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BASE TRUST AGREEMENT
between
STRUCTURED PRODUCTS CORP.
Depositor
and
DELAWARE TRUST CAPITAL MANAGEMENT, INC.
Trustee
Dated as of September 15, 1997
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TABLE OF CONTENTS
PAGE
ARTICLE I.
DEFINITIONS AND ASSUMPTIONS
Section 1.1. DEFINITIONS ................................. 1
Section 1.2. RULES OF CONSTRUCTION ....................... 14
ARTICLE II.
DECLARATION OF TRUSTS; ISSUANCE OF CERTIFICATES
Section 2.1. CREATION AND DECLARATION OF TRUSTS; ASSIGNMENT
OF DEPOSITED ASSETS........................ 14
Section 2.2. ACCEPTANCE BY TRUSTEE ....................... 17
Section 2.3. RESERVED .................................... 18
Section 2.4. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR
AND REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE ADMINISTRATOR............................ 18
Section 2.5. BREACH OF REPRESENTATION, WARRANTY OR
COVENANT.................................. 19
Section 2.6. AGREEMENT TO AUTHENTICATE AND DELIVER
CERTIFICATES.............................. 20
ARTICLE III.
ADMINISTRATION
Section 3.1. ADMINISTRATION OF EACH TRUST ................ 20
Section 3.2. ADMINISTRATION AGREEMENTS.................... 21
Section 3.3. SUCCESSOR ADMINISTRATORS..................... 21
Section 3.4. NO CONTRACTUAL RELATIONSHIP BETWEEN
ADMINISTRATORS AND CERTIFICATEHOLDERS...... 22
Section 3.5. COLLECTION OF CERTAIN DEPOSITED ASSET
PAYMENTS................................... 22
Section 3.6. INVESTMENT OF FUNDS IN THE ACCOUNTS ......... 22
Section 3.7. RESERVED .................................... 23
Section 3.8. REALIZATION UPON DEFAULTED DEPOSITED ASSETS . 23
Section 3.9. RESERVED .................................... 25
Section 3.10. ADMINISTRATOR'S COMPENSATION AND
REIMBURSEMENT.............................. 25
Section 3.11. STATEMENT AS TO COMPLIANCE .................. 25
Section 3.12. INDEPENDENT PUBLIC ACCOUNTANTS' ADMINISTRATION
REPORT..................................... 25
Section 3.13. ACCESS TO CERTAIN DOCUMENTATION ............. 26
Section 3.14. DUTIES OF THE ADMINISTRATOR ................. 26
Section 3.15. DEPOSITOR TO FURNISH NAMES AND ADDRESSES OF
HOLDERS TO TRUSTEE......................... 27
Section 3.16. PRESERVATION OF INFORMATION, COMMUNICATIONS TO
HOLDERS ................................... 27
i
ARTICLE IV.
DISTRIBUTIONS AND REPORTS TO CERTIFICATEHOLDERS
Section 4.1. DISTRIBUTIONS ............................... 27
Section 4.2. REPORTS TO CERTIFICATEHOLDERS ............... 27
Section 4.3. ADVANCES .................................... 29
Section 4.4. COMPLIANCE WITH WITHHOLDING REQUIREMENTS .... 30
Section 4.5. OPTIONAL EXCHANGE ........................... 30
ARTICLE V.
THE CERTIFICATES
Section 5.1. THE CERTIFICATES ............................ 32
Section 5.2. EXECUTION, AUTHENTICATION AND DELIVERY ...... 36
Section 5.3. TEMPORARY CERTIFICATES ...................... 37
Section 5.4. REGISTRATION; REGISTRATION OF TRANSFER AND
EXCHANGE................................... 38
Section 5.5. MUTILATED, DESTROYED, LOST AND STOLEN
CERTIFICATES............................... 42
Section 5.6. DISTRIBUTION OF INTEREST; INTEREST RIGHTS
PRESERVED.................................. 43
Section 5.7. PERSONS DEEMED OWNERS ....................... 45
Section 5.8. CANCELLATION ................................ 46
Section 5.9. GLOBAL SECURITIES ........................... 46
Section 5.10. NOTICES TO DEPOSITARY ....................... 47
Section 5.11. DEFINITIVE CERTIFICATES ..................... 47
Section 5.12. CURRENCY OF DISTRIBUTIONS IN RESPECT OF
CERTIFICATES............................... 48
Section 5.13. CONDITIONS OF AUTHENTICATION AND DELIVERY OF
NEW SERIES................................. 49
Section 5.14. APPOINTMENT OF PAYING AGENT ................. 50
Section 5.15. AUTHENTICATING AGENT ........................ 51
Section 5.16. EVENTS OF DEFAULT ........................... 52
Section 5.17. CONTROL BY HOLDERS .......................... 52
Section 5.18. WAIVER OF PAST DEFAULTS ..................... 53
ARTICLE VI.
THE DEPOSITOR AND THE ADMINISTRATOR
Section 6.1. THE DEPOSITOR................................ 53
Section 6.2. MERGER OR CONSOLIDATION OF THE DEPOSITOR OR THE
ADMINISTRATOR................................ 56
Section 6.3. LIMITATION ON LIABILITY OF THE DEPOSITOR AND THE
ADMINISTRATOR................................ 57
Section 6.4. LIMITATION ON RESIGNATION OF THE
ADMINISTRATOR................................58
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Section 6.5. RIGHTS OF THE DEPOSITOR IN RESPECT OF THE
ADMINISTRATOR.............................. 58
Section 6.6. DEPOSITOR MAY PURCHASE CERTIFICATES ......... 59
Section 6.7. THE ADMINISTRATOR AND OTHER PARTIES ......... 59
Section 6.8. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
DEPOSITOR.................................. 59
ARTICLE VII.
ADMINISTRATOR TERMINATION EVENTS
Section 7.1. ADMINISTRATOR TERMINATION EVENTS ............ 59
Section 7.2. TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR .... 62
Section 7.3. NOTIFICATION TO CERTIFICATEHOLDERS .......... 63
Section 7.4. WAIVER OF ADMINISTRATOR TERMINATION EVENTS... 63
ARTICLE VIII.
CONCERNING THE TRUSTEE
Section 8.1. AUTHORITY AND DUTIES OF TRUSTEE; NOTICE OF
DEFAULTS................................... 64
Section 8.2. CERTAIN MATTERS AFFECTING THE TRUSTEE ....... 67
Section 8.3. TRUSTEE NOT LIABLE FOR RECITALS IN
CERTIFICATES OR DEPOSITED ASSETS........... 68
Section 8.4. TRUSTEE MAY OWN CERTIFICATES ................ 69
Section 8.5. COMPENSATION OF TRUSTEE ..................... 69
Section 8.6. ELIGIBILITY REQUIREMENTS FOR TRUSTEE ........ 70
Section 8.7. RESIGNATION OR REMOVAL OF THE TRUSTEE ....... 70
Section 8.8. SUCCESSOR TRUSTEE ........................... 71
Section 8.9. MERGER OR CONSOLIDATION OF TRUSTEE .......... 72
Section 8.10. APPOINTMENT OF CO-TRUSTEE OR SEPARATE
TRUSTEE ................................... 72
Section 8.11. APPOINTMENT OF OFFICE OR AGENCY ............. 73
Section 8.12. REPRESENTATIONS AND WARRANTIES OF TRUSTEE ... 73
Section 8.13. TRUSTEE TO ACT ONLY IN ACCORDANCE WITH THIS
AGREEMENT OR PURSUANT TO INSTRUCTIONS OF
CERTIFICATEHOLDERS......................... 74
Section 8.14. ACCOUNTING AND REPORT TO CERTIFICATEHOLDERS,
INTERNAL REVENUE SERVICE AND OTHERS........ 75
Section 8.15. SIGNATURE ON RETURNS ........................ 75
ARTICLE IX.
TERMINATION
Section 9.1. TERMINATION UPON PURCHASE OR LIQUIDATION OF ALL
DEPOSITED ASSETS............................ 76
ARTICLE X.
MISCELLANEOUS PROVISIONS
iii
Section 10.1. AMENDMENT ................................... 77
Section 10.2. COUNTERPARTS ................................ 79
Section 10.3. LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS .. 79
SECTION 10.4. GOVERNING LAW ............................... 80
Section 10.5. NOTICES ..................................... 80
Section 10.6. SEVERABILITY OF PROVISIONS .................. 80
Section 10.7. NOTICE TO RATING AGENCY ..................... 81
Section 10.8. GRANT OF SECURITY INTEREST .................. 81
Section 10.9. NONPETITION COVENANT ........................ 82
Section 10.10. NO RECOURSE ................................. 83
Section 10.11. ARTICLE AND SECTION REFERENCES .............. 83
Section 10.12. CONFLICT WITH TRUST INDENTURE ACT. .......... 83
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BASE TRUST AGREEMENT dated as of September 15, 1997, between
STRUCTURED PRODUCTS CORP., a Delaware corporation, as depositor, and
DELAWARE TRUST CAPITAL MANAGEMENT, a Delaware banking corporation, acting
not in its individual capacity but solely as trustee, (the "Trustee").
PRELIMINARY STATEMENT
The Depositor 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 Depositor, the Administrator, if any, specified in
the applicable Series Supplement, and the Trustee. All representations,
covenants and agreements made herein by each of the Depositor, the
Administrator, if any, and the Trustee are for the benefit and
security of the Certificateholders and the Noteholders. The Depositor is
entering into this Agreement, and the Trustee is accepting the trusts
created hereby, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged.
ARTICLE I.
DEFINITIONS AND ASSUMPTIONS
Section 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.
"Administrator": 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 Administrator as set forth in this Agreement
and such Series Supplement with respect to such Series), until a successor
Person shall have become the Administrator pursuant to the
applicable provisions of this Agreement and such Series Supplement, and
thereafter "Administrator" shall mean such successor Person.
"Administrator Termination Event": As defined in Section
7.1.
"Administrative Fee": With respect to any Series, if applicable,
as defined in the related Series Supplement.
"Administration Agreement": The written contract, if any, between
any Administrator specified in the applicable Series Supplement and
the Trustee, relating to the delegation of administrative responsibilities
hereunder and under the related Series Supplement as provided in Section
3.2 and under the Basic Documents for such Series.
"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
Base Trust Agreement and all amendments hereof and, unless the context
otherwise requires, the related Series Supplement.
"Allowable Expense Amount": With respect to any Series, as
specified in 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": The meaning specified in the applicable Series
Supplement.
"Basic Documents": With respect to any Series, if applicable, as
defined in the related Series Supplement.
"Bearer Certificate": Any Certificate (with or without Coupons),
title to which passes by delivery only, but exclusive of any Coupons.
2
"Board of Directors": Either the Board of Directors of the
Depositor or any executive or committee of such Board duly authorized under
applicable law to act on behalf of such Board.
"Board Resolution": A copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification and delivery to the Trustee.
"Business Day": Any day that is not a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies in
the state of the Corporate Trust Office or Place of Distribution is
authorized or obligated by law, regulation or executive order to close or
any day which is not a business day with respect to the Deposited Assets,
except as otherwise specified pursuant to Section 5.1.
"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 Principal Balance": With respect to an Outstanding
Certificate, as determined at any time, the maximum amount that the Holder
thereof is entitled to receive as distributions allocable to principal
payments on the Deposited Assets. The Certificate Principal Balance, if
any, of any Class within a given Series (other than those Classes, if any,
specified in the related Series Supplement), as of any date of
determination, shall be equal to the aggregate initial Certificate
Principal Balance thereof less the sum of (i) all amounts allocable to
prior distributions made to such Class in respect of principal of the
Deposited Assets and (ii) any reductions attributable to Certificates
surrendered in exchange for Deposited Assets, as and to the extent provided
in the applicable Series Supplement.
"Certificateholder": Any Holder of a Certificate.
"Certificate Register" and "Certificate Registrar": As
respectively defined in Section 5.4.
"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.
3
"Closing Date": With respect to any Series, the day on which
Certificates of such Series are first executed, authenticated and
delivered.
"Code": The Internal Revenue Code of 1986, as amended, and
Treasury Regulations promulgated thereunder.
"Collection Period": With respect to any Distribution Date for a
Series (or Class within such Series), the period specified in the related
Series Supplement.
"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 Administrator, if any, and the
Depositor, or the principal corporate trust office of any successor Trustee
(or such other addresses as a successor Trustee may designate from time to
time by notice to the Holders, the Administrator, if any, and the
Depositor).
"Coupon": Any interest coupon appertaining to a Bearer
Certificate.
"Coupon Certificate": Any Bearer Certificate authenticated and
delivered with one or more Coupons appertaining thereto.
"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
Deposited Asset acquired by the Depositor after the applicable Cut-off Date
but prior to the applicable Closing Date and included in the related Trust
as of such Closing Date shall be deemed to have been Outstanding as of such
Cut-off Date and references to the principal balance of such Deposited
Asset as of such Cut-off Date shall be deemed to be to the principal
balance of such Deposited Asset as of the date on which it was acquired by
the Depositor.
"Definitive Certificates": As defined in Section 5.9.
"Depositary": With respect to the Certificates of any Series (or
Class within such Series) issuable in whole or in part in the form of one
or more Global Securities, the Person designated as Depositary by the
Depositor pursuant to Section 5.1 until a successor Depositary shall have
4
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.
"Deposited Assets": With respect to any Series, the asset or
assets Granted as part of the Trust for such Series or acquired (or, in the
case of an agreement, entered into) by the Trust for the benefit of the
Holders of such Series, all as identified in the Deposited Assets Schedule
to the related Series Supplement. The Deposited Assets for any such Series
or the related Trust shall not constitute Deposited Assets for any other
Series or any other Trust.
"Deposited Assets Schedule": With respect to any Series, a
listing of the Deposited Assets for such Series as of the Closing Date,
including, with respect to each Deposited Asset, the obligor and the
principal balance thereof, which shall be attached to such Series
Supplement as Schedule A.
"Depositor": Structured Products Corp., a Delaware corporation,
and, if a successor Person shall have become the Depositor pursuant to any
applicable provisions of this Agreement, "Depositor" shall mean such
successor Person.
"Depositor Order" or "Depositor Request": A written order or
request, respectively, signed in the name of the Depositor by any two of
its Chief Executive Officer, Chief Financial Officer, Chief Operating
Officer, President, a Vice President, its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary and delivered to the
Trustee; provided that (i) any such order or request shall be signed by
either the President or a Vice President and (ii) no person may sign in a
dual capacity.
"Depository Agreement": If applicable, the agreement pursuant to
which the Depositary will agree to act as Depositary with respect to any
Series (or Class within such Series) of Certificates in accordance with
Section 5.9.
"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 Depositor 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.
5
"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
Deposited Assets or (y) one of its two highest long-term rating categories
(unless otherwise specified in the Series Supplement) at the time any
amounts are held in deposit therein or (ii) a trust account or accounts
maintained as a segregated account or as segregated accounts and held by a
Federal or State chartered depository institution or trust company in trust
for the benefit of the Certificateholders; provided, however, that such
depositary institution or trust company has a long-term rating in one of
the four highest rating categories by the Rating Agency.
"Eligible Expense": With respect to any Series, as specified in
the related Series Supplement.
"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 Depositor 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.
"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 Registered Certificate or Bearer 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.
6
"Grant": To sell, convey, assign, transfer, create, xxxxx x xxxx
upon and a security interest in and right of set-off against, deposit, set
over and confirm to the Trustee pursuant to this Agreement and a related
Series Supplement; and the terms "Granted" and "Granting" have the meanings
correlative to the foregoing. A Grant of any Deposited Assets or of any
other instrument shall include all rights, powers and options (but none of
the obligations) of the Granting party thereunder, including the immediate
and continuing right to claim for, collect, receive and give receipt for
principal, premium, if any, and interest payments in respect of such
Deposited Assets and all other moneys payable thereunder, to give and
receive notices and other communications, to make waivers or other
agreements, to exercise all rights and options, to bring Proceedings in the
name of the Granting party or otherwise, and generally to do and receive
anything that the Granting party is or may be entitled to do or receive
thereunder or with respect thereto.
"Holder": With respect to a Registered Certificate, the
Registered Holder thereof and, with respect to a Bearer Certificate or a
Coupon, the bearer thereof.
"Indenture": With respect to each Series, the Series Trust
Indenture, if any, executed by the Trust in connection with the issuance by
the Trust of Notes in respect of the Deposited Assets for such Series.
"Independent": When used with respect to any specified Person
means that the Person (1) is in fact independent of the Depositor and the
Administrator, if any, and of any Affiliate of any of the foregoing
Persons, (2) does not have any direct or indirect financial interest in the
Depositor or the Administrator, 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 Depositor or the Administrator,
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.
"Liquidation Proceeds": The amounts received by the
Administrator, if any, or the Trustee in connection with (i) the
liquidation of a defaulted Deposited Asset or collateral, if any, related
thereto or (ii) the repurchase, substitution or sale of a Deposited Asset.
"Notes": With respect to any Series, the notes issued pursuant to
an Indenture for such Series in respect of the Deposited Assets for such
Series.
"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
7
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 Depositor or Administrator, 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 Depositor or the Administrator, 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 be an opinion of counsel who is in fact Independent
of the Depositor and the Administrator, 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 Depositor, or any
Affiliate thereof, shall be disregarded and deemed not to be Outstanding,
and the Voting Rights to which its Holder would otherwise be entitled shall
not be taken into account in determining whether the requisite percentage
of aggregate Voting Rights necessary to effect any such consent or take any
such action has been obtained except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Certificates with
respect to which the Depositor has provided the Trustee an Officer's
Certificate stating that such Certificates are so owned shall be so
disregarded. Certificates so owned that have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such
Certificates and that the pledgee is not, to the knowledge of the Trustee,
the Depositor, the Administrator, 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
8
determination referred to in the foregoing proviso shall be the Certificate
Principal Balance 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
Certificate Principal Balance or Notional Amount, as applicable,
represented by such Certificate and the denominator of which is the
aggregate initial Certificate Principal Balance or Notional Amount, as
applicable, of all the Certificates of such Series or Class and (y) 100.
"Permitted Investments": With respect to any Series, unless
otherwise specified in the related Series Supplement, any one or more of
the following obligations or securities, provided that the total return
specified by the terms of each such obligation or security is at least
equal to the purchase price thereof:
(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
9
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
Deposited Assets 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 Deposited Assets; 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 Deposited
Assets and Permitted Investments held as part of the Trust for such Series;
(v) commercial paper having at the time of such investment
the rating specified in the Series Supplement for Permitted Investments;
(vi) a Guaranteed Investment Contract if and only if
specified in the related Series Supplement, provided that the Rating Agency
Condition is met; and
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(vii) investments in money market funds having a rating from
the Rating Agency in the highest investment category granted thereby
(including funds for which the Trustee or any of its Affiliates is
investment manager or advisor) 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.
"Rating Agency": With respect to any Series (or Class within such
Series), each nationally recognized rating organization specified in the
related Series Supplement that initially rates the Certificates of such
Series (or Class).
"Rating Agency Condition": With respect to any action or
occurrence, unless otherwise specified in the applicable Series Supplement,
that each Rating Agency shall have been given 10 days (or such shorter
period acceptable to each Rating Agency) prior notice thereof and that each
Rating Agency shall have notified the Depositor, the Trustee and the
Administrator, 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 Registered Certificates, the date
specified in the related Series Supplement.
"Registered Certificate": Any Certificate registered as to
principal, premium, if any, and interest in the Certificate Register.
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"Registered Holder": The Person in whose name a Registered
Certificate is registered in the Certificate Register on the applicable
Record Date.
"Required Interest": Unless otherwise specified in the related
Series Supplement, with respect to the Outstanding Certificates of any
Series or any Class thereof, the accrued and undistributed interest on the
Certificate Principal Balance or Notional Amount of such Outstanding
Certificates (or the amount due under any related Coupons), 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 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.
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"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.
"Scheduled Final Distribution Date": With respect to any
Certificate, the date on which all the unpaid principal of (and premium, if
any, on) such Certificate is scheduled, without giving effect to any
prepayment, exchange or early termination, to become due and payable as
provided therein and in the applicable Series Supplement.
"Series": A separate series of Certificates issued pursuant to
this Agreement and a related Series Supplement, which series may be divided
into two or more Classes, as provided in such Series Supplement.
"Series Supplement": An agreement supplemental to this Agreement
that authorizes the issuance of a particular Series (and each Class within
such Series) of Certificates.
"Specified Currency": As defined in the related Series
Supplement.
"State": Any one of the 00 xxxxxx xx xxx Xxxxxx Xxxxxx or the
District of Columbia.
"Term Assets Issuer": As defined in the related Series
Supplement.
"TIA": The Trust Indenture Act of 1939, as amended.
"Trust": The TIERS Asset-Backed Securities, Series
CHAMT Trust 1997-7 created hereunder.
"Trustee": With respect to each 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, acting not in its individual capacity but
solely in its capacity as Trustee, 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.
"Uniform Commercial Code": The Uniform Commercial Code as in
effect in the relevant jurisdiction or, with respect to the State of
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Louisiana, the equivalent body of statutory and common law.
"United States": The United States of America (including the
States), its territories, its possessions and other areas subject to its
jurisdiction.
"Voting Rights": With respect to any Series (or Class within such
Series) of Certificates, the portion of the aggregate voting rights of the
Certificates of such Series or Class which shall be allocated to any
Certificate as specified in the applicable Series Supplement.
Section 1.2. RULES OF CONSTRUCTION. Unless the context
otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted accounting
principles as in effect in the United States from time to time;
(iii) "or" is not exclusive;
(iv) the words "herein", "hereof", "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision;
(v) "including" means including without limitation; and
(vi) words in the singular include the plural and words in
the plural include the singular.
ARTICLE II.
DECLARATION OF TRUSTS; ISSUANCE OF CERTIFICATES
Section 2.1. CREATION AND DECLARATION OF TRUSTS; ASSIGNMENT OF
DEPOSITED ASSETS. (a) The Depositor, concurrently with the execution and
delivery hereof, does hereby agree to (i) Grant to the Trust, for the
benefit of the Certificateholders of each given Series of Certificates and
without recourse, all the right, title and interest of the Depositor,
including any security interest therein for the benefit of the Depositor,
in, to and under the Deposited Assets attributable to each such Series
(except for the Deposited Assets attributable to such Series which are not
Granted by the Depositor, as specified in the Deposited Assets Schedule to
the applicable Series Supplement), now existing or hereafter acquired, in
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each case as identified on the applicable Deposited Assets Schedule set
forth in the Series Supplement for such Series, 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
Deposited Assets attributable to such Series, in each case as identified on
the Deposited Asset Schedule set forth in the Series Supplement for such
Series, and all other assets to be included in the respective trust for the
benefit of the Certificateholders of each such Series. Each such Grant will
include all interest, premium (if any) and principal received by or on
behalf of the Depositor of, on or with respect to any such Deposited Assets
due after the applicable Cut-off Date, and, unless otherwise specified in
the related Series Supplement, will exclude all interest, premium (if any)
and principal of, on or with respect to any such Deposited Assets due on or
before the applicable Cut-off Date.
(b) In connection with each Grant referred to in the preceding
paragraph, the Depositor shall, not later than the applicable Closing Date,
(i) deposit the Deposited Assets for a given Series (except for the
Deposited Assets attributable to such Series which are to be acquired from
a Person other than the Depositor, as specified on the Deposited Assets
Schedule to the applicable Series Supplement) with the Trustee by physical
delivery of such Deposited Assets, duly endorsed, to the Trust or by
causing such Deposited Assets to be registered by book entry in the name of
the Trust and (ii) with respect to each such Deposited Asset, deliver or
cause to be delivered to the Trustee all documents necessary to transfer
ownership of each such Deposited Asset to the Trust.
(c) Unless otherwise specified in the applicable Series
Supplement, the Grant of such Deposited Assets by the Depositor for a given
Series accomplished hereby and by such Series Supplement is absolute and is
intended by the parties hereto as a sale. The Depositor represents and
covenants that the Deposited Assets 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 Depositor and, with respect to any Grant of Deposited
Assets, that the Depositor will as of such respective Closing Date have the
right to Grant the applicable Deposited Assets to the Trust.
(d) Each Series shall constitute a separate series of the Trust
pursuant to Section 3806(b)(2) of the Delaware Business Trust Act (the
"DBTA"). Separate and distinct records shall be maintained for each such
Series and the assets associated with any such Series shall be held and
accounted for separately from the other assets of the Trust, or any other
Series thereof. Subject to the right of the Trust to allocate general
liabilities, expenses, costs, charges or reserves as herein provided, the
debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to a particular Series shall be enforceable
against the assets of such Series only, and not against the assets of any
other Series. Notice of this limitation on inter-Series liabilities shall
be set forth in the certificate of trust of the Trust (whether originally
or by amendment) as filed or to be filed in the Office of the Secretary of
State of the State of Delaware pursuant to the DBTA, and upon the giving of
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such notice in the certificate of trust, the statutory provisions of
Section 3804 of the DBTA relating to limitations on inter-Series
liabilities (and the statutory effect under Section 3804 of setting forth
such notice in the certificate of trust) shall become applicable to the
Trust and each Series. Every note, bond, contract or other undertaking
issued by or on behalf of a particular Series shall include a recitation
limiting the obligation represented thereby to that Series and its assets.
(e) The Trust created hereby shall be known as
"TIERS Asset-Backed Securities, Series CHAMT Trust 1997-7,"
in which name the Trustee may conduct the business of the Trust, make and
execute contracts and other instruments on behalf of the Trust and xxx and
be sued.
(f) The office of the Trust shall be in care of the Trustee at
the Corporate Trust Office or at such other address as the Trustee may
designate by written notice to the Certificateholders and the Depositor.
(g) The purpose of the Trust is, and the Trust shall have the
power and authority to, engage in the following activities:
(i) to issue Notes pursuant to an Indenture for any Series
and the Certificates pursuant to this Agreement and its related Series
Supplement and to sell such Notes and such Certificates in one or more
transactions;
(ii) with the proceeds of the sale of the Notes and the
Trust Certificates to purchase the Deposited Assets for one or more
Series;
(iii) to assign, grant, transfer, pledge, mortgage and convey
the Deposited Assets for one or more series pursuant to the Indenture
and to hold, manage and distribute to the Certificateholders any
portion of the Deposited Assets for one or more series released from
the Lien of, and remitted to the Trust pursuant to, an Indenture:
(iv) to execute, deliver and perform its obligations under
each Indenture, each Series Supplement and the other documents,
agreements and certificates contemplated thereby.
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Basic Documents in
respect of each Series, to engage in such other activities as may be
16
required in connection with conservation of the Deposited Assets for
such Series and the making of distributions to the Certificateholders
and the Noteholders.
The Trust shall not engage in any activity other than in connection with
the foregoing or other than as required or authorized by this Agreement or
the Basic Documents in respect of a Series.
(h) The Depositor hereby contributes to the Trustee, as of the
date hereof, the sum of $1.00. The Trustee hereby acknowledges receipt in
trust from the Depositor, as of the date hereof, of the foregoing
contribution. The Depositor shall pay organizational expenses of the Trust
as they may arise or shall, upon the request of the Trustee, reimburse the
Trustee for any such expenses paid by the Trustee pursuant to their
arrangement set forth in a separate agreement. The Trustee hereby declares
that it will hold the Deposited Assets in trust upon and subject to the
conditions set forth herein for the use and benefit of the
Certificateholders, subject to the obligations of the Trust under the Basic
Documents in respect of a Series. It is the intention of the parties
hereto that the Trust constitute a business trust under the DBTA and that
this Agreement constitute the governing instrument of such business trust.
(i) No Certificateholder shall have any personal liability for
any liability or obligation of the Trust.
(j) Legal title to all the Deposited Assets shall be vested at
all times in the Trust as a separate legal entity, except where applicable
law in any jurisdiction requires title to any part of the Deposited Assets
to be vested in a trustee or trustees, in which case title shall be deemed
to be vested in the Trustee, a co-trustee and/or a separate trustee, as the
case may be.
(k) The Trust will be located and administered in the State of
Delaware. All bank accounts maintained by the Trustee on behalf of the
Trust shall be located in the State of Delaware or the State of New York.
The Trust shall not have any employees in any state other than Delaware;
PROVIDED, HOWEVER, that nothing herein shall restrict or prohibit the
Trustee from having employees within or without the State of Delaware.
Section 2.2. ACCEPTANCE BY TRUSTEE.
(a) With respect to each Series, the Trustee on behalf of the
Trust will acknowledge receipt by the Trust, of the related Deposited
Assets and the related documents referred to in Section 2.1, now existing
or hereafter acquired, and declares that it will hold such Deposited Assets
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 Deposited Assets acquired from a Person other than the
Depositor) comprising the Trust for a given Series of Certificates, in
17
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 or Administrator 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 or Administrator discovers
any document or documents to be missing or defective, the person
discovering such defect shall promptly (but in any event within 10 Business
Days) so notify the Trustee, the Depositor and each Administrator.
Section 2.3. RESERVED.
Section 2.4. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR
AND REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ADMINISTRATOR.
(a) The Depositor hereby represents and warrants to the Trustee
that as of the Closing Date or as of such other date specifically provided
herein or in the applicable Series Supplement:
(i) the Depositor 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
Depositor's knowledge, the information set forth in the Deposited Asset
Schedule with respect to each Deposited Asset 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
Depositor and its performance of and compliance with the terms of this
Agreement will not violate the Depositor'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 Depositor is a party or which may be applicable to the Depositor
or any of its assets;
(iv) the Depositor has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement
and has duly executed and delivered this Agreement. This Agreement, upon
its execution and delivery by the Depositor and assuming due authorization,
execution and delivery by the Trustee, will constitute a valid, legal and
binding obligation of the Depositor, enforceable against it in accordance
18
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 Depositor is not in violation, and the execution
and delivery of this Agreement by the Depositor and its performance and
compliance with the terms of this Agreement will not constitute a
violation, of any order or decree of any court or any order or regulation
of any Federal, State, municipal or governmental agency having jurisdiction
over the Depositor or its properties, which violation would reasonably be
expected to have a material and adverse effect on the condition (financial
or otherwise) or operations of the Depositor or its properties or on the
performance of its duties hereunder; and
(vi) any additional representations and warranties, if any,
that may be specified in the applicable Series Supplement.
It is understood and agreed that the representations and
warranties of the Depositor set forth in this Section 2.4(a) shall survive
delivery of the respective documents to the Trustee and shall inure to the
benefit of the Trustee on behalf of the Certificateholders notwithstanding
any restrictive or qualified endorsement or assignment. Upon discovery by
any of the Depositor, the Administrator, 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.
(b) The Administrator, 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 Depositor, the Administrator,
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 Depositor or receipt
of notice by the Depositor of a breach of any representation or warranty of
the Depositor set forth in Section 2.4(a) that materially and adversely
affects the interests of the Certificateholders of a given Series of
Certificates, the Depositor shall cure such breach in all material
respects.
(b) With respect to an Administrator appointed pursuant
to the applicable Series Supplement, within 90 days of the earlier of
discovery by such Administrator or receipt of notice by such
Administrator of a breach of any representation, warranty or
covenant of such Administrator set forth in the applicable Series
Supplement that materially and adversely affects the interests of the
19
Certificateholders, such Administrator 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 Grant to and receipt by it of the related Deposited
Assets and delivery to it by the Depositor of executed Certificates and
Coupons, if any, of such Series, cause to be authenticated and delivered to
or upon the order of the Depositor, in exchange for the Deposited Assets
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.
ARTICLE III.
ADMINISTRATION
Section 3.1. ADMINISTRATION OF EACH TRUST.
(a) The Trustee shall administer the Deposited Assets for each
Trust for the benefit of the Certificateholders of the related Series. In
engaging in such activities, the Trustee shall, subject to the provisions
of Article VI hereof, follow, or cause to be followed, collection
procedures in accordance with the terms of this Agreement and the
applicable Series Supplement and the respective Deposited Assets. 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 Deposited Assets, the Trustee (or the Administrator, if
applicable) shall have full power and authority, acting alone or through
any Administrator, 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
Administrator, if any, specified in the applicable Series Supplement
shall, to the extent permitted under its Administration Agreement, be
authorized and empowered, when such Administrator believes it
appropriate in its reasonable judgment and when otherwise required by a
Series Supplement, in its own name (i) to instruct the Trustee to make
20
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 Deposited Assets relating to such Series.
(c) The duties of the Trustee and the Administrator, if
any, shall be performed in accordance with applicable local, State and
Federal law, and the Trustee (or the Administrator) shall make, or
cause to be made, any and all filings, reports, notices or applications
with, and seek any comments and authorizations from, the Commission and any
State securities authority on behalf of the Trust for each Series. If the
applicable Series Supplement appoints an Administrator, the Trustee,
in its capacity as Trustee, shall execute, at the direction of such
Administrator, any powers of attorney and other documents necessary
or appropriate to enable the Administrator to carry out any of its
administrative duties hereunder; PROVIDED, however, that the Trustee, in
its capacity as Trustee, shall, to the extent permitted by law, not be
accountable for the actions of the Administrator under such powers
of attorney.
Section 3.2. ADMINISTRATION AGREEMENTS.
(a) The Trustee may enter into Administration Agreements with
one or more Administrators in order to delegate any or all of its
non-fiduciary obligations hereunder with respect to a related Series under
this Agreement PROVIDED, that (i) the Rating Agency Condition shall have
been satisfied with respect to the entering into of any such agreement and
(ii) such agreements are consistent with the terms of this Agreement and,
with respect to Certificates of any Series, the related Series Supplement.
(b) If the Trustee enters into any Administrative Agreements,
such delegation shall release, to the extent permitted by law, the Trustee,
from the duties, obligations, responsibilities or liabilities delegated
thereunder.
(c) Each Administration Agreement shall impose on the
Administrators requirements conforming to the provisions set forth
in Section 3.1 and provide for administration of the related Trust, the
Indenture, if any, and all or certain specified Deposited Assets for such
Series consistent with the terms of this Agreement and the related Series
Supplement. Additional requirements relating to the scope and contents of
any Administration Agreement may be provided in the applicable Series
Supplement. Copies of each Administration Agreement, together with any
amendments or modifications thereto, shall be promptly delivered to the
Depositor, upon the execution and delivery of any such instruments.
Section 3.3 SUCCESSOR ADMINISTRATORS. An Administrator,
if any, specified in the applicable Series Supplement and the Trustee
shall each be entitled to terminate any Administration Agreement
21
Agreement to which it is a party and the rights and obligations of any
under such Administration Agreement in accordance with the terms and
conditions of such Administration Agreement. In the event of the
termination of any Administrator, the Trustee may appoint a
successor Administrator meeting the requirements hereof including
that the Rating Agency Condition be satisfied.
Section 3.4. NO CONTRACTUAL RELATIONSHIP BETWEEN ADMINISTRATORS
AND CERTIFICATEHOLDERS. Any Administration Agreement between an
Administrator specified in the applicable Series Supplement and the
Trustee that may be entered into and any transactions or services relating
to the Deposited Assets pursuant to such an agreement shall be deemed to be
between the Administrator and the parties thereto and the
Certificateholders shall not be deemed parties thereto and shall have no
claims, rights, obligations, duties or liabilities with respect to the
Administrator. The Depositor shall be solely liable for all fees
and expenses of any Administrator in accordance with its Administration
Agreement.
Section 3.5. COLLECTION OF CERTAIN DEPOSITED ASSET
PAYMENTS. With respect to any Series or Class of Certificates, the Trustee
may (or may delegate an Administrator to), make reasonable efforts
to collect all payments required to be made pursuant to the terms of the
Deposited Assets in a manner consistent with the terms of this Agreement
and such Deposited Assets.
Section 3.6. INVESTMENT OF FUNDS IN THE ACCOUNTS. The
Depositor (or, if so specified in the applicable Series Supplement, the
Administrator), 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 maintained therein in one or more Permitted Investments bearing
interest or sold at a discount, which shall be held to maturity unless
payable on demand and which funds shall not be reinvested upon the maturity
or demand for payment of such Permitted Investment. If the Depositor (or
the Administrator, 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
22
Investment may otherwise mature hereunder in an amount equal to the lesser
of (1) all amounts then payable thereunder and (2) the amount required to
be withdrawn on such date; and
(y) demand same day payment of all amounts due thereunder upon a
determination by the Trustee that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter on deposit
in any Account.
Section 3.7. RESERVED.
Section 3.8. REALIZATION UPON DEFAULTED DEPOSITED ASSETS. (a)
If:
(i) default is made in the payment of any installment of
interest on any Deposited Asset 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 Deposited Asset (or, if no such
period is specified, five days) after receipt by the Term Assets Issuer of
notice thereof from the Trustee or receipt by the Term Assets 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 Deposited Asset 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
Deposited Asset (or, if no such period is specified, thirty (30) days)
after receipt by the Term Assets Issuer of notice thereof from the Trustee
or receipt by the Term Assets Issuer and the Trustee of notice thereof from
the Holders of Outstanding Certificates representing at least 25% of the
Voting Rights;
and the Term Assets 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 Deposited Assets for principal and interest,
with interest upon the overdue principal, at the rate borne by the
Deposited Assets 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 Term Assets Issuer or other obligor upon the Deposited
Assets and collect in the manner provided by law out of the property of the
Term Assets Issuer or other obligor upon the Deposited Assets 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
23
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 Deposited Assets (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 Deposited Assets) as a
result of a payment default on the Deposited Assets 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 aggregate Certificate
Principal Balance of all Certificates of each class, and within each class
pro rata by the Certificate Principal Balance of each Certificate within
such class. [pro rata by Accreted Value]. 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, shall be distributed in cash, only to the extent
necessary to avoid distribution of fractional securities.
(c) The Trustee or Administrator (to the extent or
required under its Administration Agreement), on behalf of the
Certificateholders, shall assert claims 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 Deposited Assets, subject in all cases to the provisions of
Article VI hereof in the case of the Administrator and Article VIII
hereof in the case of the Trustee.
(d) Unless otherwise provided in a Series Supplement, if the
Administrator or the Trustee, as applicable, is unable to obtain, or
cause to be obtained, full recovery in respect of a defaulted Deposited
Asset, the Administrator 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 Deposited Asset,
subject in all cases to the provisions of Article VI hereof in the case of
the Administrator and Article VIII hereof in the case of the
Trustee.
Section 3.9. RESERVED.
Section 3.10. ADMINISTRATOR'S COMPENSATION AND REIMBURSEMENT.
(a) As compensation for its activities, the Administrator,
if any, shall be compensated, by the Depositor.
(b) If, and only to the extent, provided in a Series Supplement,
the Administrator, 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
Deposited Assets for such 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, and expenses specified in such Series
Supplement; PROVIDED, however, that neither the Administrator, 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 3.11. STATEMENT AS TO COMPLIANCE. An Administrator
appointed in respect of any Series of Certificates pursuant to the
applicable Series Supplement, if any, will deliver to the Trustee, the
Depositor and the Rating Agency not later than 90 days following the end of
each fiscal year of the Administrator an Officer's Certificate
executed by two of its Executive Officers stating, as to each signatory
thereof, that in respect of such Series (i) a review of the activities of
the Administrator during the preceding year and of performance under
this Agreement has been made under such officer's supervision and (ii) to
the best of such officer's knowledge, based on such review, the
Administrator has fulfilled all 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 officer and
the nature and status thereof. Copies of each such statement received by
the Trustee shall be provided by the Trustee to any Certificateholder of
such Series upon written request at the Certificateholder's expense.
Section 3.12. INDEPENDENT PUBLIC ACCOUNTANTS' ADMINISTRATION
REPORT. Unless otherwise specified in the Series Supplement, within four
months after the end of each 12-month period beginning with the period
specified in the Series Supplement for a given Series of Certificates,
either the Administrator, if any, specified in the Series
Supplement, or otherwise the Trustee shall cause a firm of nationally
recognized independent public accountants (who may also render other
services to the Administrator, if any, the Trustee or the Depositor)
to furnish a report addressed to the Trustee, the Depositor, and the Rating
25
Agency for such Series, if any, to the effect that such firm has examined
certain documents and records relating to the administration of the
Deposited Assets deposited in or held by the applicable Trust during the
preceding 12-month period (or, in the case of the first such report, during
the period from the Closing Date to the date specified in the applicable
Series Supplement) and that, on the basis of certain agreed-upon procedures
considered appropriate under the circumstances, such firm is of the opinion
that such administration was conducted in accordance with the terms of this
Agreement and the related Series Supplement except for (i) such exceptions
as such firm shall believe to be immaterial and (ii) such other exceptions
and qualifications as shall be set forth in such report.
Such report will also indicate that such firm is independent of
the Administrator, if any, and the Trustee within the meaning of the
Code of Professional Ethics of the American Institute of Certified Public
Accountants.
Copies of such report received by the Trustee shall be provided
by the Trustee to any Certificateholder of such Series upon written request
without charge to the requesting Certificateholder.
The firm of independent public accountants shall be entitled to
compensation in consideration for its duties hereunder in the manner
specified in the applicable Series Supplement.
Section 3.13. ACCESS TO CERTAIN DOCUMENTATION. To the extent
required by applicable laws and regulations, the Trustee and the
Administrator, 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 Deposited Assets in respect of
the applicable Series. Such access shall be afforded without charge, but
only upon reasonable request and during normal business hours at the
offices of the Trustee and Administrator, if any, designated by each
of them. In addition, access to the documentation regarding the Deposited
Assets related to a given Series (or Class within such Series) will be
provided to any Certificateholder of such Series (or Class), upon
reasonable prior written request, during normal business hours at the
offices of the Trustee and Administrator designated by each of them
at the expense of the Certificateholder requesting such access.
Section 3.14. DUTIES OF THE ADMINISTRATOR. Notwithstanding any
other provision of this Agreement, with respect to any Series, the
applicable Series Supplement may provide that any Administrator
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.
26
Section 3.15. DEPOSITOR TO FURNISH NAMES AND ADDRESSES OF
HOLDERS TO TRUSTEE. The Depositor shall furnish or cause to be furnished
to the Trustee (and each Administrator) not more than five days
before each Distribution Date, and at such other times as the Trustee or
Administrator may request in writing, a list, in such form as the
Trustee may reasonably require, to the extent such information is in the
possession or control of the Depositor or any of its paying agents, of the
Holders of Certificates as of the close of business on the applicable
record date of the Deposited Assets; PROVIDED, however, that so long as the
Trustee maintains the Certificate Register, no such list shall be required
to be furnished.
Section 3.16. 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 3.19 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 3.19 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 Depositor, the Trustee and the Certificate Registrar
shall have the protection of TIA Section 312(c).
ARTICLE IV.
DISTRIBUTIONS AND REPORTS TO CERTIFICATEHOLDERS
Section 4.1. DISTRIBUTIONS. On each Distribution Date for a
given Series of Certificates, the Trustee shall apply Available Funds in
the Certificate Account for such Series in the manner and priority set
forth in the Series Supplement for such Series. Notwithstanding any other
provisions in this Agreement, the right of the Holder of any Certificate to
receive any such distributions in the manner and priority set forth in the
Series Supplement for such Series and to institute suit for the enforcement
of any such payment on or after the date such payment is payable, shall not
be impaired without the consent of such Holder.
Section 4.2. REPORTS TO CERTIFICATEHOLDERS. Unless otherwise
specified in the applicable Series Supplement, on the next Business Day
following each such Distribution Date the Trustee or the Administrator,
if any, as specified in such Series Supplement, shall forward or
27
cause to be forwarded to the Depositor, each Certificateholder of such
Series and such other Persons as may be specified in such Series
Supplement, a statement setting forth:
(i) the amount of the distribution on such Distribution
Date to Certificateholders of each Class of such Series (or of each Class
within such Series) allocable to principal of and premium, if any, and
interest on the Certificates of each such Series (or Class); and the amount
of aggregate unpaid interest accrued as of such Distribution Date;
(ii) 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;
(iii) the amount of compensation received by any
Administrator and such other customary information as the Trustee
or Administrator, as applicable, deems necessary or desirable, or
that any such Certificateholder reasonably requests, to enable such
Certificateholders to prepare their tax returns;
(iv) if the Series Supplement provides for Advances, the
aggregate amount of Advances in respect of such Series, if any, included in
such distribution, and the aggregate amount of unreimbursed Advances, if
any, at the close of business on such Distribution Date;
(v) the aggregate stated principal amount and, if
applicable, notional amount of the Deposited Assets related to such Series,
the current rating assigned by the Rating Agency thereon and the current
interest rate or rates thereon at the close of business on such
Distribution Date; and
(vi) the aggregate Certificate Principal Balance (or
Notional Amount, if applicable) of each Class of such Series at the close
of business on such Distribution Date.
In the case of information furnished pursuant to subclauses (i) and (iii)
above, the amounts shall be expressed as a Dollar amount (or the equivalent
thereof in any other Specified Currency) per minimum denomination of
Certificates or for such other specified portion thereof. Within a
reasonable period of time after the end of each calendar year, the Trustee
shall furnish to each person who at any time during each such calendar year
was a Certificateholder a statement containing the information set forth in
subclauses (i) and (iii) above, aggregated for such calendar year or the
applicable portion thereof during which such person was a
Certificateholder. Such obligation of the Trustee shall be deemed to have
been satisfied to the extent that substantially comparable information
shall be provided by the Trustee pursuant to any requirements of the Code
as are from time to time in effect.
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Section 4.3. ADVANCES. (a) Unless otherwise specified in the
applicable Series Supplement, an Administrator appointed pursuant to
the Series Supplement shall have no obligation to make Advances (as defined
below) with respect to the Deposited Assets 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 Administrator 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 Deposited Assets 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 Administrator shall make such Advances from either (i)
its own funds or (ii) funds with respect to the Deposited Assets 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
Administrator shall have made Advances from funds on deposit in the
applicable Certificate Account, the Administrator 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 Administrator may recover Advances from late
collections received by the Trustee on the applicable Deposited Assets, and
Liquidation Proceeds with respect to the Deposited Assets 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 or in any Series
Supplement to the contrary, no Advance shall be required to be made
hereunder if the Administrator reasonably believes that it will be
unable to recover such Advance from related late collections, or
Liquidation Proceeds with respect to the applicable Deposited Assets. It is
further understood and agreed that the Administrator shall not be
obligated to make any Advances in respect of reductions in the amount of
collections on the Deposited Assets of any Series due to bankruptcy
proceedings with respect to such Deposited Assets 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 Deposited Assets related to such Series (or
Class within such Series) that are subsequently deemed by the
29
Administrator to be nonrecoverable from related late collections, if
any, or Liquidation Proceeds may be reimbursed to the Administrator
through the application of amounts on deposit in the Certificate Account
for such Series allocable to any of such Deposited Assets 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.
Notwithstanding any other provision of this Agreement to the contrary, the
Trustee shall comply with all Federal withholding requirements respecting
distributions to Certificateholders of interest or original issue discount
that the Trustee reasonably believes are applicable under the Code. The
consent of Certificateholders shall not be required for such withholding.
In the event the Trustee does withhold any amount from interest or original
issue discount distributions or Advances thereof to any Certificateholder
pursuant to Federal withholding requirements, the Trustee shall indicate in
the statement required pursuant to Section 4.2 the amount so withheld.
Trustee shall be entitled to rely on advice of any Administrator and
the Depositor with respect to withholding requirements.
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 Deposited Assets 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
Depositor provides, upon the Trustee's written request, an Opinion of
Counsel that (i) such exchange would not be inconsistent with the
Depositor'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) such
exchange would not affect the characterization of the Trust as a "grantor
trust" 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 Certificate Principal Balance or Notional
Amount, as applicable, with respect to Certificates being tendered for
exchange by a single Holder;
(3) a requirement that the Certificate Principal Balance 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");
30
(5) limitations on the right of an exchanging Holder to
receive any benefit upon exchange from any Deposited Assets 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) in the case of Registered
Certificates, 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 Registered Certificate, the
Certificate Principal Balance or Notional Amount of such Registered
Certificate to be exchanged and the Certificate number or a description of
the tenor and the terms of such Registered Certificate, a statement that
the option to elect exchange is being exercised thereby and an assurance
that the Registered Certificate to be exchanged with the form entitled
"Option to Elect Exchange" on the reverse of the Registered 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 Registered 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 Certificate Principal Balance or
Notional Amount of such Certificate as long as the Certificate Principal
Balance 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 Certificate Principal Balance or Notional Amount thereof
shall be issued (which, in the case of any Registered 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, or cause to be given, prompt written notice thereof to
the Rating Agency.
31
ARTICLE V.
THE CERTIFICATES
Section 5.1. THE CERTIFICATES. The Certificates of any Series
(or Class within such Series) may be issued in bearer form with or without
Coupons as Bearer Certificates or in fully registered form as Registered
Certificates and shall be substantially in the form of the exhibits with
respect thereto attached to the applicable Series Supplement. The aggregate
Certificate Principal Balance or Notional Amount of Certificates 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 and Coupon shall bear
upon its face the designation so selected for the Series and Class to which
it belongs. All Certificates and all Coupons 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 Certificate
Principal Balance or Notional Amount of Certificates of each Class that may
be issued and any priorities or subordination among Classes of a Series
with respect to distributions from the Trust;
(4) 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;
32
(5) the places, if any, in addition to or instead of the
Corporate Trust Office of the Trustee (in the case of Registered
Certificates) or the principal London office of the Trust (in the case of
Bearer Certificates), where the principal of (and premium, if any) and
interest on Certificates of such Series and Class shall be distributable;
(6) the authorized denominations (if other than $100,000
and integral multiples of $1,000 in excess thereof) with respect to such
Series or Class;
(7) the Collection Periods, the Distribution Dates and the
Scheduled Final Distribution Dates for such Series and Class;
(8) the types of Deposited Assets 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 Deposited Assets among Holders
of Certificates of different Classes (including whether the Certificates of
any such Class are to be entitled to receive principal distributions with
disproportionate, nominal or no interest distributions, or interest
distributions with disproportionate, nominal or no principal distributions,
and, in each case, the applicable terms thereof);
(9) the amount, if any, to be deposited on the Closing Date
in the Certificate Account for such Series;
(10) the manner in which the Reserve Account, if any, is to
be funded, the amount, if any, to be deposited therein on the Closing Date
and the Requisite Reserve Amount, if any, for such Series or Class;
(11) the terms of any Guaranteed Investment Contract Granted
as part of the related Trust;
(12) 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 Deposited Assets related to such Series;
(13) 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;
(14) 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
33
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;
(15) whether Certificates of such Series or Class are to be
issued as Registered Certificates or Bearer Certificates or both, and, if
Bearer Certificates are issued, whether Coupons will be attached thereto,
whether Bearer Certificates of such Series or Class may be exchanged for
Registered Certificates of such Series or Class, the circumstances under
which and the places at which any such exchanges, if permitted, may be
made;
(16) if any Certificates of such Series or Class are to be
issued as Bearer Certificates or as one or more Global Securities
representing individual Bearer Certificates of such Series or Class, (x)
whether interest in respect of any portion of a temporary Bearer
Certificate of such Series or Class (delivered pursuant to Section 5.3)
distributable on any Distribution Date prior to the exchange of such
temporary Bearer Certificate for definitive Bearer Certificates of such
Series or Class shall be paid to any Depositary with respect to the portion
of such temporary Bearer Certificate held for its account and, in such
event, the terms and conditions (including any certification requirements)
upon which any such interest distribution received by a Depositary will be
credited to the Persons entitled to interest distributable on such
Distribution Date; (y) the terms upon which a temporary Bearer Certificate
may be exchanged for one or more definitive Bearer Certificates of such
Series or Class; and (z) such other terms related to such Bearer
Certificates and Coupons which may be provided in the related Series
Supplement;
(17) 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;
(18) if the principal of (and premium, if any) or interest
on Certificates of such Series or Class are to be distributable, at the
election of the Depositor or a Holder thereof, in a Currency other than
that in which such Certificates are denominated or distributable without
such election, the periods within which and the terms and conditions upon
which such election may be made and the time and the manner of determining
the exchange rate between the Currency in which such Certificates are
denominated or distributable without such election and the Currency in
which such Certificates are to be distributed if such election is made;
(19) any additional Administrator Termination Events
or representations, warranties or covenants provided for with respect to
Certificates of such Series;
34
(20) 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) "Administrator";
(c) "Administrative Fee";
(d) "Reserved
(e) "Allowable Expense Amount";
(f) "Basic Documents";
(g) "Closing Date";
(h) "Cut-off Date";
(i) "Depositary";
(j) "Deposited Asset Provider";
(k) "Deposited Asset Purchase Agreement";
(l) "Deposited Assets";
(m) "Deposited Assets Schedule";
(n) "Depository Agreement";
(o) "Discount Certificates";
(p) "Distribution Date";
(q) "Eligible Expense";
(r) "Extraordinary Trust Expense";
(s) "Fixed Pass Through Rate";
(t) "Floating Pass Through Rate";
(u) "Letter of Credit";
(v) "Limited Guaranty";
(w) "Notional Amount";
(bb) "Optional Exchange Date";
(cc) "Permitted Investments";
(dd) "Place of Distribution";
(ee) "Qualified Substitute Deposited
(ff) "Rating Agency";
(gg) "Rating Agency Condition";
(hh) "Record Date";
(ii) "Required Percentage";
(jj) "Required Rating";
(kk) "Requisite Reserve Amount";
(ll) "Scheduled Final Distribution Date";
(mm) "Specified Currency";
(nn) "Surety Bond";
(oo) "Trustee";
(pp) "Voting Rights";
(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, or the Code; 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.
35
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 Registered Certificates in denominations of
$1,000 and in integral multiples thereof and shall be payable only in
Dollars.
A different Trustee and an Administrator may be appointed
by the Depositor for each Series of Certificates prior to the issuance of
such Series provided that the Rating Agency Condition is met. If the
Trustee for any Series is to be other than Delaware Trust Capital
Management, Inc., or there is to be an Administrator, then such
Series Supplement shall provide for the appointment of such Trustee or such
Administrator 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 Deposited Assets; 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. Upon
final appointment of any new Trustee or Administrator, the Trustee
shall provide, or cause to be provided, 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 and the Coupons, if any, shall be executed by the Depositor by
its President, its Treasurer, or one of its Vice Presidents, under its
corporate seal, which may be in facsimile form and imprinted or otherwise
reproduced thereon and shall be attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers may be manual
or facsimile. Certificates and Coupons bearing the manual or facsimile
signature of individuals who were at any time the proper officers of the
Depositor 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 Coupons or did not hold such offices at
the date of such Certificates and Coupons.
(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 or Coupon appertaining thereto 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 (and any Coupons
36
appertaining thereto) has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Agreement. Except as permitted by
Section 5.4, 5.5 or 5.6, the Trustee shall not authenticate and deliver any
Bearer Certificate unless all appurtenant Coupons then matured have been
detached and cancelled.
Section 5.3. TEMPORARY CERTIFICATES. Pending the preparation
of Definitive Certificates of any Series (or Class within such Series), the
Depositor may execute, and upon receipt of a Depositor 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 or, if
authorized, in bearer form with one or more Coupons or without Coupons, and
with such appropriate insertions, omissions, substitutions and other
variations as may be authorized by such Depositor Order. Any such temporary
Certificate may be in global form, representing all or a portion of the
Outstanding Certificates of such Series or Class. Every such temporary
Certificate shall be executed by the Depositor 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 Depositor will cause Definitive Certificates of
such Series or Class to be prepared without unreasonable delay. Except as
otherwise specified in the applicable Series Supplement with respect to a
Series (or Class within such Series) of Certificates issuable as Bearer
Certificates or as one or more Global Securities representing individual
Bearer Certificates of such Series or Class, (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 for such Series or Class,
without charge to the Holder, except as provided in Section 5.4 in
connection with a transfer and except that a Person receiving definitive
Bearer Certificates shall bear the cost of insurance, postage,
transportation and the like unless otherwise specified in the applicable
Series Supplement, and (b) upon surrender for cancellation of any one or
more temporary Certificates of any Series or Class within such Series
(accompanied by any unmatured Coupons appertaining thereto), the Depositor
37
shall execute and the Trustee shall authenticate and deliver in exchange
therefor Definitive Certificates with a like Certificate Principal Balance
or Notional Amount, as applicable, of the same Series (or Class within such
Series) of authorized denominations and of like tenor; PROVIDED, however,
that no definitive Bearer Certificate shall be delivered in exchange for a
temporary Registered Certificate; and provided further that delivery of a
Global Security representing individual Bearer Certificates or a Bearer
Certificate shall occur only outside the United States. 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.
Unless otherwise specified pursuant to Section 5.1, the Depositor
will execute and deliver individual Bearer Certificates in exchange for
beneficial interests in the definitive Global Security and each Bearer
Certificate to an authorized agent of the Trust at such other place outside
the United States specified pursuant to Section 5.1.
Upon any exchange of a portion of a temporary Global Security for
a definitive Global Security or for the individual Definitive Certificates
represented thereby pursuant to this Section 5.3 or Section 5.4, the
temporary Global Security shall be endorsed by the Trustee to reflect the
reduction of the aggregate Certificate Principal Balance or Notional
Amount, as applicable, evidenced thereby, whereupon the aggregate
Certificate Principal Balance or Notional Amount, as applicable, of such
temporary Global Security shall be reduced for all purposes by the amount
so exchanged and endorsed.
Section 5.4. REGISTRATION; REGISTRATION OF TRANSFER AND
EXCHANGE. The Trustee shall cause to be kept a register for each Series of
Registered Certificates (the registers maintained in such office and in any
other office or agency of the Trustee 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 Registered Certificates and the
registration of transfers and exchanges of Registered Certificates. The
Trustee is hereby initially appointed Certificate Registrar for the purpose
of registering Registered Certificates and transfers and exchanges of
Registered Certificates as herein provided; PROVIDED, however, that the
Trustee may appoint one or more co-Certificate Registrars. Upon any
resignation of any Certificate Registrar, the Depositor shall promptly
appoint a successor or, in the absence of such appointment, assume the
duties of Certificate Registrar.
If a Person other than the Trustee is appointed by the Depositor
as Certificate Registrar, the Depositor will give the Trustee prompt
written notice of the appointment of a Certificate Registrar and of the
location, and any change in the location, of the Certificate Register, and
the Trustee shall have the right to rely upon a certificate executed on
behalf of the Certificate Registrar by an Executive Officer thereof as to
the names and addresses of the Holders of the Registered Certificates and
the principal amounts and numbers of such Registered Certificates.
Upon surrender for registration of transfer of any Registered
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
38
Uniform Commercial Code are met to the Depositor's satisfaction, the
Depositor shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Registered Certificates of any authorized denominations, of a like Series,
Class and aggregate Certificate Principal Balance or Notional Amount, as
applicable. Except as otherwise specified pursuant to Section 5.1, in no
event may Registered Certificates, including Registered Certificates
received in exchange for Bearer Certificates, be exchanged for Bearer
Certificates.
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, Registered Certificates of any
Series (or Class within such Series) (other than a Global Security, except
as set forth below) may be exchanged for other Registered Certificates of
the same Series or Class of any authorized denomination or denominations of
like tenor and aggregate Certificate Principal Balance or Notional Amount,
as applicable, upon surrender of the Registered Certificates to be
exchanged at the office or agency of the Trustee maintained for such
purpose.
At the option of the Holder, except as otherwise specified as
contemplated by Section 5.1 with respect to a Global Security representing
Bearer Certificates, Bearer Certificates of any Series (or Class within
such Series) may be exchanged for Registered Certificates (if the
Certificates of such Series or Class are issuable as Registered
Certificates) or Bearer Certificates of the same Series or Class, of any
authorized denomination or denominations, of like tenor and aggregate
Certificate Principal Balance or Notional Amount, as applicable, upon
surrender of the Bearer Certificates to be exchanged at the office or
agency of the Trustee maintained for such purpose, with all unmatured
Coupons and all matured Coupons in default thereto appertaining; PROVIDED,
however, that delivery of a Bearer Certificate shall occur only outside the
United States. If the Holder of a Bearer Certificate is unable to produce
any such unmatured Coupon or Coupons or matured Coupon or Coupons in
39
default, such exchange may be effected if the Bearer Certificates are
accompanied by payment in funds acceptable to the Depositor and the Trustee
in an amount equal to the face amount of such missing Coupon or Coupons, or
the surrender of such missing Coupon or Coupons may be waived by the
Depositor and the Trustee if there be furnished to each of them such
security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Bearer Certificate
shall surrender for payment any such missing Coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; PROVIDED, however, that, except as
otherwise provided in Section 5.6, interest represented by Coupons shall be
payable only upon presentation and surrender of those Coupons at an office
or agency located outside the United States.
Whenever any Certificates are so surrendered for exchange, the
Depositor shall execute and the Trustee shall authenticate and deliver the
Certificates that the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer
Certificates for Registered Certificates will be subject to the provisions
of United States income tax laws and regulations applicable to Certificates
in effect at the time of such exchange.
If at any time the Depositary for the Certificates of a Series
(or Class within such Series) notifies the Depositor that it is unwilling
or unable to continue as Depositary for the Certificates of such Series or
Class or if at any time the Depositary for the Certificates of such Series
or Class shall no longer be eligible under Section 5.9(b), the Depositor
shall appoint a successor Depositary with respect to the Certificates of
such Series or Class. If a successor Depositary for the Certificates of
such Series or Class is not appointed by the Depositor within 90 days after
the Depositor receives such notice or becomes aware of such ineligibility,
the Depositor's election pursuant to Section 5.1 shall no longer be
effective with respect to the Certificates of such Series or Class and the
Depositor will execute, and the Trustee, upon receipt of a Depositor Order
for the authentication and delivery of individual Certificates of such
Series or Class, will authenticate and deliver individual Certificates of
such Series or Class in an aggregate Certificate Principal Balance or
Notional Amount, as applicable, equal to the aggregate Certificate
Principal Balance or Notional Amount, as applicable, of the Global Security
or Securities representing Certificates of such Series or Class in exchange
for such Global Security or Securities.
The Depositor may at any time and in its sole discretion
determine that individual Certificates of any Series (or Class within such
Series) issued in the form of one or more Global Securities shall no longer
be represented by such Global Security or Securities. In such event the
Depositor shall execute, and the Trustee, upon receipt of a Depositor Order
for the authentication and delivery of individual Certificates of such
40
Series or Class, shall authenticate and deliver, individual Certificates of
such Series or Class in an aggregate Certificate Principal Balance or
Notional Amount, as applicable, equal to the aggregate Certificate
Principal Balance or Notional Amount, as applicable, of the Global Security
or Securities representing Certificates of such Series or Class in exchange
for such Global Security or Securities.
If specified by the Depositor pursuant to Section 5.1 with
respect to a Series (or Class within such Series) of Certificates, the
Depositary for such Series may surrender a Global Security for such Series
or Class in exchange in whole or in part for individual Certificates of
such Series or Class on such terms as are acceptable to the Depositor and
such Depositary. Thereupon, the Depositor shall execute, and the Trustee,
upon receipt of a Depositor 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
Certificate Principal Balance or Notional Amount, as applicable, equal to
and in exchange for such Person's beneficial interest in the Global
Security; and
(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the aggregate
Certificate Principal Balance or Notional Amount, as applicable, of the
surrendered Global Security and the aggregate Certificate Principal Balance
or Notional Amount, as applicable, of individual Certificates delivered to
Holders thereof.
In any exchange provided for in any of the preceding three
paragraphs, the Depositor shall execute, and the Trustee, upon receipt of a
Depositor Order, will authenticate and deliver individual Certificates (a)
in registered form in authorized denominations, if the Certificates of such
Series or Class are issuable as Registered Certificates, (b) in bearer form
in authorized denominations, with or without Coupons attached, if the
Certificates of such Series or Class are issuable as Bearer Certificates or
(c) as either Registered or Bearer Certificates, if the Certificates of
such Series or Class are issuable in either form; PROVIDED, however, that
individual Bearer Certificates shall be delivered in exchange for a Global
Security only in accordance with the procedures specified pursuant to
Section 5.1.
Upon the exchange of a Global Security for individual
Certificates, such Global Security shall be cancelled by the Trustee.
Individual Registered 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
Registered Certificates to the Persons in whose names such Registered
Certificates are so registered. The Trustee shall deliver individual Bearer
41
Certificates issued in exchange for a Global Security pursuant to this
Section 5.4 to the Persons 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; provided, however, that individual Bearer Certificates shall be
delivered in exchange for a Global Security only in accordance with the
procedures as may be specified pursuant to Section 5.1.
Notwithstanding the foregoing, the exchange of Bearer
Certificates for Registered Certificates will be subject to the provisions
of United States income tax laws and regulations applicable to Certificates
in effect at the time of such exchange.
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 Registered Certificate presented or surrendered for
registration of transfer or exchange shall (if so required by the
Depositor, the Trustee or the Certificate Registrar) be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory to
the Depositor, 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 Depositor may require
payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration of transfer or
exchange of Certificates, other than exchanges pursuant to Section 5.3 not
involving any transfer.
Section 5.5. MUTILATED, DESTROYED, LOST AND STOLEN
CERTIFICATES. If (i) any mutilated Certificate or any mutilated Coupon
with the Coupon Certificate to which it appertains (and all unmatured
Coupons attached thereto) is surrendered to the Trustee at its Corporate
Trust Office (in the case of Registered Certificates) or at such other
office designated by the Trustee (in the case of Bearer Certificates) or
(ii) the Depositor and the Trustee receive evidence to their satisfaction
of the destruction, loss or theft of any Certificate or any Coupon, and
there is delivered to the Depositor and the Trustee such security or
indemnity as they may require to hold each of them and any Paying Agent
harmless, and neither the Depositor nor the Trustee receives notice that
such Certificate or Coupon has been acquired by a bona fide purchaser, then
the Depositor shall execute and the Trustee, upon receipt of a Depositor
Order, shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Certificate or in exchange for
the Coupon Certificate to which such mutilated, destroyed, lost or stolen
42
Coupon appertained, a new Certificate of the same Series and Class of like
tenor, form, terms and principal amount, bearing a number not
contemporaneously Outstanding, and, in the case of a Coupon Certificate,
with such Coupons attached thereto so that neither gain nor loss in
interest shall result from such exchange or substitution.
Upon the issuance of any new Certificate under this Section, the
Depositor 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, with its Coupons,
if any, 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 or Coupon 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 and their Coupons, if any, 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
or Coupons.
Section 5.6. DISTRIBUTION OF INTEREST; INTEREST RIGHTS
PRESERVED. (a) Interest on any Registered 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 Registered Certificate (or one
or more Predecessor Certificates) is registered at the close of business on
the related Record Date notwithstanding the cancellation of such Registered
Certificate upon any transfer or exchange subsequent to such related Record
Date. In case a Coupon Certificate of any Series (or Class within such
Series) is surrendered in exchange for a Registered Certificate of such
Series or Class after the close of business (at an office or agency in a
Place of Distribution for such Series or Class) on any Record Date and
before the opening of business (at such office or agency) on the next
succeeding Distribution Date, such Coupon Certificate shall be surrendered
without the Coupon relating to such Distribution Date and interest will not
be payable on such Distribution Date in respect of the Registered
Certificate issued in exchange for such Coupon Certificate, but will be
distributable only to the Holder of such Coupon when due in accordance with
the provisions of this Agreement. The distribution of interest on
Registered Certificates shall be made at the Corporate Trust Office (except
43
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 Registered Holder by wire transfer to an
account designated by the Registered Holder.
(b) Interest on any Coupon Certificate that is distributable and
is punctually distributed or duly provided for on any Distribution Date
shall be distributed to the Holder of the Coupon that has matured on such
Distribution Date upon surrender of such Coupon on such Distribution Date
at the principal London office of the Trustee or at such other Place of
Distribution outside the United States specified pursuant to Section 5.1.
Interest on any Bearer Certificate (other than a Coupon
Certificate) that is distributable and is punctually distributed or duly
provided for on any Distribution Date shall be distributed to the Holder of
the Bearer Certificate upon presentation of such Bearer Certificate and
notation thereon on such Distribution Date at the principal London office
of the Trustee or at such other Place of Distribution outside the United
States specified pursuant to Section 5.1.
Unless otherwise specified pursuant to Section 5.1, at the
direction of the Holder of any Bearer Certificate or Coupon payable in
Dollars, or if there is no such office outside the United States, and
subject to applicable laws and regulations, distributions in respect of
such Bearer Certificate or Coupon will be made by check drawn on a bank in
The City of New York or, in accordance with arrangements satisfactory to
the Trustee, by wire transfer to a Dollar account maintained by such Holder
with a bank outside the United States. If such distribution at the offices
of the Trustee or all Paying Agents, if any, outside the United States
becomes illegal or is effectively precluded because of the imposition of
exchange controls or similar restrictions on the full distribution or
receipt of such amounts in Dollars, the Depositor will appoint an office or
agent in the United States at which such distribution may be made. Unless
otherwise specified pursuant to Section 5.1, at the direction of the Holder
of any Bearer Certificate or Coupon payable in a Foreign Currency,
distributions on such Bearer Certificate or Coupon will be made by a check
drawn on a bank outside the United States or, in accordance with
arrangements satisfactory to the Trustee, by wire transfer to an
appropriate account maintained by such Holder outside the United States.
Except as provided in this paragraph, no distribution on any Bearer
Certificate or Coupon will be made by mail to an address in the United
States or by transfer to an account maintained by the Holder thereof in the
United States.
(c) 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.
44
(d) 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.
(e) 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).
(f) 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 Depositor, the Trustee
and the Administrator, if any, and any agent of the Depositor, the
Trustee or the Administrator, if any, may treat the Person in whose
name any Registered Certificate is registered as the owner of such
Registered 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 Registered Certificate and for all other purposes
whatsoever, whether or not such Registered Certificate be overdue, and
neither the Depositor, the Trustee, the Administrator, if any, nor
any agent of the Depositor, the Trustee nor the Administrator, if
any, shall be affected by notice to the contrary. The Depositor, the
Trustee and the Administrator, if any, and any agent of the
Depositor, the Trustee or the Administrator, if any, may treat the
Holder of any Bearer Certificate or of any Coupon as the absolute owner of
such Bearer Certificate or Coupon for the purposes of receiving
distributions thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Certificate or Coupon be overdue,
and neither the Depositor, the Trustee, the Administrator, if any,
nor any agent of the Depositor, the Trustee or the Administrator, 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 or Coupon.
None of the Depositor, the Trustee, the Administrator, 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.
45
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
3.19 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 and all Coupons surrendered
for payment 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 or Coupons shall be authenticated in lieu of or in exchange
for any Certificates or Coupons 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 Depositor shall execute and the Trustee shall
authenticate and deliver one or more Global Securities that (i) shall
represent an aggregate initial Certificate Principal Balance or Notional
Amount, as applicable, equal to the aggregate initial Certificate Principal
Balance or Notional Amount, as applicable, of the Certificates of such
Series or Class to be represented by such one or more Global Securities,
(ii) shall be registered, if in registered form, 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;
46
(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 Depositor advises the Trustee in writing that the
Depositary is no longer willing or able to properly discharge its
responsibilities with respect to the Certificates of such Series or Class
and the Depositor is unable to locate a qualified successor, (ii) the
47
Depositor at its option advises the Trustee in writing that it elects to
terminate the book-entry system for such Series or Class through the
Depositary or (iii) after the occurrence of an Administrator
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 Depositor 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 Depositor,
the Certificate Registrar or the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates of such Series or Class, the Trustee shall recognize the
holders of the Definitive Certificates of such Series or Class as Holders.
Section 5.12. CURRENCY OF DISTRIBUTIONS IN RESPECT OF
CERTIFICATES. (a) Except as otherwise specified pursuant to Section 5.1
for Bearer Certificates of any Series (or Class within such Series),
distributions of the principal of (and premium, if any) and interest on
Bearer Certificates of such Series or Class denominated in any Currency
will be made in such Currency.
(b) Except as otherwise specified pursuant to Section 5.1 for
Registered Certificates of any Series (or Class within such Series),
distributions of the principal of (and premium, if any) and interest on
Registered Certificates of such Series or Class will be made in Dollars.
(c) 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.
48
(d) With respect to Certificates of any Series (or Class within
such Series), any decision or determination to be made regarding exchange
rates shall be made by an Exchange Rate Agent appointed by the Depositor;
PROVIDED that such Exchange Rate Agent shall accept such appointment in
writing and the terms of such appointment shall be acceptable to the
Trustee and shall, in the opinion of the Depositor at the time of such
appointment, require such Exchange Rate Agent to make such determination by
a method consistent with the method provided in the applicable Series
Supplement for the making of such decision or determination. All decisions
and determinations of such Exchange Rate Agent regarding exchange rates
shall be in its sole discretion and, in the absence of manifest error,
shall be conclusive for all purposes and irrevocably binding upon the
Depositor, the Trustee and all Holders of the Certificates of such Series
or Class.
(e) 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 Administrator,
if any, and the Depositor or is no longer used by the government of the
country issuing such Specified Currency or is no longer commonly used for
the settlement of transactions by public institutions of or within the
international banking community, then all distributions in respect of such
Certificate shall be made in Dollars until such Specified Currency is again
so used in the manner specified in the related Series Supplement.
Section 5.13. CONDITIONS OF AUTHENTICATION AND DELIVERY OF NEW
SERIES. Certificates of a new Series may be issued at any time and from
time to time after the execution and delivery of this Agreement and the
related Series Supplement. The Depositor shall execute and deliver
Certificates of such Series to the Trustee, with appropriate Coupons, if
any, appertaining thereto, and the Trustee shall authenticate and deliver
such Certificates upon a Depositor Order and upon delivery by the Depositor
to the Trustee of the following:
(1) BOARD RESOLUTION. A Board Resolution (or action by a
Person authorized by Board Resolution) authorizing the execution,
authentication and delivery of the Certificates and specifying the Series,
the Classes within such Series and their respective Final Scheduled
Distribution Dates, priorities as to distributions of principal, premium
(if any) and interest, aggregate initial Certificate Principal Balances and
Notional Amounts, if any, and Pass Through Rates of, if any, each Class of
such Series of Certificates to be authenticated and delivered and the
method of calculation thereof.
(2) SERIES SUPPLEMENT. A Series Supplement consistent with
the applicable provisions of this Agreement, accompanied by a Board
Resolution (or action by a Person authorized by Board Resolution)
49
authorizing such Series Supplement (and, in the case of the first Series to
be authenticated and delivered hereunder, authorizing this Agreement).
(3) CERTIFICATES OF THE DEPOSITOR.
(a) An Officer's Certificate of the Depositor, dated
as of the Closing Date for such Series, to the
effect that the Depositor is not in breach of this
Agreement and that the issuance of the
Certificates applied for will not result in any
breach of any of the terms, conditions, or
provisions of, or constitute a default under, the
Depositor's Certificate of Incorporation or
bylaws, or any indenture, mortgage, deed of
transfer or other agreement or instrument to which
the Depositor is a party or by which it or its
property is bound or any order of any court or
administrative agency entered in any Proceeding to
which the Depositor is a party or by which it or
its property may be bound or to which it or its
property may be subject.
(b) An Officer's Certificate of the Depositor, dated
as of the Closing Date, to the effect that
attached thereto are true and correct copies of
letters signed by the Rating Agency (or other
evidence satisfactory to the Trustee) and
confirming that the related Certificates have
received the Required Rating.
(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 of the Certificates of a Series are not to be originally
issued at the same time, then the documents required to be delivered
pursuant to this Section 5.13 must be delivered only once, prior to the
authentication and delivery of the first Certificate of such Series;
PROVIDED, however, that any subsequent Depositor Order to the Trustee to
authenticate Certificates of such Series upon original issuance shall
constitute a representation and warranty by the Depositor that, as of the
date of such request, the statements made in the Officer's Certificates
delivered pursuant to this Section 5.13 shall be true and correct as if
made on such date.
Section 5.14. APPOINTMENT OF PAYING AGENT. The Trustee may
appoint one or more paying agents (each, a "Paying Agent") with respect to
50
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
Depositor and acceptable to the Trustee, including, if and so long as any
Series or Class within such Series is listed on the Luxembourg Stock
Exchange and such exchange so requires, a co-paying agent in Luxembourg or
another European city. Any Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' notice to the Trustee. In the event that the
Trustee shall no longer be the Paying Agent, the Trustee shall appoint a
successor or additional Paying Agent. The Trustee shall cause each
successor to act as Paying Agent to execute and deliver to the Trustee an
instrument in which such successor or additional Paying Agent shall agree
with the Trustee that (i) it will hold all sums, if any, held by it for
distribution to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be distributed to
such Certificateholders and (ii) it will give the Trustee notice of any
default by any obligor on the applicable Series of Certificates or on the
Deposited Assets. 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 and 8.5 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
51
authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent must be acceptable to the Depositor and
the Administrator, 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
Depositor. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving notice of termination to such Authenticating
Agent and to the Depositor. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time an Authenticating Agent
shall cease to be acceptable to the Trustee or the Depositor, the Trustee
promptly may appoint a successor Authenticating Agent. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall
become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating
Agent. No successor Authenticating Agent shall be appointed unless
acceptable to the Administrator, if any, and the Depositor. The
Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section. The provisions
of Sections 8.1, 8.2 and 8.3 shall be applicable to any Authenticating
Agent.
(c) Pursuant to an appointment made under this Section 5.15, 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 Deposited Assets 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,
52
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 personal liability.
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 Depositor, 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 DEPOSITOR AND THE ADMINISTRATOR
Section 6.1. THE DEPOSITOR.
(a) [Reserved].
(b) The Depositor shall deliver to the Trustee, not less often
than annually, an Officer's Certificate signed by an Executive Officer who
is the principal executive officer, principal financial officer or
principal accounting officer of the Depositor, dated as of the date set
forth in the Series Supplement in respect of each Series for such year,
stating that in respect of such Series:
(i) a review of the activities of the Depositor during such
fiscal year and of performance under this Agreement has been made under
such Executive Officer's supervision; and
(ii) to the best of such Executive Officer's knowledge,
based on such review, the Depositor has fulfilled all of its obligations
under this Agreement throughout such year, or, if there has been a default
in the fulfillment of any such obligation, specifying each such default
known to such Executive Officer and the nature and status thereof. A copy
of such certificate in respect of a Series may be obtained by any Holder of
53
a Certificate in such Series by a request in writing to the Depositor
addressed to the Corporate Trust Office of the Trustee.
(c) If and only if the Series Supplement provides for the pledge
of the Deposited Assets to the Trustee (and not merely the transfer,
assignment, conveyance and sale, without recourse, thereof to the Trustee),
on the Closing Date, the Depositor 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 Deposited Assets 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 Depositor 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 Deposited Assets 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 Depositor shall furnish to the Trustee
an Officer's Certificate of the Depositor 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 Depositor is required to furnish to the
Trustee an Officer's Certificate of the Depositor certifying or stating the
54
opinion of any signatory thereof as to the matters described in clause (i)
above, the Depositor 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 Depositor 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 Depositor shall furnish to the Trustee an Officer's
Certificate of the Depositor certifying or stating the opinion of each
person signing such certificate as to the fair value (within 90 days of
such deposit) to the Depositor of the securities to be so deposited.
(iv) whenever the Depositor is required to furnish to the
Trustee an Officer's Certificate of the Depositor described in clause (iii)
above, the Depositor shall also deliver to the Trustee an Independent
Certificate as to the same matters, if the fair value to the Depositor 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 Depositor, 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 Depositor as set forth in the
related Officer's Certificate of the Depositor 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
55
been paid, upon request release any remaining portion of the trust estate
that secured the Certificates from the lien of this Agreement and release
to the Depositor or any other Person entitled thereto any funds then
included in the trust estate.
(f) Upon any application or request by the Depositor to the
Trustee to take any action under the provisions of this Agreement, which
action is subject to the satisfaction of a condition precedent (including
any covenants the compliance with which constitutes a condition precedent),
the Depositor shall furnish to the Trustee: (i) an Officer's Certificate
stating that all conditions precedent, if any, provided for in this
Agreement relating to the proposed action have been complied with, (ii) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with and (iii) (if
required by the TIA) an Independent Certificate from a firm of certified
public accountants meeting the applicable requirements of the TIA, except
that, in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of
this Agreement, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Agreement shall include:
(i) a statement that such signatory of such certificate or
opinion has read or has caused to be read such covenant or condition and
the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the judgment of each such
signatory, such signatory has made such examination or investigations as is
necessary to enable such signatory to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
Section 6.2. MERGER OR CONSOLIDATION OF THE DEPOSITOR OR THE
ADMINISTRATOR. (a) Subject to the following paragraph (b) of this
Section 6.2, the Depositor will keep in full effect its existence, rights
and franchises as a corporation under the laws of the jurisdiction of its
incorporation, and the Administrator, if any, will keep in full
effect its existence, rights and franchises under the laws of the
jurisdiction of its incorporation or association. The Depositor and the
Administrator, if any, each will obtain and preserve its
qualification to do business as a foreign corporation or association in
56
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 Deposited Assets and to perform its respective duties under
this Agreement.
(b) The Depositor and an Administrator, if any, may
consolidate or merge with or into any other Person, provided that:
(i) the Person (if other than the Depositor or
Administrator, 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 Depositor or
Administrator, 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
Administrator Termination Event or event which with the passage of
time or notice or both would become an Administrator 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 Depositor or Administrator, 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 assumption agreement comply with this Section 6.2 and that all
conditions precedent herein provided for relating to such transaction have
been satisfied.
Section 6.3. LIMITATION ON LIABILITY OF THE DEPOSITOR AND THE
ADMINISTRATOR. (a) Unless otherwise expressly specified in this
Agreement or a Series Supplement, neither the Administrator, if any,
nor the Depositor 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 Depositor, an Administrator, if any, nor
any of the directors, officers, employees or agents of the Depositor or
such Administrator shall be under any liability to any Trust or the
Certificateholders of any Series for any action taken, or for refraining
from the taking of any action, in good faith pursuant to this Agreement, or
for errors in judgment; PROVIDED, however, that this provision shall not
protect the Depositor, any such Administrator or any such person
against any breach of warranties, representations or covenants made herein,
or against any specific liability imposed on such Administrator
57
pursuant hereto, or against any liability which would otherwise be imposed
by reason of wilful misfeasance, bad faith or negligence in the performance
of duties or by reason of reckless disregard of obligations and duties
hereunder.
Neither the Depositor nor an Administrator, 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 Depositor or such Administrator
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
wilful 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 ADMINISTRATOR.
An Administrator 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
Administrator shall be evidenced by an Opinion of Counsel to such
effect delivered to the Trustee and the Depositor. No resignation of an
Administrator shall become effective until the Trustee or a
successor administrative agent shall have assumed the Administrator'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 DEPOSITOR IN RESPECT OF THE
ADMINISTRATOR. An Administrator appointed pursuant to the
applicable Series Supplement shall afford the Depositor and the Trustee,
upon reasonable notice, during normal business hours, access to all records
maintained by the Administrator in respect of its rights and
obligations hereunder and access to officers of the Administrator
responsible for such obligations. Upon request, the Administrator
shall furnish to the Depositor and the Trustee the Administrator's
most recent financial statements and such other information relating to its
capacity to perform its obligations under this Agreement as the
Administrator possesses. To the extent such information is not
58
otherwise available to the public, the Depositor and the Trustee shall not
disseminate any information obtained pursuant to the preceding two
sentences without the Administrator'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 Depositor, the Trustee or the Trust,
and in either case, the Depositor or the Trustee, as the case may be, shall
use its best efforts to assure the confidentiality of any such disseminated
nonpublic information. The Depositor may, but is not obligated to, enforce
the obligations of the Administrator under this Agreement and may,
but is not obligated to, perform, or cause a designee to perform, any
defaulted obligation of the Administrator Agent under this Agreement or
exercise the rights of the Administrator under this Agreement;
PROVIDED, however, that the Administrator shall not be relieved of
any of its obligations under this Agreement by virtue of such performance
by the Depositor or its designee. The Depositor shall not have any
responsibility or liability for any action or failure to act by the
Administrator and is not obligated to supervise the performance of
the Administrator under this Agreement or otherwise.
Section 6.6. DEPOSITOR MAY PURCHASE CERTIFICATES. The
Depositor may at any time purchase Certificates in the open market or
otherwise. Certificates so purchased by the Depositor may, at the
discretion of the Depositor, be held or resold. Certificates beneficially
owned by the Depositor will be disregarded for purposes of determining
whether the required percentage of the aggregate Voting Rights has given
any request, demand, authorization, direction, notice, consent or waiver
hereunder.
Section 6.7. THE ADMINISTRATOR AND OTHER PARTIES. The
Person serving as an Administrator, if any, appointed pursuant to
the applicable Series Supplement may be the Depositor, the Trustee or an
Affiliate of either thereof, and may have normal business relationships
with the Depositor, the Trustee or any Affiliates thereof.
Section 6.8. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
DEPOSITOR. 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.
ADMINISTRATOR TERMINATION EVENTS
Section 7.1. ADMINISTRATOR TERMINATION EVENTS. (a) "Administrator
Termination Event", wherever used herein with respect to any Series of
59
Certificates, means any one of the following events:
(i) a failure by any Administrator 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 Deposited Assets,
and collected by the Administrator pursuant to the terms of this
Agreement and the applicable Series Supplement that continues unremedied
for a period of five days after the date upon which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Administrator by the Depositor or the Trustee (in which case notice
shall be provided by telecopy), or to the Administrator, the
Depositor 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 Administrator
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 Administrator contained in the Certificates of such Series, in
this Agreement or in the applicable Series Supplement which continues
unremedied for a period of 30 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
to the Administrator by the Depositor or the Trustee, or to the
Administrator, the Depositor 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 Administrator, 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 Administrator 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
Administrator or of or relating to all or substantially all its
property; or
(v) any Administrator 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
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(vi) if so specified in the related Series Supplement, any
failure of the Administrator, 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 Administrator Termination Event
that may be specified with respect to such Series in the related Series
Supplement.
Each Series Supplement that provides for the appointment of an
Administrator, 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 Administrator shall have been appointed
pursuant to the applicable Series Supplement, so long as an Administrator
Termination Event with respect to the related Series of Certificates
shall have occurred and be continuing, the Depositor or the Trustee may,
and at the written direction of the Holders of Certificates evidencing not
less than the "Required Percentage--Administrator Termination" of
the aggregate Voting Rights, the Trustee shall, by notice in writing to
such Administrator (and to the Depositor if given by the Trustee or
to the Trustee if given by the Depositor) terminate all the rights and
obligations of such Administrator hereunder and under its
Administration Agreement, to the extent permitted by law, and in and to the
Deposited Assets relating to such Series and the proceeds thereof. On or
after the receipt by such Administrator of such written notice, all
authority and power of the Administrator 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 Deposited Assets
relating to such Series or otherwise, shall pass to and be vested in the
Trustee or any successor Administrator appointed in accordance with
this Agreement. The Trustee (or any Administrator) is hereby
authorized and empowered, as attorney-in-fact or otherwise, to execute and
deliver, on behalf of and at the expense of the Depositor, 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
61
of such Deposited Assets and related documents, or otherwise. The
Administrator, 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 or (any successor
Administrator) with all documents and records requested by it to
enable it to assume the functions of the Administrator under this
Agreement relating to such Series, and to cooperate with the Trustee in
effecting the termination of the Administrator'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 Administrator to the Certificate Account
relating to such Series or thereafter be received with respect to such
Deposited Assets; provided, however, that the Administrator 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, 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 Administrator, 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 such
Administrator and shall, until a successor Administrator is
appointed in accordance herewith, be subject to all the responsibilities,
duties and liabilities relating thereto and arising thereafter placed on
the Administrator (except for any representations or warranties of
the Administrator under this Agreement and except as otherwise
provided herein or in the applicable Series Supplement) by the terms and
provisions hereof that any failure to perform such duties or
responsibilities caused by the Administrator's failure to provide
information required by Section 7.1 shall not be considered a default by
the Trustee as successor to the Administrator 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--
Administrator 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 Administrator 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 Administrator
under this Agreement with respect to such Series in the assumption of
all or any part of the responsibilities, duties or liabilities of such
Administrator under this Agreement with respect to such Series. The
Trustee, the Depositor and any such successor Administrator 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 Administrator under this Agreement. No
appointment of a successor Administrator under this Agreement shall
be effective until the assumption by the successor Administrator of
all the responsibilities, duties and liabilities placed on the
Administrator hereunder and under the related Series Supplement.
Pending appointment of a successor Administrator under this
Agreement, the Trustee shall act in such capacity as and to the extent
hereinabove provided.
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Section 7.3. NOTIFICATION TO CERTIFICATEHOLDERS. (a) Upon any
such termination pursuant to Section 7.2 or appointment of a successor
Administrator and receipt by the Trustee or written notice thereof,
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 Administrator
Termination Event or event which but for the lack of notice or
passage of time or both would constitute an Administrator
Termination Event with respect to any Series, upon receipt by the Trustee
of written notice thereof, the Trustee shall transmit by mail to all
Certificateholders of such Series notice of each such Administrator
Termination Event or event which but for lack of notice or passage of time
or both would constitute an Administrator Termination Event which is
actually known to the Trustee, unless such Administrator Termination
Event or event which but for lack of notice or passage of time or both
would constitute an Administrator Termination Event shall have been
cured or waived.
Section 7.4. WAIVER OF ADMINISTRATOR 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 Depositor, the Trustee or the
Administrator, 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 Administrator Termination
Event or event which but for lack of notice or passage of time or both
would constitute an Administrator Termination Event with respect to
such Series; provided, however, that an Administrator Termination
Event or event which but for lack of notice or passage of time or both
would constitute an Administrator 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 Deposited
Asset 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
Administrator Termination Event or event which but for lack of
notice or passage of time or both would constitute an Administrator
Termination Event with respect to such Series, such Administrator
Termination Event or event which but for lack of notice or passage of time
or both would constitute an Administrator 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
Administrator Termination Event or event which but for lack of
notice or passage of time or both would constitute an Administrator
63
Termination Event or impair any right consequent thereon except to the
extent expressly so waived.
ARTICLE VIII.
CONCERNING THE TRUSTEE
Section 8.1. AUTHORITY AND DUTIES OF TRUSTEE; NOTICE OF
DEFAULTS. (a) The Trustee is authorized and directed to execute and
deliver the Basic Documents in respect of each Series to which the Trust is
to be a party and each certificate or other document attached as an exhibit
to or contemplated by such Basic Documents, in each case in such form as
the Depositor shall approve as evidenced conclusively by the Trustee's
execution thereof, and, on behalf of the Trust, to direct the Indenture
Trustee in respect of an Indenture for such Series to authenticate and
deliver the Notes in the aggregate principal amount specified in a letter
of instruction from the Depositor to the Trustee. In addition to the
foregoing, the Trustee is authorized, but shall not be obligated, to take
all actions required of the Trust pursuant to the Basic Documents. The
Trustee is further authorized from time to time to take such action as the
Administrator under the Administration Agreement for a Series
requests with respect to the Basic Documents in respect of such Series.
(b) It shall be the duty of the Trustee to discharge (or cause
to be discharged) all of its responsibilities pursuant to this Agreement
and the Basic Documents in respect of each Series to which the Trust is a
party and to administer the Trust in the interest of the Certificateholders
for each Series, subject to the related Basic Documents, and in accordance
with this Agreement. Notwithstanding the foregoing, the Trustee shall be
deemed to have discharged its duties and responsibilities hereunder and
under the Basic Documents in respect of a Series to the extent an
Administrator has agreed in the Administration Agreement for such
Series to perform any act or to discharge any duty of the Trustee hereunder
or under any related Basic Document and the Trustee, to the extent
permitted by law, shall not be liable for any failure of the Administrator
to act or to discharge any such duties delegated under the
Administration Agreement.
(c) The Trustee, prior to the occurrence of an Administrator
Termination Event or Event of Default with respect to any Series and
after the curing of all such Administrator 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 Administrator
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
64
affairs. Any permissive right of the Trustee enumerated in this Agreement
shall not be construed as a duty.
(d) 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
Depositor, Administrator, if any, and Certificateholders.
(e) No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own grossly negligent action, its own
grossly negligent failure to act or its own misconduct; PROVIDED, however,
that:
(i) prior to the occurrence of an Administrator
Termination Event or Event of Default with respect to any Series, and after
the curing of all such Administrator 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
grossly negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of the Required Percentage--
Direction of Trustee of the aggregate Voting Rights of a given Series (or
Class or group of Classes within such Series) relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this Agreement;
(iv) the Trustee shall not be required to expend or risk its
own funds or otherwise incur financial liability in the performance of any
65
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
Administrator, 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 Administrator 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 Deposited Asset now existing or hereafter
acquired or to impair the value of any Deposited Asset now existing or
hereafter acquired;
(vi) except as expressly provided in this Agreement, the
Trustee shall have no power to vary the corpus of the Trust including by
(A) accepting any substitute obligation or asset for a Deposited Asset
initially assigned to the Trustee under Section 2.1, (B) adding any other
investment, obligation or security to the Trust or (C) withdrawing from the
Trust any Deposited Assets; 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,
or designate an Administrator meeting the requirements of this
Agreement to perform, such obligation, duty or agreement in the manner so
required.
(f) The Trustee shall have the legal power to exercise all of
the rights, powers and privileges of holders of the Deposited Assets in
which the Certificates evidence an interest. However, neither the Trustee
(except as specifically provided herein or in the TIA) nor the Depositor
shall be under any obligation whatsoever to appear in, prosecute or defend
any action, suit or other proceeding in respect of Deposited Assets or
Certificates.
(g) Neither the Trustee nor the Depositor shall have any
obligation on or with respect to the Deposited Assets, 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.
(h) If there is an event of default (as defined in the indenture
or other document pursuant to which the Deposited Assets were issued) with
respect to any Deposited Asset and such default is actually known to the
66
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 90 days after such event of default
occurs. Such notice shall set forth (i) the identity of the Deposited
Assets, (ii) the date and nature of such default, (iii) the face amount of
the obligation to which such default relates, (iv) the identifying numbers
of the Series and Class of Certificates, or any combination, as the case
may be, evidencing the obligations (or portions thereof) described above in
clause (iii), and (v) any other information which the Trustee may deem
appropriate. Except in the case of a default in payment of principal or
interest (including payments pursuant to a redemption of any Certificate),
the Trustee may withhold the notice to Holders if and so long as a
committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders.
(i) Holders of Certificates shall have no recourse against the
Depositor or the Trustee for payment defaults on the Deposited Assets.
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 Administrator
Termination Event or Event of Default (which has not been cured or waived),
67
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 Administrator
Termination Event hereunder and after the curing of all Administrator
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
one or more Administrators, agents or attorneys or a custodian;
PROVIDED that Trustee shall not be liable for the default or misconduct of
any such persons or entities selected by Trustee, in good faith; 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 Administrator or the
Depositor 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
DEPOSITED ASSETS. 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
68
Certificates) or of any Deposited Asset or related document. The Trustee
shall not be accountable for the use or application by the Depositor or the
Administrator, 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. COMPENSATION OF TRUSTEE. (a) The Trustee shall be
entitled to receive from the Depositor or an Affiliate of the Depositor as
compensation for the Trustee's services hereunder, trustee's fees pursuant
to a separate agreement between the Trustee and the Depositor, 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 Depositor shall indemnify and hold harmless the
Trustee and its successors, assigns, agents and servants and any
Administrator (each an "Indemnified Person") 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 including any Administration
Agreement. An Indemnified Person shall notify the Depositor promptly of
any claim for which it may seek indemnity. Failure by an Indemnified
Person to so notify the Depositor shall not relieve the Depositor of its
obligations hereunder. The Depositor need nor reimburse any expense
or indemnify any Indemnified Person against any loss, liability or expense
incurred through such Indemnified Person's own willful misconduct,
negligence or bad faith. The indemnities contained in this Section 8.5
shall survive the resignation or termination of the Trustee, any
Administrator or the termination of the Agreement or the Series
Supplement.
(b) Failure by the Depositor to pay, reimburse or indemnify any
Indemnified Person (as defined in paragraph (a) above) shall not entitle
such Indemnified Person to any payment, reimbursement or indemnification
from the trust, nor shall such failure release such Indemnified Person
from the duties it is required to perform under the Agreement and this
Series Supplement (or as applicable, its Administration Agreement). Any
unpaid, unreimbursed or unindemnified amounts shall not be borne by the
Trust and shall not constitute a claim against the Trust, and no
Indemnified Person shall have any recourse against the Trust with
respect thereto.
(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
69
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 Depositor (but may have normal banking relationships with
the Depositor or any obligor with respect to the Deposited Assets 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 or otherwise
acceptable to the Rating Agency. If such corporation or association
publishes reports of conditions at least annually, pursuant to law or to
the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of conditions so published.
Such corporation or association must be rated in one of the four highest
rating categories by the Rating Agency.
(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 Term Assets
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 Depositor, the Administrator, if any, the Rating
Agency and to all Certificateholders of such Series. Upon receiving such
notice of resignation, the Depositor shall promptly appoint a successor
trustee for such Series by written instrument, in duplicate, which
instrument shall be delivered to the resigning Trustee and to the successor
trustee. A copy of such instrument shall be delivered to such
70
Certificateholders and the Administrator, if any, by the Depositor.
If no such successor trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor trustee for such Series.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.6 and shall fail to resign
after written request therefor by the Depositor, or if at any time the
Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Depositor may remove the Trustee and
appoint a successor trustee by written instrument, in duplicate, which
instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the
Certificateholders and the Administrator, if any, by the Depositor.
(c) The Holders of Certificates of any Series representing the
Required Percentage--Removal of Trustee of the aggregate Voting Rights may
at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact and duly authorized, one complete set of which
instruments shall be delivered to the Depositor, one complete set to the
Trustee so removed and one complete set to the successor trustee so
appointed. A copy of such instrument shall be delivered to the
Certificateholders and the Administrator, if any, by the Depositor.
(d) Any resignation or removal of the Trustee and appointment of
a successor trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor
trustee as provided in Section 8.8.
Section 8.8. SUCCESSOR TRUSTEE. (a) Any successor trustee
appointed as provided in Section 8.7 shall execute, acknowledge and deliver
to the Depositor and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor hereunder
(either with respect to a given Series of Certificates or with respect to
all Certificates issued under this Agreement), with the like effect as if
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originally named as trustee herein. The predecessor trustee shall deliver
to the successor trustee all documents and statements held by it hereunder,
and the Depositor and the predecessor trustee shall execute and deliver
such instruments and do such other things as may reasonably be required for
more fully and certainly vesting and confirming in the successor trustee
all such rights, powers, duties and obligations. No successor trustee shall
accept appointment as provided in this Section unless at the time of such
acceptance such successor trustee shall be eligible under the provisions of
Section 8.6.
(b) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Depositor shall transmit notice of the
succession of such trustee hereunder to all Holders of Certificates and to
the Rating Agency in the manner provided in Section 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
Depositor and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved
by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of
such Trust, and to vest in such Person or Persons, in such capacity, such
title to such Trust, or any part thereof, and, subject to the other
provisions of this Section 8.10, such powers, duties, obligations, rights
and trusts as the Depositor and the Trustee may consider necessary or
desirable. If the Depositor shall not have joined in such appointment
within 15 days after the receipt by it of a request so to do, or in case an
Administrator 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; PROVIDED,
however, no Trustee or co-Trustee shall be liable for the acts or failures
to act of any other Trustee or co-Trustee.
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(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
Administrator 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 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;
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(ii) neither the execution nor the delivery by the Trustee
of this Agreement, nor the consummation by it of the transactions
contemplated hereby nor compliance by it with any of the terms or
provisions hereof will violate its charter documents or by-laws;
(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. (a) The
Trustee shall only take such action or shall refrain from taking such
action under this Agreement as directed pursuant to a specific provision
of this Agreement or, if required hereunder, by all the Certificateholders,
and the Trustee shall not otherwise act in respect of the Trust; PROVIDED,
however, that the Trustee shall not be required to take any such action if
it reasonably determines, or receives, at the expense of the
Certificateholders, an Opinion of Counsel (with copies thereof delivered to
the Certificateholders and the Depositor), that such action is inconsistent
with the purpose of the Trust or contrary to the terms hereof.
(b) Whenever the Trustee is unable to decide between alternative
courses of action permitted or required by this Agreement or any Basic
Document, the Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the Certificateholders requesting
instruction as to the course of action to be adopted, and to the extent the
Trustee acts in good faith in accordance with any written instruction of
the Certificateholders received, the Trustee shall not be liable on account
of such action to any Person. If the Trustee shall not have received
appropriate instruction within 10 days after such notice (or within such
shorter period of time as reasonably may be specified in such notice or may
be necessary under the circumstances) it may, but shall be under no duty
to, take or refrain from taking such action, not inconsistent with this
Agreement or the Basic Documents, as it shall deem to be in the best
interests of the Certificateholders, and shall have no liability to any
Person for such action or inaction.
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(c) In the event that the Trustee is unsure as to the
application of any provision of this Agreement or any Basic Document or any
such provision is ambiguous as to its application, or is, or appears to be,
in conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Trustee or is silent or is
incomplete as to the course of action that the Trustee is required to take
with respect to a particular set of facts, the Trustee may give notice (in
such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction and, to the extent that the
Trustee acts or refrains from acting in good faith in accordance with any
such instruction received, the Trustee shall not be liable, on account of
such action or inaction, to any Person. If the Trustee shall not have
received appropriate instruction within 10 days after such notice (or
within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be
under no duty to, take or refrain from taking such action, not inconsistent
with this Agreement or the Basic Documents, as it shall deem to be in the
best interests of the Certificateholders, and shall have no liability to
any Person for such action or inaction.
Section 8.14. ACCOUNTING AND REPORT TO CERTIFICATEHOLDERS,
INTERNAL REVENUE SERVICE AND OTHERS. The Trustee, or an Administrator
on its behalf, 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 Depositor, 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 (e) collect or cause to be collected any withholding
tax as described in and in accordance with Section 4.4 with respect to
income or distributions to Certificateholders, (f) treat the Notes as
indebtedness for all federal and state income tax, franchise tax and
transfer and similar tax purposes and (g) make such elections and keep such
records to treat assets of the Trust as a synthetic debt instrument for
purposes of Treasury Regulations, Section 1.1275-6 and elect out of
Subchapter K of the Code for purposes of Section 761 of the Code.
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 Depositor in final execution form.
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ARTICLE IX.
TERMINATION
Section 9.1. TERMINATION UPON PURCHASE OR LIQUIDATION OF ALL
DEPOSITED ASSETS. (a) The respective obligations and responsibilities
under this Agreement of the Depositor, the Administrator, if any,
and the Trustee (other than the obligations of any such Administrator
to provide for and the Trustee to make distributions to Holders of
the Certificates of any given Series as hereafter set forth) shall
terminate and the Trust shall dissolve, if no Series are outstanding, upon
the election of the Depositor and otherwise, upon the distribution to such
Holders of all amounts held in all the Accounts for such Series or by an
Administrator, 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
Administrator, if any, or the Depositor, as provided in the Series
Supplement for such Series, of all remaining Deposited Assets for each
Series in the Trust for each Series on any Distribution Date, provided that
such option may be exercised only if the aggregate principal amount of such
Deposited Assets 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 Deposited Assets deposited in the 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 Term Assets Issuer) (or any Advance with respect thereto) of the
last Deposited Asset remaining in the Trust or the disposition of all
property acquired upon foreclosure or liquidation of any such Deposited
Asset; 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 Depositor or an Administrator, as the case may
be, shall exercise its option to purchase all the Deposited Assets
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
Deposited Assets, 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 Deposited Assets 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 Deposited Assets 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.
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(d) Upon presentation and surrender of the Certificates by the
Certificateholders on the Scheduled Final Distribution Date, or the
Distribution Date coinciding with or next following the earlier to occur of
the occurrences specified in clauses (i) and (ii) of Section 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 Administrator
or the Depositor of all the Deposited Assets or (ii) as specified in
the applicable Series Supplement, if in connection with an Administrator's
purchase of all the remaining Deposited Assets. Pursuant to the
DBTA, the Trustee shall, on behalf of the Trust, pay, or make provision
for, all outstanding obligations of the Trust, if any. Any funds not
distributed on such Distribution Date, or used to pay outstanding
obligations of the Trust, 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. Upon the termination of the Trust, the Trustee is
hereby authorized to cause the Certificate of Trust to be cancelled in the
Office of the Secretary of State of the State of Delaware.
ARTICLE X.
MISCELLANEOUS PROVISIONS
Section 10.1. AMENDMENT. (a) This Agreement may be amended from
time to time by the Depositor and the Trustee without notice to or the
consent of any of the Certificateholders for any of the following purposes:
(i) to cure any ambiguity or to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein;
(ii) to add to the covenants, restrictions or obligations of the Depositor,
the Administrator, if any, or the Trustee for the benefit of the
Certificateholders; (iii) 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 (iii) will not, as
evidenced by an opinion of counsel, affect the tax status of the Trust 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; (iv) to comply with any requirements imposed by the Code;
(v) to evidence and provide for the acceptance of appointment hereunder of
a Trustee other than Delaware Trust Capital Management, Inc. 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
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administration of the separate Trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 5.1 hereof; (vi) to evidence and
provide for the acceptance of appointment hereunder by a successor Trustee
with respect to the Certificates of one or more Series or to add or change
any of the provisions of this Agreement as shall be necessary to provide
for or facilitate the administration of the trusts hereunder; or (vii) 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.
(b) Without limiting the generality of the foregoing, with
respect to any Series this Agreement may also be modified or amended from
time to time by the Depositor and the Trustee with the consent of the
Holders of Certificates representing the Required Percentage--Amendment of
the aggregate Voting Rights of those Certificates to which such
modification or amendment relates for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided, however, that no such amendment shall (i) reduce in
any manner the amount of, or alter the timing of, payments received on
Deposited Assets which are required to be distributed on any Certificate
without the unanimous consent of the Holders of such Certificates, (ii)
adversely affect in any material respect the interests of the Holders of
any Series (or Class within such Series) of Certificates in a manner other
than as described in (i), without the consent of the Holders of
Certificates of such Series or Class evidencing not less than the Required
Percentage--Amendment of the aggregate Voting Rights of such Series or
Class or (iii) reduce the percentage of aggregate Voting Rights required by
(ii), as described in (ii), without the consent of the Holders of all
Certificates of such Series or Class then Outstanding and provided further
that the Depositor shall furnish to the Trustee an Opinion of Counsel
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 Depositor, 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.
Notwithstanding any other provision of this Agreement, this Section 10.1(b)
shall not be amended without the unanimous consent of the Holders of all
such Certificates. The Trustee shall have no obligation to execute any
amendment which it determines adversely affects its rights hereunder.
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(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
Certificateholders 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 them.
(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
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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 DELAWARE
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 Registered 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. Any
notice required to be given to a holder of a Bearer Certificate or Coupon
shall be published in an Authorized Newspaper or Newspapers in such Place
or Places of Distribution as may be specified for a given Series in the
applicable Series Supplement, and such notice shall be deemed sufficient if
published on two separate Business Days within two Business Days of the
time prescribed in this Agreement.
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.
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Section 10.7. NOTICE TO RATING AGENCY. The Trustee shall use
its best efforts promptly to provide, or cause to be provided, 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 Administrator Termination
Event;
(iii) the resignation or termination of an Administrator,
if any, or the Trustee;
(iv) the repurchase or substitution of Deposited Assets, if
any, pursuant to Section 2.3;
(v) the final payment to Holders of the Certificates of any
Class;
(vi) any change in the location of the Certificate Account;
and
(vii) any event that would result in the inability of the
Trustee to make Advances.
In addition, the Trustee shall promptly furnish, or cause to be furnished,
to each Rating Agency copies of each report to Certificateholders described
in Section 4.2 and the Administrator, 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 Deposited Assets
by the Depositor to the Trust be, and be construed as, a sale of the
Deposited Assets by the Depositor and not a pledge of any Deposited Assets
by the Depositor to secure a debt or other obligation of the Depositor.
However, in the event that, notwithstanding the aforementioned intent of
the parties, any Deposited Assets are held to be property of the Depositor,
then, (a) it is the express intent of the parties that such conveyance be
deemed a pledge of such Deposited Assets by the Depositor to the Trustee to
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secure a debt or other obligation of the Depositor and (b)(1) this
Agreement shall also be deemed to be a security agreement within the
meaning of Articles 8 and 9 of the 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 deemed to be a grant by the Depositor to the
Trust of a security interest in all the Depositor's right, title and
interest in and to such Deposited Assets and all amounts payable to the
holders of such Deposited Assets in accordance with the terms thereof and
all proceeds of the conversion, voluntary or involuntary, of the foregoing
into cash, instruments, securities or other property, including all amounts
from time to time held or invested in the applicable Certificate Account,
whether in the form of cash, instruments, securities or other property; (3)
the obligations secured by such security agreement shall be deemed to be
all the Depositor's obligations under this Agreement, including the
obligation to provide to the Certificateholders the benefits of this
Agreement relating to such Deposited Assets 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. Accordingly, the Depositor hereby grants to the Trust a
security interest in the Deposited Assets and all other property described
in clause (2) of the preceding sentence, for the purpose of securing to the
Trustee the performance by the Depositor of the obligations described in
clause (3) of the preceding sentence. Notwithstanding the foregoing, the
parties hereto intend the Grant pursuant to Section 2.1 to be a true,
absolute and unconditional sale of the Deposited Assets and assets
constituting the applicable Trust by the Depositor to the Trustee. The
Depositor and the Trust, upon request of the Depositor, shall to the extent
consistent with this Agreement, take such actions as may be necessary to
ensure that, if this Agreement were deemed to create a security interest in
the Deposited Assets, 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 Deposited Assets remain
outstanding. Without limiting the generality of the foregoing, the Trustee
or the Administrator shall file, or shall cause to be filed, all
filings necessary to maintain the effectiveness of any original filings
necessary under the Uniform Commercial Code as in effect in any
jurisdiction to perfect the Trustee's security interest in or lien on the
Deposited Assets, including (x) continuation statements and (y) such other
statements as may be occasioned by (1) any change of name of the Depositor
or the Trustee, (2) any change of location of the place of business or the
chief executive office of the Depositor or (3) any transfer of any interest
of the Depositor in any Deposited Asset.
Section 10.9. NONPETITION COVENANT. Notwithstanding any prior
termination of this Agreement, each of the Trustee (including any Co-
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Trustee) the Administrator, if any, and any Authenticating
Agent, Calculation Agent, or Paying Agent and the Depositor
agrees that it shall not, until the date which is one year and one
day after the Closing 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 Deposited Assets, neither the Trustee (including any Co-
Trustee), more any Administrator, Authenticating Agent, Calculation Agent,
or Paying Agent nor the Depositor shall have any recourse to the Deposited
Assets, 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.
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IN WITNESS WHEREOF, the Depositor and the Trustee have caused
their names to be signed hereto by their respective officers thereunto duly
authorized, in each case as of the day and year first above written.
STRUCTURED PRODUCTS CORP.,
as Depositor,
By__________________________
Name:
Title:
DELAWARE TRUST CAPITAL MANAGEMENT, INC.
not in its individual capacity but solely as
Trustee,
By__________________________
Name:
Title:
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