd) "Limited Guaranty";
(ee) "Notional Amount";
(ff) "Optional Exchange Date";
(gg) "Pass Through Rate";
(hh) "Permitted Investments";
(ii) "Place of Distribution";
(jj) "Purchase Price";
(kk) "Qualified Substitute Underlying Security";
(ll) "Rating Agency";
(mm) "Rating Agency Condition";
(nn) "Record Date";
(oo) "Required Interest";
(pp) "Required Premium";
(qq) "Required Principal";
(rr) "Required Percentage";
(ss) "Required Rating";
(tt) "Requisite Reserve Amount";
(uu) "Retained Interest";
(vv) "Scheduled Final Distribution Date";
(ww) "Specified Currency";
(xx) "Surety Bond";
(yy) "Underlying Security Provider";
(zz) "Underlying Security Purchase Agreement";
(aaa) "Underlying Securities";
(bbb) "Underlying Securities Issuer";
(ccc) "Underlying Securities Schedule";
(ddd) "Trust";
(eee) "Trustee";
(fff) "Trust Termination Event";
(ggg) "Voting Rights";
(20) rights and remedies provided to any Credit Support Provider
with respect to all or a portion of the Trust for such Series or Class;
(21) any restrictions on the sale and transfer of the Certificates,
including restrictions arising out of the Employee Retirement Income
Security Act of 1974, as amended, the Code or the Treasury Regulations;
and
(22) any other provisions expressing or referring to the terms and
conditions upon which the Certificates of such Series or Class are to be
issued under this Agreement that do not prevent such Certificates from
receiving the Required Rating.
In the absence of any specification pursuant to this Section 5.1
with respect to Certificates of any Series, the Certificates of such Series
shall be issuable only as Certificates in denominations of $25 and in integral
multiples thereof and shall be payable only in Dollars.
A different Trustee and an Administrative Agent may be appointed by
the Trustor for each Series of Certificates prior to the issuance of such Series
provided that the Rating Agency Condition is met. If the initial Trustee is to
be other than U.S. Bank Trust National Association, or there is to be an
Administrative Agent, then such Series Supplement shall provide for the
appointment of such Trustee or such Administrative Agent or both, as applicable,
of such Series and shall add or change any of the provisions of this Agreement
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder and of the Underlying Securities; it being understood that
nothing contained herein or in such Series Supplement shall constitute the
Trustees for different Series as co-trustees for the same Series or the
administrative agents for different Series as co-administrative agents for the
same Series, and that each Trustee shall be a trustee of a trust or trusts
separate and apart from any trust or trusts hereunder of any other Trustee, and
that each Administrative Agent shall be an administrative agent of a Trust
separate and apart from any other Trust. Upon final appointment of any new
Trustee or Administrative Agent, the Trustee shall provide a notice of such
appointment to the Rating Agency not later than 15 days following such
appointment.
Section 5.2 Execution, Authentication and Delivery. (a) The
Certificates shall be executed by the Trustor by its President, its Treasurer,
one of its Vice Presidents, or one of its Finance Officers. The signature of any
of these officers may be manual or facsimile.
Certificates bearing the manual or facsimile signature of
individuals who were at any time the proper officers of the Trustor shall be
binding, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates.
(b) Each Certificate shall be dated as of the later of the date
specified in the related Series Supplement and the date of its authentication.
(c) No Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, unless there appears on
such Certificate a certificate of authentication substantially in one of the
forms provided for herein executed by the Trustee by the manual signature of one
of its authorized signatories, and such certificate upon any Certificate shall
be conclusive evidence, and the only evidence, that such Certificate has been
duly authenticated and delivered hereunder and is entitled to the benefits of
this Agreement.
Section 5.3 Temporary Certificates. Pending the preparation of
Definitive Certificates of any Series (or Class within such Series), the Trustor
may execute, and upon receipt of a Trustor Order, the Trustee shall authenticate
and deliver temporary Certificates which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the Definitive Certificates in lieu of which they
are issued, in registered form and with such appropriate insertions, omissions,
substitutions and other variations as may be authorized by such Trustor Order.
Any such temporary Certificate may be in global form, representing all or a
portion of the Outstanding Certificates of such Series or Class. Every such
temporary Certificate shall be executed by the Trustor and shall be
authenticated and delivered by the Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the Definitive
Certificate or Definitive Certificates in lieu of which it is issued.
If temporary Certificates of any Series (or Class within such
Series) are issued, the Trustor will cause Definitive Certificates of such
Series or Class to be prepared without unreasonable delay and (a) after the
preparation of Definitive Certificates of such Series or Class, the temporary
Certificates of such Series or Class shall be exchangeable for Definitive
Certificates of such Series or Class upon surrender of the temporary
Certificates of such Series or Class at the office of the Trustee in a Place of
Distribution for such Series or Class, without charge to the Holder, except as
provided in Section 5.4 in connection with a transfer and (b) upon surrender for
cancellation of any one or more temporary Certificates of any Series or Class
within such Series the Trustor shall execute and the Trustee shall authenticate
and deliver in exchange therefor Definitive Certificates with a like Stated
Amount or Notional Amount, as applicable, of the same Series (or Class within
such Series) of authorized denominations and of like tenor. Until so exchanged,
temporary Certificates of any Series (or Class within such Series) shall in all
respects be entitled to the same benefits under this Agreement as Definitive
Certificates of such Series or Class, except as otherwise specified in the
applicable Series Supplement with respect to the payment of interest on Global
Securities in temporary form.
Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the individual Definitive Certificates
represented thereby pursuant to this Section 5.3 or Section 5.4, the temporary
Global Security shall be endorsed by the Trustee to reflect the reduction of the
aggregate Stated Amount or Notional Amount, as applicable, evidenced thereby,
whereupon the aggregate Stated Amount or Notional Amount, as applicable, of such
temporary Global Security shall be reduced for all purposes by the amount so
exchanged and endorsed.
Section 5.4 Registration; Registration of Transfer and Exchange. The
Trustee shall cause to be kept a register for each Series of Certificates (the
registers maintained in such office and in any other office or agency of the
Trustee in a Place of Distribution being herein sometimes collectively referred
to as the "Certificate Register") in which a transfer agent and registrar (which
may be the Trustee) (the "Certificate Registrar") shall provide for the
registration of Certificates and the registration of transfers and exchanges of
Certificates. The Trustee is hereby initially appointed Certificate Registrar
for the purpose of registering Certificates and transfers and exchanges of
Certificates as herein provided; provided, however, that the Trustee may appoint
one or more co-Certificate Registrars. Upon any resignation of any Certificate
Registrar, the Trustor shall promptly appoint a successor or, in the absence of
such appointment, assume the duties of Certificate Registrar.
If a Person other than the Trustee is appointed by the Trustor as
Certificate Registrar, the Trustor will give the Trustee prompt written notice
of the appointment of a Certificate Registrar and of the location, and any
change in the location, of the Certificate Register, and the Trustee shall have
the right to rely upon a certificate executed on behalf of the Certificate
Registrar by an Executive Officer thereof as to the names and addresses of the
Holders of the Certificates and the principal amounts and numbers of such
Certificates. Upon surrender for registration of transfer of any Certificate of
any Series (or Class within such Series) at the office or agency of the Trustee,
if the requirements of Section 8- 401(1) of the Uniform Commercial Code are met
to the Trustor's satisfaction, the Trustor shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of any authorized denominations, of a
like Series, Class and aggregate Stated Amount or Notional Amount, as
applicable.
Notwithstanding any other provision of this Section, unless and
until it is exchanged in whole or in part for the individual Certificates
represented thereby, a Global Security representing all or a portion of the
Certificates of a Series (or Class within such Series) may not be transferred
except as a whole by the Depositary for such Series or Class to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such Series or Class or a nominee of such successor
Depositary.
At the option of the Holder, Certificates of any Series (or Class
within such Series) (other than a Global Security, except as set forth below)
may be exchanged for other Certificates of the same Series or Class of any
authorized denomination or denominations of like tenor and aggregate Stated
Amount or Notional Amount, as applicable, upon surrender of the Certificates to
be exchanged at the office or agency of the Trustee maintained for such purpose.
Whenever any Certificates are so surrendered for exchange, the Trustor shall
execute and the Trustee shall authenticate and deliver the Certificates that the
Holder making the exchange is entitled to receive.
If at any time the Depositary for the Certificates of a Series (or
Class within such Series) notifies the Trustor that it is unwilling or unable to
continue as Depositary for the Certificates of such Series or Class or if at any
time the Depositary for the Certificates of such Series or Class shall no longer
be eligible under Section 5.9(b), the Trustor shall appoint a successor
Depositary with respect to the Certificates of such Series or Class. If a
successor Depositary for the Certificates of such Series or Class is not
appointed by the Trustor within 90 days after the Trustor receives such notice
or becomes aware of such ineligibility, the Trustor's election pursuant to
Section 5.1 shall no longer be effective with respect to the Certificates of
such Series or Class and the Trustor will execute, and the Trustee, upon receipt
of a Trustor Order for the authentication and delivery of individual
Certificates of such Series or Class, will authenticate and deliver individual
Certificates of such Series or Class in an aggregate Stated Amount or Notional
Amount, as applicable, equal to the aggregate Stated Amount or Notional Amount,
as applicable, of the Global Security or Securities representing Certificates of
such Series or Class in exchange for such Global Security or Securities.
The Trustor may at any time and in its sole discretion determine
that individual Certificates of any Series (or Class within such Series) issued
in the form of one or more Global Securities shall no longer be represented by
such Global Security or Securities. In such event the Trustor shall execute, and
the Trustee, upon receipt of a Trustor Order for the authentication and delivery
of individual Certificates of such Series or Class, shall authenticate and
deliver, individual Certificates of such Series or Class in an aggregate Stated
Amount or Notional Amount, as applicable, equal to the aggregate Stated Amount
or Notional Amount, as applicable, of the Global Security or Securities
representing Certificates of such Series or Class in exchange for such Global
Security or Securities.
If specified by the Trustor pursuant to Section 5.1 with respect to
a Series (or Class within such Series) of Certificates, the Depositary for such
Series may surrender a Global Security for such Series or Class in exchange in
whole or in part for individual Certificates of such Series or Class on such
terms as are acceptable to the Trustor and such Depositary.
Thereupon, the Trustor shall execute, and the Trustee, upon receipt
of a Trustor Order, shall authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a new individual
Certificate or Certificates of the same Series or Class, of any authorized
denomination as requested by such Person in an aggregate Stated Amount or
Notional Amount, as applicable, equal to and in exchange for such Person's
beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination
equal to the difference, if any, between the aggregate Stated Amount or
Notional Amount, as applicable, of the surrendered Global Security and the
aggregate Stated Amount or Notional Amount, as applicable, of individual
Certificates delivered to Holders thereof.
In any exchange provided for in any of the preceding three
paragraphs, the Trustor shall execute, and the Trustee, upon receipt of a
Trustor Order, will authenticate and deliver individual Certificates in
registered form in authorized denominations. Upon the exchange of a Global
Security for individual Certificates, such Global Security shall be cancelled by
the Trustee. Individual Certificates issued in exchange for a Global Security
pursuant to this Section 5.4 shall be registered in such names and in such
authorized denominations as the Depositary for such Global Security, pursuant to
instructions from its Participants, any indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Certificates to the
Persons in whose names such Certificates are so registered.
All Certificates issued upon any registration of transfer or
exchange of Certificates shall constitute complete and indefeasible evidence of
ownership in the Trust related to such Certificates and be entitled to the same
benefits under this Agreement as the Certificates surrendered upon such
registration of transfer or exchange.
Every Certificate presented or surrendered for registration of
transfer or exchange shall (if so required by the Trustor, the Trustee or the
Certificate Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Trustor, the Trustee and the
Certificate Registrar, duly executed, by the Holder thereof or his attorney duly
authorized in writing, with such signature guaranteed by a brokerage firm or
financial institution that is a member of a Securities Approved Medallion
Program such as Securities Transfer Agents Medallion Program (STAMP), Stock
Exchange Medallion Program (SEMP) or New York Stock Exchange Inc. Medallion
Signature Program (MSP).
No service charge shall be made to a Holder for any registration of
transfer or exchange of Certificates, but the Trustor may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Certificates,
other than exchanges pursuant to Section 5.3 not involving any transfer.
Section 5.5 Mutilated, Destroyed, Lost and Stolen Certificates. If
(i) any mutilated Certificate is surrendered to the Trustee at its Corporate
Trust Office (in the case of Certificates) or (ii) the Trustor and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Certificate, and there is delivered to the Trustor and the Trustee such security
or indemnity as they may require to hold each of them and any Paying Agent
harmless, and neither the Trustor nor the Trustee receives notice that such
Certificate has been acquired by a bona fide purchaser, then the Trustor shall
execute and the Trustee, upon receipt of a Trustor Order, shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate a new Certificate of the same Series and Class of like tenor,
form, terms and principal amount, bearing a number not contemporaneously
Outstanding. Upon the issuance of any new Certificate under this Section, the
Trustor may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Certificate of any Series or Class issued pursuant to this
Section shall constitute complete and indefeasible evidence of ownership in the
Trust related to such Series, whether or not the destroyed, lost or stolen
Certificate shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Agreement equally and proportionately with any and all
other Certificates of that Series or Class duly issued hereunder. The provisions
of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Certificates.
Section 5.6 Distribution of Interest; Interest Rights Preserved.
(a) Interest on any Certificate that is payable and is punctually paid or duly
provided for on any Distribution Date shall be distributed to the Person in
whose name such Certificate (or one or more Predecessor Certificates) is
registered at the close of business on the related Record Date notwithstanding
the cancellation of such Certificate upon any transfer or exchange subsequent to
such related Record Date. The distribution of interest on Certificates shall be
made at the Corporate Trust Office (except as otherwise specified pursuant to
Section 5.1) or, at the option of the Trustee, by check mailed to the address of
the Person entitled thereto as such address shall appear in the Certificate
Register or, if provided pursuant to Section 5.1 and in accordance with
arrangements satisfactory to the Trustee, at the option of the Holder by wire
transfer to an account designated by the Holder.
(b) Subject to the foregoing provisions of this Section 5.6, each
Certificate delivered under this Agreement upon transfer of or in exchange for
or in lieu of any other Certificate shall carry the rights to interest accrued
and undistributed, and to accrue, that were carried by such other Certificate.
(c) All computations of interest due with respect to any Certificate
of any Series or Class within such Series shall be made as specified in the
Series Supplement applicable to that particular Series or Class of Certificates.
(d) With respect to any computations or calculations to be made
under this Agreement, the applicable Series Supplement and the Certificates,
except as otherwise provided, (i) all percentages resulting from any calculation
of accrued interest will be rounded, if necessary, to the nearest 1/100,000 of
1% (.0000001), with five one-millionths of a percentage point rounded upward,
and (ii) all currency amounts will be rounded to the nearest one hundredth of a
unit (with .005 of a unit being rounded upward).
(e) Notwithstanding any other provisions in this Agreement, the
right of the Holder of any Certificate to receive any of the payments described
above in this Section 5.6, and to institute suit for the enforcement of any such
payment on or after the date such payment is payable, shall not be impaired
without the consent of such Holder.
Section 5.7 Persons Deemed Owners. The Trustor, the Trustee and the
Administrative Agent, if any, and any agent of the Trustor, the Trustee or the
Administrative Agent, if any, may treat the Person in whose name any Certificate
is registered as the owner of such Certificate for the purpose of receiving
distributions of principal of (and premium, if any) and (subject to Section 5.6)
interest, if any, on such Certificate and for all other purposes whatsoever,
whether or not such Certificate be overdue, and neither the Trustor, the
Trustee, the Administrative Agent, if any, nor any agent of the Trustor, the
Trustee nor the Administrative Agent, if any, shall be affected by notice to the
contrary. All distributions made to any Holder, or upon his order, shall be
valid, and, to the extent of the sum or sums paid, effectual to satisfy and
discharge the liability for moneys distributable upon such Certificate.
None of the Trustor, the Trustee, the Administrative Agent, if any,
or any of their agents will have any responsibility or liability for any aspect
of the records relating to or distributions made on account of beneficial
ownership interests in a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests. In
connection with any notice or other communication to be provided to Holders
pursuant to this Agreement by the Trustee with respect to any consent or other
action to be taken by Holders, the Trustee shall establish a record date for
such consent or other action and in the case of Global Certificates, give the
Depositary notice of such record date not less than 15 calendar days in advance
of such record date to the extent possible. Such record date shall be the later
of thirty (30) days prior to the first solicitation of such consent or other
action or the date of the most recent list of Holders furnished to the Trustee
pursuant to Section 3.20 hereof.
Section 5.8 Cancellation. Unless otherwise specified pursuant to
Section 5.1 for Certificates of any Series, all Certificates surrendered for
payment, redemption, transfer or exchange shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. No Certificates shall be authenticated in lieu of or in
exchange for any Certificates cancelled as provided in this Section, except as
expressly permitted by this Agreement.
Section 5.9 Global Securities. (a) If the Series Supplement pursuant
to Section 5.1 provides that a Series (or Class within such Series) of
Certificates shall be represented by one or more Global Securities, then the
Trustor shall execute and the Trustee shall authenticate and deliver one or more
Global Securities that (i) shall represent an aggregate initial Stated Amount or
Notional Amount, as applicable, equal to the aggregate initial Stated Amount or
Notional Amount, as applicable, of the Certificates of such Series or Class to
be represented by such one or more Global Securities, (ii) shall be registered,
in the name of the Depositary for such Global Security or Securities or the
nominee of such Depositary, (iii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instruction and (iv) shall bear a
legend substantially to the following effect: "Unless and until it is exchanged
in whole or in part for the individual Certificates represented hereby, this
Global Security may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary or by the Depositary
or any such nominee to a successor Depositary or a nominee of such successor
Depositary."
No Holder of a Certificate of such Series or Class will receive a
Definitive Certificate representing such Holder's interest in such Certificate
or Certificates, except as provided in Section 5.11. Unless and until
definitive, fully registered Certificates (the "Definitive Certificates") have
been issued to Holders of such Series or Class pursuant to Section 5.11:
(i) the provisions of this Section 5.9 shall be in full force and
effect;
(ii) the Certificate Registrar and the Trustee shall be entitled to
deal with the Depositary for all purposes of this Agreement (including the
distribution of principal of, and premium, if any, and interest on the
Certificates and the giving of instructions or directions hereunder) as
the sole Holder of the Certificates of such Series or Class, and shall
have no obligation to the owners of beneficial interests in such Series or
Class (collectively, the "Certificate Owners");
(iii) to the extent that the provisions of this Section 5.9 conflict
with any other provisions of this Agreement, the provisions of this
Section 5.9 shall control;
(iv) the rights of Certificate Owners of such Series or Class shall
be exercised only through the Depositary and shall be limited to those
established by law and agreements between such Certificate Owners and the
Depositary or its Participants; and
(v) whenever this Agreement requires or permits actions to be taken
based upon instructions or directions of Holders of Certificates of such
Series or Class evidencing a specified percentage of the aggregate Voting
Rights of such Series or Class, the Depositary shall be deemed to
represent such percentage only to the extent that it has received
instructions to such effect from Certificate Owners of such Series or
Class or Participants in such Depositary's system owning or representing,
respectively, such required percentage of the beneficial interest in the
Certificates of such Series or Class and has delivered such instructions
to the Trustee.
(b) Each Depositary designated pursuant to Section 5.1 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as such Depositary, be a clearing agency registered under
the Exchange Act and any other applicable statute or regulation.
Section 5.10 Notices to Depositary. Whenever a notice or other
communication to the Holders of a Series or Class within such Series represented
by one or more Global Securities is required under this Agreement, unless and
until Definitive Certificates for such Series or Class shall have been issued to
such Certificate Owners pursuant to Section 5.11, the Trustee shall give all
such notices and communications specified herein to be given to Holders of the
Certificates of such Series to the Depositary, and shall have no obligation to
the Certificate Owners.
Section 5.11 Definitive Certificates. If in respect of a Series (or
Class within such Series) represented by one or more Global Securities (i) the
Trustor advises the Trustee in writing that the Depositary is no longer willing
or able to properly discharge its responsibilities with respect to the
Certificates of such Series or Class and the Trustor is unable to locate a
qualified successor, (ii) the Trustor at its option advises the Trustee in
writing that it elects to terminate the book-entry system for such Series or
Class through the Depositary or (iii) after the occurrence of an Administrative
Agent Termination Event, Certificate Owners representing beneficial interests
aggregating at least a majority (or such other Required Percentage-Definitive
Certificates that may be specified in a Series Supplement) of the Voting Rights
of the Certificates of such Series or Class advise the Depositary in writing
that the continuation of a book-entry system for such Series or Class through
the Depositary is no longer in the best interests of the Certificate Owners of
such Series or Class, then the Depositary shall notify all Certificate Owners or
Participants in the Depositary's system with respect to such Series or Class and
the Trustee of the occurrence of any such event and of the availability of
Definitive Certificates for such Series or Class to Certificate Owners of such
Series or Class requesting the same. Upon surrender to the Trustee of the Global
Securities of such Series or Class by the Depositary, accompanied by
registration instructions, the Trustor shall execute and the Trustee shall
authenticate the Definitive Certificates of such Series or Class in accordance
with the instructions of the Depositary. None of the Trustor, the Certificate
Registrar or the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates of such Series
or Class, the Trustee shall recognize the holders of the Definitive Certificates
of such Series or Class as Holders.
Section 5.12 Currency of Distributions in Respect of Certificates.
(a) Except as otherwise specified pursuant to Section 5.1 for Certificates of
any Series (or Class within such Series), distributions of the principal of (and
premium, if any) and interest on Certificates of such Series or Class will be
made in Dollars.
(b) For purposes of any provision of the Agreement where the Holders
of Outstanding Certificates may perform an act that requires that a specified
percentage of the aggregate Voting Rights of the Certificates of all Series
perform such act and for purposes of any decision or determination by the
Trustee of amounts due and not distributed for the principal of (and premium, if
any) and interest on the Certificates of all Series in respect of which moneys
are to be disbursed ratably, the principal of (and premium, if any) or notional
amount of, as applicable, and interest on the Outstanding Certificates
denominated in a Foreign Currency will be the amount in Dollars based upon
exchange rates, determined as specified pursuant to Section 5.1 for Certificates
of such Series, as of the date for determining whether the Holders entitled to
perform such act have performed it or as of the date of such decision or
determination by the Trustee, as the case may be.
(c) With respect to Certificates of any Series (or Class within such
Series), any decision or determination to be made regarding exchange rates shall
be made by an Exchange Rate Agent appointed by the Trustor; provided that such
Exchange Rate Agent shall accept such appointment in writing and the terms of
such appointment shall be acceptable to the Trustee and shall, in the opinion of
the Trustor at the time of such appointment, require such Exchange Rate Agent to
make such determination by a method consistent with the method provided in the
applicable Series Supplement for the making of such decision or determination.
All decisions and determinations of such Exchange Rate Agent regarding exchange
rates shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Trustor,
the Trustee and all Holders of the Certificates of such Series or Class.
(d) If distributions in respect of a Certificate are required to be
made in a Specified Currency other than Dollars and such currency is unavailable
due to the imposition of exchange controls or other circumstance beyond the
control of the Trustee, the Administrative Agent, if any, and the Trustor or is
no longer used by the government of the country issuing such Specified Currency
or is no longer commonly used for the settlement of transactions by public
institutions of or within the international banking community, then all
distributions in respect of such Certificate shall be made in Dollars until such
Specified Currency is again so used in the manner specified in the related
Series Supplement.
Section 5.13 Conditions of Authentication and Delivery of New
Series. Certificates of a new Series may be issued at any time and from time to
time after the execution and delivery of this Agreement. The Trustor shall
execute and deliver Certificates of such Series to the Trustee and the Trustee
shall authenticate and deliver such Certificates upon a Trustor Order and upon
delivery by the Trustor to the Trustee of the following:
(1) Board Resolution. A Board Resolution (or action by a Person
authorized by Board Resolution) authorizing the execution, authentication
and delivery of the Certificates and specifying the Series, the Classes
within such Series and their respective Final Scheduled Distribution
Dates, priorities as to distributions of principal, premium (if any) and
interest, aggregate initial Stated Amounts and Notional Amounts, if any,
and Pass Through Rates of, if any, each Class of such Series of
Certificates to be authenticated and delivered and the method of
calculation thereof.
(2) Series Supplement. A Series Supplement consistent with the
applicable provisions of this Agreement, accompanied by a Board Resolution
(or action by a Person authorized by Board Resolution) authorizing such
Series Supplement (and, in the case of the first Series to be
authenticated and delivered hereunder, authorizing this Agreement).
(3) Certificates of the Trustor.
(a) An Officer's Certificate of the Trustor, dated as of the
Closing Date, to the effect that the Trustor is not in
breach of this Agreement and that the issuance of the
Certificates applied for will not result in any breach
of any of the terms, conditions, or provisions of, or
constitute a default under, the Trustor's Certificate of
Incorporation or bylaws, or any indenture, mortgage,
deed of transfer or other agreement or instrument to
which the Trustor is a party or by which it or its
property is bound or any order of any court or
administrative agency entered in any Proceeding to which
the Trustor is a party or by which it or its property
may be bound or to which it or its property may be
subject.
(b) An Officer's Certificate of the Trustor, dated as of the
Closing Date, to the effect that attached thereto are
true and correct copies of letters signed by the Rating
Agency (or other evidence satisfactory to the Trustee)
and confirming that the related Certificates have
received the Required Rating.
(4) Requirements of Series Supplement. Such other funds, accounts,
documents, certificates, agreements, instruments or opinions as may be
required by the terms of the Series Supplement creating such Series.
If all the Certificates of a Series are not to be originally issued at the same
time, then the documents required to be delivered pursuant to this Section 5.13
must be delivered only once, prior to the authentication and delivery of the
first Certificate of such Series; provided, however, that any subsequent Trustor
Order to the Trustee to authenticate Certificates of such Series upon original
issuance shall constitute a representation and warranty by the Trustor that, as
of the date of such request, the statements made in the Officer's Certificates
delivered pursuant to this Section 5.13 shall be true and correct as if made on
such date.
Section 5.14 Appointment of Paying Agent. The Trustee may appoint
one or more paying agents (each, a "Paying Agent") with respect to the
Certificates of any Series. Any such Paying Agent shall be authorized to make
distributions to Certificateholders of such Series from the Certificate Account
for such Series pursuant to the provisions of the applicable Series Supplement
and shall report the amounts of such distributions to the Trustee. Any Paying
Agent shall have the revocable power to withdraw funds from such Certificate
Account for the purpose of making the distributions referred to above. The
Trustee may revoke such power and remove the Paying Agent if the Trustee
determines in its sole discretion that the Paying Agent shall have failed to
perform its obligations under this Agreement in any material respect. The Paying
Agent shall initially be the Trustee and any co-paying agent chosen by the
Trustor and acceptable to the Trustee, including, if and so long as any Series
or Class within such Series is listed on the Luxembourg Stock Exchange and such
exchange so requires, a co-paying agent in Luxembourg or another European city.
Any Paying Agent shall be permitted to resign as Paying Agent upon 30 days'
notice to the Trustee. In the event that the Trustee shall no longer be the
Paying Agent, the Trustee shall appoint a successor or additional Paying Agent.
The Trustee shall cause each successor to act as Paying Agent to execute and
deliver to the Trustee an instrument in which such successor or additional
Paying Agent shall agree with the Trustee that (i) it will hold all sums, if
any, held by it for distribution to the Certificateholders in trust for the
benefit of the Certificateholders entitled thereto until such sums shall be
distributed to such Certificateholders and (ii) it will give the Trustee notice
of any default by any obligor on the applicable Series of Certificates or on the
Underlying Securities. The Paying Agent shall return all unclaimed funds to the
Trustee and upon removal shall also return all funds in its possession to the
Trustee. The provisions of Sections 8.1, 8.2, 8.3, 8.5 and 8.9 shall apply to
the Trustee also in its role as Paying Agent, for so long as the Trustee shall
act as Paying Agent. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
Notwithstanding anything contained herein to the contrary, the appointment of a
Paying Agent pursuant to this Section 5.14 shall not release the Trustee from
the duties, obligations, responsibilities or liabilities arising under this
Agreement other than with respect to funds paid to such Paying Agent.
Section 5.15 Authenticating Agent. (a) The Trustee may appoint one
or more Authenticating Agents (each, an "Authenticating Agent") with respect to
the Certificates of any Series which shall be authorized to act on behalf of the
Trustee in authenticating such Certificates in connection with the issuance,
delivery and registration of transfer or exchange of such Certificates. Whenever
reference is made in this Agreement to the authentication of Certificates by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee by
an Authenticating Agent. Each Authenticating Agent must be acceptable to the
Trustor and the Administrative Agent, if any. Notwithstanding anything contained
herein to the contrary, the appointment of an Authenticating Agent pursuant to
this Section 5.15 shall not release the Trustee from the duties, obligations,
responsibilities or liabilities arising under this Agreement.
(b) Any institution succeeding to the corporate agency business of
any Authenticating Agent shall continue to be an Authenticating Agent
without the execution or filing of any power or any further act on the
part of the Trustee or such Authenticating Agent. An Authenticating Agent
may at any time resign by giving notice of resignation to the Trustee and
to the Trustor. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving notice of termination to such
Authenticating Agent and to the Trustor. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time an
Authenticating Agent shall cease to be acceptable to the Trustee or the
Trustor, the Trustee promptly may appoint a successor Authenticating
Agent. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor Authenticating Agent shall
be appointed unless acceptable to the Administrative Agent, if any, and
the Trustor. The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
The provisions of Section 8.1, 8.2 and 8.3 shall be applicable to any
Authenticating Agent.
(c) Pursuant to an appointment made under this Section, the
Certificates may have endorsed thereon, in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication
in substantially the following form:
This is one of the Certificates described in the Trust Agreement and
the related Series Supplement.
----------------------------------------
as Authenticating Agent
for the Trustee,
By:
-------------------------------------
Authorized Signatory
Section 5.16 Events of Default. If any Event of Default shall occur
and be continuing with respect to any class of Certificates, then, and in each
and every case, the Trustee shall exercise any rights in respect of the related
Underlying Securities as provided in the applicable Series Supplement.
Section 5.17 Control by Holders. The Holders of Outstanding
Certificates representing the Required Percentage - Direction of Trustee shall,
subject to provision being made for indemnification against costs, expenses and
liabilities in a form satisfactory to the Trustee, have the right to direct the
time, method and place of conducting any Proceeding for any remedy available to
the Trustee with respect to any Issuer Payment Default; provided, however, that:
(i) such direction shall not be in conflict with any rule of law or
with this Agreement;
(ii) subject to Section 8.7, the Trustee need not take any action
that it determines might cause it to incur any liability or might
materially adversely affect the rights of any Holders not consenting to
such action.
Section 5.18 Waiver of Past Defaults. The Holders of Outstanding
Certificates representing the Required Percentage - Direction of Trustee may
waive any past default and its consequences except (i) an Issuer Payment Default
or other default in the payment of principal of or interest on any of the
Certificates or (ii) a default in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the Holder of each
Certificate. In the case of any such waiver, the Trustor, the Trustee and the
Holders shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereto.
ARTICLE VI
THE TRUSTOR AND THE ADMINISTRATIVE AGENT
Section 6.1 Preparation and Filing of Exchange Act Reports;
Obligations of the Trustor and the Administrative Agent. (a) The Administrative
Agent, if any, shall be liable in accordance herewith only to the extent of the
obligations specifically imposed by this Agreement and the related Series
Supplement. The Trustee shall:
(1) on behalf of the Trust, prepare for signature by the Trustor and
file with the Commission, following the execution thereof by the Trustor,
within the time period set forth below, copies of the annual reports and
of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time
by rules and regulations prescribe), if any, which the Trustor on behalf
of the Trust may be required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act or otherwise required by
Regulation AB (collectively, "Reports") with respect to the Trust.
(2) The names of such Reports and the dates on which they are
required to be filed with the Commission are as follows:
(i) Form 8-K, in substantially the form previously provided by
the Trustor to the Trustee, within 15 calendar days after the
Closing Date and each Distribution Date, and within the time advised
to the Trustee by the Trustor if the filing of Form 8-K is necessary
for any other reason;
(ii) Form 10-D, in substantially the form previously provided
by the Trustor to the Trustee, within 15 calendar days after each
Distribution Date; and
(iii) Form 10-K, in substantially the form previously provided
by the Trustor to the Trustee, within 90 calendar days after
December 31 of each year;
(iv) such other Reports as the Trustor requests the Trustee to
prepare and file from time to time as may be required pursuant to
Section 13 or 15(d) of the Exchange Act or as otherwise required by
Regulation AB;
(3) receive from the Trustor, within 15 days after the Trustor is
required to file the same with the Commission, such additional
information, documents and reports with respect to compliance by the
Trustor with the conditions and covenants of this Agreement, if any, as
may be required to be filed with the Commission from time to time by such
rules and regulations;
(4) receive from the Trustor and transmit by mail to all Holders
described in TIA Section 313(c), in the manner and to the extent provided
therein, such summaries of any information, documents and reports required
to be filed by the Trustor and received pursuant to clauses (i) and (ii)
of this Section 6.1(a), if any, as may be required by rules and
regulations prescribed from time to time by the Commission.
The Trustor acknowledges and agrees that the performance of the
Trustee's obligations under this Section 6.1 is in part dependent upon the
Trustor providing certain of the relevant information to be included in the
applicable reports in a timely fashion and upon one or more officers of the
Trustor executing the applicable reports in a timely manner. The Trustor shall
reasonably cooperate with the Trustee in connection with the Trustee's
performance of its obligations under this Section 6.1. The Trustor shall
designate the financial printer or other entity (the "Report Filer") (which may
be the Trustor) that will be responsible for the processing of the applicable
reports and the Trustor shall reimburse the Trustee for the reasonable out of
pocket fees of the Financial Filer; provided that, to the extent the Trustor
fails to designate the Report Filer, the Trustee shall choose a Financial Filer.
Notwithstanding the immediately preceding sentence, the Trustee shall have no
liability for the performance of the Financial Filer to the extent any failure
of the Financial Filer occurs through no fault of the Trustee.
(b) The Trustor shall deliver to the Trustee, not less often than
annually, an Officer's Certificate signed by an Executive Officer who is the
principal executive officer, principal financial officer or principal accounting
officer of the Trustor, dated as of the date set forth in the Series Supplement
for such year, stating that:
(1) a review of the activities of the Trustor during such fiscal
year and of performance under this Agreement has been made under such
Executive Officer's supervision; and (2) to the best of such Executive
Officer's knowledge, based on such review, the Trustor has fulfilled all
of its obligations under this Agreement throughout such year, or, if there
has been a default in the fulfillment of any such obligation, specifying
each such default known to such Executive Officer and the nature and
status thereof. A copy of such certificate may be obtained by any Holder
by a request in writing to the Trustor addressed to the Corporate Trust
Office of the Trustee.
(c) If and only if the Series Supplement provides for the pledge of
the Underlying Securities to the Trustee (and not merely the transfer,
assignment, conveyance and sale, without recourse, thereof to the Trustee), on
the Closing Date, the Trustor shall furnish to the Trustee an Opinion of Counsel
either stating that, in the opinion of such counsel, such action has been taken
with respect to the recording and filing of this Agreement, any agreements
supplemental hereto and any other requisite documents, and with respect to the
execution and filing of any financing statements and continuation statements as
are necessary to perfect and make effective the lien and security interest of
this Agreement and reciting the details of such action, or stating that, in the
opinion of such counsel, no such action is necessary to make such lien and
security interest effective.
(d) If and only if the Series Supplement provides for the pledge of
the Underlying Securities to the Trustee (and not merely the transfer,
assignment, conveyance and sale, without recourse, thereof to the Trustee), at
least annually after the Closing Date, the Trustor shall furnish to the Trustee
an Opinion of Counsel either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording, filing, re-recording and
refiling of this Agreement, any agreements supplemental hereto and any other
requisite documents and with respect to the execution and filing of any
financing statements and continuation statements as is necessary to maintain the
lien and security interest created by this Agreement and reciting the details of
such action or stating that in the opinion of such counsel no such action is
necessary to maintain the lien and security interest created by this Agreement.
Such Opinion of Counsel shall also describe the recording, filing, re-recording
and refiling of this Agreement, any agreements supplemental hereto and any other
requisite documents and the execution and filing of any financing statements and
continuation statements that will, in the opinion of such counsel, be required
to maintain the lien and security interest of this Agreement until such date in
the following calendar year.
(e) If and only if the Series Supplement provides for the pledge of
the Underlying Securities to the Trustee (and not merely the transfer,
assignment, conveyance and sale, without recourse, thereof to the Trustee),
(i) whenever any property or securities are to be released from the
lien of this Agreement, the Trustor shall furnish to the Trustee an
Officer's Certificate of the Trustor certifying or stating the opinion of
each Person signing such certificate as to the fair value (within 90 days
of such release) of the property or securities proposed to be released and
stating that in the opinion of such person the proposed release will not
impair the security under this Agreement in contravention of the
provisions hereof.
(ii) whenever the Trustor is required to furnish to the Trustee an
Officer's Certificate of the Trustor certifying or stating the opinion of
any signatory thereof as to the matters described in clause (i) above, the
Trustor shall also furnish to the Trustee an Independent Certificate as to
the same matters if the fair value of the property or securities and of
all other property or securities released from the lien of this Agreement
since the commencement of the then current calendar year, as set forth in
the certificates required by clause (i) above and this clause (ii), equals
10% or more of the principal amount of the Outstanding Certificates, but
such certificate need not be furnished in the case of any release of
property or securities if the fair value thereof as set forth in the
related Officer's Certificate of the Trustor is less than $25,000 or less
than one percent of the then principal amount of the Outstanding
Certificates.
(iii) prior to the deposit with the Trustee of any securities that
are to be made the basis for the authentication and delivery of
Certificates, the withdrawal of cash constituting a part of the trust
estate or the release of any property or securities subject to the lien of
this Agreement, the Trustor shall furnish to the Trustee an Officer's
Certificate of the Trustor certifying or stating the opinion of each
person signing such certificate as to the fair value (within 90 days of
such deposit) to the Trustor of the securities to be so deposited.
(iv) whenever the Trustor is required to furnish to the Trustee an
Officer's Certificate of the Trustor described in clause (iii) above, the
Trustor shall also deliver to the Trustee an Independent Certificate as to
the same matters, if the fair value to the Trustor of the securities to be
so deposited and of all other such securities made the basis of any such
withdrawal or release since the commencement of the then current fiscal
year of the Trustor, as set forth in the certificates delivered pursuant
to clause (iii) above and this clause (iv), is 10% or more of the
principal amount of the Outstanding Certificates, but such a certificate
need not be furnished with respect to any securities so deposited, if the
fair value thereof to the Trustor as set forth in the related Officer's
Certificate of the Trustor is less than $25,000 or less than one percent
of the principal amount of the Outstanding Certificates.
(v) subject to the payment of its fees and expenses hereunder, the
Trustee may, and when required by the provisions of this Agreement, shall,
execute instruments to release property from the lien of this Agreement,
or convey the Trustee's interest in the same, in a manner and under
circumstances that are consistent with the provisions of this Agreement.
No party relying upon an instrument executed by the Trustee in connection
therewith shall be bound to ascertain the Trustee's authority, inquire
into the satisfaction of any conditions precedent or see to the
application of any moneys.
(vi) the Trustee shall at such time as there are no Outstanding
Certificates and all sums due to the Trustee hereunder have been paid,
release any remaining portion of the trust estate that secured the
Certificates from the lien of this Agreement and release to the Trustor or
any other Person entitled thereto any funds then included in the trust
estate.
(f) Upon any application or request by the Trustor to the Trustee to
take any action under the provisions of this Agreement, which action is subject
to the satisfaction of a condition precedent (including any covenants compliance
with which constitutes a condition precedent), the Trustor shall furnish to the
Trustee: (i) an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Agreement relating to the proposed action have been
complied with, (ii) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with and (iii)
(if required by the TIA) an Independent Certificate from a firm of certified
public accountants meeting the applicable requirements of the TIA, except that,
in the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Agreement, no
additional certificate or opinion need be furnished. Every certificate or
opinion with respect to compliance with a condition or covenant provided for in
this Agreement shall include:
(i) a statement that such signatory of such certificate or opinion
has read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the judgment of each such signatory, such
signatory has made such examination or investigations as is necessary to
enable such signatory to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(g) A copy of each 10-K shall be delivered to each Rating Agency
promptly after filing.
Section 6.2 Merger or Consolidation of the Trustor or the
Administrative Agent. (a) Subject to the following paragraph, the Trustor will
keep in full effect its existence, rights and franchises as a corporation under
the laws of the jurisdiction of its incorporation, and the Administrative Agent,
if any, will keep in full effect its existence, rights and franchises under the
laws of the jurisdiction of its incorporation or association. The Trustor and
the Administrative Agent, if any, each will obtain and preserve its
qualification to do business as a foreign corporation or association in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Underlying Securities and to perform its respective duties under this Agreement.
(b) The Trustor and an Administrative Agent, if any, may consolidate or merge
with or into any other Person, provided that:
(i) the Person (if other than the Trustor or Administrative Agent,
as applicable) formed by or surviving such consolidation or merger shall
expressly assume, by an agreement supplemental hereto executed and
delivered to the Trustee, in form satisfactory to the Trustee, the
performance or observance of every agreement and covenant of this
Agreement on the part of the Trustor or Administrative Agent, as
applicable, to be performed or observed, all as provided herein and in the
applicable Series Supplement or Supplements;
(ii) immediately after giving effect to such transaction, no
Administrative Agent Termination Event or event which with the passage of
time or notice or both would become an Administrative Agent Termination
Event shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction; and
(iv) the Trustor or Administrative Agent, as applicable, shall have
delivered to the Trustee an Officer's Certificate and an Opinion of
Counsel each stating that such consolidation or merger and such
supplemental agreement comply with this Article VI and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
Section 6.3 Limitation on Liability of the Trustor and the
Administrative Agent. (a) Unless otherwise expressly specified in this Agreement
or a Series Supplement, neither the Administrative Agent, if any, nor the
Trustor shall be under any obligation to expend or risk its own funds or
otherwise incur financial liability in the performance of its duties hereunder
or under a Series Supplement or in the exercise of any of its rights or powers
if reasonable grounds exist for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
(b) Neither the Trustor, an Administrative Agent, if any, nor any of
the directors, officers, employees or agents of the Trustor or such
Administrative Agent shall be under any liability to any Trust or the
Certificateholders of any Series for any action taken, or for refraining from
the taking of any action, in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect the
Trustor, any such Administrative Agent or any such person against any breach of
warranties, representations or covenants made herein, or against any specific
liability imposed on such Administrative Agent pursuant hereto, or against any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder.
Neither the Trustor nor an Administrative Agent, if any, shall be
under any obligation to appear in, prosecute or defend any legal action unless
such action is related to its respective duties under this Agreement and, in its
opinion, does not involve it in any expense or liability; provided, however,
that either of the Trustor or such Administrative Agent may in its discretion
undertake any such action which it may deem necessary or desirable with respect
to this Agreement and the rights and duties of the parties hereto and the
interests of the Certificateholders hereunder. The legal expenses and costs of
such action and any liability resulting (except any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder) shall be allocated as specified in the
applicable Series Supplement.
Section 6.4 Limitation on Resignation of the Administrative Agent.
An Administrative Agent appointed pursuant to the applicable Series Supplement
shall not resign from the obligations and duties hereby imposed on it except (a)
upon appointment by the Trustee of a successor administrative agent and receipt
by the Trustee of a letter from the Rating Agency that such a resignation and
appointment will satisfy the Rating Agency Condition or (b) upon a determination
that its duties hereunder are no longer permissible under applicable law. Any
such determination pursuant to clause (b) of the preceding sentence permitting
the resignation of the Administrative Agent shall be evidenced by an Opinion of
Counsel to such effect delivered to the Trustee and the Trustor. No resignation
of an Administrative Agent shall become effective until the Trustee or a
successor administrative agent shall have assumed the Administrative Agent's
responsibilities, duties, liabilities (other than those liabilities arising
prior to the appointment of such successor) and obligations under this
Agreement.
Section 6.5 Rights of the Trustor in Respect of the Administrative
Agent. An Administrative Agent appointed pursuant to the applicable Series
Supplement shall afford the Trustor and the Trustee, upon reasonable notice,
during normal business hours, access to all records maintained by the
Administrative Agent in respect of its rights and obligations hereunder and
access to officers of the Administrative Agent responsible for such obligations.
Upon request, the Administrative Agent shall furnish to the Trustor and the
Trustee the Administrative Agent's most recent financial statements and such
other information relating to its capacity to perform its obligations under this
Agreement as the Administrative Agent possesses. To the extent such information
is not otherwise available to the public, the Trustor and the Trustee shall not
disseminate any information obtained pursuant to the preceding two sentences
without the Administrative Agent's written consent, except as required pursuant
to this Agreement to the extent that it is appropriate to do so (i) in working
with legal counsel, auditors, taxing authorities or other governmental agencies
or (ii) pursuant to any law, rule, regulation, order, judgment, writ, injunction
or decree of any court or governmental authority having jurisdiction over the
Trustor, the Trustee or the Trust. The Trustor may, but is not obligated to,
enforce the obligations of the Administrative Agent under this Agreement and
may, but is not obligated to, perform, or cause a designee to perform, any
defaulted obligation of the Administrative Agent under this Agreement or
exercise the rights of the Administrative Agent under this Agreement; provided,
however, that the Administrative Agent shall not be relieved of any of its
obligations under this Agreement by virtue of such performance by the Trustor or
its designee. The Trustor shall not have any responsibility or liability for any
action or failure to act by the Administrative Agent and is not obligated to
supervise the performance of the Administrative Agent under this Agreement or
otherwise.
Section 6.6 Trustor May Purchase Certificates. The Trustor may at
any time purchase Certificates in the open market or otherwise. Certificates so
purchased by the Trustor may, at the discretion of the Trustor, be held or
resold. Certificates beneficially owned by the Trustor will be disregarded for
purposes of determining whether the required percentage of the aggregate Voting
Rights has given any request, demand, authorization, direction, notice, consent
or waiver hereunder.
Section 6.7 The Administrative Agent and Other Parties. The Person
serving as an Administrative Agent, if any, appointed pursuant to the applicable
Series Supplement may be the Trustor, the Trustee or an Affiliate of either
thereof, and may have normal business relationships with the Trustor, the
Trustee or any Affiliates thereof.
Section 6.8 Preferential Collection of Claims Against Trustor. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent required by TIA
Section 311(a).
ARTICLE VII
ADMINISTRATIVE AGENT TERMINATION EVENTS
Section 7.1 Administrative Agent Termination Events. (a)
"Administrative Agent Termination Event," wherever used herein with respect to
any Series of Certificates, means any one of the following events:
(i) a failure by any Administrative Agent specified in the
applicable Series Supplement to remit to the Trustee, pursuant to the
terms of this Agreement, any funds in respect of collections on Underlying
Securities, Credit Support, if any, and Advances, if any, collected by the
Administrative Agent pursuant to the terms of this Agreement that
continues unremedied for a period of two days after the date upon which
written notice of such failure, requiring the same to be remedied, shall
have been given to the Administrative Agent by the Trustor or the Trustee
(in which case notice shall be provided by telecopy), or to the
Administrative Agent, the Trustor and the Trustee by the Holders of
Certificates of such Series representing at least 25% of the aggregate
Voting Rights; or
(ii) a failure on the part of any Administrative Agent specified in
the applicable Series Supplement to observe or perform in any material
respect any other of the covenants or agreements on the part of the
Administrative Agent contained in the Certificates of such Series or in
this Agreement which continues unremedied for a period of 10 days after
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Administrative Agent by the Trustor
or the Trustee, or to the Administrative Agent, the Trustor and the
Trustee by the Holders of Certificates of such Series representing at
least 25% of the aggregate Voting Rights; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in an involuntary case under any present or
future federal or state bankruptcy, insolvency or similar law or the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceeding, or for the winding up or liquidation of its affairs, shall
have been entered against the Administrative Agent, if any, specified in
the applicable Series Supplement and such decree or order shall have
remained in force undischarged or unstayed for a period of 30 days; or
(iv) any Administrative Agent specified in the applicable Series
Supplement shall consent to the appointment of a conservator or receiver
or liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings of or relating to the
Administrative Agent or of or relating to all or substantially all its
property; or
(v) any Administrative Agent specified in the applicable Series
Supplement shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit
of its creditors, or voluntarily suspend payment of its obligations; or
(vi) if so specified in the related Series Supplement, any failure
of the Administrative Agent, if any, specified in the applicable Series
Supplement to make any Advances required to be made from its own funds
pursuant to Section 4.3 which continues unremedied until twelve o'clock
noon New York City time on the Business Day immediately following the day
on which such Advance was required to have been made; or
(vii) any additional Administrative Agent Termination Event that may
be specified with respect to such Series in the related Series Supplement.
Each Series Supplement shall specify as to each of the foregoing clauses
requiring a vote of Holders of different Classes the circumstances and manner in
which the aggregate Voting Rights applicable to each such clause shall be
calculated.
(b) Unless otherwise provided in the applicable Series Supplement
and provided an Administrative Agent shall have been appointed pursuant to the
applicable Series Supplement, so long as an Administrative Agent Termination
Event with respect to the related Series of Certificates shall have occurred and
be continuing, the Trustor or the Trustee may, and at the written direction of
the Holders of Certificates evidencing not less than the "Required Percentage -
Administrative Agent Termination" of the aggregate Voting Rights, the Trustee
shall, by notice in writing to such Administrative Agent (and to the Trustor if
given by the Trustee or to the Trustee if given by the Trustor) terminate all
the rights and obligations of the Administrative Agent specified in the
applicable Series Supplement in its capacity as Administrative Agent with
respect to such Series under this Agreement, to the extent permitted by law, and
in and to the Underlying Securities relating to such Series (other than any
Retained Interest of the Administrative Agent, if any) and the proceeds thereof.
On or after the receipt by such Administrative Agent of such written notice, all
authority and power of the Administrative Agent under this Agreement relating to
such Series, whether with respect to the Certificates (other than as a Holder of
any Certificate) of such Series or the Underlying Securities relating to such
Series or otherwise, shall pass to and be vested in the Trustee pursuant to and
under this Section 7.1(b), and without limitation, the Trustee is hereby
authorized and empowered, as attorney-in-fact or otherwise, to execute and
deliver, on behalf of and at the expense of the Administrative Agent, any and
all documents and other instruments and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
such Underlying Securities and related documents, or otherwise. The
Administrative Agent, if any, specified in the applicable Series Supplement
agrees promptly (and in any event not later than ten Business Days subsequent to
such notice) to provide the Trustee with all documents and records requested by
it to enable it to assume the functions of the Administrative Agent under this
Agreement relating to such Series, and to cooperate with the Trustee in
effecting the termination of the Administrative Agent's responsibilities and
rights under this Agreement relating to such Series, including the transfer
within one Business Day to the Trustee for administration by it of all cash
amounts and investments which shall at the time be or should have been credited
by the Administrative Agent to the Certificate Account relating to such Series
or thereafter be received with respect to such Underlying Securities; provided,
however, that the Administrative Agent shall continue to be entitled to receive
all amounts accrued or owing to it under this Agreement on or prior to the date
of such termination, whether in respect of Advances or otherwise, and shall
continue to be entitled to the benefits of Section 6.3 notwithstanding any such
termination.
Section 7.2 Trustee to Act; Appointment of Successor. On and after
the time an Administrative Agent, if any, specified in the applicable Series
Supplement receives a notice of termination pursuant to Section 7.1, the Trustee
shall be the successor in all respects to the Administrative Agent in its
capacity as Administrative Agent under this Agreement or the applicable Series
Supplement and the transactions set forth or provided for herein and shall be
subject to all the responsibilities, duties and liabilities relating thereto and
arising thereafter placed on the Administrative Agent (except for any
representations or warranties of the Administrative Agent under this Agreement
and except as otherwise provided herein or in the applicable Series Supplement)
by the terms and provisions hereof including the Administrative Agent's
obligation, if any, to make Advances pursuant to Section 4.3; provided, however,
that if the Trustee is prohibited by law or regulation from obligating itself to
make Advances, then the Trustee shall not be obligated to make such Advances
pursuant to Section 4.3; and provided further, that any failure to perform such
duties or responsibilities caused by the Administrative Agent's failure to
provide information required by Section 7.1 shall not be considered a default by
the Trustee as successor to the Administrative Agent hereunder. As compensation
therefor, the Trustee shall be entitled to the amounts relating to the
Underlying Securities of a given Series to which such Administrative Agent would
have been entitled if the Administrative Agent had continued to act hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to so act,
or shall, if it is unable to so act or if the Holders of Certificates of such
Series evidencing not less than the Required Percentage - Administrative Agent
Termination of the aggregate Voting Rights, so request in writing to the
Trustee, promptly appoint, or petition a court of competent jurisdiction to
appoint, an Administrative Agent acceptable to the Rating Agency (such
acceptance to be evidenced by satisfaction of the Rating Agency Condition with
respect to such appointment) and having a net worth of not less than
$15,000,000, as the successor to such Administrative Agent under this Agreement
with respect to such Series in the assumption of all or any part of the
responsibilities, duties or liabilities of such Administrative Agent under this
Agreement with respect to such Series. The Trustee, the Trustor and any such
successor Administrative Agent may agree upon the compensation to be paid with
respect thereto; provided, however, that in no event shall such compensation be
greater than the compensation payable to the Administrative Agent under this
Agreement. No appointment of a successor Administrative Agent under this
Agreement shall be effective until the assumption by the successor
Administrative Agent of all the responsibilities, duties and liabilities placed
on the Administrative Agent hereunder and under the related Series Supplement.
Pending appointment of a successor Administrative Agent under this Agreement,
the Trustee shall act in such capacity as and to the extent hereinabove
provided.
Section 7.3 Notification to Certificateholders. (a) Upon any such
termination pursuant to Section 7.2 or appointment of a successor Administrative
Agent, the Trustee shall give prompt written notice thereof to
Certificateholders of the affected Series in the manner provided in Section
10.5.
(b) Within 60 days after the occurrence of any Administrative Agent
Termination Event or event which but for the lack of notice or passage of time
or both would constitute an Administrative Agent Termination Event with respect
to any Series, the Trustee shall transmit by mail to all Certificateholders of
such Series notice of each such Administrative Agent Termination Event or event
which but for lack of notice or passage of time or both would constitute an
Administrative Agent Termination Event which is known to the Trustee, unless
such Administrative Agent Termination Event or event which but for lack of
notice or passage of time or both would constitute an Administrative Agent
Termination Event shall have been cured or waived.
Section 7.4 Waiver of Administrative Agent Termination Events.
Unless otherwise provided in the applicable Series Supplement, the Holders of
Certificates of the related Series evidencing not less than the Required
Percentage - Waiver of the aggregate Voting Rights may, on behalf of all
Certificateholders of such Series, (i) if so provided in the applicable Series
Supplement, waive compliance by the Trustor, the Trustee or the Administrative
Agent, if any, with certain restrictive provisions of this Agreement as set
forth in such Series Supplement prior to the time such compliance is required
and (ii) waive any Administrative Agent Termination Event or event which but for
lack of notice or passage of time or both would constitute an Administrative
Agent Termination Event with respect to such Series; provided, however, that an
Administrative Agent Termination Event or event which but for lack of notice or
passage of time or both would constitute an Administrative Agent Termination
Event with respect to such Series regarding the failure to distribute, in
accordance with the terms of this Agreement, amounts received with respect to
any Underlying Security or any such event with respect to such Series in respect
of a covenant or provision of this Agreement the modification or amendment of
which would require the consent of the Holders of all outstanding Certificates
of such Series, may be waived only by all the Certificateholders of such Series.
Upon any such waiver of an Administrative Agent Termination Event or event which
but for lack of notice or passage of time or both would constitute an
Administrative Agent Termination Event with respect to such Series, such
Administrative Agent Termination Event or event which but for lack of notice or
passage of time or both would constitute an Administrative Agent Termination
Event shall cease to exist and shall be deemed to have been remedied for every
purpose hereunder. No such waiver shall extend to any subsequent or other
Administrative Agent Termination Event or event which but for lack of notice or
passage of time or both would constitute an Administrative Agent Termination
Event or impair any right consequent thereon except to the extent expressly so
waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.1 Duties of Trustee; Notice of Defaults. (a) The Trustee,
prior to the occurrence of an Administrative Agent Termination Event or Event of
Default with respect to any Series and after the curing of all such
Administrative Agent Termination Events or Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement and the related Series Supplement.
During the period an Administrative Agent Termination Event or Event of Default
with respect to any Series shall have occurred and be continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Agreement, and
shall use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of such person's
own affairs. Any permissive right of the Trustee enumerated in this Agreement
shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement. If any such instrument is found
not to conform to the requirements of this Agreement, the Trustee shall take
action as it deems appropriate to have the instrument corrected, and if the
instrument is not corrected to the Trustee's satisfaction, the Trustee will
provide notice thereof to the Trustor, Administrative Agent, if any, and
Certificateholders.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct; provided, however, that:
(i) prior to the occurrence of an Administrative Agent Termination
Event or Event of Default with respect to any Series, and after the curing
of all such Administrative Agent Termination Events or Events of Default
which may have occurred, the duties and obligations of the Trustee shall
be determined solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the
Trustee and, in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee that conform to the requirements of this
Agreement;
(ii) the Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of the Required Percentage -
Direction of Trustee of the aggregate Voting Rights of a given Series (or
Class or group of Classes within such Series) relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Agreement;
(iv) the Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of
its duties hereunder or in the exercise of any of its rights or powers if
there is reasonable ground for believing that the repayment of such funds
or adequate indemnity against such risk or liability is not reasonably
assured to it, and none of the provisions contained in this Agreement
shall in any event require the Trustee to perform, or be responsible for
the manner of performance of, any obligations of an Administrative Agent,
if any, appointed pursuant to the applicable Series Supplement, under this
Agreement except during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers and privileges
of, such an Administrative Agent in accordance with and only to the extent
provided in this Agreement;
(v) except for actions expressly authorized by this Agreement, the
Trustee shall take no actions reasonably likely to impair the interests of
the Trust in any Underlying Security now existing or hereafter acquired or
to impair the value of any Underlying Security now existing or hereafter
acquired;
(vi) except as expressly provided in this Agreement, the Trustee
shall not engage in any activity other than those required or authorized
by the terms of this Agreement. In particular, after the Closing Date the
Trustee shall not purchase or otherwise acquire any additional securities,
modify or permit the modification of any Trust Asset or otherwise vary the
investment of the Certificateholders or incur or modify any obligations,
(i) except as expressly required or permitted by the terms of this
Agreement or (ii) unless the Trustee obtains, at the expense of the
Certificateholders, an Opinion of Counsel to the effect that such
acquisition, incurrence or modification will not cause the Trust (unless
otherwise indicated in a related Series Supplement) to fail to be
classified as a grantor trust for federal income tax purposes; and
(vii) in the event that the Paying Agent or the Certificate
Registrar shall fail to perform any obligation, duty or agreement in the
manner or on the day required to be performed by the Paying Agent or
Certificate Registrar, as the case may be, under this Agreement, the
Trustee shall be obligated promptly upon its knowledge thereof to perform
such obligation, duty or agreement in the manner so required.
(d) The Trustee shall have the legal power to exercise all of the
rights, powers and privileges of holders of the Underlying Securities in which
the Certificates evidence an interest. However, neither the Trustee (except as
specifically provided herein or in the TIA) nor the Trustor shall be under any
obligation whatsoever to appear in, prosecute or defend any action, suit or
other proceeding in respect of Underlying Securities or Certificates.
(e) Neither the Trustee nor the Trustor shall have any obligation on
or with respect to the Underlying Securities, except as provided in this Article
VIII with respect to the Trustee; and their respective obligations with respect
to Certificates shall be solely as set forth in this Agreement.
(f) If there is an event of default (as defined in the indenture or
other document pursuant to which the Underlying Securities were issued) with
respect to any Underlying Security and such default is known to the Trustee, the
Trustee shall promptly give notice to the Depositary or, if the Certificates are
Definitive Certificates, directly to Holders thereof as provided in Section 10.5
hereof (and in the manner and to the extent provided in TIA Section 313(c))
within 10 days after such event of default occurs. Such notice shall set forth
(i) the identity of the Underlying Securities, (ii) the date and nature of such
default, (iii) the face amount of the obligation to which such default relates,
(iv) the identifying numbers of the Series and Class of Certificates, or any
combination, as the case may be, evidencing the obligations (or portions
thereof) described above in clause (iii), and (v) any other information which
the Trustee may deem appropriate.
(g) Holders of Certificates shall have no recourse against the
Trustor or the Trustee for payment defaults on the Underlying Securities.
Section 8.2 Certain Matters Affecting the Trustee. (a) Except as
otherwise provided in Section 8.1:
(i) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond or other paper or document reasonably believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and any written advice or
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such written advice or Opinion of
Counsel;
(iii) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto, at the
request, order or direction of any of the Certificateholders, pursuant to
the provisions of this Agreement, unless such Certificateholders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or thereby;
provided, however, that nothing contained herein shall relieve the Trustee
of the obligations, upon the occurrence of an Administrative Agent
Termination Event or Event of Default (which has not been cured or
waived), to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their exercise
as a prudent man would exercise or use under the circumstances in the
conduct of such person's own affairs;
(iv) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v) prior to the occurrence of an Administrative Agent Termination
Event hereunder and after the curing of all Administrative Agent
Termination Events which may have occurred, the Trustee shall not be bound
to make any investigation into the facts of matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, approval, bond or other paper or
document believed by it to be genuine, unless requested in writing to do
so by Holders of the Required Percentage - Direction of Trustee of the
aggregate Voting Rights of the affected Series (or Class or Classes within
any such Series), as specified by the applicable Series Supplement;
provided, however, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such
action;
(vi) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys or a custodian and shall not be liable for such persons' actions
if it has selected such persons with reasonable care; and
(vii) the Trustee shall not be personally liable for any loss
resulting from the investment of funds held in any Certificate Account or
Reserve Account at the direction of an Administrative Agent or the Trustor
pursuant to Section 3.10.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates of any Series (or Class within such
Series), or the production thereof at the trial or other Proceeding relating
thereto, and any such suit, action or proceeding instituted by the Trustee shall
be brought in its name for the benefit of all the Holders of such Certificates,
subject to the provisions of this Agreement.
Section 8.3 Trustee Not Liable for Recitals in Certificates or
Underlying Securities. The Trustee assumes no responsibility for the correctness
of the recitals contained herein and in the Certificates or in any document
issued in connection with the sale of the Certificates (other than the signature
and authentication on the Certificates). Except as set forth in Section 8.12,
the Trustee makes no representations or warranties as to the validity or
sufficiency of this Agreement or of the Certificates of any Series (other than
the signature and authentication on the Certificates) or of any Underlying
Security or related document. The Trustee shall not be accountable for the use
or application by the Trustor or the Administrative Agent, if any, of any of the
Certificates or of the proceeds of such Certificates.
Section 8.4 Trustee May Own Certificates. The Trustee in its
individual capacity or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not Trustee.
Section 8.5 Trustee's Fees and Expenses; Indemnification;
Undertaking for Costs. (a) The Trustee shall be entitled to receive from the
Trustor or an affiliate of the Trustor as compensation for the Trustee's
services hereunder, trustee's fees pursuant to a separate agreement between the
Trustee and the Trustor, and shall be reimbursed for all reasonable expenses,
disbursements and advances incurred or made by the Trustee (including the
reasonable compensation, disbursements and expenses of its counsel and other
persons not regularly in its employ). The Trustor shall indemnify and hold
harmless the Trustee and its successors, assigns, agents and servants against
any and all loss, liability or reasonable expense (including attorney's fees)
incurred by it in connection with the administration of this trust and the
performance of its duties thereunder. The Trustee shall notify the Trustor
promptly of any claim for which it may seek indemnity. Failure by the Trustee to
so notify the Trustor shall not relieve the Trustor of its obligations
hereunder. The Trustor need not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Trustee through the Trustee's own
willful misconduct, negligence or bad faith. The indemnities contained in this
Section 8.5(a) shall survive the resignation or termination of the Trustee or
the termination of this Agreement.
(b) Failure by the Trustor to pay, reimburse or indemnify the
Trustee shall not entitle the Trustee to any payment, reimbursement or
indemnification from the Trust, nor shall such failure release the Trustee from
the duties it is required to perform under this Agreement. Any unpaid,
unreimbursed or unindemnified amounts shall not be borne by the Trust and shall
not constitute a claim against the Trust, but shall be borne by the Trustee in
its individual capacity.
(c) All parties to this Agreement agree, and each Holder of any
Certificate by such Holder's acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any Proceeding for the
enforcement of any right or remedy under this Agreement, or in any Proceeding
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such Proceeding of an undertaking to pay the
costs of such Proceeding and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such Proceeding, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the provisions of this
Section 8.5(c) shall not apply to:
(i) any Proceeding instituted by the Trustee;
(ii) any Proceeding instituted by any Holder, or group of Holders,
in each case holding in the aggregate Outstanding Certificates
representing more than 10% of the Voting Rights; or
(iii) any Proceeding instituted by any Holder for the enforcement of
the payment of principal or interest on or after the respective due dates
expressed in such Certificate and in this Agreement (or, in the case of
redemption, on or after the redemption date).
Section 8.6 Eligibility Requirements for Trustee. (a) The Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The Trustee
hereunder shall at all times be a corporation which is not an Affiliate of the
Trustor (but may have normal banking relationships with the Trustor or any
obligor with respect to the Underlying Securities with respect to such Series of
Certificates and their respective Affiliates) organized and doing business under
the laws of any State or the United States, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by federal or state
authority. If such corporation or association publishes reports of conditions at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such corporation or association shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
conditions so published. Such corporation or association (or its parent) must be
rated in one of the four highest rating categories by the Rating Agency.
(b) The Trustee shall comply with Section 310(b); provided, however,
that there shall be excluded from the operation of TIA Section 310(b)(1), any
Series Supplement under which other securities are outstanding evidencing
ownership interest in obligations of the Underlying Securities Issuer if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
Section 8.7 Resignation or Removal of the Trustee. (a) The Trustee
may, with respect to any Series of Certificates, at any time resign and be
discharged from any trust hereby created by giving written notice thereof to the
Trustor, the Administrative Agent, if any, the Rating Agency and to all
Certificateholders of such Series. Upon receiving such notice of resignation,
the Trustor shall promptly appoint a successor trustee for such Series by
written instrument, in duplicate, which instrument shall be delivered to the
resigning Trustee and to the successor trustee. A copy of such instrument shall
be delivered to such Certificateholders and the Administrative Agent, if any, by
the Trustor. If no such successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee for such Series.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.6 and shall fail to resign after
written request therefor by the Trustor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Trustor may remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, which instrument shall be delivered to the Trustee so
removed and to the successor trustee. A copy of such instrument shall be
delivered to the Certificateholders and the Administrative Agent, if any, by the
Trustor.
(c) The Holders of Certificates of any Series representing the
Required Percentage-Removal of Trustee of the aggregate Voting Rights may at any
time remove the Trustee and appoint a successor trustee by written instrument or
instruments, in triplicate, signed by such Holders or their attorneys-in-fact
and duly authorized, one complete set of which instruments shall be delivered to
the Trustor, one complete set to the Trustee so removed and one complete set to
the successor trustee so appointed. A copy of such instrument shall be delivered
to the Certificateholders and the Administrative Agent, if any, by the Trustor.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor trustee as
provided in Section 8.8. Upon any such resignation or removal, the Trustee shall
be discharged from all of its obligations and duties in connection with this
Agreement.
Section 8.8 Successor Trustee. (a) Any successor trustee appointed
as provided in Section 8.7 shall execute, acknowledge and deliver to the Trustor
and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder (either with respect to a given Series
of Certificates or with respect to all Certificates issued under this
Agreement), with the like effect as if originally named as trustee herein. The
predecessor trustee shall deliver to the successor trustee all documents and
statements held by it hereunder, and the Trustor and the predecessor trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for more fully and certainly vesting and confirming in
the successor trustee all such rights, powers, duties and obligations. No
successor trustee shall accept appointment as provided in this Section unless at
the time of such acceptance such successor trustee shall be eligible under the
provisions of Section 8.6.
(b) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Trustor shall transmit notice of the succession of
such trustee hereunder to all Holders of Certificates and to the Rating Agency
in the manner provided in Section 10.5.
Section 8.9 Merger or Consolidation of Trustee. Any corporation or
association into which the Trustee may be merged or converted or with which it
may be consolidated or any corporation or association resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation or association succeeding to the business of the Trustee, shall be
the successor of the Trustee hereunder, provided such corporation or association
shall be eligible under the provisions of Section 8.6, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section 8.10 Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust for a given Series may at the time be located, the Trustor and the Trustee
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee or co-trustees, jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of such Trust, and to vest in such Person
or Persons, in such capacity, such title to such Trust, or any part thereof,
and, subject to the other provisions of this Section 8.10, such powers, duties,
obligations, rights and trusts as the Trustor and the Trustee may consider
necessary or desirable. If the Trustor shall not have joined in such appointment
within 15 days after the receipt by it of a request so to do, or in case an
Administrative Agent Termination Event shall have occurred and be continuing,
the Trustee alone shall have the power to make such appointment. No co-trustee
or separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 8.6 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee or co-trustees or separate trustee
or trustees shall be required under Section 8.8 hereof. Notwithstanding anything
contained herein to the contrary, the appointment of a co-trustee pursuant to
this Section 8.10 shall not release the Trustee from the duties, obligations,
responsibilities or liabilities arising under this Agreement.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed by the Trustee (whether
as Trustee hereunder or as successor to an Administrative Agent hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to such Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed by such separate trustee or co-trustee at the direction
of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all its
estates, properties, rights, remedies and trusts shall vest in and be exercised
by the Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
Section 8.11 Appointment of Office or Agency. As specified in a
Series Supplement, the Trustee shall appoint an office or agency in the City of
New York where the Certificates may be surrendered for registration of transfer
or exchange, and presented for the final distribution with respect thereto, and
where notices and demands to or upon the Trustee in respect of the Certificates
of the related Series and this Agreement may be served.
Section 8.12 Representations and Warranties of Trustee. The Trustee
represents and warrants that:
(i) the Trustee is duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or
association;
(ii) neither the execution nor the delivery by the Trustee of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will violate its charter documents or by-laws.
(iii) the Trustee has full power, authority and right to execute,
deliver and perform its duties and obligations as set forth herein and in
each Series Supplement to which it is a party and has taken all necessary
action to authorize the execution, delivery and performance by it of this
Agreement; and
(iv) this Agreement has been duly executed and delivered by the
Trustee and constitutes the legal, valid and binding obligation of the
Trustee, enforceable in accordance with its terms, except as enforcement
may be limited by the applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally and
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
Section 8.13 Trustee to Act Only in Accordance With This Agreement
or Pursuant to Instructions of Certificateholders. The Trustee shall only take
such action or shall refrain from taking such action under this Agreement as
directed pursuant to a specific provision of this Agreement or, if required
hereunder, by all the Certificateholders, and the Trustee shall not otherwise
act in respect of the Trust; provided, however, that the Trustee shall not be
required to take any such action if it reasonably determines, or receives, at
the expense of the Certificateholders, an Opinion of Counsel (with copies
thereof delivered to the Certificateholders and the Trustor), that such action
(i) is inconsistent with the purpose of the Trust set forth in Section 2.7 or
contrary to the terms hereof.
Section 8.14 Accounting and Reports to Certificateholders, Internal
Revenue Service and Others. The Trustee shall (a) maintain the books of the
Trust on a calendar year basis on the accrual method of accounting, (b) after
the close of each calendar year, deliver to each Certificateholder, as may be
required by the Code and applicable Treasury Regulations or otherwise, such
information for such year as may be required to enable each Certificateholder to
prepare its federal income tax returns, (c) as specifically directed in writing
by the Trustor, file such tax returns relating to the Trust and make such
elections as may from time to time be required or appropriate under any
applicable state or federal statute or rule or regulation thereunder so as to
maintain the Trust's characterization as other than an association taxable as a
corporation for federal income tax purposes, (d) cause such tax returns to be
signed in the manner required by law and (e) collect or cause to be collected
any withholding tax as described in and in accordance with Subsection 4.4 with
respect to income or distributions to Certificateholders.
Section 8.15 Signature on Returns. Except as required by law, the
Trustee shall sign on behalf of the Trust any and all tax returns of the Trust
presented to it by the Trustor in final execution form.
Section 8.16 Grantor Trust Status. The Trustee shall perform its
duties hereunder so as to maintain the status of the Trust as a grantor trust
under the Grantor Trust Provisions. The Trustee shall not knowingly take (or
cause the Trust to take) any action or fail to take (or fail to cause to be
taken) any action that, under the Grantor Trust Provisions, if taken or not
taken, as the case may be, could adversely affect the status of the Trust as a
grantor trust under the Grantor Trust Provisions (any such adverse effect on
grantor trust status, an "Adverse Grantor Trust Event"), unless the Trustee has
received an Opinion of Counsel (at the expense of the party requesting such
action or at the expense of the Trust if the Trustee seeks to take such action
or to refrain from taking any action for the benefit of the beneficial owners of
Certificates) to the effect that the contemplated action will not result in an
Adverse Grantor Trust Event. In addition, prior to taking any action with
respect to the Trust, or causing the Trust to take any action, that is not
expressly permitted under the terms of this Agreement, the Trustee shall consult
with counsel with respect to whether such action could cause an Adverse Grantor
Trust Event to occur. The Trustee shall not have any liability hereunder for any
action taken by it in accordance with the written Opinion of Counsel, upon which
the Trustee may rely.
ARTICLE IX
TERMINATION
Section 9.1 Termination upon Purchase or Liquidation of All
Underlying Securities. (a) The respective obligations and responsibilities under
this Agreement of the Trustor, the Administrative Agent, if any, and the Trustee
(other than the obligations of any such Administrative Agent to provide for and
the Trustee to make distributions to Holders of the Certificates of any given
Series as hereafter set forth) shall terminate upon the distribution to such
Holders of all amounts held in all the Accounts for such Series or by an
Administrative Agent, if any, and required to be paid to such Holders pursuant
to this Agreement on the Distribution Date coinciding with or following the
earlier to occur of (i) if and as provided in the Series Supplement for such
Series, the purchase by, and at the sole option of, the Administrative Agent, if
any, as provided in the Series Supplement for such Series, of all remaining
Underlying Securities for such Series in the Trust for such Series on any
Distribution Date, provided that such option may be exercised only if the
aggregate principal amount of such Underlying Securities at the time of any such
purchase is less than 10% (or such other percentage as may be specified in such
Series Supplement) of the aggregate principal amount of all Underlying
Securities deposited in such Trust as of the applicable Cut-off Date and (ii)
the final payment on or other liquidation (which may include redemption or other
purchase thereof by the applicable Underlying Securities Issuer) (or any Advance
with respect thereto) of the last Underlying Security remaining in the Trust for
such Series or the disposition of all property acquired upon foreclosure or
liquidation of any such Underlying Security; provided, however, that in no event
shall the trust created hereby continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof.
(b) The Administrative Agent shall exercise its option to purchase
all the Underlying Securities remaining in the Trust pursuant to clause (i) of
Section 9.1(a) not later than 91 days prior to the anticipated date of purchase
of all such Underlying Securities, at a price as may be specified in the
applicable Series Supplement; provided, however, that such price shall not be
less than the then outstanding aggregate principal amount of such Underlying
Securities as determined on the date of purchase. The proceeds of such purchase
will be deposited into the Certificate Account and applied in the same manner
and priority that collections on Underlying Securities would be applied as
provided in the applicable Series Supplement.
(c) Written notice of any termination shall be provided as set forth
in Section 10.5.
(d) Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Scheduled Distribution Date, or the Distribution
Date coinciding with or next following the earlier to occur of the occurrences
specified in clauses (i) and (ii) of Section 9.1(a), with respect to the
applicable Series of Certificates, the Trustee shall distribute to each Holder
presenting and surrendering its Certificates (i) the amount otherwise
distributable on such Distribution Date in accordance with Section 4.1 in
respect of the Certificates so presented and surrendered, if not in connection
with the purchase by an Administrative Agent or the Trustor of all the
Underlying Securities or (ii) as specified in the applicable Series Supplement,
if in connection with an Administrative Agent's purchase of all the remaining
Underlying Securities. Any funds not distributed on such Distribution Date shall
be set aside and held in trust for the benefit of Certificateholders not
presenting and surrendering their Certificates in the aforesaid manner, and
shall be disposed of in accordance with this Section 9.1 and Section 4.1 hereof.
Immediately following the deposit of funds in trust hereunder, the Trust for
such Series shall terminate.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1 Amendment. (a) This Agreement may be amended from time
to time by the Trustor and the Trustee without notice to or the consent of any
of the Certificateholders for any of the following purposes: (i) to cure any
ambiguity or to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein; (ii) to add or
supplement any Credit Support for the benefit of any Certificateholders
(provided that if any such addition affects any series or class of
Certificateholders differently that any other series or class of
Certificateholders, then such addition will not, as evidenced by an opinion of
counsel, have a material adverse effect on the interests of any affected series
or class of Certificateholders); (iii) to add to the covenants, restrictions or
obligations of the Trustor, the Administrative Agent, if any, or the Trustee for
the benefit of the Certificateholders; (iv) to add, change or eliminate any
other provisions with respect to matters or questions arising under this
Agreement, so long as (x) any such amendment described in (i) through (iv) will
not, as evidenced by an opinion of counsel, cause the Trust (unless otherwise
specified in a related Series Supplement) to fail to qualify as a grantor trust
for federal income tax purposes or result in a sale or exchange of any
Certificate for tax purposes and (y) the Trustee has received written
confirmation from each Rating Agency rating such Certificates that such
amendment will not cause such Rating Agency rating such Certificates to reduce
or withdraw the then current rating thereof; (v) to comply with any requirements
imposed by the Code; (vi) to evidence and provide for the acceptance of
appointment hereunder of a Trustee other than U.S. Bank Trust National
Association, as Trustee for a Series of Certificates, and to add to or change
any of the provisions of this Agreement as shall be necessary to provide for or
facilitate the administration of the separate Trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 5.1 hereof; (vii) to evidence
and provide for the acceptance of appointment hereunder by a successor Trustee
with respect to the Certificates of one or more Series or to add or change any
of the provisions of this Agreement as shall be necessary to provide for or
facilitate the administration of the trusts hereunder; (viii) to provide for the
issuance of a new Series of Certificates pursuant to a Series Supplement issued
hereunder pursuant to Sections 5.1 and 5.13 hereof; or (ix) at the request of
the Trustor, to add or modify provisions as Trustor deems necessary or
appropriate for compliance with Regulation AB.
(b) Without limiting the generality of the foregoing, with respect
to any Series this Agreement may also be modified or amended from time to time
by the Trustor and the Trustee with the consent of the Holders of Certificates
representing the Required Percentage - Amendment of the aggregate Voting Rights
of those Certificates to which such modification or amendment relates for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Holders of Certificates; provided, however, that (i) no such amendment shall
reduce in any manner the amount of, or defer the timing of, payments received on
Underlying Securities which are required to be distributed on any Certificate
without the unanimous consent of the Holders of such Certificates, and (ii) this
Section 10.1(b) shall not be amended without the unanimous consent of the
Holders of all the Certificates of such Series; and provided further that the
Trustor shall furnish to the Trustee an Opinion of Counsel (unless otherwise
indicated in a related Series Supplement) stating that, in the opinion of such
counsel, any such amendment would not affect the characterization of the Trust
as a "grantor trust" for federal income tax purposes. Notwithstanding any other
provision of this Agreement, for purposes of the giving or withholding of
consents pursuant to this Section 10.1, Certificates registered in the name of
the Trustor, or any Affiliate thereof, shall be entitled to Voting Rights with
respect to matters affecting such Certificates; and provided further that in the
event the Rating Agency Condition is not satisfied with respect to such
modification or amendment, the Required Percentage- Amendment shall be increased
to require an aggregate percentage of the aggregate Voting Rights in the amount
specified in the applicable Series Supplement.
(c) Promptly after the execution of any such amendment or
modification, the Trustee shall furnish a copy of such amendment or modification
to each Certificateholder of the affected Series or Class and to the Rating
Agency. It shall not be necessary for the consent of Certificate-holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Section 10.2 Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 10.3 Limitation on Rights of Certificateholders. (a) The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the applicable Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of then.
(b) No Certificateholder of a given Series shall have any right to
vote (except as expressly provided for herein) or in any manner otherwise
control the operation and management of any Trust, or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Certificates, be construed so as to constitute the Certificateholders
from time to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder of a given Series shall have any right by
virtue of any provision of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless (i) such Holder previously shall have given to the Trustee a written
notice of breach and of the continuance thereof and unless also the Holders of
Certificates of such Series evidencing not less than the Required Percentage -
Remedies of the aggregate Voting Rights of such Series shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 15 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding. It is understood and agreed that
the Trustee shall not be obligated to make any investigation of matters arising
under this Agreement or to institute, conduct or defend any litigation hereunder
or in relation hereto at the request, order or direction of any
Certificateholders unless such Certificateholders have offered to the Trustee
the reasonable indemnity referred to above. It is further understood and agreed,
and expressly covenanted by each Certificateholder of each Series with every
other Certificateholder of such Series and the Trustee, that no one or more
Holders of Certificates of such Series shall have any right in any manner
whatever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of the Certificates of such
Series, or to obtain or seek to obtain priority over or preference to any other
such Holder, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders of such Series. For the protection and enforcement of the
provisions of this Section, each and every Certificateholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 10.4 Governing Law. This Agreement 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.
Section 10.5 Notices. All directions, demands and notices hereunder
shall be in writing and shall be delivered as set forth in the applicable Series
Supplement. Any notice required to be provided to a Holder of a Certificate
shall be given by first class mail, postage prepaid, at the last address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given when mailed, whether or not the Certificateholder receives such
notice.
Section 10.6 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 10.7 Notice to Rating Agency. The Trustee shall use its best
efforts promptly to provide notice to the Rating Agency with respect to each of
the following of which it has actual knowledge:
(i) any change or amendment to this Agreement;
(ii) the occurrence of any Administrative Agent Termination Event;
(iii) the resignation or termination of an Administrative Agent, if
any, or the Trustee;
(iv) the appointment of a successor Trustee;
(v) the repurchase or substitution of Underlying Securities, if any,
pursuant to Section 2.3;
(vi) the final payment to Holders of the Certificates of any Class;
(vii) any change in the location of the Certificate Account; and
(viii) any event that would result in the inability of the Trustee
to make Advances.
In addition, the Trustee shall promptly furnish to each Rating
Agency copies of each report to Certificateholders described in Section 4.2 and
the Administrative Agent, if any, or otherwise the Trustee shall promptly
furnish to each Rating Agency copies of the following:
(i) each annual statement as to compliance described in Section
3.15; and
(ii) each annual independent public accountants' servicing report
described in Section 3.16.
Any such notice pursuant to this Section shall be in writing and shall be deemed
to have been duly given if personally delivered or mailed by first class mail,
postage prepaid, or by express delivery service to each Rating Agency at the
address specified in the applicable Series Supplement.
Section 10.8 Grant of Security Interest. It is the express intent of
the parties hereto that each conveyance of any Underlying Securities by the
Trustor to the Trustee be, and be construed as, a sale of the Underlying
Securities by the Trustor and not a pledge of or grant of a security interest in
any Underlying Securities by the Trustor to secure a debt or other obligation of
the Trustor. However, in the event that, notwithstanding the aforementioned
intent of the parties, any Underlying Securities are held to be property of the
Trustor, then, (a) it is the express intent of the parties that such conveyance
be a pledge of or grant of a security interest in such Underlying Securities by
the Trustor to the Trustee to secure a debt or other obligation of the Trustor
and (b)(1) this Agreement shall also be a security agreement within the meaning
of Articles 8 and 9 of the Uniform Commercial Code as in effect from time to
time in the State of New York, or such other State as may be specified in the
related Series Supplement; (2) the conveyance provided for in Section 2.1 hereof
shall be a grant by the Trustor to the Trustee of a security interest in all the
Trustor's right, title and interest in and to such Underlying Securities and all
amounts payable to the holders of such Underlying Securities in accordance with
the terms thereof and all proceeds of the conversion, voluntary or involuntary,
of the foregoing into cash, instruments, securities or other property, including
all amounts from time to time held or invested in the applicable Certificate
Account, whether in the form of cash, instruments, securities or other property;
(3) the obligations secured by such security agreement shall be all the
Trustor's obligations under this Agreement, including the obligation to provide
to the Certificateholders the benefits of this Agreement relating to such
Underlying Securities and the applicable Trust; and (4) notifications to persons
holding such property, and acknowledgements, receipts or confirmations from
persons holding such property, shall be deemed notifications to, or
acknowledgements, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law. The Trustor shall direct the
Trustee to the extent consistent with this Agreement, take such actions as may
be necessary to ensure that, if this Agreement were deemed to create a security
interest in the Underlying Securities, such security interest would be deemed to
be a perfected security interest of first priority under applicable law and will
be maintained as such for so long as any of the Underlying Securities remain
outstanding. Without limiting the generality of the foregoing, the Trustee, upon
receipt of such direction, shall file, or shall cause to be filed, all filings
identified by the Trustor to be necessary to maintain the effectiveness of any
original filings identified by the Trustor to be necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect the Trustee's
security interest in or lien on the Underlying Securities, including (x)
continuation statements and (y) such other statements as may be occasioned by
(1) any change of name of the Trustor or the Trustee, (2) any change of location
of the place of business, the chief executive office, or jurisdiction of
organization of the Trustor or (3) any transfer of any interest of the Trustor
in any Underlying Security.
Section 10.9 Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement, each of the Trustee (including any Co-Trustee)
the Administrative Agent, if any, (including any Sub-Administrative Agent,
Authenticating Agent, Calculation Agent, or Paying Agent) and the Trustor agrees
that it shall not, until the date which is one year and one day after the
earlier of a Trust Termination Event or the Final Scheduled Distribution Date,
acquiesce, petition or otherwise invoke or cause the Trust to invoke the process
of the United States of America, any State or other political subdivision
thereof or any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government for the purpose of
commencing or sustaining a case by or against the Trust under a federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Trust or all or any part of the property or assets of the Trust or ordering the
winding up or liquidation of the affairs of the Trust.
Section 10.10 No Recourse. Provided that there exists no default on
the Underlying Securities, neither the Trustee (including any Co-Trustee), the
Administrative Agent, if any (including any Sub-Administrative Agent,
Authenticating Agent, Calculation Agent, or Paying Agent) nor the Trustor shall
have any recourse to the Underlying Securities, except as specifically provided
in the related Series Supplement.
Section 10.11 Article and Section References. All Article and
Section references used in this Agreement, unless otherwise provided, are to
articles and sections in this Agreement.
Section 10.12 Conflict with Trust Indenture Act.
(a) If any provision hereof limits, qualifies or conflicts with
another provision hereof that is required to be included in this Agreement by
any of the provisions of the TIA, such required provision shall control.
(b) The provisions of TIA Sections 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
herein unless expressly excluded by this Agreement) are a part of and govern
this Agreement, whether or not physically contained herein.
IN WITNESS WHEREOF, the Trustor and the Trustee have caused their
names to be signed hereto by their respective officers thereunto duly
authorized, in each case as of the day and year first above written.
SYNTHETIC FIXED-INCOME
SECURITIES, INC., as Trustor
By: /s/ Xxxxx Xxxxx
-------------------------------------
Authorized Signatory
U.S. BANK TRUST NATIONAL ASSOCIATION, as
Trustee
By: /s/ Xxxxx X'Xxxx
-------------------------------------
Authorized Signatory
EXHIBIT A
RELEVANT SERVICING CRITERIA
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the applicable Reporting
Servicer and shall address, at a minimum, the criteria identified below as
applicable to each Reporting Servicer:
SERVICING CRITERIA
--------------------------------------------------------------------------------------------------------------------------
Reference Criteria Reporting Servicer
--------------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
Policies and procedures are instituted to monitor any performance
or other triggers and events of default in accordance with the
1122(d)(1)(i) transaction agreements.
If any material servicing activities are outsourced to third
parties, policies and procedures are instituted to monitor the
third party's performance and compliance with such servicing
1122(d)(1)(ii) activities.
Any requirements in the transaction agreements to maintain a
1122(d)(1)(iii) back-up servicer for the mortgage loans are maintained.
A fidelity bond and errors and omissions policy is in effect
on the party participating in the servicing function
throughout the reporting period in the amount of coverage
required by and otherwise in accordance with the terms of the
1122(d)(1)(iv) transaction agreements.
Cash Collection and Administration
Payments on mortgage loans are deposited into the
appropriate custodial bank accounts and related bank
clearing accounts no more than two business days following
receipt, or such other number of days specified in the transaction
1122(d)(2)(i) agreements.
Disbursements made via wire transfer on behalf of an obligor or to
1122(d)(2)(ii) an investor are made only by authorized personnel.
Advances of funds or guarantees regarding collections, cash flows
or distributions, and any interest or other fees charged for
such advances, are made, reviewed and approved as specified
1122(d)(2)(iii) in the transaction agreements.
The related accounts for the transaction, such as cash reserve
accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g., with
respect to commingling of cash) as set forth in the transaction
1122(d)(2)(iv) agreements.
Each custodial account is maintained at a federally insured
depository institution as set forth in the transaction
agreements. For purposes of this criterion, "federally
insured depository institution" with respect to a foreign
financial institution means a foreign financial institution that
meets the requirements of Rule 13k-1(b)(1) of the Securities
1122(d)(2)(v) Exchange Act.
Unissued checks are safeguarded so as to prevent unauthorized
1122(d)(2)(vi) access.
Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts.
These reconciliations are (A) mathematically accurate; (B)
prepared within 30 calendar days after the bank statement
cutoff date, or such other number of days specified in the
transaction agreements; (C) reviewed and approved by
someone other than the person who prepared the
reconciliation; and (D) contain explanations for
reconciling items. These reconciling items are resolved
within 90 calendar days of X X their original
identification, or such other number of days specified in
1122(d)(2)(vii) the transaction agreements.
Investor Remittances and Reporting
Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are prepared
in accordance with timeframes and other terms set forth in
the transaction agreements; (B) provide information
calculated in accordance with the terms specified in the
transaction agreements; (C) are filed with the Commission
as required by its rules and regulations; and (D) agree
with investors' or the trustee's records as to the total unpaid
principal balance and number of mortgage loans serviced by the
1122(d)(3)(i) Servicer.
Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and other
1122(d)(3)(ii) terms set forth in the transaction agreements.
Disbursements made to an investor are posted within two business
days to the Servicer's investor records, or such other number of
1122(d)(3)(iii) days specified in the transaction agreements.
Amounts remitted to investors per the investor reports agree with
cancelled checks, or other form of payment, or custodial bank
1122(d)(3)(iv) statements.
Pool Asset Administration
Collateral or security on pool assets is maintained as required
1122(d)(4)(i) by the transaction agreements or related pool asset documents.
Pool asset and related documents are safeguarded as required by the
1122(d)(4)(ii) transaction agreements
Any additions, removals or substitutions to the pool asset pool are
made, reviewed and approved in accordance with any conditions or
1122(d)(4)(iii) requirements in the transaction agreements.
Payments on pool assets, including any payoffs, made in accordance
with the related pool asset documents are posted to the Servicer's
obligor records maintained no more than two business days after
receipt, or such other number of days specified in the transaction
agreements, and allocated to principal, interest or other items
1122(d)(4)(iv) (e.g., escrow) in accordance with the related pool asset documents.
The Reporting Servicer's records regarding the pool assets agree with
the Reporting Servicer's records with respect to an obligor's unpaid
1122(d)(4)(v) principal balance.
Changes with respect to the terms or status of an obligor's pool
assets (e.g., loan modifications or re-agings) are made, reviewed and
approved by authorized personnel in accordance with the transaction
1122(d)(4)(vi) agreements and related pool asset documents.
Loss mitigation or recovery actions (e.g., forbearance plans,
modifications and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated, conducted and concluded
in accordance with the timeframes or other requirements established
1122(d)(4)(vii) by the transaction agreements.
Records documenting collection efforts are maintained during the
period a pool asset is delinquent in accordance with the transaction
agreements. Such records are maintained on at least a monthly basis,
or such other period specified in the transaction agreements, and
describe the entity's activities in monitoring delinquent pool assets
including, for example, phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed temporary (e.g., illness
1122(d)(4)(viii) or unemployment).
Adjustments to interest rates or rates of return for pool assets with
1122(d)(4)(ix) variable rates are computed based on the related pool asset documents.
Regarding any funds held in trust for an obligor (such as escrow
accounts): (A) such funds are analyzed, in accordance with the
obligor's pool asset documents, on at least an annual basis, or such
other period specified in the transaction agreements; (B) interest on
such funds is paid, or credited, to obligors in accordance with
applicable pool asset documents and state laws; and (C) such funds
are returned to the obligor within 30 calendar days of full repayment
of the related pool assets, or such other number of days specified in
1122(d)(4)(x) the transaction agreements.
Payments made on behalf of an obligor (such as tax or insurance
payments) are made on or before the related penalty or expiration
dates, as indicated on the appropriate bills or notices for such
payments, provided that such support has been received by the
servicer at least 30 calendar days prior to these dates, or such
1122(d)(4)(xi) other number of days specified in the transaction agreements.
Any late payment penalties in connection with any payment to be made
on behalf of an obligor are paid from the servicer's funds and not
charged to the obligor, unless the late payment was due to the
1122(d)(4)(xii) obligor's error or omission.
Disbursements made on behalf of an obligor are posted within two
business days to the obligor's records maintained by the servicer, or
1122(d)(4)(xiii) such other number of days specified in the transaction agreements.
Delinquencies, charge-offs and uncollectible accounts are recognized
1122(d)(4)(xiv) and recorded in accordance with the transaction agreements.
Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained
1122(d)(4)(xv) as set forth in the transaction agreements.
[NAME OF REPORTING SERVICER
Date:
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By:
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Name:
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Title:
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