Exhibit 4.4
Alternate form of qualified Trust Agreement
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TRUST AGREEMENT
between
STRUCTURED PRODUCTS CORP.
Depositor
and
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION
Trustee
Dated as of ____________, 199_
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RECONCILIATION AND TIE BETWEEN TRUST INDENTURE
ACT OF 1939 AND AGREEMENT PROVISIONS*
Trust Indenture
Act Section Agreement Section
--------------- ------------------
310(a)(1) .................... 8.6(a)
(a)(2) .................... 8.6(a)
(a)(3) .................... 8.10
(a)(4) .................... 8.1(d)
(a)(5) .................... 8.6(a)
(b) .................... 8.6(b), 8.7
(c) .................... Not Applicable
311(a) .................... 6.8
(b) .................... 6.8
312(a) .................... 3.19, 3.20(a)
(b) .................... 3.20(b)
(c) .................... 3.20(c)
313(a) .................... 3.21
(b) .................... 3.21
(c) .................... 3.21
(d) .................... 3.21
314(a) .................... 6.1(a), 6.1(b)
(b) .................... 6.1(c), 6.1(d)
(c)(1) .................... 6.1(f)
(c)(2) .................... 6.1(f)
(c)(3) .................... 6.1(f)
(d)(1) .................... 6.1(e)
(d)(2) .................... 6.1(e)
(d)(3) .................... Not Applicable
(e) .................... 6.1(f)
315(a) .................... 8.1(c)
(b) .................... 8.1(f)
(c) .................... 8.1(a)
(d) .................... 8.1(c)
(d)(1) .................... 8.1(c)
(d)(2) .................... 8.1(c)
(d)(3) .................... 8.1(c)
(e) .................... 8.5(c)
316(a)(1)(A) .................... 5.17
316(a)(1)(B) .................... 5.18
316(a)(2) .................... Not Applicable
316(b) .................... 5.6(f), 4.1
316(c) .................... 5.7
317(a) .................... 3.12
317(b) .................... 5.14
318(a) .................... 10.12
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* This reconciliation and tie shall not, for any purpose, be deemed to be
part of the within agreement.
TABLE OF CONTENTS
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ARTICLE I
Definitions and Assumptions
---------------------------
Section 1.1. Definitions..................................................................... 1
Section 1.2. Rules of Construction........................................................... 17
ARTICLE II
Declaration of Trusts; Issuance of Certificates
-----------------------------------------------
Section 2.1. Creation and Declaration of Trusts;
Assignment of Deposited Assets.................................................. 18
Section 2.2. Acceptance by Trustee........................................................... 19
Section 2.3. Repurchase or Substitution of Certain
Deposited Assets by the Deposited Asset
Provider........................................................................ 19
Section 2.4. Representations and Warranties of the
Depositor and Representations, Warranties
and Covenants of the Administrative Agent....................................... 21
Section 2.5. Breach of Representation, Warranty or
Covenant........................................................................ 22
Section 2.6. Agreement to Authenticate and Deliver
Certificates.................................................................... 23
ARTICLE III
Administration of each Trust
----------------------------
Section 3.1. Administration of each Trust.................................................... 23
Section 3.2. Sub-Administration Agreements Between
Administrative Agent or Trustee and Sub-
Administrative Agents........................................................... 24
Section 3.3. Successor Sub-Administrative Agents............................................. 25
Section 3.4. Liability of the Administrative Agent........................................... 25
Section 3.5. No Contractual Relationship Between Certain
Sub-Administrative Agents and Trustee or
Certificateholders.............................................................. 26
Section 3.6. Assumption or Termination of Sub-
Administration Agreements by Trustee............................................ 26
Section 3.7. Collection of Certain Deposited Asset
Payments........................................................................ 27
Section 3.8. Collections by Sub-Administrative Agent......................................... 27
Section 3.9. Certificate Account............................................................. 27
Section 3.10. Investment of Funds in the Accounts............................................. 28
Section 3.11. Maintenance of Credit Support................................................... 29
Section 3.12. Realization Upon Defaulted Deposited Assets..................................... 30
Section 3.13. Retained Interest............................................................... 32
Section 3.14. Administrative Agent's Compensation and
Reimbursement................................................................... 32
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Section 3.15. Statement as to Compliance...................................................... 33
Section 3.16. Independent Public Accountants'
Administration Report........................................................... 33
Section 3.17. Access to Certain Documentation................................................. 34
Section 3.18. Duties of the Administrative Agent.............................................. 34
Section 3.19. Depositor to Furnish Names and Addresses of
Holders to Trustee.............................................................. 34
Section 3.20. Preservation of Information, Communications
to Holders...................................................................... 34
Section 3.21. Reports by Trustee.............................................................. 35
ARTICLE IV
Distributions and Reports to Certificateholders
Section 4.1. Distributions................................................................... 35
Section 4.2. Reports to Certificateholders................................................... 35
Section 4.3. Advances........................................................................ 36
Section 4.4. Compliance with Withholding Requirements........................................ 38
Section 4.5. Optional Exchange............................................................... 38
ARTICLE V
The Certificates
Section 5.1. The Certificates................................................................ 39
Section 5.2. Execution, Authentication and Delivery.......................................... 44
Section 5.3. Temporary Certificates.......................................................... 45
Section 5.4. Registration; Registration of Transfer and
Exchange........................................................................ 46
Section 5.5. Mutilated, Destroyed, Lost and Stolen
Certificates.................................................................... 51
Section 5.6. Distribution of Interest; Interest Rights
Preserved....................................................................... 51
Section 5.7. Persons Deemed Owners........................................................... 53
Section 5.8. Cancellation.................................................................... 54
Section 5.9. Global Securities............................................................... 54
Section 5.10. Notices to Depositary........................................................... 56
Section 5.11. Definitive Certificates......................................................... 56
Section 5.12. Currency of Distributions in Respect of
Certificates.................................................................... 56
Section 5.13. Conditions of Authentication and Delivery of
New Series...................................................................... 57
Section 5.14. Appointment of Paying Agent..................................................... 59
Section 5.15. Authenticating Agent............................................................ 60
Section 5.16. Events of Default............................................................... 62
Section 5.17. Control by Holders.............................................................. 62
Section 5.18. Waiver of Past Defaults......................................................... 62
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ARTICLE VI
The Depositor and the Administrative Agent
Section 6.1. Obligations of the Depositor and the
Administrative Agent............................................................ 63
Section 6.2. Merger or Consolidation of the Depositor or
the Administrative Agent........................................................ 67
Section 6.3. Limitation on Liability of the Depositor and
the Administrative Agent........................................................ 68
Section 6.4. Limitation on Resignation of the
Administrative Agent............................................................ 69
Section 6.5. Rights of the Depositor in Respect of the
Administrative Agent............................................................ 69
Section 6.6. Depositor May Purchase Certificates............................................. 70
Section 6.7. The Administrative Agent and Other Parties...................................... 70
Section 6.8. Preferential Collection of Claims Against
Depositor....................................................................... 70
ARTICLE VII
Administrative Agent Termination Events
Section 7.1. Administrative Agent Termination Events......................................... 70
Section 7.2. Trustee to Act; Appointment of Successor........................................ 73
Section 7.3. Notification to Certificateholders.............................................. 74
Section 7.4. Waiver of Administrative Agent Termination
Events.......................................................................... 74
ARTICLE VIII
Concerning the Trustee
Section 8.1. Duties of Trustee; Notice of Defaults........................................... 75
Section 8.2. Certain Matters Affecting the Trustee........................................... 77
Section 8.3. Trustee Not Liable for Recitals in
Certificates or Deposited Assets................................................ 79
Section 8.4. Trustee May Own Certificates.................................................... 79
Section 8.5. Trustee's Fees and Expenses;
Indemnification................................................................. 79
Section 8.6. Eligibility Requirements for Trustee............................................ 81
Section 8.7. Resignation or Removal of the Trustee........................................... 81
Section 8.8. Successor Trustee............................................................... 82
Section 8.9. Merger or Consolidation of Trustee.............................................. 82
Section 8.10. Appointment of Co-Trustee or Separate
Trustee......................................................................... 83
Section 8.11. Appointment of Office or Agency................................................. 84
Section 8.12. Representations and Warranties of Trustee....................................... 84
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ARTICLE IX
Termination
Section 9.1. Termination upon Purchase or Liquidation of
All Deposited Assets............................................................ 85
ARTICLE X
Miscellaneous Provisions
Section 10.1. Amendment....................................................................... 86
Section 10.2. Counterparts.................................................................... 88
Section 10.3. Limitation on Rights of Certificateholders...................................... 88
Section 10.4. Governing Law................................................................... 89
Section 10.5. Notices......................................................................... 89
Section 10.6. Severability of Provisions...................................................... 89
Section 10.7. Notice to Rating Agency......................................................... 90
Section 10.8. Grant of Security Interest...................................................... 90
Section 10.9. Nonpetition Covenant............................................................ 92
Section 10.10. No Recourse..................................................................... 92
Section 10.11. Article and Section References.................................................. 92
Section 10.12. Conflict with Trust Indenture Act............................................... 92
6
TRUST AGREEMENT dated as of ____________,
199_, among STRUCTURED PRODUCTS CORP., a Delaware
corporation, as Depositor, and BANKERS TRUST COMPANY,
a New York banking corporation, as 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 Administrative Agent, if any, specified in the applicable Series
Supplement, and the Trustee. All representations, covenants and agreements made
herein by each of the Depositor, the Administrative Agent, if any, and the
Trustee are for the benefit and security of the Certificateholders and, to the
extent provided in the applicable Series Supplement, for the benefit and
security of any Credit Support Provider. The 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 1.1. Definitions. Except as otherwise specified herein
or in the applicable Series Supplement or as the context may otherwise require,
the following terms have the respective meanings set forth below for all
purposes of this Agreement.
"Account": As defined in Section 3.10.
"Accounting Date": With respect to any Series, if applicable,
as defined in the related Series Supplement.
"Administrative Agent": With respect to any Series of
Certificates, the Person, if any, specified in the applicable Series Supplement
for such Series (which Person shall have agreed pursuant to such Series
Supplement to assume all the duties, obligations, responsibilities and
liabilities of the Administrative Agent as set forth in this Agreement and such
Series Supplement with respect to such Series), until a successor Person shall
have become the Administrative Agent pursuant to the applicable
1
provisions of this Agreement and such Series Supplement, and thereafter
"Administrative Agent" shall mean such successor Person.
"Administrative Agent Termination Event": As defined in
Section 7.1.
"Administrative Fee": With respect to any Series, if
applicable, as defined in the related Series Supplement.
"Advance": As defined in Section 4.3.
"Affiliate": With respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control", when used with respect to any specified Person, means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agreement": With respect to any Series of Certificates, this
Trust Agreement and all amendments hereof and, unless the context otherwise
requires, the related Series Supplement.
"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": Unless otherwise specified in the
applicable Series Supplement, for any Distribution Date in respect of a given
Series or Class, the sum of (i) all amounts actually received on or with respect
to the Deposited Assets (including Liquidation Proceeds and investment income on
amounts in the Accounts) with respect to such Series during the related
Collection Period, (ii) all amounts received pursuant to any Credit Support
Instruments with respect to such Series for such Distribution Date and (iii) all
other amounts, if any, specified by the applicable Series Supplement.
["Available Information Event": With respect to any Series,
that the Term Assets Issuer has suspended its Exchange Act
2
reporting requirements at a time when the Exchange Act reporting requirements
with respect to such Series of Certificates have not been suspended or
terminated.]
"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.
"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": With respect to any Place of Distribution
specified pursuant to Section 5.1, any day that is not a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies in such
Place of Distribution are 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.
3
"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.
"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 Administrative Agent, 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 Administrative Agent, 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.
"Credit Support": With respect to any Series (or any Class
within such Series), a letter of credit, surety bond, swap agreement, put or
call option or other asset intended to support or ensure the timely or ultimate
distributions of amounts due in respect of all or certain of the Deposited
Assets for such Series or Class, which in each case is specified as such in the
related Series Supplement.
"Credit Support Instrument": The instrument or document
pursuant to which the Credit Support for a given Series (or any
4
Class within such Series) is provided, as specified in the
applicable Series Supplement.
"Credit Support Provider": With respect to any Series (or any
Class within such Series), the Person, if any, that will provide any Credit
Support with respect to all or a portion of the Deposited Assets for such Series
or Class as specified in the applicable Series Supplement.
"Currency": Dollars or Foreign Currency.
"Cut-off Date": With respect to any Series, the date specified
as such in the related Series Supplement. For purposes of this Agreement, any
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.
"Deleted Deposited Asset": A Deposited Asset replaced or to be
replaced by a Qualified Substitute Deposited Asset.
"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 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 Asset Provider": With respect to any Deposited
Asset purchased pursuant to a Deposited Asset Purchase Agreement, each entity
specified as such in the applicable Series Supplement or its successor in
interest.
"Deposited Asset Purchase Agreement": With respect to certain
Series of Certificates, as designated in the applicable Series Supplement, the
purchase agreement providing for the purchase by the Depositor of one or more
Deposited Assets for such Series, substantially in the form acceptable to the
Depositor, provided, that if required by the applicable Series Supplement, such
agreement shall provide for the repurchase of such Deposited Assets on the terms
set forth in Section 2.3.
5
"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 Trustee for the benefit of the Holders of
such Series and, if and to the extent provided in the applicable Series
Supplement, for the benefit of any Credit Support Provider, all as identified in
the 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.
"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
6
are rated by the Rating Agency the higher of (x) at least the then current
long-term rating of the Deposited Assets or (y) in one of its two highest
long-term rating categories (unless otherwise specified in the Series
Supplement) at the time any amounts are held in deposit therein or (ii) a trust
account or accounts maintained as a segregated account or as segregated accounts
and held by a Federal or State chartered depository institution 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 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.
"Fixed Pass Through Rate": With respect to any Fixed Rate
Certificate, as defined in the related Series Supplement.
"Fixed Rate Certificate": A Certificate that provides for a
payment of interest at a Fixed Pass Through Rate.
"Floating Pass Through Rate": With respect to any Floating
Rate Certificate, as defined in the related Series Supplement.
"Floating Rate Certificate": A Certificate that provides for
the payment of interest at a Floating Pass Through Rate determined periodically
by reference to a formula specified pursuant to Section 5.1 and the related
Series Supplement.
"Foreign Currency": A currency issued by the government of any
country other than the United States or a composite currency
7
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.
"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.
"Guaranteed Investment Contract": With respect to any Series
(or Class within such Series), a guaranteed investment contract or surety bond
provided for in the related Series Supplement, Granted as part of the Trust or
to the Trustee for the benefit of the Certificateholders for such Series,
providing for the investment of funds in a related Account or related Accounts
and insuring a minimum or a fixed rate of return on the investment of such
funds, which contract or surety bond shall be an obligation of an insurance
company or other entity whose rating at the time of purchase of such guaranteed
investment contract or surety bond is no lower than the rating on the Deposited
Assets and shall satisfy any other requirements specified in such Series
Supplement.
"Holder": With respect to a Registered Certificate, the
Registered Holder thereof and, with respect to a Bearer Certificate or a Coupon,
the bearer thereof.
"Independent": When used with respect to any specified Person
means that the Person (1) is in fact independent of the Depositor and the
Administrative Agent, if any, and of any Affiliate of any of the foregoing
Persons, (2) does not have any direct or indirect financial interest in the
Depositor or the Administrative Agent, if any, or in any Affiliate of either of
the foregoing Persons which is material with respect to such Person and (3) is
not connected with the Depositor or the Administrative Agent, if any, as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
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"Independent Certificate" means a certificate of an
Independent Person, as required by the TIA.
"Letter of Credit": With respect to any Series or Class within
such Series, the letter of credit, if any, providing for the payment of all or a
portion of amounts due in respect of such Series or Class, issued to the Trustee
for the benefit of the Holders of such Series or Class, issued by the related
Credit Support Provider, all as specified in the related Series Supplement.
"Limited Guarantor": With respect to the Deposited Assets
relating to any Series (or Class within such Series), a Person specified in the
related Series Supplement as providing a guarantee or insurance policy or other
credit enhancement supporting the distributions in respect of such Series (or
Class) as and to the extent specified in such Series Supplement.
"Limited Guaranty": With respect to any Series or Class within
such Series, any guarantee of or insurance policy or other comparable form of
credit enhancement with respect to amounts required to be distributed in respect
of such Series or Class or payments under all or certain of the Deposited Assets
relating to such Series or Class, executed and delivered by a Limited Guarantor
in favor of the Trustee, for the benefit of the Certificateholders, as specified
in the related Series Supplement.
"Liquidation Proceeds": The amounts received by the
Administrative Agent, if any, or the Trustee in connection with (i) the
liquidation of a defaulted Deposited Asset or collateral, if any, related
thereto or (ii) the repurchase, substitution or sale of a Deposited Asset.
"Notional Amount": With respect to any Class of Certificates,
if applicable, the initial notional amount specified in the related Series
Supplement on which distributions of interest may be determined at the
applicable Pass Through Rate, as the same may be adjusted as specified in such
Series Supplement.
"Officer's Certificate": A certificate signed by any one (or,
if specified in this Agreement or any Series Supplement, more than one)
Executive Officer of the Depositor or Administrative Agent, as applicable, or,
in the case of the Trustee, a Responsible Officer.
"Opinion of Counsel": A written opinion of counsel, who may,
except as otherwise expressly provided in this Agreement, be counsel for the
Depositor or the Administrative Agent, if any, acceptable to the Trustee, except
that any opinion of counsel relating to the qualification of any account
required to be maintained pursuant to this Agreement as an Eligible Account must
be an opinion of counsel who is in fact Independent of the Depositor and the
Administrative Agent, if any.
9
"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 Administrative Agent, if any, or any Affiliate of any thereof so
owned. The principal amount or notional amount, as applicable, of a Discount
Certificate that shall be deemed to be Outstanding for the determination
referred to in the foregoing proviso shall be the 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).
10
"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 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
11
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
(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, 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
12
Certificates of such Series (or Class) are distributable as specified pursuant
to Section 5.1.
"Predecessor Certificate": With respect to any particular
Certificate, every previous Certificate evidencing all or a portion of the same
interest as that evidenced by such particular Certificate; and, for the purpose
of this definition, any Certificate authenticated and delivered under Section
5.5 in lieu of a lost, destroyed or stolen Certificate shall be deemed to
evidence the same interest as the lost, destroyed or stolen Certificate.
"Proceeding": Any suit in equity, action at law or other
judicial or administrative proceeding.
"Purchase Price": With respect to any Deposited Asset required
to be repurchased by the Deposited Asset Provider pursuant to Section 2.3 and as
confirmed by an Officer's Certificate from the Administrative Agent, if any, or
the Depositor, as the case may be, to the Trustee, an amount equal to the sum of
(i) the greater of (x) 100% of the principal balance thereof as of the date of
such purchase or (y) if the Deposited Asset was purchased at a premium above
face value the price paid therefor, (ii) accrued and unpaid interest thereon
from the immediately preceding interest allocation date, or if no interest has
been paid to the Trust with respect thereto, from the Cut-Off Date, in each case
at a rate equal to the Fixed Pass Through Rate or the then applicable Floating
Pass Through Rate, as the case may be, as specified in the applicable Series
Supplement, on the principal balance of such Deposited Asset as of the close of
business on the Business Day immediately preceding the date of purchase or such
other day as may be specified in the applicable Series Supplement on which such
purchase is to occur, (iii) any unreimbursed Advances and any unpaid
Administrative Fees allocable to such Deposited Asset, (iv) expenses reasonably
incurred or to be incurred by the Administrative Agent, if any, or the Trustee
in respect of the breach or defect giving rise to the purchase obligation,
including any expenses arising out of the enforcement of the purchase obligation
and (v) any Realized Losses previously incurred with respect to such Deposited
Asset and allocated to Certificateholders on or before the date of purchase.
"Qualified Substitute Deposited Asset": With respect to any
Series, as defined, if applicable, in the related Series Supplement.
"Rating Agency": With respect to any Series (or Class within
such Series), 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
13
(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 Administrative Agent, if any, in writing that such action or occurrence will
not result in a reduction or withdrawal of the then current rating of any
Certificate of the applicable Series.
"Record Date": With respect to any Distribution Date for any
Series (or Class within such Series) of 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.
"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.
14
"Required Premium": If applicable, unless otherwise specified
in the related Series Supplement, with respect to the Certificates of any Series
or any Class thereof, an amount equal to the product, as determined on any
Distribution Date with respect to such Series or Class, of (i) the Required
Principal for such Series or Class and (ii) the Call Premium Percentage for such
Series or Class.
"Required Principal": As determined for any Distribution Date
for a given Series (or Class within such Series), unless otherwise specified in
the related Series Supplement, the amounts on deposit in the Certificate Account
allocable to principal payments on the Deposited Assets (including from Credit
Support, if any, and Advances, if any, but excluding amounts in respect of
principal payments to the extent that Advances with respect thereto were
distributed as Required Principal on a prior Distribution Date) and required to
be distributed in respect of Certificates of such Series (or Class) in
accordance with the terms of such Certificates and such related Series
Supplement.
"Required Rating": With respect to any Series (or Class within
such Series), the rating category (or categories) specified in the Series
Supplement that, as a condition to the issuance of such Series or Class, is (or
are) the lowest category (or categories) in which the Certificates of such
Series or Class may be categorized by the Rating Agency.
"Requisite Reserve Amount": As of any date with respect to any
Series (or Class within such Series) of Certificates, the amount, if any,
required to be maintained in the Reserve Account, if any, for such Series or
Class as specified in or determined pursuant to the related Series Supplement.
"Reserve Account": An Eligible Account, if any, created and
maintained pursuant to Section 3.11.
"Responsible Officer": With respect to the Trustee, any
officer within the Corporate Trust Office of the Trustee, including any Vice
President, Assistant Vice President, Assistant Treasurer, Assistant Secretary or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
"Retained Interest": If applicable, with respect to any
Deposited Asset, an ownership interest in and a right to a portion of the
payments thereon by the obligor thereof, as specified in the Deposited Assets
Schedule to the related Series Supplement, held by the Person so specified in
such Deposited Assets Schedule.
"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
15
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.
"Sub-Administration Account": As defined in Section 3.8.
"Sub-Administration Agreement": The written contract, if any,
between the Administrative Agent, if any, specified in the applicable Series
Supplement, or Trustee and a Sub-Administrative Agent and any successor
Administrative Agent or Trustee or Sub-Administrative Agent relating to the
administration of a Deposited Asset or certain Deposited Assets as provided in
Section 3.2.
"Sub-Administrative Agent": Any Person with which the
Administrative Agent, if any, specified in the applicable Series Supplement, or
the Trustee has entered into a Sub-Administration Agreement and which meets the
qualifications of a Sub-Administrative Agent pursuant to Section 3.2.
"Surety Bond": If so specified in the Series Supplement, with
respect to any Series (or Class within such Series) of Certificates, the surety
bond providing for the distribution under certain circumstances specified in
such Series Supplement of amounts to the Certificateholders of such Series (or
Class), which surety bond will be issued to the Trustee for the benefit of such
Certificateholders by the related Credit Support Provider, all as specified in
such Series Supplement.
"Term Assets Issuer": As defined in the related Series
Supplement.
"TIA": The Trust Indenture Act of 1939, as amended.
"Trust": With respect to any Series, the segregated asset or
pool of assets subject hereto, constituting the trust created hereby and by the
related Series Supplement and to be administered hereunder and thereunder,
consisting of those Deposited Assets and the Credit Support, if applicable, and
all sums distributed in respect thereof that are specified as being
16
part of the Trust for such Series in the related Series Supplement, all for the
benefit of the Certificateholders of such Series as of any particular time.
"Trustee": With respect to any Series, the Person so specified
in the applicable Series Supplement (which Person shall have agreed pursuant to
such Series Supplement to assume all the duties, obligations, responsibilities
and liabilities of the Trustee as set forth in this Agreement and such Series
Supplement with respect to the related Series of Certificates) for such Series
or any co-trustee appointed pursuant to Section 8.10, until a successor Person
shall have become the Trustee pursuant to the applicable provisions of this
Agreement and the applicable Series Supplement, and thereafter "Trustee" shall
mean such successor Person.
"Uniform Commercial Code": The Uniform Commercial Code as in
effect in the relevant jurisdiction or, with respect to the State of 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.
17
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 Trustee, on behalf and
for the benefit of the Certificateholders of each given Series of Certificates
and without recourse, all the right, title and interest of the 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 each case as
identified on the applicable Deposited Assets Schedule, and all other assets
included or to be included in the respective Trust for the benefit of the
Certificateholders of each such Series or (ii) deliver to the Trustee for
deposit in the Certificate Account an amount, in immediately available funds in
a form acceptable to the Trustee, sufficient to acquire the Deposited Assets
attributable to such Series, in each case as identified on the Deposited Asset
Schedule to the applicable Series Supplement, and all other assets to be
included in the respective trust for the benefit of the Certificateholders of
each such Series. Each such 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 Series Supplement, will exclude (i) 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 and (ii) any Retained
Interest in any such Deposited Asset.
(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 Trustee or by causing such Deposited Assets to be
registered by book entry in the name of the Trustee 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
Trustee.
(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
18
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
Trustee.
Section 2.2. Acceptance by Trustee. (a) With respect to each
Series, the Trustee will acknowledge receipt by it, or by a custodian on its
behalf, of the related 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 trust for
the exclusive use and benefit of all present and future Certificateholders of
such Series and for the purposes and subject to the terms and conditions set
forth in this Agreement.
(b) The Trustee, or a custodian on its behalf, shall review
all documents received by it pursuant to Section 2.1 within 45 days after
receipt thereof. If in the process of reviewing such documents the Trustee or
such custodian discovers any document or documents to be missing or defective,
the Trustee shall promptly (but in any event within 10 Business Days) so notify
the Depositor and the Administrative Agent, if any. In addition, upon the
discovery by the Depositor, the Administrative Agent, if any, or the Trustee of
a breach of any of the representations and warranties made by any Deposited
Asset Provider in the related Deposited Asset Purchase Agreement, if any, in
respect of any Deposited Asset that materially and adversely affects the
interests of the Certificateholders, the party discovering such breach shall
give prompt written notice to the other parties hereto (but in any event within
10 Business Days).
Section 2.3. Repurchase or Substitution of Certain Deposited
Assets by the Deposited Asset Provider. (a) If and to the extent provided for in
a Series Supplement relating to a given Series of Certificates, upon discovery
or receipt of notice pursuant to Section 2.2 that a document is missing or
defective, the Trustee shall immediately notify the Depositor, the
Administrative Agent, if any, and the Rating Agency that such document is
defective or missing and, unless the Depositor provides to the Trustee an
Officer's Certificate stating such missing or defective document will not have a
materially adverse effect on the related Trust, the Administrative Agent, if
any, or the Trustee shall immediately so notify the Deposited Asset Provider and
require that the Deposited Asset Provider deliver such missing document or cure
such defect within 60 days from the date on which such Deposited Asset Provider
was first notified of such missing document or defect, and if such Deposited
Asset Provider does not deliver such missing document or cure such defect in all
material respects during such period, the Administrative Agent, if any, or
19
the Trustee shall use its best efforts to enforce the Deposited Asset Provider's
obligation, if any, under the related Deposited Asset Purchase Agreement to
repurchase such Deposited Asset from the Trustee at the applicable Purchase
Price within 90 days after the date on which the Deposited Asset Provider was
first notified of such missing document or defect. The Purchase Price for the
repurchased Deposited Asset shall be delivered to the Administrative Agent, if
any, or to the Trustee directly for deposit in the Certificate Account and the
Trustee, upon receipt either of certification by the Administrative Agent, if
any, of such deposit or of such deposit directly, shall release to the Deposited
Asset Provider the related documents in its possession and shall execute and
deliver such instruments of transfer or assignment, in each case without
recourse, as shall be necessary to vest in the Deposited Asset Provider any
Deposited Asset released pursuant hereto, and the Trustee shall have no further
obligations with regard to such documents. The foregoing notwithstanding, if and
to the extent the Series Supplement provides, the Deposited Asset Provider may,
as an alternative to repurchasing any such Deposited Asset as provided above, if
and to the extent so provided in the Deposited Asset Purchase Agreement, cause
such Deposited Asset to be removed from the Trust (in which case it shall become
a Deleted Deposited Asset) by agreeing to substitute one or more Qualified
Substitute Deposited Assets in the manner and subject to the limitations set
forth in Section 2.3(b) and the related Series Supplement. It is understood and
agreed that the obligation of the Deposited Asset Provider to repurchase or
substitute for any Deposited Asset as to which a constituent document is missing
or a defect in a constituent document exists shall, if such defect is not cured
or such missing document is not provided, constitute (unless otherwise specified
in the applicable Series Supplement) the sole remedy respecting such omission or
defect available to the Certificateholders or the Trustee on behalf of the
Certificateholders. It is further understood and agreed that, unless otherwise
provided in the related Series Supplement, in no event shall either the
Depositor or the Administrative Agent, if any, be obligated to repurchase or
substitute for such a Deposited Asset, regardless of whether the Deposited Asset
Provider defaults on its obligation to repurchase or substitute for such a
Deposited Asset.
(b) If and to the extent provided for in a Series Supplement
relating to a given Series of Certificates, with respect to any Deleted
Deposited Asset for which the Depositor or the Deposited Asset Provider
substitutes a Qualified Substitute Deposited Asset or Assets, such substitution
shall be effected by the Depositor or Deposited Asset Provider delivering to the
Trustee or a custodian on its behalf such Qualified Substitute Deposited Asset
or Assets and such documents and agreements, with all necessary endorsements
thereon, as would be required under the terms of Section 2.1, together with an
Officer's Certificate of the Depositor or relevant Deposited Asset Provider
certifying that each such Qualified Substitute Deposited Asset satisfies the
definition thereof and the requirements under this Section. The Trustee or
20
such custodian shall acknowledge receipt of such Qualified Substitute Deposited
Asset or Assets and, within five Business Days thereafter, review such documents
in the manner specified in Section 2.2. The Depositor shall give or cause to be
given written notice to the Certificateholders of such Series and the Rating
Agency that such substitution has taken place and shall amend the Deposited
Asset Schedule to reflect the removal of such Deleted Deposited Asset from the
terms of this Agreement and the substitution of the Qualified Substitute
Deposited Asset or Assets. Upon such substitution, such Qualified Substitute
Deposited Asset or Assets shall be subject to the terms of this Agreement in all
respects, including those related to the representations and warranties included
in the Deposited Asset Purchase Agreement as of the date of substitution. The
terms upon which such substitution may be effected shall be specified in the
applicable Series Supplement.
Section 2.4. Representations and Warranties of the Depositor
and Representations, Warranties and Covenants of the Administrative Agent. (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 with the terms hereof, except as
such enforcement may be limited by bankruptcy,
21
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 Administrative Agent, if any, or the Trustee of a breach of any
of the foregoing representations and warranties which materially and adversely
affects the interests of the Certificateholders, the party discovering such
breach shall give prompt written notice thereof to the other parties.
(b) The Administrative Agent, if any, shall make such
representations, warranties, if any, and covenants that may be specified in the
applicable Series Supplement.
Upon discovery by any of the Depositor, the Administrative
Agent, if any, or the Trustee of a breach of any of the foregoing
representations, warranties and covenants which materially and adversely affects
the interests of the Certificateholders, the party discovering such breach shall
give prompt written notice thereof to the other parties.
Section 2.5. Breach of Representation, Warranty or Covenant.
(a) Within 90 days of the earlier of discovery by the 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.
22
(b) With respect to an Administrative Agent appointed pursuant
to the applicable Series Supplement, within 90 days of the earlier of discovery
by such Administrative Agent or receipt of notice by such Administrative Agent
of a breach of any representation, warranty or covenant of such Administrative
Agent set forth in the applicable Series Supplement that materially and
adversely affects the interests of the Certificateholders, such Administrative
Agent shall cure such breach in all material respects.
Section 2.6. Agreement to Authenticate and Deliver
Certificates. With respect to each Series of Certificates and the related Trust,
the Trustee hereby agrees and acknowledges that it will, concurrently with the
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 of each Trust
Section 3.1. Administration of each Trust. (a) The Trustee
(and, to the extent required in the applicable Series Supplement, any
Administrative Agent) shall administer the Deposited Assets for each given Trust
for the benefit of the Certificateholders of the related Series. In engaging in
such activities, the Trustee (or the Administrative Agent, if applicable) shall,
subject to the provisions of Article VI hereof, follow or cause to be followed
collection procedures in accordance with the terms of this Agreement and the
applicable Series Supplement, the respective Deposited Assets and any applicable
Credit Support Instruments. With respect to each Trust, and subject only to the
above-described standards and the terms of this Agreement, the related Series
Supplement and the respective Deposited Assets and applicable Credit Support
Instruments, if any, the Trustee (or the Administrative Agent, if applicable)
shall have full power and authority, acting alone or through Sub-Administrative
Agents as provided in Section 3.2, to do or cause to be done any and all things
in connection with such administration which it deems necessary to comply with
the terms of this Agreement and the applicable Series Supplement.
(b) Without limiting the generality of the terms of paragraph
(a) of this Section 3.1, with respect to any Series of Certificates, the
Administrative Agent, if any, specified in the applicable Series Supplement
shall be hereby authorized and
23
empowered by the Depositor, when such Administrative Agent believes it
appropriate in its reasonable judgment and when otherwise required by a Series
Supplement, in its own name or in the name of a Sub-Administrative Agent, (i) to
instruct the Trustee to make distributions or payments from the Certificate
Account or any other Account for such Series, as set forth herein or in the
related Series Supplement, and (ii) to the extent specified in the related
Series Supplement, to execute and deliver, on behalf of the Certificateholders
of such Series and the Trustee or any of them, and upon notice to the Trustee,
any and all instruments of satisfaction or cancellation, or of partial or full
release or discharge, and all other comparable instruments, with respect to any
of the Deposited Assets relating to such Series.
(c) The duties of the Trustee and the Administrative Agent, if
any, shall be performed in accordance with applicable local, State and Federal
law, and the Trustee (or, if specified in the applicable Series Supplement, the
Administrative Agent) shall make any and all filings, reports, notices or
applications with, and seek any comments and authorizations from, the Commission
and any State securities authority on behalf of the Trust for each Series. If
the applicable Series Supplement appoints an Administrative Agent, the Trustee,
in its capacity as Trustee, shall execute, at the direction of such
Administrative Agent, any powers of attorney and other documents necessary or
appropriate to enable the Administrative Agent to carry out any of its
administrative duties hereunder; provided, however, that the Trustee, in its
capacity as Trustee, shall not be accountable for the actions of the
Administrative Agent or any Sub-Administrative Agents under such powers of
attorney.
Section 3.2. Sub-Administration Agreements Between
Administrative Agent or Trustee and Sub-Administrative Agents.
(a) Unless otherwise provided in a Series Supplement, an
Administrative Agent specified in the applicable Series Supplement and the
Trustee may enter into Sub-Administration Agreements with one or more
Sub-Administrative Agents in order to delegate their administrative obligations
with respect to a related Series under this Agreement to such Sub-Administrative
Agents; provided, however, that (i) such delegation shall not release either
such Administrative Agent or the Trustee, as applicable, from the duties,
obligations, responsibilities or liabilities arising under this Agreement; (ii)
the Rating Agency Condition shall have been satisfied with respect to the
entering into of any such agreement and (iii) such agreements are consistent
with the terms of this Agreement and, with respect to Certificates of any
Series, the related Series Supplement. With respect to any Series (or Class
within such Series) of Certificates, each Sub-Administration Agreement shall
impose on the Sub-Administrative Agent requirements conforming to the provisions
set forth in Section 3.1 and provide for administration of the related Trust and
all or certain specified Deposited Assets for such Series consistent with the
terms of this Agreement. Additional requirements relating to the scope and
contents of any Sub-Administration Agreement may be
24
provided in the applicable Series Supplement. Such Administrative Agent shall
deliver to the Trustee and the Depositor copies of all Sub-Administration
Agreements which it enters into, and any amendments or modifications thereof,
promptly upon the Administrative Agent's execution and delivery of any such
instruments.
(b) As part of its duties hereunder, an Administrative Agent
specified in the applicable Series Supplement shall enforce the obligations of
each Sub-Administrative Agent under any related Sub-Administration Agreement
which it enters into and of the Deposited Asset Provider, if any, under any
Deposited Asset Purchase Agreement, for the benefit of the Trustee and the
Certificateholders of a given Series. Such enforcement, including the legal
prosecution of claims, the termination of Sub-Administration Agreements or
Deposited Asset Purchase Agreements, as appropriate, and the institution of
Proceedings and the pursuit of other appropriate remedies, shall be in such form
and carried out to such an extent and at such time as the Administrative Agent,
in its good faith business judgment, deems necessary or advisable, subject in
all cases to the provisions of Article VI hereof.
Section 3.3. Successor Sub-Administrative Agents. An
Administrative Agent specified in the applicable Series Supplement and the
Trustee shall each be entitled to terminate any Sub- Administration Agreement
which it enters into and the rights and obligations of any Sub-Administrative
Agent under any Sub- Administration Agreement in accordance with the terms and
conditions of any such Sub-Administration Agreement. In the event of a
termination of any Sub-Administration Agreement, the Administrative Agent or the
Trustee, as applicable, shall simultaneously reassume direct responsibility for
all obligations delegated in such Sub-Administration Agreement without any act
or deed on the part of the applicable Sub-Administrative Agent, the Trustee or
the Administrative Agent, and the Administrative Agent or the Trustee, as
applicable, either shall administer directly the related Deposited Assets or
shall enter into a Sub-Administration Agreement with a successor
Sub-Administrative Agent which so qualifies under Section 3.2.
Section 3.4. Liability of the Administrative Agent.
Notwithstanding any Sub-Administration Agreement or any of the provisions of
this Agreement relating to agreements or arrangements between an Administrative
Agent, if any, or the Trustee and a Sub-Administrative Agent or references to
actions taken through a Sub-Administrative Agent or otherwise, the
Administrative Agent, if any is specified in the applicable Series Supplement,
or the Trustee, as applicable, shall remain obligated and primarily liable to
the Trustee and the Certificateholders for the administering of the Trust and
the Deposited Assets for each related Series of Certificates to the extent
provided herein and in the related Series Supplement in accordance with the
provisions of Section 3.1 without diminution of such obligation or liability by
virtue of any such Sub-Administration Agreements or arrangements or by virtue of
25
indemnification from the Sub-Administrative Agent and to the same extent and
under the same terms and conditions as if the Administrative Agent or the
Trustee, as applicable, alone were administering the Deposited Assets, and the
Administrative Agent or the Trustee, as applicable, shall not thereby be
released from any duties or responsibilities set forth in this Agreement or the
related Series Supplement. The Administrative Agent and the Trustee shall be
entitled to enter into any agreement with a Sub-Administrative Agent for
indemnification of the Administrative Agent or the Trustee by such
Sub-Administrative Agent for any liability or obligation sustained by the
Administrative Agent or the Trustee in connection with any act or failure to act
by the Sub-Administrative Agent, and nothing contained in this Agreement shall
be deemed to limit or modify such indemnification.
Section 3.5. No Contractual Relationship Between Certain
Sub-Administrative Agents and Trustee or Certificateholders. Any
Sub-Administration Agreement between an Administrative Agent specified in the
applicable Series Supplement and a Sub-Administrative Agent that may be entered
into and any transactions or services relating to the Deposited Assets pursuant
to such an agreement shall be deemed to be between the Sub-Administrative Agent
and the Administrative Agent alone, and the Trustee and Certificateholders shall
not be deemed parties thereto and shall have no claims, rights, obligations,
duties or liabilities with respect to the Sub-Administrative Agent except as set
forth in Section 3.6. Except as set forth in Section 3.6, the Administrative
Agent shall be solely liable for all fees owed by it to any Sub-Administrative
Agent, irrespective of whether the Administrative Agent's compensation pursuant
to this Agreement is sufficient to pay such fees; provided, however, that if so
provided in the applicable Series Supplement, a Sub-Administrative Agent shall
be entitled to a Retained Interest in certain Deposited Assets as and to the
extent specified in the Deposited Assets Schedule to such Series Supplement.
Each such Sub-Administrative Agent shall be reimbursed by the Administrative
Agent for expenditures made by such Sub-Administrative Agent to the same extent
the Administrative Agent would be reimbursed for such expenditures pursuant to
the terms of this Agreement.
Section 3.6. Assumption or Termination of Sub-Administration
Agreements by Trustee. Except as and to the extent otherwise provided in a
Series Supplement, in the event an Administrative Agent specified in the
applicable Series Supplement shall for any reason no longer be acting in such
capacity with respect to any Series, the Trustee or its designee shall thereupon
assume all the rights and obligations of the Administrative Agent under each
Sub-Administration Agreement that the Administrative Agent may have entered into
with respect to any Deposited Asset or Assets related to such Series, provided
that the Trustee may elect to terminate any such Sub-Administration Agreement in
accordance with its terms. Except as otherwise provided in such a Series
Supplement, the Trustee, its designee or any successor Administrative Agent
shall be deemed to have assumed all the
26
Administrative Agent's interest therein and to have replaced the Administrative
Agent as a party to each Sub-Administration Agreement to the same extent as if
each Sub-Administration Agreement had been assigned to the assuming party;
provided, however, that the Administrative Agent shall not thereby be relieved
of any liability or obligations under any Sub-Administration Agreement and
provided further, that the Trustee shall in no event be obligated to make any
Advances if it is prohibited by law or regulation from doing so or from
obligating itself to do so. The Administrative Agent at its expense shall, upon
request of the Trustee, deliver to such assuming party all documents and records
relating to each Sub-Administration Agreement and the Deposited Assets then
being administered by it and an accounting of amounts collected and held by it
and otherwise use its best efforts to effect the orderly and efficient transfer
of the Sub-Administration Agreements to the assuming party.
Section 3.7. Collection of Certain Deposited Asset Payments.
With respect to any Series or Class of Certificates, the Trustee (or the
Administrative Agent if specified in the related Series Supplement) shall make
reasonable efforts to collect all payments required to be made pursuant to the
terms of the Deposited Assets or any related Credit Support Instruments in a
manner consistent with the terms of this Agreement, such Deposited Assets and
any related Credit Support Instruments.
Section 3.8. Collections by Sub-Administrative Agent. Unless
otherwise provided in the applicable Series Supplement, in the event a
Sub-Administrative Agent is administering one or more Deposited Assets pursuant
to a Sub-Administration Agreement, the Sub-Administrative Agent shall be
required to immediately direct the Trustee to deposit into an Eligible Account
established by such Sub-Administrative Agent (a "Sub-Administration Account")
any amounts collected with respect thereto, and not later than the Business Day
after receipt thereof, all such amounts shall be deposited into the related
Certificate Account.
Section 3.9. Certificate Account. (a) For each Series of
Certificates, the Trustee shall establish and maintain one or more Eligible
Accounts (collectively, the "Certificate Account"), held in trust for the
benefit of the Certificateholders of such Series. The Trustee on behalf of such
Certificateholders shall possess all right, title and interest in all funds on
deposit from time to time in each Certificate Account and in all proceeds
thereof. With respect to each Series of Certificates, the Certificate Account
shall be under the sole dominion and control of the Trustee for the benefit of
the related Certificateholders. With respect to each Series of Certificates, the
Trustee shall deposit or the Administrative Agent, if any, specified in the
applicable Series Supplement shall direct the Trustee to deposit or cause to be
deposited in the Certificate Account no later than the Business
27
Day after receipt thereof all amounts collected with respect to the Deposited
Assets, any Credit Support and all Liquidation Proceeds related to such Series
including:
(i) all payments on account of principal of such Deposited
Assets;
(ii) all payments on account of interest on such Deposited
Assets;
(iii) all payments on account of premium (if any) on such
Deposited Assets;
(iv) any payments in respect of any such Credit Support;
(v) any Advances made as required pursuant to Section 4.3; and
(vi) any interest or investment income earned on funds
deposited in the related Accounts.
Unless otherwise specified in the applicable Series
Supplement, it is understood and agreed that payments in the nature of
prepayment or redemption penalties, late payment charges or assumption fees
which may be received by the Trustee or any Administrative Agent shall be
deposited by the Trustee or the Administrative Agent, as applicable, in the
Certificate Account and shall not be retained by the Trustee or the
Administrative Agent for its own account.
If, at any time, the Certificate Account for any Series ceases
to be an Eligible Account, the Trustee shall within 10 Business Days (or such
longer period, not to exceed 30 calendar days, as to which the Rating Agency
Condition is met) establish a new Certificate Account meeting the conditions
specified above and transfer any cash and any investments on deposit in the
Certificate Account to such new Certificate Account, and from the date such new
Certificate Account is established, it shall be the Certificate Account for such
Series.
(b) The Trustee shall give notice to the Administrative Agent,
if any, the Depositor and the Rating Agency of the location of each Eligible
Account constituting the Certificate Account and prior to any change thereof.
(c) The Administrative Agent, if any, shall instruct the
Trustee as to, or otherwise the Trustee shall determine, the appropriate
application of Available Funds with respect to any Distribution Date for which
application is to be made on any such Distribution Date in accordance with the
terms of Section 4.1 and the related Series Supplement.
Section 3.10. Investment of Funds in the Accounts. The
Depositor (or, if so specified in the applicable Series Supplement,
28
the Administrative Agent), on behalf of the Trust, may direct the Trustee to
direct any depository institution maintaining the Certificate Account or the
Reserve Account, if any, for the applicable Series and any other segregated
Eligible Account the contents of which are held for the benefit of
Certificateholders of such Series (each, an "Account") to invest the funds
therein in one or more Permitted Investments bearing interest or sold at a
discount, which shall be held to maturity unless payable on demand and which
funds shall not be reinvested upon the maturity or demand for payment of such
Permitted Investment. If the Depositor (or the Administrative Agent, if
applicable) does not provide any investment directions to the Trustee, funds
held in any Account will be invested in the Permitted Investments specified in
clause (ii) of the definition thereof. Investments of such funds shall be
invested in Permitted Investments that will mature so that such funds will be
available for distribution on the Distribution Date on which such amounts are to
be applied as distributions to Certificateholders. In the event amounts on
deposit in an Account are at any time invested in a Permitted Investment payable
on demand, the Trustee shall:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount equal
to the lesser of (1) all amounts then payable thereunder and (2) the
amount required to be withdrawn on such date; and
(y) demand same day payment of all amounts due thereunder upon
a determination by the Trustee that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter on
deposit in any Account.
Section 3.11. Maintenance of Credit Support. On the applicable
Closing Date, the Trustee or, if so specified in the applicable Series
Supplement, the Depositor or the Administrative Agent, shall, to the extent
specified in the applicable Series Supplement, establish and maintain, or enter
into, as applicable, in the name of the Trustee, either as a part of the related
Trust or outside it, for the benefit of the Certificateholders of the related
Series, the Credit Support specified in the applicable Series Supplement. To the
extent specified in the applicable Series Supplement, the Depositor or the
Administrative Agent, as the case may be, will make or cause to be made any
initial deposit to the Certificate Account or any Reserve Account for the
related Series as of the Closing Date. Unless the Series Supplement for a given
Series provides otherwise, if a Reserve Account exists for such Series,
collections with respect to the Deposited Assets for such Series not distributed
to the Certificateholders of such Series shall be deposited in the Reserve
Account. The Reserve Account, if any, will not be a part of or otherwise
includible in the Trust but will be held for the benefit of the Credit Support
Provider.
29
Amounts on deposit in the Reserve Account and amounts
available pursuant to any other Credit Support for such Series shall be applied
by the Trustee to make distributions of principal of and premium (if any) and
interest on the Certificates of such Series as required pursuant to Section 4.1
and the applicable Series Supplement to the extent that funds are not otherwise
available for such purpose. If specified in such Series Supplement, immediately
after each Distribution Date, amounts on deposit in the Reserve Account for such
Series in excess of a specified amount shall be paid to the Person so specified
in such Series Supplement.
Section 3.12. Realization Upon Defaulted 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
30
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
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 Depository or, if the Certificates are not then held
by the Depository, 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 Certificate Principal Balance or
Certificate Notional Amount, as applicable of each class of Outstanding
Certificates, and within each class pro rata by Certificate Principal Balance or
Certificate Notional Amount, as applicable] [pro rata by Amortized Value] [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, distributed in
cash, only to the extent necessary to avoid distribution of fractional
securities.
(c) The Trustee (or, if and under the circumstances specified
in the applicable Series Supplement, the Administrative Agent), on behalf of the
Certificateholders, shall assert claims under each applicable Credit Support
Instrument, and shall take such reasonable steps, in addition to those described
in Section 3.12(a), as are necessary to receive payment or to permit recovery
thereunder with respect to any defaulted Deposited Assets, subject in all cases
to the provisions of Article VI hereof in the case of the Administrative Agent
and Article VIII hereof in the case of the Trustee.
(d) Unless otherwise provided in a Series Supplement, if the
Administrative Agent or the Trustee, as applicable, is unable to obtain full
recovery in respect of a defaulted Deposited Asset and any related Credit
Support Instrument pursuant to Section 3.12(c), the Administrative Agent or the
Trustee, as applicable, shall follow or cause to be followed such normal
practices and procedures as it deems necessary or advisable to realize upon such
31
defaulted Deposited Asset and such Credit Support Instrument, subject in all
cases to the provisions of Article VI hereof in the case of the Administrative
Agent and Article VIII hereof in the case of the Trustee.
Section 3.13. Retained Interest. The Retained Interest, if
any, in any Deposited Asset shall initially be held by the Person so specified
in the related Series Supplement as and to the extent specified in Schedule A
thereof. With respect to each Deposited Asset, the Retained Interest shall be
deducted by the Trustee, at the written direction of the Administrative Agent,
if any, or the Depositor from applicable collections in respect of such
Deposited Asset. Unless otherwise provided in the applicable Series Supplement,
collections in respect of Retained Interest shall not be deposited in the
Certificate Account for the applicable Series and shall not constitute a part of
the Trust for such Series, but shall instead be distributed to the holder of
such Retained Interest, provided that the Series Supplement for any Series with
respect to which there is a Retained Interest may provide that, notwithstanding
the terms contained herein, commingled amounts received in respect of assets
inclusive of Deposited Assets and Retained Interest may initially be deposited
in a separate and discrete Eligible Account established by the Trustee at the
direction of the Administrative Agent, if any, or the Depositor and such Series
Supplement may provide for additional terms relating thereto. Unless otherwise
provided in the applicable Series Supplement, after deduction of all applicable
fees as provided for in this Agreement, on each Distribution Date the Trustee
shall allocate on a pari passu basis any partial recovery on a Deposited Asset
between (a) the Retained Interest, if any, and (b) distributions to
Certificateholders of the applicable Series.
Section 3.14. Administrative Agent's Compensation and
Reimbursement. (a) As compensation for its activities, the Administrative Agent,
if any, specified in the applicable Series Supplement shall be entitled to the
Administrative Fee, which shall be paid on the dates, in the amounts, under the
circumstances and in the manner specified in the applicable Series Supplement.
(b) If, and only to the extent, provided in a Series
Supplement, the Administrative Agent, if any, shall be required to pay from its
compensation hereunder or otherwise all expenses incurred in connection with the
Trust for the related Series and its administration of the Deposited Assets for
the related Series, including payment of the fees and disbursements of the
Trustee (including the reasonable fees and expenses of its counsel and
independent accountants allocable to such Series), payment of expenses incurred
in connection with distributions and reports to Certificateholders of such
Series, payment of premiums on Credit Support Instruments related to such Series
and other expenses specified in such Series Supplement; provided, however, that
neither the Administrative Agent, if any, nor the Trustee will be responsible
for any Federal, State, local or foreign income and
32
franchise taxes, if any, and any interest or penalties with respect thereto,
assessed on the Trust for such Series.
Section 3.15. Statement as to Compliance. An Administrative
Agent appointed 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 Administrative Agent an
Officer's Certificate executed by two of its Executive Officers stating, as to
each signatory thereof, that (i) a review of the activities of the
Administrative Agent 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 Administrative Agent 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 such statement received by the Trustee shall be provided by the
Trustee to any Certificateholder upon request at the Certificateholder's
expense.
Section 3.16. Independent Public Accountants' Administration
Report. Unless otherwise specified in the Series Supplement, within four months
from the end of each 12-month period beginning with the period specified in the
Series Supplement for a given Series of Certificates, either the Administrative
Agent, 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 Administrative Agent, if any, the Trustee
or the Depositor) to furnish a report addressed to the Trustee, the Depositor,
the Rating Agency and each Credit Support Provider 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 and related Credit Support 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 the firm is independent of
the Administrative Agent, 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 statement received by the Trustee shall be
provided by the Trustee to any Certificateholder of such Series upon request
without charge to the requesting Certificateholder.
33
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 3.17. Access to Certain Documentation. The Trustee and
the Administrative Agent, if any, shall provide to any Federal, State or local
regulatory authority that may exercise authority over any Certificateholder
access to the documentation regarding the Deposited Assets required by
applicable laws and regulations. Such access shall be afforded without charge,
but only upon reasonable request and during normal business hours at the offices
of the Trustee and Administrative Agent, if any, designated by each of them. In
addition, access to the documentation regarding the 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 request during
normal business hours at the offices of the Trustee and Administrative Agent
designated by each of them at the expense of the Certificateholder requesting
such access.
Section 3.18. Duties of the Administrative Agent.
Notwithstanding any other provision of this Agreement, with respect to any
Series, the applicable Series Supplement may provide that any Administrative
Agent appointed pursuant to such Series Supplement shall have no rights and no
duties, obligations or liabilities except as provided in such Series Supplement
and herein.
Section 3.19. Depositor to Furnish Names and Addresses of
Holders to Trustee. The Depositor shall furnish or cause to be furnished to the
Trustee not more than five days before each Distribution Date, and at such other
times as the Trustee may request in writing, a list, in such form as the Trustee
may reasonably require, to the extent such information is in the possession or
control of the 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 3.20. Preservation of Information, Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Certificates
contained in the most recent list furnished to the Trustee as provided in
Section 3.19 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.
34
(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).
Section 3.21. Reports by Trustee. If required by TIA Section
313(a), within 60 days after December 31 of each year, the Trustee shall mail to
(i) each Holder as required by TIA Section 313(c) and (ii) the Depositor, a
brief report dated as of such date that complies with TIA Section 313(a). The
Trustee also shall comply with TIA Section 313(b). A copy of any report
delivered pursuant to this Section 3.21 shall, at the time of its mailing to
Holders and the Depositor, be filed by the Trustee with the Commission and each
stock exchange, if any, on which the Certificates are listed. The Depositor
shall notify the Trustee if and when the Certificates are listed on any stock
exchange.
ARTICLE IV
Distributions and Reports to Certificateholders
Section 4.1 Distributions. On each Distribution Date for a
given Series of Certificates, the Trustee shall apply 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 Administrative Agent,
if any, as specified in such Series Supplement, shall forward or 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 allocable to
principal of and premium, if any, and interest on the Certificates of
each such Class; and the amount of aggregate unpaid interest accrued as
of such Distribution Date;
(ii) in the case of each Class of Floating Rate Certificates
of such Series, the respective Floating Pass
35
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
Administrative Agent and such other customary information as the
Trustee or Administrative Agent, as applicable, deems necessary or
desirable, or that any such Certificateholder reasonably requests, to
enable such Certificateholders to prepare their tax returns;
(iv) if the Series Supplement provides for Advances, the
aggregate amount of Advances, if any, included in such distribution,
and the aggregate amount of unreimbursed Advances, if any, at the close
of business on such Distribution Date;
(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;
(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; and
(vii) as to any Series (or any Class within such Series) for
which Credit Support has been obtained, the amount or notional amount
of coverage of each element of Credit Support (and rating, if any,
thereof) included therein as of the close of business on such
Distribution Date.
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.
Section 4.3. Advances. (a) Unless otherwise specified in the
applicable Series Supplement, an Administrative Agent appointed pursuant to the
Series Supplement shall have no obligation to make Advances (as defined below)
with respect to the Deposited Assets or in favor of the Holders of any Series
(or Class
36
within such Series) of Certificates. However, as and to the extent provided in
the Series Supplement for a given Series, and subject to the terms of paragraphs
(b) and (c) of this Section 4.3, on or prior to each Distribution Date, such
Administrative Agent shall advance or cause to be advanced in immediately
available funds to the Trustee for deposit in the Certificate Account for such
Series an advance (each, an "Advance") in an amount equal, unless otherwise
specified in the related Series Supplement, to the aggregate of distributions of
principal, premium (if any) and interest due on the 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 Administrative Agent 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 Administrative Agent shall have made Advances
from funds on deposit in the applicable Certificate Account, the Administrative
Agent shall immediately deposit funds equal to the aggregate amount of such
Advances into such Certificate Account on any subsequent Distribution Date to
the extent that amounts on deposit in such Certificate Account on such
Distribution Date are less than the amount of distributions required to be made
on such Distribution Date pursuant to Section 4.1 and the related Series
Supplement. The Administrative Agent may recover Advances from late collections
received by the Trustee on the applicable Deposited Assets, proceeds from any
applicable Credit Support, if any, 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 to the contrary, no
Advance shall be required to be made hereunder if the Administrative Agent
reasonably believes that it will be unable to recover such Advance from related
late collections, Credit Support proceeds, if any, or Liquidation Proceeds with
respect to the applicable Deposited Assets. It is further understood and agreed
that the Administrative Agent shall not be obligated to make any Advances in
respect of reductions in the amount of collections on the Deposited Assets due
to bankruptcy proceedings with respect to the 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 Administrative
Agent to be nonrecoverable from related late collections, Credit Support
proceeds, if any, or Liquidation Proceeds may be reimbursed to the
Administrative Agent through the application of amounts on deposit in the
Certificate Account for such Series allocable to any of such Deposited Assets
prior to the distributions of interest, premium
37
(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.
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 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");
(5) limitations on the right of an exchanging Holder to
receive any benefit upon exchange from any Credit Support or 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
38
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 prompt written notice thereof to the Rating Agency.
ARTICLE V
The Certificates
Section 5.1. The Certificates. The Certificates of any Series
(or Class within such Series) may be issued in bearer form with or without
Coupons as Bearer Certificates or in fully
39
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;
(5) the terms of the Letter of Credit, if any, or of the
Surety Bond, if any, or of any other Credit Support for the benefit of
the Certificateholders of such Series or Class or group of Classes;
40
(6) 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 Trustee (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;
(7) the authorized denominations (if other than $100,000 and
integral multiples of $1,000 in excess thereof) with respect to such
Series or Class;
(8) the Collection Periods, the Distribution Dates and the
Scheduled Final Distribution Dates for such Series and Class;
(9) the types of 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);
(10) the amount, if any, to be deposited on the Closing Date
in the Certificate Account for such Series;
(11) the manner in which the Reserve Account, if any, is to be
funded, the amount, if any, to be deposited therein on the Closing Date
and the Requisite Reserve Amount, if any, for such Series or Class;
(12) the terms of any Guaranteed Investment Contract Granted
as part of the related Trust;
(13) the provisions, if any, for the optional exchange of the
Certificates of such Series by the Certificateholders of such Series
and the periods within which or the dates on which, and the terms and
conditions on which, such Certificates may be exchanged in whole or in
part for a pro rata portion of the Deposited Assets related to such
Series;
(14) whether the Certificates of such Series or Class are to
be issued as Discount Certificates and the amount of discount with
which such Certificates may be issued;
(15) whether the Certificates of such Series or Class are to
be issued in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary for such Global Security
or Securities and the terms and conditions, if any, upon which
interests in such Global Security or
41
Securities may be exchanged in whole or in part for the
individual Certificates represented thereby;
(16) 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;
(17) 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;
(18) 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;
(19) 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;
(20) any additional Administrative Agent Termination Events or
representations, warranties or covenants provided for with respect to
Certificates of such Series;
42
(21) 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) "Administrative Agent";
(c) "Administrative Fee";
(d) "Allowable Expense Amount";
(e) "Basic Documents";
(f) "Call Premium Percentage";
(g) "Closing Date";
(h) "Credit Support";
(i) "Credit Support Instrument";
(j) "Credit Support Provider";
(k) "Cut-off Date";
(l) "Depositary";
(m) "Deposited Asset Provider";
(n) "Deposited Asset Purchase Agreement";
(o) "Deposited Assets";
(p) "Deposited Assets Schedule";
(q) "Depository Agreement";
(r) "Discount Certificates";
(s) "Distribution Date";
(t) "Eligible Expense";
(u) "Extraordinary Trust Expense";
(v) "Fixed Pass Through Rate";
(w) "Floating Pass Through Rate";
(x) "Letter of Credit";
(y) "Limited Guaranty";
(z) "Notional Amount";
(aa) "Optional Exchange Date";
(bb) "Permitted Investments";
(cc) "Place of Distribution";
(dd) "Qualified Substitute Deposited Asset";
(ee) "Rating Agency";
(ff) "Rating Agency Condition";
(gg) "Record Date";
(hh) "Required Percentage";
(ii) "Required Rating";
(jj) "Requisite Reserve Amount";
(kk) "Retained Interest";
(ll) "Scheduled Final Distribution Date";
(mm) "Specified Currency";
(nn) "Surety Bond";
(oo) "Trustee";
(pp) "Voting Rights";
(22) rights and remedies provided to any Credit Support
Provider with respect to all or a portion of the Trust for such Series
or Class;
(23) any restrictions on the sale and transfer of the
Certificates, including restrictions arising out of the
43
Employee Retirement Income Security Act of 1974, as amended,
or the Code; and
(24) any other provisions expressing or referring to the terms
and conditions upon which the Certificates of such Series or Class are
to be issued under this Agreement that do not prevent such Certificates
from receiving the Required Rating.
In the absence of any specification pursuant to this Section
5.1 with respect to Certificates of any Series, the Certificates of such Series
shall be issuable only as Registered Certificates in denominations of $1,000 and
in integral multiples thereof and shall be payable only in Dollars.
A different Trustee and an Administrative Agent 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 initial
Trustee is to be other than First Trust of New York, National Association, or
there is to be an Administrative Agent, then such Series Supplement shall
provide for the appointment of such Trustee or such Administrative Agent or
both, as applicable, of such Series and shall add or change any of the
provisions of this Agreement as shall be necessary to provide for or facilitate
the administration of the trusts hereunder and of the 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, and that each Trustee shall be a trustee of a trust or
trusts separate and apart from any trust or trusts hereunder of any other
Trustee, and that each Administrative Agent shall be an administrative agent of
a Trust separate and apart from any other Trust. Upon final appointment of any
new Trustee or Administrative Agent, the Trustee shall provide a notice of such
appointment to the Rating Agency not later than 15 days following such
appointment.
Section 5.2. Execution, Authentication and Delivery. (a) The
Certificates 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.
44
(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 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 in a Place of Distribution for such Series or Class, without charge to
the Holder, except as provided in Section 5.4 in connection with a transfer and
except that a Person receiving definitive Bearer Certificates shall bear the
cost of insurance,
45
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 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 the Trustee's principal office in London or to an authorized
agent 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 in a Place of Distribution being herein
sometimes collectively referred to as the "Certificate Register") in which a
transfer agent and registrar (which may be the Trustee) (the "Certificate
Registrar") shall provide for the registration of 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
46
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 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
47
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 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
48
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 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
49
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 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.
50
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 its principal London office (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 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
51
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 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,
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
52
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.
(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 Administrative Agent, if any, and any agent of the Depositor, the
Trustee or the Administrative Agent, 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 Administrative Agent, if any, nor any agent of the Depositor, the Trustee
nor the Administrative Agent, if any, shall be affected by notice to the
contrary. The Depositor, the Trustee and the Administrative Agent, if any, and
any agent of the Depositor, the Trustee or the Administrative Agent, 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
53
not such Bearer Certificate or Coupon be overdue, and neither the Depositor, the
Trustee, the Administrative Agent, if any, nor any agent of the Depositor, the
Trustee or the Administrative Agent, if any, shall be affected by notice to the
contrary. All distributions made to any Holder, or upon his order, shall be
valid, and, to the extent of the sum or sums paid, effectual to satisfy and
discharge the liability for moneys distributable upon such Certificate or
Coupon.
None of the Depositor, the Trustee, the Administrative Agent,
if any, or any of their agents will have any responsibility or liability for any
aspect of the records relating to or distributions made on account of beneficial
ownership interests in a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
In connection with any notice or other communication to be
provided to Holders pursuant to this Agreement by the Trustee with respect to
any consent or other action to be taken by Holders, the Trustee shall establish
a record date for such consent or other action and in the case of Global
Certificates, give the Depository 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
54
individual Certificates represented hereby, this Global Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
No Holder of a Certificate of such Series or Class will
receive a Definitive Certificate representing such Holder's interest in such
Certificate or Certificates, except as provided in Section 5.11. Unless and
until definitive, fully registered Certificates (the "Definitive Certificates")
have been issued to Holders of such Series or Class pursuant to Section 5.11:
(i) the provisions of this Section 5.9 shall be in full force
and effect;
(ii) the Certificate Registrar and the Trustee shall be
entitled to deal with the Depositary for all purposes of this Agreement
(including the distribution of principal of, and premium, if any, and
interest on the Certificates and the giving of instructions or
directions hereunder) as the sole Holder of the Certificates of such
Series or Class, and shall have no obligation to the owners of
beneficial interests in such Series or Class (collectively, the
"Certificate Owners");
(iii) to the extent that the provisions of this Section 5.9
conflict with any other provisions of this Agreement, the provisions of
this Section 5.9 shall control;
(iv) the rights of Certificate Owners of such Series or Class
shall be exercised only through the Depositary and shall be limited to
those established by law and agreements between such Certificate Owners
and the Depositary or its Participants; and
(v) whenever this Agreement requires or permits actions to be
taken based upon instructions or directions of Holders of Certificates
of such Series or Class evidencing a specified percentage of the
aggregate Voting Rights of such Series or Class, the Depositary shall
be deemed to represent such percentage only to the extent that it has
received instructions to such effect from Certificate Owners of such
Series or Class or Participants in such Depositary's system owning or
representing, respectively, such required percentage of the beneficial
interest in the Certificates of such Series or Class and has delivered
such instructions to the Trustee.
(b) Each Depositary designated pursuant to Section 5.1 for a
Global Security in registered form must, at the time of its designation and at
all times while it serves as such Depositary, be
55
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 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
Administrative Agent Termination Event, Certificate Owners representing
beneficial interests aggregating at least a majority (or such other Required
Percentage--Definitive Certificates that may be specified in a Series
Supplement) of the Voting Rights of the Certificates of such Series or Class
advise the Depositary in writing that the continuation of a book-entry system
for such Series or Class through the Depositary is no longer in the best
interests of the Certificate Owners of such Series or Class, then the Depositary
shall notify all Certificate Owners or Participants in the Depositary's system
with respect to such Series or Class and the Trustee of the occurrence of any
such event and of the availability of Definitive Certificates for such Series or
Class to Certificate Owners of such Series or Class requesting the same. Upon
surrender to the Trustee of the Global Securities of such Series or Class by the
Depositary, accompanied by registration instructions, the 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.
56
(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.
(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 shall,
in the absence of manifest error, 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 Administrative Agent, 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
57
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) 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, 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
58
Certificates have received the Required
Rating.
(4) Requirements of Series Supplement. Such other funds,
accounts, documents, certificates, agreements,
instruments or opinions as may be required by the
terms of the Series Supplement creating such Series.
If all the Certificates of a Series are not to be originally
issued at the same time, then the documents required to be delivered pursuant to
this Section 5.13 must be delivered only once, prior to the authentication and
delivery of the first Certificate of such Series; provided, however, that any
subsequent 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 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
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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 authentication executed
on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent
must be acceptable to the Depositor and the Administrative Agent, if any.
Notwithstanding anything contained herein to the contrary, the appointment of an
Authenticating Agent pursuant to this Section 5.15 shall not release the Trustee
from the duties, obligations, responsibilities or liabilities arising under this
Agreement.
(b) Any institution succeeding to the corporate agency
business of any Authenticating Agent shall continue to be an Authenticating
Agent without the execution or filing of any power or any further act on the
part of the Trustee or such Authenticating Agent. An Authenticating Agent may at
any time resign by giving notice of resignation to the Trustee and to the
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 Administrative Agent, 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 Section 8.1, 8.2 and 8.3 shall be applicable to any Authenticating
Agent.
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(c) Pursuant to an appointment made under this Section, the
Certificates may have endorsed thereon, in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
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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, expenses and
liabilities in a form satisfactory to the Trustee, have the right to direct the
time, method and place of conducting any Proceeding for any remedy available to
the Trustee with respect to any Issuer Payment Default; provided, however, that:
(i) such direction shall not be in conflict with any rule of
law or with this Agreement;
(ii) subject to Section 8.7, the Trustee need not take any
action that it determines might cause it to incur any liability or
might materially adversely affect the rights of any Holders not
consenting to such action.
Section 5.18. Waiver of Past Defaults.
The Holders of Outstanding Certificates representing the
Required Percentage -- Direction of Trustee may waive any past default and its
consequences except (i) an Issuer Payment Default or other default in the
payment of principal of or interest on any of the Certificates or (ii) a default
in respect of a covenant or provision hereof which cannot be modified or amended
without the consent of the Holder of each Certificate. In the case of any such
waiver, the 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.
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ARTICLE VI
The Depositor and the Administrative Agent
Section 6.1. Obligations of the Depositor and the
Administrative Agent. (a) The Administrative Agent, if any, shall be liable in
accordance herewith only to the extent of the obligations specifically imposed
by this Agreement and the related Series Supplement. The Depositor shall:
(i) on behalf of the Trust, prepare and file with the
Commission, following the execution thereof by the Trustee if so
requested by the Depositor, and file with the Trustee, within 15 days
after the Depositor on behalf of the Trust is required to file the same
with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules
and regulations prescribe), if any, which the Depositor on behalf of
the Trust may be required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act (collectively, "reports") with
respect to the Trust. A copy of each such report shall be provided to
the Trustee at least 10 business days prior to the date required for
filing. The names of such reports and the dates on which they are
required to be filed with the Commission shall be specified to the
Trustee by the Depositor within 180 days after the Closing Date;
(ii) file with the Trustee, within 15 days after the Depositor
is required to file the same with the Commission, such additional
information, documents and reports with respect to compliance by the
Depositor with the conditions and covenants of this Agreement, if any,
as may be required to be filed with the Commission from time to time by
such rules and regulations;
(iii) supply to the Trustee (and the Trustee shall transmit by
mail to all Holders described in TIA Section 313(c), in the manner and
to the extent provided therein) such summaries of any information,
documents and reports required to be filed by the Depositor pursuant to
clauses (i) and (ii) of this Section 6.1(a), if any, as may be required
by rules and regulations prescribed from time to time by the
Commission; and
[(iv) after an Available Information Event, on behalf of the
Trust, prepare and file with the Commission, following the execution
thereof by the Trustee if so requested by the Depositor, and file with
the Trustee, within 15 days after the Depositor on behalf of the Trust
is required to file the same with the Commission, reports of the kind
referred to in clause (i) of this Section 6.1(a) with respect to the
Term Assets Issuer, to the extent such reports are then available to
the
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Depositor, for as long as the Depositor on behalf of the Trust is
required to file such reports under the Exchange Act. Such reports
shall include quarterly and annual financial statements and other
information of the type required to be filed on Form 8-K under the
Exchange Act with respect to the Term Assets Issuer. A copy of each
such report shall be provided to the Trustee at least 10 business days
prior to the date required for filing. If such reports and information
are not available to the Depositor at a time when such reports and
information are required to be filed with the Commission by the
Depositor on behalf of the Trust, the Depositor shall cause the removal
of the Certificates from the DTC book-entry system as set forth in
Section 5.11 of this Agreement and shall notify the Term Assets Issuer
that the Holders of Certificates constitute record holders of the
Deposited Assets for purposes of the Exchange Act.]
(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 for such year, stating that:
(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 may be obtained by any Holder 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.
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(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 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.
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(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
been paid, 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
compliance with which constitutes a condition precedent), the Depositor shall
furnish to the Trustee: (i) an Officer's Certificate stating that all
66
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
Administrative Agent. (a) Subject to the following paragraph, 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 Administrative Agent,
if any, will keep in full effect its existence, rights and franchises under the
laws of the jurisdiction of its incorporation or association. The Depositor and
the Administrative Agent, if any, each will obtain and preserve its
qualification to do business as a foreign corporation or association in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Deposited Assets and to perform its respective duties under this Agreement.
(b) The Depositor and an Administrative Agent, if any, may
consolidate or merge with or into any other Person, provided that:
(i) the Person (if other than the Depositor or Administrative
Agent, as applicable) formed by or surviving such consolidation or
merger shall expressly assume, by an
67
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 Administrative Agent, as applicable, to be performed or
observed, all as provided herein and in the applicable Series
Supplement or Supplements;
(ii) immediately after giving effect to such transaction, no
Administrative Agent Termination Event or event which with the passage
of time or notice or both would become an Administrative Agent
Termination Event shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction; and
(iv) the Depositor or Administrative Agent, as applicable,
shall have delivered to the Trustee an Officer's Certificate and an
Opinion of Counsel each stating that such consolidation or merger and
such supplemental agreement comply with this Article VI and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
Section 6.3. Limitation on Liability of the Depositor and the
Administrative Agent. (a) Unless otherwise expressly specified in this Agreement
or a Series Supplement, neither the Administrative Agent, 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 Administrative Agent, if any,
nor any of the directors, officers, employees or agents of the Depositor or such
Administrative Agent shall be under any liability to any Trust or the
Certificateholders of any Series for any action taken, or for refraining from
the taking of any action, in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect the
Depositor, any such Administrative Agent or any such person against any breach
of warranties, representations or covenants made herein, or against any specific
liability imposed on such Administrative Agent pursuant hereto, or against any
liability which would otherwise be imposed by reason of 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 Administrative Agent, if any,
shall be under any obligation to appear in, prosecute or defend any legal action
unless such action is related to its respective duties under this Agreement and,
in its opinion, does
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not involve it in any expense or liability; provided, however, that either of
the Depositor or such Administrative Agent may in its discretion undertake any
such action which it may deem necessary or desirable with respect to this
Agreement and the rights and duties of the parties hereto and the interests of
the Certificateholders hereunder. The legal expenses and costs of such action
and any liability resulting (except any loss, liability or expense incurred by
reason of 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 Administrative
Agent. An Administrative Agent appointed pursuant to the applicable Series
Supplement shall not resign from the obligations and duties hereby imposed on it
except (a) upon appointment by the Trustee of a successor administrative agent
and receipt by the Trustee of a letter from the Rating Agency that such a
resignation and appointment will satisfy the Rating Agency Condition or (b) upon
a determination that its duties hereunder are no longer permissible under
applicable law. Any such determination pursuant to clause (b) of the preceding
sentence permitting the resignation of the Administrative Agent shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee and
the Depositor. No resignation of an Administrative Agent shall become effective
until the Trustee or a successor administrative agent shall have assumed the
Administrative Agent's responsibilities, duties, liabilities (other than those
liabilities arising prior to the appointment of such successor) and obligations
under this Agreement.
Section 6.5. Rights of the Depositor in Respect of the
Administrative Agent. An Administrative Agent 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 Administrative Agent in respect of its rights and obligations
hereunder and access to officers of the Administrative Agent responsible for
such obligations. Upon request, the Administrative Agent shall furnish to the
Depositor and the Trustee the Administrative Agent's most recent financial
statements and such other information relating to its capacity to perform its
obligations under this Agreement as the Administrative Agent possesses. To the
extent such information is not otherwise available to the public, the Depositor
and the Trustee shall not disseminate any information obtained pursuant to the
preceding two sentences without the Administrative Agent's written consent,
except as required pursuant to this Agreement to the extent that it is
appropriate to do so (i) in working with legal counsel, auditors, taxing
authorities or other governmental agencies or (ii) pursuant to any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the 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
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confidentiality of any such disseminated nonpublic information. The Depositor
may, but is not obligated to, enforce the obligations of the Administrative
Agent under this Agreement and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of the Administrative Agent under
this Agreement or exercise the rights of the Administrative Agent under this
Agreement; provided, however, that the Administrative Agent shall not be
relieved of any of its obligations under this Agreement by virtue of such
performance by the Depositor or its designee. The Depositor shall not have any
responsibility or liability for any action or failure to act by the
Administrative Agent and is not obligated to supervise the performance of the
Administrative Agent under this Agreement or otherwise.
Section 6.6. 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 Interests has given any request, demand, authorization,
direction, notice, consent or waiver hereunder.
Section 6.7. The Administrative Agent and Other Parties. The
Person serving as an Administrative Agent, if any, appointed pursuant to the
applicable Series Supplement may be the 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
Administrative Agent Termination Events
Section 7.1 Administrative Agent Termination Events. (a)
"Administrative Agent Termination Event", wherever used herein with respect to
any Series of Certificates, means any one of the following events:
(i) a failure by any Administrative Agent specified in the
applicable Series Supplement to remit to the Trustee, pursuant to the
terms of this Agreement, any funds in respect of collections on
Deposited Assets, Credit Support, if any, and Advances, if any,
collected by the Administrative Agent pursuant to the terms of this
Agreement that continues unremedied for a period of five days after the
date upon which written notice of such failure, requiring the same to
be
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remedied, shall have been given to the Administrative Agent by the
Depositor or the Trustee (in which case notice shall be provided by
telecopy), or to the Administrative Agent, 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 Administrative Agent
specified in the applicable Series Supplement to observe or perform in
any material respect any other of the covenants or agreements on the
part of the Administrative Agent contained in the Certificates of such
Series or in this Agreement which continues unremedied for a period of
30 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the
Administrative Agent by the Depositor or the Trustee, or to the
Administrative Agent, 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 Administrative Agent, if
any, specified in the applicable Series Supplement and such decree or
order shall have remained in force undischarged or unstayed for a
period of 30 days; or
(iv) any Administrative Agent specified in the applicable
Series Supplement shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to the Administrative Agent or of or relating to all or
substantially all its property; or
(v) any Administrative Agent specified in the applicable
Series Supplement shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for
the benefit of its creditors, or voluntarily suspend payment of its
obligations; or
(vi) if so specified in the related Series Supplement, any
failure of the Administrative Agent, if any, specified in the
applicable Series Supplement to make any Advances required to be made
from its own funds pursuant to Section 4.3 which continues unremedied
until twelve o'clock noon New York City time on the Business Day
immediately following the day on which such Advance was required to
have been made; or
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(vii) any additional Administrative Agent Termination Event
that may be specified with respect to such Series in the related Series
Supplement.
Each Series Supplement shall specify as to each of the foregoing clauses
requiring a vote of Holders of different Classes the circumstances and manner in
which the aggregate Voting Rights applicable to each such clause shall be
calculated.
(b) Unless otherwise provided in the applicable Series
Supplement and provided an Administrative Agent shall have been appointed
pursuant to the applicable Series Supplement, so long as an Administrative Agent
Termination Event with respect to the related Series of Certificates shall have
occurred and be continuing, the Depositor or the Trustee may, and at the written
direction of the Holders of Certificates evidencing not less than the "Required
Percentage--Administrative Agent Termination" of the aggregate Voting Rights,
the Trustee shall, by notice in writing to such Administrative Agent (and to the
Depositor if given by the Trustee or to the Trustee if given by the Depositor)
terminate all the rights and obligations of the Administrative Agent specified
in the applicable Series Supplement in its capacity as Administrative Agent with
respect to such Series under this Agreement, to the extent permitted by law, and
in and to the Deposited Assets relating to such Series (other than any Retained
Interest of the Administrative Agent, if any) and the proceeds thereof. On or
after the receipt by such Administrative Agent of such written notice, all
authority and power of the Administrative Agent under this Agreement relating to
such Series, whether with respect to the Certificates (other than as a Holder of
any Certificate) of such Series or the Deposited Assets relating to such Series
or otherwise, shall pass to and be vested in the Trustee pursuant to and under
this Section 7.1(b), and without limitation, the Trustee is hereby authorized
and empowered, as attorney-in-fact or otherwise, to execute and deliver, on
behalf of and at the expense of the Administrative Agent, any and all documents
and other instruments and to do or accomplish all other acts or things necessary
or appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of such Deposited Assets and
related documents, or otherwise. The Administrative Agent, if any, specified in
the applicable Series Supplement agrees promptly (and in any event not later
than ten Business Days subsequent to such notice) to provide the Trustee with
all documents and records requested by it to enable it to assume the functions
of the Administrative Agent under this Agreement relating to such Series, and to
cooperate with the Trustee in effecting the termination of the Administrative
Agent's responsibilities and rights under this Agreement relating to such
Series, including the transfer within one Business Day to the Trustee for
administration by it of all cash amounts and investments which shall at the time
be or should have been credited by the Administrative Agent to the Certificate
Account relating to such Series or thereafter be received with respect to such
Deposited Assets; provided, however, that the Administrative Agent
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shall continue to be entitled to receive all amounts accrued or owing to it
under this Agreement on or prior to the date of such termination, whether in
respect of Advances or otherwise, and shall continue to be entitled to the
benefits of Section 6.3 notwithstanding any such termination.
Section 7.2. Trustee to Act; Appointment of Successor. On and
after the time an Administrative Agent, if any, specified in the applicable
Series Supplement receives a notice of termination pursuant to Section 7.1, the
Trustee shall be the successor in all respects to the Administrative Agent in
its capacity as Administrative Agent under this Agreement or the applicable
Series Supplement and the transactions set forth or provided for herein and
shall be subject to all the responsibilities, duties and liabilities relating
thereto and arising thereafter placed on the Administrative Agent (except for
any representations or warranties of the Administrative Agent under this
Agreement and except as otherwise provided herein or in the applicable Series
Supplement) by the terms and provisions hereof including the Administrative
Agent's obligation, if any, to make Advances pursuant to Section 4.3; provided,
however, that if the Trustee is prohibited by law or regulation from obligating
itself to make Advances, then the Trustee shall not be obligated to make such
Advances pursuant to Section 4.3; and provided further, that any failure to
perform such duties or responsibilities caused by the Administrative Agent's
failure to provide information required by Section 7.1 shall not be considered a
default by the Trustee as successor to the Administrative Agent hereunder. As
compensation therefor, the Trustee shall be entitled to the amounts relating to
the Deposited Assets of a given Series to which such Administrative Agent would
have been entitled if the Administrative Agent had continued to act hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to so act,
or shall, if it is unable to so act or if the Holders of Certificates of such
Series evidencing not less than the Required Percentage--Administrative Agent
Termination of the aggregate Voting Rights, so request in writing to the
Trustee, promptly appoint, or petition a court of competent jurisdiction to
appoint, an Administrative Agent acceptable to the Rating Agency (such
acceptance to be evidenced by satisfaction of the Rating Agency Condition with
respect to such appointment) and having a net worth of not less than
$15,000,000, as the successor to such Administrative Agent under this Agreement
with respect to such Series in the assumption of all or any part of the
responsibilities, duties or liabilities of such Administrative Agent under this
Agreement with respect to such Series. The Trustee, the Depositor and any such
successor Administrative Agent may agree upon the compensation to be paid with
respect thereto; provided, however, that in no event shall such compensation be
greater than the compensation payable to the Administrative Agent under this
Agreement. No appointment of a successor Administrative Agent under this
Agreement shall be effective until the assumption by the successor
Administrative Agent of all the responsibilities, duties and liabilities placed
on the Administrative Agent hereunder and under the related Series Supplement.
Pending appointment of a
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successor Administrative Agent under this Agreement, the Trustee shall act in
such capacity as and to the extent hereinabove provided.
Section 7.3. Notification to Certificateholders. (a) Upon any
such termination pursuant to Section 7.2 or appointment of a successor
Administrative Agent, the Trustee shall give prompt written notice thereof to
Certificateholders of the affected Series in the manner provided in Section
10.5.
(b) Within 60 days after the occurrence of any Administrative
Agent Termination Event or event which but for the lack of notice or passage of
time or both would constitute an Administrative Agent Termination Event with
respect to any Series, the Trustee shall transmit by mail to all
Certificateholders of such Series notice of each such Administrative Agent
Termination Event or event which but for lack of notice or passage of time or
both would constitute an Administrative Agent Termination Event which is known
to the Trustee, unless such Administrative Agent Termination Event or event
which but for lack of notice or passage of time or both would constitute an
Administrative Agent Termination Event shall have been cured or waived.
Section 7.4. Waiver of Administrative Agent Termination
Events. Unless otherwise provided in the applicable Series Supplement, the
Holders of Certificates of the related Series evidencing not less than the
Required Percentage--Waiver of the aggregate Voting Rights may, on behalf of all
Certificateholders of such Series, (i) if so provided in the applicable Series
Supplement, waive compliance by the Depositor, the Trustee or the Administrative
Agent, if any, with certain restrictive provisions of this Agreement as set
forth in such Series Supplement prior to the time such compliance is required
and (ii) waive any Administrative Agent Termination Event or event which but for
lack of notice or passage of time or both would constitute an Administrative
Agent Termination Event with respect to such Series; provided, however, that an
Administrative Agent Termination Event or event which but for lack of notice or
passage of time or both would constitute an Administrative Agent Termination
Event with respect to such Series regarding the failure to distribute, in
accordance with the terms of this Agreement, amounts received with respect to
any 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 Administrative Agent Termination Event or event which but
for lack of notice or passage of time or both would constitute an Administrative
Agent Termination Event with respect to such Series, such Administrative Agent
Termination Event or event which but for lack of notice or passage of time or
both would constitute an Administrative Agent Termination Event shall cease to
exist and shall be deemed to have been remedied for every purpose hereunder. No
such waiver shall extend to any subsequent or other
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Administrative Agent Termination Event or event which but for lack of notice or
passage of time or both would constitute an Administrative Agent Termination
Event or impair any right consequent thereon except to the extent expressly so
waived.
ARTICLE VIII
Concerning the Trustee
Section 8.1. Duties of Trustee; Notice of Defaults. (a) The
Trustee, prior to the occurrence of an Administrative Agent Termination Event or
Event of Default with respect to any Series and after the curing of all such
Administrative Agent Termination Events or Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement and the related Series Supplement.
During the period an Administrative Agent Termination Event or Event of Default
with respect to any Series shall have occurred and be continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Agreement, and
shall use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of such person's
own affairs. Any permissive right of the Trustee enumerated in this Agreement
shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement, shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement,
the Trustee shall take action as it deems appropriate to have the instrument
corrected, and if the instrument is not corrected to the Trustee's satisfaction,
the Trustee will provide notice thereof to the Depositor, Administrative Agent,
if any, and Certificateholders.
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own misconduct; provided, however, that:
(i) prior to the occurrence of an Administrative Agent
Termination Event or Event of Default with respect to any Series, and
after the curing of all such Administrative Agent Termination Events or
Events of Default which may have occurred, the duties and obligations
of the Trustee shall be determined solely by the express provisions of
this Agreement, the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be
read into this Agreement against the Trustee and, in the
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absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee that conform to the requirements of
this Agreement;
(ii) the Trustee shall not be personally liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of Holders of the Required
Percentage--Direction of Trustee of the aggregate Voting Rights of a
given Series (or Class or group of Classes within such Series) relating
to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Agreement;
(iv) the Trustee shall not be required to expend or risk its
own funds or otherwise incur financial liability in the performance of
any of its duties hereunder or in the exercise of any of its rights or
powers if there is reasonable ground for believing that the repayment
of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it, and none of the provisions contained in
this Agreement shall in any event require the Trustee to perform, or be
responsible for the manner of performance of, any obligations of an
Administrative Agent, if any, appointed pursuant to the applicable
Series Supplement, under this Agreement except during such time, if
any, as the Trustee shall be the successor to, and be vested with the
rights, duties, powers and privileges of, such an Administrative Agent
in accordance with and only to the extent provided in this Agreement;
(v) except for actions expressly authorized by this Agreement,
the Trustee shall take no actions reasonably likely to impair the
interests of the Trust in any 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
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(vii) in the event that the Paying Agent or the Certificate
Registrar shall fail to perform any obligation, duty or agreement in
the manner or on the day required to be performed by the Paying Agent
or Certificate Registrar, as the case may be, under this Agreement, the
Trustee shall be obligated promptly upon its knowledge thereof to
perform such obligation, duty or agreement in the manner so required.
(d) The Trustee shall have the legal power to exercise all of
the rights, powers and privileges of holders of the 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.
(e) 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.
(f) 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 known to the Trustee,
the Trustee shall promptly give notice to the Depository 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.
(g) 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
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any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) the Trustee may consult with counsel and any written
advice or Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by
it hereunder in good faith and in accordance with such written advice
or Opinion of Counsel;
(iii) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto, at
the request, order or direction of any of the Certificateholders,
pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby; provided, however, that nothing
contained herein shall relieve the Trustee of the obligations, upon the
occurrence of an Administrative Agent Termination Event or Event of
Default (which has not been cured or waived), to exercise such of the
rights and powers vested in it by this Agreement, and to use the same
degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of such person's
own affairs;
(iv) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(v) prior to the occurrence of an Administrative Agent
Termination Event hereunder and after the curing of all Administrative
Agent Termination Events which may have occurred, the Trustee shall not
be bound to make any investigation into the facts of matters stated in
any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, approval, bond or other
paper or document believed by it to be genuine, unless requested in
writing to do so by Holders of the Required Percentage--Direction of
Trustee of the aggregate Voting Rights of the affected Series (or Class
or Classes within any such Series), as specified by the applicable
Series Supplement; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Agreement, the Trustee
may require
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reasonable indemnity against such expense or liability as a
condition to taking any such action;
(vi) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian; and
(vii) the Trustee shall not be personally liable for any loss
resulting from the investment of funds held in any Certificate Account
or Reserve Account at the direction of an Administrative Agent or the
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 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 Administrative Agent, if any, of any of the
Certificates or of the proceeds of such Certificates.
Section 8.4. Trustee May Own Certificates. The Trustee in its
individual capacity or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not Trustee.
Section 8.5. Trustee's Fees and Expenses; Indemnification;
Undertaking for Costs. (a) The applicable Series Supplement shall specify the
amount and circumstances of the Trustee's compensation and the source thereof.
(b) The Trustee and any director, officer, employee, custodian
or agent of the Trustee shall be reimbursed in the manner and priority specified
in the related Series Supplement, upon the request of the Trustee, for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Agreement (including the
reasonable compensation and the expenses and disbursements of its counsel and
79
of all persons not regularly in its employ, whether or not such expenses are
incurred in connection with any Opinion of Counsel acquired or permitted to be
obtained by the Trustee), and the Trustee and any director, officer, employee,
custodian or agent of the Trustee shall be indemnified for a given Series, in
the manner and priority specified in the related Series Supplement, and held
harmless against any loss, liability or expense incurred in connection with any
legal action relating to this Agreement or the Certificates or the performance
of any of the Trustee's duties hereunder, other than any loss, liability or
expense (i) that constitutes a specific liability of the Trustee under this
Agreement or (ii) incurred by reason of wilful misfeasance, bad faith or
negligence in the performance of the Trustee's duties hereunder or by reason of
reckless disregard of the Trustee's obligations and duties hereunder or as a
result of a breach of the Trustee's obligations and duties hereunder; provided,
however, that (1) with respect to any such legal action, the Trustee shall have
given the Administrative Agent, if any, and the Depositor notice thereof
promptly after the Trustee shall have knowledge thereof and (2) while
maintaining control over its own defense in any such legal action, the Trustee
shall cooperate and consult fully with the Administrative Agent, if any, and the
Depositor in preparing such defense. Such indemnity shall survive the
termination or discharge of this Agreement and the resignation or removal of the
Trustee.
(c) All parties to this Agreement agree, and each Holder of
any Certificate by such Holder's acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any Proceeding for the
enforcement of any right or remedy under this Agreement, or in any Proceeding
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such Proceeding of an undertaking to pay the
costs of such Proceeding and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such Proceeding, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the provisions of this
Section 8.5(c) shall not apply to:
(i) any Proceeding instituted by the Trustee;
(ii) any Proceeding instituted by any Holder, or group of
Holders, in each case holding in the aggregate Outstanding Certificates
representing more than 10% of the Voting Rights; or
(iii) any Proceeding instituted by any Holder for the
enforcement of the payment of principal or interest on or after the
respective due dates expressed in such Certificate and in this
Agreement (or, in the case of redemption, on or after the redemption
date).
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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. 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 Administrative Agent, 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 Certificateholders and the Administrative Agent, 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
81
appoint a successor trustee by written instrument, in duplicate, which
instrument shall be delivered to the Trustee so removed and to the successor
trustee. A copy of such instrument shall be delivered to the Certificateholders
and the Administrative Agent, if any, by the 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 Administrative
Agent, 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 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
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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 Administrative Agent Termination Event shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.6 hereunder and no notice to
Holders of Certificates of the appointment of co-trustee or co-trustees or
separate trustee or trustees shall be required under Section 8.8 hereof.
Notwithstanding anything contained herein to the contrary, the appointment of a
co-trustee pursuant to this Section 8.10 shall not release the Trustee from the
duties, obligations, responsibilities or liabilities arising under this
Agreement.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed by the Trustee (whether
as Trustee hereunder or as successor to an Administrative Agent hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to such Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed by such separate trustee or co-trustee at the direction
of the Trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then
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separate trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee or co-trustee shall refer to
this Agreement and the conditions of this Article VIII. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be vested
with the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee.
(d) Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 8.11. Appointment of Office or Agency. As specified in
a Series Supplement, the Trustee shall appoint an office or agency in the City
of New York where the Certificates may be surrendered for registration of
transfer or exchange, and presented for the final distribution with respect
thereto, and where notices and demands to or upon the Trustee in respect of the
Certificates of the related Series and this Agreement may be served.
Section 8.12. Representations and Warranties of Trustee. The
Trustee represents and warrants that:
(i) the Trustee is duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation or
association;
(ii) neither the execution nor the delivery by the Trustee of
this Agreement, nor the consummation by it of the transactions
contemplated hereby nor compliance by it with any of the terms or
provisions hereof will violate its charter documents or by-laws.
(iii) the Trustee has full power, authority and right to
execute, deliver and perform its duties and obligations as set forth
herein and in each Series Supplement to which it is a party and has
taken all necessary action to authorize the execution, delivery and
performance by it of this Agreement; and
(iv) this Agreement has been duly executed and delivered by
the Trustee and constitutes the legal, valid and binding
84
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).
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 Administrative Agent, if any, and the Trustee
(other than the obligations of any such Administrative Agent to provide for and
the Trustee to make distributions to Holders of the Certificates of any given
Series as hereafter set forth) shall terminate upon the distribution to such
Holders of all amounts held in all the Accounts for such Series or by an
Administrative Agent, if any, and required to be paid to such Holders pursuant
to this Agreement on the Distribution Date coinciding with or following the
earlier to occur of (i) if and as provided in the Series Supplement for such
Series, the purchase by, and at the sole option of, the Administrative Agent, if
any, or the Depositor, as provided in the Series Supplement for such Series, of
all remaining Deposited Assets for such Series in the Trust for such Series on
any Distribution Date, provided that such option may be exercised only if the
aggregate principal amount of such 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 such Trust as of the applicable Cut-off Date and (ii) the final
payment on or other liquidation (which may include redemption or other purchase
thereof by the applicable Term Assets Issuer) (or any Advance with respect
thereto) of the last Deposited Asset remaining in the Trust for such Series 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 Administrative Agent, 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
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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.
(d) Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Scheduled Distribution Date, or the Distribution
Date coinciding with or next following the earlier to occur of the occurrences
specified in clauses (i) and (ii) of Section 9.1(a), with respect to the
applicable Series of Certificates, the Trustee shall distribute to each Holder
presenting and surrendering its Certificates (i) the amount otherwise
distributable on such Distribution Date in accordance with Section 4.1 in
respect of the Certificates so presented and surrendered, if not in connection
with the purchase by an Administrative Agent or the Depositor of all the
Deposited Assets or (ii) as specified in the applicable Series Supplement, if in
connection with an Administrative Agent's purchase of all the remaining
Deposited Assets. Any funds not distributed on such Distribution Date shall be
set aside and held in trust for the benefit of Certificateholders not presenting
and surrendering their Certificates in the aforesaid manner, and shall be
disposed of in accordance with this Section 9.1 and Section 4.1 hereof.
Immediately following the deposit of funds in trust hereunder, the Trust for
such Series shall terminate.
ARTICLE X
Miscellaneous Provisions
Section 10.1. Amendment. (a) This Agreement may be amended
from time to time by the 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 or
supplement any Credit Support for the benefit of any Certificateholders
(provided that if any such addition affects any series or class of
Certificateholders differently that any other series or class of
Certificateholders, then such addition will not, as evidenced by an opinion of
counsel, have a material adverse effect on the interests of any affected series
or class of Certificateholders); (iii) to add to the covenants, restrictions or
obligations of the Depositor, the Administrative Agent, if any, or the Trustee
for the benefit of the Certificateholders; (iv) to add, change or eliminate any
other provisions with respect to matters or questions arising under this
Agreement, so long as (x) any such amendment described in (i) through (iv) will
not, as evidenced by an opinion of counsel, 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
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Agency rating such Certificates that such amendment will not cause such Rating
Agency rating such Certificates to reduce or withdraw the then current rating
thereof; (v) to comply with any requirements imposed by the Code; (vi) to
evidence and provide for the acceptance of appointment hereunder of a Trustee
other than Bankers Trust Company as Trustee for a Series of Certificates, and to
add to or change any of the provisions of this Agreement as shall be necessary
to provide for or facilitate the administration of the separate Trusts hereunder
by more than one Trustee, pursuant to the requirements of Section 5.1 hereof;
(vii) to evidence and provide for the acceptance of appointment hereunder by a
successor Trustee with respect to the Certificates of one or more Series or to
add or change any of the provisions of this Agreement as shall be necessary to
provide for or facilitate the administration of the trusts hereunder; or (viii)
to provide for the issuance of a new Series of Certificates pursuant to a Series
Supplement issued hereunder pursuant to Sections 5.1 and 5.13 hereof.
(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
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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.
(c) Promptly after the execution of any such amendment or
modification, the Trustee shall furnish a copy of such amendment or modification
to each Certificateholder of the affected Series or Class and to the Rating
Agency. It shall not be necessary for the consent of Certificate-holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Section 10.2. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 10.3. Limitation on Rights of Certificateholders. (a)
The death or incapacity of any Certificateholder shall not operate to terminate
this Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the applicable Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of then.
(b) No Certificateholder of a given Series shall have any
right to vote (except as expressly provided for herein) or in any manner
otherwise control the operation and management of any Trust, or the obligations
of the parties hereto, nor shall anything herein set forth, or contained in the
terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third person by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
(c) No Certificateholder of a given Series shall have any
right by virtue of any provision of this Agreement to institute any suit, action
or proceeding in equity or at law upon or under or with respect to this
Agreement, unless (i) such Holder previously shall have given to the Trustee a
written notice of breach and of the continuance thereof and unless also the
Holders of Certificates of such Series evidencing not less than the Required
Percentage--Remedies of the aggregate Voting Rights of such Series shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred
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therein or thereby, and the Trustee, for 15 days after its receipt of such
notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding. It is understood and agreed that
the Trustee shall not be obligated to make any investigation of matters arising
under this Agreement or to institute, conduct or defend any litigation hereunder
or in relation hereto at the request, order or direction of any
Certificateholders unless such Certificateholders have offered to the Trustee
the reasonable indemnity referred to above. It is further understood and agreed,
and expressly covenanted by each Certificateholder of each Series with every
other Certificateholder of such Series and the Trustee, that no one or more
Holders of Certificates of such Series shall have any right in any manner
whatever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of the Certificates of such
Series, or to obtain or seek to obtain priority over or preference to any other
such Holder, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders of such Series. For the protection and enforcement of the
provisions of this Section, each and every Certificateholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 10.4. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York applicable
to agreements made and to be performed entirely therein without reference to
such State's principles of conflicts of law to the extent that the application
of the laws of another jurisdiction would be required thereby, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
Section 10.5. Notices. All directions, demands and notices
hereunder shall be in writing and shall be delivered as set forth in the
applicable Series Supplement. Any notice required to be provided to a Holder of
a 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
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terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 10.7. Notice to Rating Agency. The Trustee shall use
its best efforts promptly to provide notice to the Rating Agency with respect to
each of the following of which it has actual knowledge:
(i) any change or amendment to this Agreement;
(ii) the occurrence of any Administrative Agent Termination
Event;
(iii) the resignation or termination of an Administrative
Agent, if any, or the Trustee;
(iv) the 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 to each Rating Agency copies of
each report to Certificateholders described in Section 4.2 and the
Administrative Agent, if any, or otherwise the Trustee shall promptly furnish to
each Rating Agency copies of the following:
(i) each annual statement as to compliance described in
Section 3.15; and
(ii) each annual independent public accountants' servicing
report described in Section 3.16.
Any such notice pursuant to this Section shall be in writing and shall be deemed
to have been duly given if personally delivered or mailed by first class mail,
postage prepaid, or by express delivery service to each Rating Agency at the
address specified in the applicable Series Supplement.
Section 10.8. Grant of Security Interest. It is the express
intent of the parties hereto that each conveyance of any Deposited Assets by the
Depositor to the Trustee 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
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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 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 Trustee 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 Trustee 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 Trustee 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 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.
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Section 10.9. Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement, each of the Trustee (including any Co-Trustee)
the Administrative Agent, if any, (including any Sub-Administrative Agent,
Authenticating Agent, Calculation Agent, or Paying Agent) and the 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),
the Administrative Agent, if any (including any Sub-Administrative Agent,
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.
Section 10.12 Conflict with Trust Indenture Act.
(a) If any provision hereof limits, qualifies or conflicts
with another provision hereof that is required to be included in this Agreement
by any of the provisions of the TIA, such required provision shall control.
(b) The provisions of TIA Sections 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
herein unless expressly excluded by this Agreement) are a part of and govern
this Agreement, whether or not physically contained herein.
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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:
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION as Trustee,
by
------------------------
Name:
Title:
