Exhibit 4.1
STANDARD TERMS FOR TRUST AGREEMENTS
between
SELECT ASSET INC.,
as Depositor
and
[TRUSTEE],
as Trustee
CORPORATE-BACKED TRUST CERTIFICATES
Dated as of [______]
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Assumptions
SECTION 1.01. Definitions..............................................................................1
SECTION 1.02. Rules of Construction...................................................................19
SECTION 1.03. Compliance Certificates and Opinions; Record Date.......................................19
ARTICLE II
Declaration of Trusts; Issuance of Certificates; Purpose and Classification of Trusts
SECTION 2.01. Creation and Declaration of Trusts: Assignment of Underlying Securities................20
SECTION 2.02. Acceptance by Trustee...................................................................22
SECTION 2.03. Representations and Warranties of the Depositor.........................................22
SECTION 2.04. Breach of Representation, Warranty or Covenant..........................................24
SECTION 2.05. Agreement to Authenticate and Deliver Certificates......................................24
ARTICLE III
Administration of each Trust
SECTION 3.01. Administration of each Trust............................................................25
SECTION 3.02. Collection of Certain Underlying Security Payments......................................25
SECTION 3.03. Certificate Account.....................................................................25
SECTION 3.04. Liquidation of the Underlying Securities; Sale Procedures...............................26
SECTION 3.05. Investment of Funds in the Accounts.....................................................27
SECTION 3.06. Maintenance of Credit Support...........................................................27
SECTION 3.07. Realization Upon Defaulted Underlying Securities........................................28
SECTION 3.08. Access to Certain Documentation.........................................................28
SECTION 3.09. Preparation and Filing of Exchange Act Reports; Obligations of the Depositor and
the Trustee.............................................................................29
SECTION 3.10. Charges and Expenses....................................................................30
SECTION 3.11. SEC Reporting Failure...................................................................31
ARTICLE IV
Distributions and Reports to Certificateholders
SECTION 4.01. Distributions...........................................................................31
SECTION 4.02. Distributions on Certificates...........................................................39
SECTION 4.03. Reports to Certificateholders...........................................................40
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SECTION 4.04. Allocation of Realized Losses and Trust Expenses........................................42
SECTION 4.05. Compliance with Withholding Requirements................................................42
SECTION 4.06. Optional Exchange.......................................................................43
SECTION 4.07. Optional Call...........................................................................46
ARTICLE V
The Certificates
SECTION 5.01. The Certificates........................................................................47
SECTION 5.02. Execution, Authentication and Delivery..................................................47
SECTION 5.03. Temporary Certificates..................................................................48
SECTION 5.04. Registration; Registration of Transfer and Exchange.....................................48
SECTION 5.05. Mutilated, Destroyed, Lost and Stolen Certificates......................................54
SECTION 5.06. Persons Deemed Owners...................................................................55
SECTION 5.07. Cancellation............................................................................55
SECTION 5.08. Global Securities.......................................................................55
SECTION 5.09. Notices to Depository...................................................................57
SECTION 5.10. Definitive Certificates.................................................................57
SECTION 5.11. Currency of Distributions in Respect of Certificates....................................57
SECTION 5.12. Conditions of Authentication and Delivery of New Series.................................58
SECTION 5.13. Appointment of Paying Agent.............................................................59
SECTION 5.14. Authenticating Agent....................................................................60
SECTION 5.15. Voting Rights with Respect to Underlying Securities.....................................61
SECTION 5.16. Actions by Certificateholders...........................................................62
SECTION 5.17. Notices of Events of Default, Defeasance................................................62
SECTION 5.18. Judicial Proceedings Instituted by Trustee; Trustee May Bring Suit......................62
SECTION 5.19. Control by Certificateholders...........................................................63
SECTION 5.20. Waiver of Past Defaults.................................................................63
SECTION 5.21. Right of Certificateholders to Receive Payments Not to Be Impaired......................64
SECTION 5.22. Remedies Cumulative.....................................................................64
ARTICLE VI
The Depositor
SECTION 6.01. Liability of the Depositor..............................................................64
SECTION 6.02. Limitation on Liability of the Depositor................................................64
SECTION 6.03. Depositor May Purchase Certificates.....................................................65
SECTION 6.04. Merger or Consolidation of the Depositor................................................65
SECTION 6.05. No Liability of the Depositor with Respect to the Underlying Securities;
Certificateholders to Proceed Directly Against the Underlying Securities
Issuer(s)...............................................................................66
ARTICLE VII
Concerning the Trustee
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SECTION 7.01. Duties of Trustee.......................................................................66
SECTION 7.02. Between Trustee and Sub-Administrative Agents...........................................69
SECTION 7.03. Certain Matters Affecting the Trustee...................................................70
SECTION 7.04. Trustee Not Liable for Recitals in Certificates or Underlying Securities................71
SECTION 7.05. Trustee May Own Certificates............................................................72
SECTION 7.06. Trustee's Fees and Expenses.............................................................72
SECTION 7.07. Eligibility Requirements for Trustee....................................................73
SECTION 7.08. Resignation or Removal of the Trustee; Appointment of Successor Trustee.................73
SECTION 7.09. Merger or Consolidation of Trustee......................................................75
SECTION 7.10. Appointment of Office or Agency.........................................................75
SECTION 7.11. Representations and Warranties of Trustee...............................................75
SECTION 7.12. Indemnification of Trustee by the Depositor; Contribution...............................76
SECTION 7.13. Indemnification of Depositor by Trustee.................................................77
SECTION 7.14. No Liability of the Trustee with Respect to the Underlying Securities;
Certificateholders to Proceed Directly Against the Underlying Securities
Issuer(s)...............................................................................78
SECTION 7.15. The Depositor To Furnish Trustee with Names and Addresses of Certificateholders.........78
SECTION 7.16. Preservation of Information.............................................................78
SECTION 7.17. Reports by Trustee......................................................................78
SECTION 7.18. Trustee's Application for Instructions from the Depositor...............................78
ARTICLE VIII
Market Agent
SECTION 8.01. Market Agent............................................................................79
ARTICLE IX
Termination
SECTION 9.01. Termination upon Liquidation of All Underlying Securities...............................79
ARTICLE X
Miscellaneous Provisions
SECTION 10.01. Amendment...............................................................................80
SECTION 10.02. Limitation on Rights of Certificateholders..............................................82
SECTION 10.03. GOVERNING LAW...........................................................................83
SECTION 10.04. Notices.................................................................................83
SECTION 10.05. Notice to Rating Agencies...............................................................84
SECTION 10.06. Severability of Provisions..............................................................85
SECTION 10.07. Grant of Security Interest..............................................................85
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SECTION 10.08. Nonpetition Covenant....................................................................86
SECTION 10.09. No Recourse.............................................................................86
SECTION 10.10. Article and Section References..........................................................87
SECTION 10.11. Counterparts............................................................................87
SECTION 10.12. Trust Indenture Act Controls............................................................87
SECTION 10.13. Segregation Provisions..................................................................87
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STANDARD TERMS FOR TRUST AGREEMENTS dated as of [______], between SELECT
ASSET INC., a Delaware corporation, as Depositor, and [TRUSTEE], as Trustee.
PRELIMINARY STATEMENT
The Depositor and the Trustee have duly authorized the execution and
delivery of these Standard Terms for Trust Agreements (the "Standard Terms")
to provide for one or more Series (and one or more Classes within each such
Series) of Certificates, issuable from time to time as provided in these
Standard Terms.
Each such Series (inclusive of any Classes specified within such
Series) of Certificates will be issued under a separate Series Supplement to
these Standard Terms, duly executed and delivered by the Depositor and the
Trustee. With respect to each Series, the applicable Series Supplement,
together with these Standard Terms, shall be known as the "Trust Agreement."
All representations, covenants and agreements made herein by each of
the Depositor 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 or any
other party specified therein;
The Depositor is entering into these Standard Terms, and the Trustee
in 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 1.01 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 Trust Agreement.
"Account" As defined in Section 3.05.
"Accredited Investor" A Person that qualifies as an "accredited
investor" within the meaning of Rule 501(a) under the Securities Act.
"Administrative Fees" With respect to any Series, if applicable, as
defined in the related Series Supplement.
"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.
"Allocation Discount Rate" With respect to any Class within a
Series, if applicable, the discount rates used in calculating the IO Strip
Class Allocation, the PO Strip Class Allocation or the P&I Class Allocation,
each as specified in the related Series Supplement.
"Allowable Expense Amounts" With respect to any Series, if
applicable, as defined in the related Series Supplement.
"Amortizing Notional Balance" With respect to any Series, if
applicable, as defined in the related Series Supplement.
"Amortizing Notional Discount Rate" The discount rate used in
determining, as of the related Issue Date, that the Amortizing Notional
Balance of any IO Strip Class Certificates equals the present value of the
difference between (i) the interest payments to be received by the Trust in
respect of the related Underlying Securities and (ii) the interest portion of
Available Funds to be distributed to the Holders of the related P&I Class
Certificates in connection with such payments, assuming, in each case, that
the payments and distributions were made when due and that the Underlying
Securities were not redeemed, prepaid or liquidated prior to the related Final
Scheduled Distribution Date
"Approved Dealer" Any of the following dealers (or their
successors): (1) Bear, Xxxxxxx & Co. --------------- Inc., (2) Citigroup
Global Markets Inc., (3) Credit Suisse First Boston LLC, (4) Deutsche Bank
Securities Inc., (5) Xxxxxxx, Sachs & Co., (6) X.X. Xxxxxx Securities Inc.,
(7) Merrill, Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, (8) Xxxxxx Xxxxxxx &
Co. Incorporated, (9) UBS Securities LLC and (10) except in the case of a sale
related to the exercise of Call Warrants by the Depositor or any Affiliate
thereof, Xxxxxx Brothers Inc.
"Authenticating Agent" As defined in Section 5.14.
"Available Funds" Unless otherwise specified in the applicable
Series Supplement, for any Distribution Date in respect of a given Series or
Class, the sum of (i) all amounts actually received on or with respect to the
Underlying Securities (including Liquidation Proceeds and investment income on
amounts in the Accounts) with respect to such Series during the related
Collection Period, (ii) all amounts received pursuant to any Credit Support
Instruments with respect to such Series for such Distribution Date, and (iii)
all other amounts, if any, specified by the applicable Series Supplement.
"Basic Documents" With respect to any Series, if applicable, as
defined in the related Series Supplement.
"Beneficial Owner" With respect to Certificates held through a
Depository, the beneficial owner of a Certificate. For purposes only of
Section 5.16, the Trustee shall be obligated to treat a Person who claims to
be a beneficial owner of a Certificate as a "Beneficial Owner" within the
meaning of the Series Supplement only if such Person has first delivered to
the Trustee, (i) a certificate or other writing executed by such Person
stating the full name and address of such Person, the principal distribution
amount of the Certificate with respect to which such Person claims to be the
Beneficial Owner, and the Participant in the Depository (such Person's
"Participant") through which such Person holds its beneficial ownership
interest in the Certificates and (ii) a certificate or other writing executed
by such Person's Participant
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confirming that such Person's Participant holds on its own books and records
Certificates for the account of such Beneficial Owner and identifying the
principal distribution amount held for such Beneficial Owner.
"Business Day" With respect to any Place of Distribution specified
in the related Series Supplement, any day that is not (i) a Saturday, a
Sunday, 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 (ii) any day which is not a Business
Day with respect to the Underlying Securities, except as otherwise specified
in the related Series Supplement and any Business Day specified with respect
to the Underlying Securities.
"Calculation Agent" With respect to any Series, if applicable,
Select Asset Inc. or such Affiliate thereof as shall be designated by Select
Asset Inc.
"Call Date" With respect to any Series, if applicable, the meaning
set forth in the related Warrant Agent Agreement.
"Call Notice" With respect to the exercise of a Call Warrant, if
applicable, the notice delivered pursuant to the related Warrant Agent
Agreement that specifies the number of Call Warrants being exercised and the
related Call Date.
"Call Price" With respect to any Series (or Class within such
Series), if applicable, the meaning given to such term in the related Warrant
Agent Agreement.
"Call Warrants" With respect to any Series, if applicable, the call
warrants with respect to the related Underlying Securities issued pursuant to
the related Warrant Agent Agreement.
"Certificate Account" As defined in Section 3.03.
"Certificate Owners" As defined in Section 5.08.
"Certificate Principal Balance" With respect to any Outstanding
Certificate that is entitled to all or a portion of the principal portion of
Available Funds in respect of the related Series, as determined at any time,
the maximum amount that the Holder thereof is entitled to receive as
distributions allocable to principal payments with respect to the Underlying
Securities. 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 that are only entitled to receive distributions from the
interest portion of Available Funds), 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
with respect to principal of the Underlying Securities (including, without
limitation, the portion of any redemption proceeds allocable to the principal
of or premium on the Underlying Securities), (ii) if such Certificate or a
portion thereof has been surrendered in exchange for Underlying Securities as
and to the extent provided herein or in the applicable Series Supplement, any
reductions attributable to Certificates so surrendered, (iii) all amounts
allocable to prior distributions made to such Class with respect to amounts
received by the Trust in connection with any exercise of the related Call
Warrants, (iv) all amounts allocable to prior distributions made to such Class
with respect to
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Liquidation Proceeds and (v) any reductions in the Certificate Principal
Balance thereof deemed to have occurred in connection with allocations of (A)
Realized Losses in respect of principal of the Underlying Securities and (B)
expenses of the Trust, if any, only to the extent specified herein or in the
applicable Series Supplement, each as allocated to the Class of which such
Certificate is a part pursuant hereto or to the applicable Series Supplement.
"Certificate Register" and "Certificate Registrar" As respectively
defined in Section 5.04.
"Certificateholder" Any Holder of a Certificate.
"Certificates" Any trust certificates authorized by, and
authenticated and delivered under, this Trust Agreement.
"Class" With respect to any Series, any one of the classes of
Certificates of such Series, each Class consisting of Certificates having
identical terms.
"Clearing Agency" An organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act.
"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 Trust Agreement such Commission is not existing
and performing the duties now assigned to it, then the body then performing
such duties.
"Concentrated Underlying Securities Obligor" In respect of any
Underlying Securities representing 10% or more of the aggregate principal
amount of Underlying Securities held by the related Trust, the related
Underlying Securities Issuer or Underlying Securities Guarantor, as
applicable, that is eligible to use Form S-3 or F-3 for (x) a primary offering
of common stock or (y) a primary offering of non-convertible investment grade
securities.
"Corporate Trust Office" The principal corporate trust office of the
Trustee located at [______________] or such other addresses as the Trustee may
designate from time to time by notice to the Holders 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 and the Depositor).
"Credit Support" With respect to any Series (or any Class within
such Series), a Letter of Credit, Limited Guaranty, Surety Bond, Swap
Agreement, put or call option or other asset intended to support or ensure the
timely or ultimate distributions of amounts due in respect of all or certain
of the Underlying Securities for such Series or Class, in each case, if
specified as such in the related Series Supplement.
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"Credit Support Instrument" If applicable, the instrument or
document pursuant to which the Credit Support for a given Series (or any Class
within such Series) is provided, as specified in the applicable Series
Supplement.
"Credit Support Provider" If applicable, with respect to any Series
(or any Class within such Series), the Person that provides any Credit
Support.
"Currency" Unless otherwise set forth in the related Series
Supplement, United States Dollars.
"Definitive Certificates" As defined in Section 5.08.
"Depositor" Select Asset Inc., a Delaware corporation, and, if a
successor Person shall have become the Depositor pursuant to any applicable
provisions of this Trust Agreement, "Depositor" shall mean such successor
Person. With respect to any provisions of this Trust Agreement that relate to
the provisions of the Trust Indenture Act, "Depositor" shall include any
obligor on the Certificates as the term obligor is defined in the Trust
Indenture Act.
"Depositor Order" A written order or request, respectively, signed
in the name of the Depositor by any of its officers.
"Depository" 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 Depository by the Depositor
and specified in the related Series Supplement until a successor Depository
shall have become such pursuant to the applicable provisions of this Trust
Agreement, and thereafter "Depository" shall mean or include each Person who
is then a Depository hereunder, and if at any time there is more than one such
Person, "Depository" as used with respect to the Certificates of any such
Series or Class shall mean the Depository with respect to the Certificates of
that Series or Class.
"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" With respect to any Series, any of (i) an account
maintained with a federal or state chartered depository institution or trust
company, (A) the long-term deposit or long-term unsecured debt obligations of
which are rated by each applicable Rating Agency in one of its two highest
long-term rating categories, or (B) the short-term deposit or short-term
unsecured debt obligations of which are rated by each applicable Rating Agency
in its highest short-term rating category (if the deposits are to be held in
the account for thirty (30)
5
days or less), in any event at any time funds are on deposit therein, or (ii)
a segregated trust account maintained with the trust department of a federal
or state chartered depository institution or trust company (which, subject to
the remainder of this clause (ii), may include the Trustee) acting in its
fiduciary capacity, and which, in either case, has a combined capital and
surplus of at least $50,000,000 and is subject to supervision or examination
by federal or state authority and to regulations regarding fiduciary funds on
deposit similar to Title 12 of the Code of Federal Regulations Section
9.10(b), or (iii) an account maintained with any other insured depository
institution that is acceptable to each applicable Rating Agency (as evidenced
by the fulfillment of the Rating Agency Condition with respect to the use of
such account).
"Eligible Expense" With respect to any Series, as specified in the
related Series Supplement.
"Eligible 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, however, that the total stated return
specified by the terms of each such obligation or security is at least equal
to the purchase price thereof; and provided, further, that no such instrument
may carry the symbol "R" in its rating:
(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, however, 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 Eligible Investments only if, at the time of
investment, it has the rating specified in such Series Supplement
for Eligible Investments;
(ii) demand and time deposits in, certificates of deposit of,
or banker's acceptances issued by any depository institution or
trust company (including the Trustee or any agent of the Trustee
acting in their respective commercial capacities) incorporated under
the laws of the United States or any State and subject to
supervision and examination by Federal and/or State banking
authorities so long as the commercial paper and/or the short-term
debt obligations of such depository institution or trust company
(or, in the case of a depository institution which is the principal
subsidiary of a holding company, the commercial paper or other
short-term debt obligations of such holding company) at the time of
such investment or contractual commitment providing for such
investment have the rating specified in such Series Supplement for
Eligible Investments; provided, however, that such rating shall be
no lower than the rating on the Underlying Securities at the time of
purchase of the investments;
(iii) repurchase agreements with respect to (a) any security
described in clause (i) above or (b) any other security issued or
guaranteed by an agency or instrumentality of the United States,
with an entity having the credit rating specified in such Series
Supplement for Eligible Investments;
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(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 Eligible Investments at the time of such investment
or contractual commitment providing for such investment; provided,
however, that such rating shall be no lower than the rating on the
Underlying Securities; and provided, further, that securities issued
by any particular corporation will not be Eligible Investments to
the extent that investment therein will cause the then outstanding
principal amount of securities issued by such corporation and held
as part of the Trust for such Series to exceed 10% of the aggregate
outstanding principal balances and amounts of all the Underlying
Securities and Eligible 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 Eligible Investments;
and
(vi) a Guaranteed Investment Contract if and only if specified
in the related Series Supplement, provided that the Rating Agency
Condition is met.
"ERISA" The Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" With respect to any Series (or Class within such
Series) of Certificates, (i) a default in the payment of any interest on any
Underlying Security held by the related Trust after the same becomes due and
payable (subject to any applicable grace period), (ii) a default in the
payment of the principal of or any installment of principal of any such
Underlying Security when the same becomes due and payable and (iii) any other
event specified as an "Event of Default" in the related Underlying Securities
Issuance Agreement.
"Exchange Act" The Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Exchange Date" As applicable with respect to a given Series, (i)
any Distribution Date, (ii) any date on or after which the related Underlying
Securities Issuer or an Affiliate thereof consummates a tender offer for some
or all of the Underlying Securities but prior to the date on which the
acceptance period with respect to such tender offer expires or (iii) any date
on which the Underlying Securities are to be redeemed by the related
Underlying Securities Issuer.
"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" Any one of the duly elected or appointed
qualified and acting officers of any entity executing a certificate.
"Extraordinary Trust Expense" Unless otherwise specified in the
related Series Supplement, any and all costs, expenses or liabilities arising
out of the establishment, existence or administration of a Trust, other than
(i) Ordinary Expenses, and (ii) costs and expenses
7
payable by a particular Certificateholder, the Trustee or the Depositor
pursuant to the related Trust Agreement.
"Final Scheduled Distribution Date" With respect to any Certificate,
the date on which the final payment on such Certificate is scheduled as a
result of the maturity of each of the Underlying Securities (or otherwise),
without giving effect to any prepayment, default, exchange, call or early
termination, to become due and payable as provided therein and in the
applicable Series Supplement.
"Fixed Interest 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 Interest Rate.
"Floating Interest 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 Interest Rate determined periodically by
reference to a formula specified in the related Series Supplement.
"Foreign Currency" A currency issued by the government of any
country other than the United States or a composite currency the value of
which is determined by reference to the values of the currencies of any group
of countries.
"Global Security" A Registered Certificate evidencing all or part of
a Series (or Class within such Series) of Certificates, issued to the
Depository for such Series or Class in accordance with Section 5.08.
"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 these Standard Terms and a related Series
Supplement. The terms "Granted" and "Granting" have the meanings correlative
to the foregoing. A Grant of any Underlying Securities or of any other
instrument shall include all rights, powers and options (but none of the
obligations) of the Granting party, 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 Underlying Securities 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
8
funds, which contract or surety bond shall be an obligation of an insurance
company or other entity whose rating is no lower than the rating on the
Underlying Securities 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 Call Warrant, the holder thereof (or a
beneficial interest therein).
"Independent" When used with respect to any Person, any other Person
(including a firm of investment bankers, accountants or lawyers and any member
thereof) who (i) does not have and is not committed to acquire any direct or
indirect material financial interest in such Person or in any Affiliate of
such Person, (ii) is not connected with such Person as an officer, employee,
promoter, underwriter, voting trustee, partner, director or Person performing
similar functions and (iii) is not Affiliated with a firm that fails to
satisfy the criteria set forth in (i) and (ii). "Independent" when used with
respect to any accountant may include an accountant who audits the books of
any Person if in addition to satisfying the criteria set forth above the
accountant is independent with respect to such Person within the meaning of
Rule 101 of the Code of Ethics of the American Institute of Certified Public
Accountants.
"Initial Accrued Interest" With respect to any Series and each
related Underlying Security, the amount of interest which accrued thereon from
the Underlying Security Interest Payment Date of such Underlying Security next
preceding the deposit of such Underlying Security hereunder (or, in the event
that such Underlying Security Interest Payment Date is the first Underlying
Security Interest Payment Date to occur after the original issuance of such
Underlying Security, from the dated date thereof) to, but excluding, the
related Issue Date.
"Initial Amortizing Notional Balance" With respect to any IO Strip
Class Certificate or any IO Strip Class, the Amortizing Notional Balance of
such Certificate or Class as of the related Issue Date.
"Initial Distribution Date" With respect to any Series, the first
Distribution Date following the related Issue Date.
"Interest 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.
"Investment Letter" A letter substantially in the form of Exhibit A
hereto.
"IO/PO Strip Class Series" Any Series, a Class of which is an IO
Strip Class and another Class of which is a PO Strip Class.
"IO Strip Class" If applicable with respect to any Series, a Class
of Certificates of such Series entitling the Holders thereof to distributions
solely out of the interest portion of Available Funds (and not to any
distributions out of the principal portion of Available Funds), as specified
in the related Series Supplement.
9
"IO Strip Class Allocation" With respect to any IO Strip Class, the
present value (discounted at the applicable Allocation Discount Rate) of any
unpaid amounts due or to become due on the Certificates of such IO Strip Class
(assuming that the IO Strip Class Certificates were paid when due and were not
redeemed or prepaid prior to their stated maturity).
"IO Strip Class Certificate" Any Certificate evidencing an interest
in an IO Strip Class.
"IO Strip Class Series" Any Series, a Class of which is an IO Strip
Class and no Class of which is a PO Strip Class.
"Issue Date" With respect to any Series, the day on which the
Certificates of such Series are executed, authenticated and delivered, as
specified in the related Series Supplement.
"Letter of Credit" With respect to any Series or Class within such
Series, a letter of credit, if any, providing for the payment of all or a
portion of amounts due in respect of such Series or Class, issued to the
Trustee for the benefit of the Holders of such Series or Class, issued by the
related Credit Support Provider, all as specified in the related Series
Supplement.
"Limited Guarantor" With respect to the Underlying Securities
relating to any Series (or Class within such Series), a Person specified in
the related Series Supplement as providing a guarantee or insurance policy or
other credit enhancement supporting the distributions in respect of such
Series (or Class) as and to the extent specified in such Series Supplement.
"Limited Guaranty" With respect to any Series or Class within such
Series, any guarantee of or insurance policy or other comparable form of
credit enhancement with respect to amounts required to be distributed in
respect of such Series or Class or payments under all or certain of the
Underlying Securities relating to such Series or Class, executed and delivered
by a Limited Guarantor in favor of the Trustee, for the benefit of the
Certificateholders, as specified in the related Series Supplement.
"Liquidation Price" With respect to the Underlying Securities
relating to any Series, the price at which the Trustee sells such Underlying
Securities when liquidating such Underlying Securities pursuant to the terms
of the related Trust Agreement.
"Liquidation Proceeds" The amounts received by the Trustee in
connection with (x) the liquidation of an Underlying Security (or collateral,
if any, related thereto) pursuant to Section 4.01(d) or Section 4.01(i) or (y)
any other repurchase, substitution or sale of an Underlying Security.
"Market Agent" The market agent or market agents appointed pursuant
to Section 8.01, and its or their successors or assigns.
"Market Agent Agreement" If applicable, with respect to any Series,
the Market Agent Agreement, dated as of the related Issue Date, between the
Trustee and the Market Agent, the form of which will be attached to the Series
Supplement, and any similar agreement with a successor Market Agent, in each
case as from time to time amended or supplemented.
10
"Minimum Wire Denomination" If applicable, with respect to any
Series, as defined in the related Series Supplement.
"Moody's" Xxxxx'x Investors Service Inc. and any successors thereto.
"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 Interest Rate, as the same may be adjusted as specified in such
Series Supplement.
"Notional Distribution Amount" With respect to a given Series, as
defined in the related Series Supplement.
"Officer's Certificate" A certificate signed by any one (or, if
specified in these Standard Terms or any Series Supplement, more than one)
Executive Officer of the Depositor, and delivered to the Trustee.
"Opinion of Counsel" A written opinion of counsel, issued by a firm
which may, except as otherwise expressly provided in this Trust Agreement, be
counsel for the Depositor reasonably acceptable to the Trustee; provided,
however, that any opinion of counsel relating to the qualification of any
account required to be maintained pursuant to this Trust Agreement as an
Eligible Account must be an opinion of counsel issued by a firm which is in
fact Independent of the Depositor.
"Optional Call" With respect to any Series, the call of the related
Underlying Securities by a Warrant Holder, in whole or in part, resulting from
the exercise of Call Warrants by such Warrant Holder, pursuant to Section 4.07
hereof.
"Optional Exchange" With respect to any Series (or Class within such
Series), the exchange of the Certificates by the Trust for Underlying
Securities pursuant to Section 4.06 hereof.
"Optional Exchange Date" With respect to any Series (or Class within
such Series), any date on which Underlying Securities subject to Optional
Exchange are distributed to a Certificateholder.
"Ordinary Expenses" The Trustee's costs incurred or to be incurred
in connection with its services as Trustee, including but not limited to (i)
the costs and expenses of preparing, sending and receiving all reports,
statements, notices, returns, filings, solicitations of consent or
instructions, or other communications required by this Trust Agreement, (ii)
the costs and expenses of holding and receiving collections or payments on the
assets of the Trust and of determining and making distributions, (iii) the
costs and expenses of the Trust's or Trustee's counsel, accountants and other
experts for ordinary or routine consultation or advice in connection with the
establishment, administration and termination of the Trust or the preparation
of any annual reports, (iv) the annual costs of listing any Class of
Certificates on an exchange, and (v) any other costs and expenses that are, or
reasonably should have been, expected to be incurred in the ordinary course of
administration of the Trust.
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"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 these Standard
Terms and the related Series Supplement, except the following:
(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
Trust 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
(at a time when the Depositor, the Trustee or any of their respective
Affiliates do not own all of the Certificates), except as provided in Section
10.01(b) hereof, Certificates beneficially owned by the Depositor, the
Trustee, or any of their respective Affiliates 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, or
any Affiliate of any thereof. 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, Amortizing Notional Balance or 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 5.11(c).
"P&I Class" If applicable with respect to any Series, a Class of
Certificates of such Series entitling the Holders thereof to distributions out
of both the principal and interest portions of Available Funds, as specified
in the related Series Supplement.
"P&I Class Allocation" If applicable with respect to any Series, the
sum of the present values (discounted at the applicable Allocation Discount
Rate) of the scheduled payments of (i) interest due or to become due on the
P&I Class Certificates and (ii) the outstanding Certificate Principal Balance
of the P&I Class Certificates (in each case assuming that the P&I Class
Certificates were paid when due and were not redeemed or prepaid prior to
their stated maturity).
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"P&I Class Certificate" Any Certificate evidencing an interest in a
P&I Class.
"P&I Class Series" Any Series a Class of which is a P&I Class and no
Class of which is an IO Strip Class or a PO Strip Class.
"Participant" A broker, dealer, bank, other financial institution or
other Person for whom from time to time a Depository effects book-entry
transfers and pledges of securities deposited with the Depository.
"Paying Agent" As defined in Section 5.13.
"Person" Any individual, corporation, partnership, limited liability
company, 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 Certificates or such Series (or Class)
are distributable as specified in the related Series Supplement (or, if none,
the Corporate Trust Office).
"Plan" Any of (a) an employee benefit plan (as defined in Section
3(3) of ERISA), (b) a plan described in Section 4975(e)(1) of the Code or (c)
any entity whose underlying assets are treated as assets of any such plan by
reason of such plan's investment in the entity.
"PO Strip Class" If applicable with respect to any Series, a Class
of Certificates of such Series entitling the Holders thereof to distributions
solely out of the principal portion of Available Funds (and not to any
distributions out of the interest portion of Available Funds), as specified in
the related Series Supplement.
"PO Strip Class Allocation" If applicable with respect to any
Series, the present value (discounted at the applicable Allocation Discount
Rate) of any unpaid principal amounts due or to become due on the PO Strip
Class Certificates.
"PO Strip Class Certificate" Any Certificate evidencing an interest
in a PO Strip Class.
"PO Strip Class Series" Any Series a Class of which is a PO Strip
Class and no Class of which is an IO Strip Class.
"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. For the
purpose of this definition, any Certificate authenticated and delivered under
Section 5.05 in lieu of a lost, mutilated, destroyed or stolen Certificate
shall be deemed to evidence the same interest as the lost, mutilated,
destroyed or stolen Certificate.
13
"Prepaid Ordinary Expenses" Unless otherwise specified in the Series
Supplement, the amount (if any) paid by the Depositor to the Trustee on or
before the related Issue Date to cover Ordinary Expenses, as specified in the
related Series Supplement.
"Private Certificate" Any Certificate of a Class that is not
publicly offered by the Depositor in the United States within the meaning of
the Securities Act and that has not been registered under the Securities Act.
"Proceeding" Any suit in equity, action at law or other judicial or
administrative proceeding.
"Purchase Price" If applicable, as specified in the related Series
Supplement.
"QIB" A "qualified institutional buyer" within the meaning of Rule
144A.
"Rating Agency" With respect to any Series (or Class within such
Series), each nationally recognized rating organization specified in the
related Series Supplement that initially rates the Certificates of such Series
(or Class).
"Rating Agency Condition" With respect to any action or occurrence,
unless otherwise specified in the applicable Series Supplement, that each
Rating Agency shall have been given 10 days (or such shorter period acceptable
to each Rating Agency) prior notice thereof and that each Rating Agency shall
have notified the Depositor and the Trustee 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.
"Realized Losses" With respect to any defaulted and liquidated
Underlying Security, the excess, if any, of (x) the principal amount of such
Underlying Security plus accrued and unpaid interest thereon, plus expenses
incurred by the Trustee in connection with the practices and procedures
referred to in Section 3.07(b) to the extent reimbursable under these Standard
Terms and the related Series Supplement, over (y) Liquidation Proceeds with
respect thereto.
"Record Date" With respect to any Distribution Date for any Series
(or Class within such Series) of Registered Certificates, the day immediately
preceding the related Distribution Date.
"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.
"Report" As defined in Section 3.09.
"Required Percentage" Unless otherwise specified in the related
Series Supplement, 66-2/3% of the aggregate Voting Rights of Certificates of
such Series.
14
"Required Rating" With respect to any Series (or Class within such
Series), the rating category (or categories) assigned to the related
Underlying Securities as of the related Issue Date by the Rating Agency or
Rating Agencies rating the Certificates of such Series or Class.
"Reserve Account" An Eligible Account, if any, created and
maintained pursuant to Section 3.06 and specified in the related Series
Supplement.
"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 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 actual knowledge of and familiarity with the particular subject.
"Rule 144A" Rule 144A under the Securities Act.
"S&P" Standard & Poor's Rating Services, a division of The
XxXxxx-Xxxx Companies, Inc. and any successor thereof.
"SEC Reporting Failure" A determination by the Depositor, at the
time of the Depositor's filing of any distribution report or annual report on
the appropriate form with the Commission in respect of a Trust, (a) that any
Concentrated Underlying Securities Obligor in respect of such Trust is not
filing current or periodic reports required under the Exchange Act or making
available comparable reports in the case of a GSE issuer and (b) that the
obligations of such Concentrated Underlying Securities Obligor have not been
fully and unconditionally guaranteed or assumed by an entity that (x) is
eligible to use Form S-3 or F-3 (or any successor form) for a primary offering
of common stock or for a primary offering of non-convertible investment grade
securities and (y) complies with the criteria set forth in Rule 3-10 of
Regulation S-X.
"Securities Account" As defined in Section 2.03.
"Securities Act" The United States Securities Act of 1933, as
amended.
"Securities Intermediary" The Person so specified in the applicable
Series Supplement.
"Series" A separate series of Certificates issued pursuant to these
Standard Terms 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 incorporating these Standard Terms
that authorizes the issuance of a particular Series (and each Class within
such Series) of Certificates.
"Special Distribution Date" If applicable, with respect to any
Series, as defined in Section 4.01(g) hereof.
15
"Specified Currency" As defined in the related Series Supplement.
"Standard Terms" As defined in the preliminary statement.
"Strip Class Allocation" The present value of all payments due on
any Strip Class Certificates, assuming all such payments are made as
scheduled.
"Strip Class Certificates" IO Strip Class Certificates and PO Strip
Class Certificates.
"Sub-Administration Account" An Eligible Account established by a
Sub-Administrative Agent in accordance with Section 7.02.
"Sub-Administration Agreement" The written contract, if any, between
the Trustee and a Sub-Administrative Agent and any successor Trustee or
Sub-Administrative Agent relating to the administration of certain Underlying
Securities as provided in Section 7.02.
"Sub-Administration Agent" Any Person with which the Trustee has
entered into a Sub-Administration Agreement and which meets the qualifications
of a Sub-Administrative Agent pursuant to Section 7.02.
"Surety Bond" If applicable with respect to any Series (or Class
within such Series) of Certificates, a 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.
"Swap Agreement" If applicable with respect to any Series (or Class
within such Series), (i) a confirmation entered into pursuant to a master
agreement in the form of the "1992 ISDA Master Agreement (Multicurrency--Cross
Border)" or any updated similar form, published by the International Swaps and
Derivatives Association, Inc. ("ISDA") incorporating the 2000 ISDA Definitions
or one or more other sets of standard definitions or updates or revisions of
such definitions published by ISDA, and as modified and supplemented by a
schedule, or (ii) similar agreement, in each case dated as of the related
Issue Date by and between the Trust and the Swap Counterparty, as the same may
be amended or supplemented from time to time as provided herein and therein.
"Swap Counterparty" If applicable with respect to any Series (or
Class within such Series), the Person specified in the related Series
Supplement as the Swap Counterparty.
"Swap Distribution Amount" If applicable with respect to any Series
(or Class within such Series), all amounts then due and owing to the Swap
Counterparty pursuant to the Swap Agreement, other than Swap Termination
Payments.
"Swap Guarantee" If applicable with respect to any Series (or Class
within such Series), a Guarantee issued by a Swap Guarantor in favor of the
Trust substantially in the form attached as an exhibit to the Swap Agreement.
16
"Swap Guarantor" If applicable with respect to any Series (or Class
within such Series), the Person providing a Swap Guarantee specified in the
related Series Supplement.
"Swap Receipt Amount" If applicable with respect to any Series (or
Class within such Series), all amounts due and owing to the Trust pursuant to
the Swap Agreement, other than Swap Termination Payments.
"Swap Termination Payment" If applicable with respect to any Series
(or Class within such Series), the amount payable by the Swap Counterparty or
the Swap Guarantor to the Trust, or by the Trust to the Swap Counterparty,
pursuant to the Swap Agreement in connection with a termination thereof.
"Transferor Certificate" A certificate substantially in the form of
Exhibit B hereto.
"Trust" With respect to any Series, the segregated asset or pool of
assets subject hereto, constituting the trust created hereby and by the
related Series Supplement and to be administered hereunder and thereunder,
consisting of those Underlying Securities and the Credit Support, if
applicable, and all sums distributed in respect thereof that are specified as
being part of the Trust for such Series in the related Series Supplement, all
for the benefit of the Certificateholders of such Series as of any particular
time.
"Trust Agreement" As defined in the preliminary statement.
"Trust Indenture Act" The Trust Indenture Act of 1939, as amended,
as the same is in force and effect as of the date hereof.
"Trust Property" With respect to a given Series, as defined in the
related Series Supplement.
"Trustee" With respect to any Series, the Person so specified in the
applicable Series Supplement, until a successor Person shall have become the
Trustee pursuant to the applicable provisions of these Standard Terms and the
applicable Series Supplement, and thereafter "Trustee" shall mean such
successor Person.
"Trustee Fee" With respect to any Series, the amount paid to the
Trustee by the Depositor on the related Issue Date.
"UCC" The Uniform Commercial Code as in effect in the relevant
jurisdiction.
"Underlying Securities Guarantor" With respect to any Series, if
applicable, the guarantor of the obligations of the related Underlying
Securities Issuer and any successor thereto.
"Underlying Securities Issuance Agreement" With respect to any
Series, the meaning specified in the related Series Supplement.
"Underlying Securities Issuer" With respect to an Underlying
Security, the issuer thereof and any successor thereto.
17
"Underlying Security" or "Underlying Securities" With respect to any
Series, the asset or assets Granted as part of the Trust for such Series or
acquired (or, in the case of an agreement, entered into) by the Trust, all as
identified in the related Series Supplement. The Underlying Securities for any
such Series or the related Trust shall not constitute Underlying Securities
for any other Series or any other Trust.
"Underlying Security Interest Payment Date" With respect to an
Underlying Security, each date specified in the related Underlying Securities
Instrument as a date on which interest is scheduled to be payable by or on
behalf of the Underlying Securities Issuer in accordance with its terms.
"Underlying Security Payment Date" A scheduled Underlying Security
Payment Date and any other date on which interest, principal and/or redemption
premium is payable on an Underlying Security in accordance with its terms.
"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 voting rights of the related Certificateholders,
which, unless otherwise specified in the related Series Supplement, shall be
allocated as follows:
(i) in the case of a P&I Class Series, among all P&I Class
Certificateholders in proportion to the then Outstanding Certificate
Principal Balances of their respective Certificates,
(ii) in the case of an IO Strip Class Series, between the
Holders of the P&I Class Certificates and the Holders of the IO
Strip Class Certificates, pro rata, in proportion to the ratio of
the P&I Class Allocation to the related IO Strip Class Allocation as
of any applicable record date (the P&I Class Voting Rights will be
allocated among all of the P&I Class Certificateholders in
proportion to the respective Certificate Principal Balances of their
respective Outstanding Certificates and the IO Strip Class Voting
Rights will be allocated among all of the IO Strip Class
Certificateholders in proportion to the then outstanding Amortizing
Notional Balance or Notional Amount, as applicable, of their
respective Outstanding Certificates),
(iii) in the case of a PO Strip Class Series, among all P&I
Class Certificateholders and PO Strip Class Certificateholders in
proportion to the then Outstanding Certificate Principal Balances of
their respective Certificates, and
(iv) in the case of an IO/PO Strip Class Series, by dividing
(x) the present value (discounted at the applicable Allocation
Discount Rate) of any unpaid amounts due or to become due on each
Class of Certificates by (y) the aggregate present value (discounted
at the applicable Allocation Discount Rate) of any unpaid amounts
due or to become due on all of the Certificates. The P&I Class
Voting Rights will be allocated among Certificateholders of such
Class in proportion to the then unpaid Outstanding Certificate
Principal Balances of their
18
respective Certificates. The IO Strip Class Voting Rights will be
allocated among the Certificateholders of such Class in proportion
to the then Outstanding notional amounts or Initial Amortizing
Notional Balances, as applicable, of their respective Certificates.
The PO Strip Class Voting Rights will be allocated among
Certificateholders of such Class in proportion to the then unpaid
Certificate Principal Balances of their respective Certificates.
"Warrant Agent" With respect to any Warrant Agent Agreement, the
Person specified as the "Warrant Agent" in such Warrant Agent Agreement.
"Warrant Agent Agreement" With respect to any Underlying Securities subject to
Call Warrants, the Warrant Agent Agreement pursuant to which such Call
Warrants are issued, dated as of the related Issue Date, between Select Asset
Inc., as warrant originator, and the Warrant Agent, as the same may be amended
from time to time.
"Warrant Holder" Any Holder of a Call Warrant.
SECTION 1.02 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 Trust 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.
SECTION 1.03. Compliance Certificates and Opinions; Record Date. (a)
Except with respect to any amendment hereto pursuant to Section 10.01(a), upon
any application or request by the Depositor to the Trustee to take any action
under any provision of this Trust Agreement other than the initial issuance of
the Certificates, the Depositor shall furnish to the Trustee an Officer's
Certificate stating that, in the opinion of the signer thereof, all conditions
precedent, if any, provided for in this Trust Agreement relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have
been complied with, 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 Trust Agreement relating to such particular application or
request, no additional certificate or opinion need be furnished.
19
Every certificate or opinion with respect to compliance with a
condition or covenant provided for this Trust Agreement (other than a
certificate provided pursuant to Section 3.10(d)) shall include:
(1) a statement that the individual signing such
certificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
(2) 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;
(3) a statement that, in the opinion of such individual,
he or she has made such examination or investigation as is
necessary to enable him or her to express an informed opinion
as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of such
individual, such condition or covenant has been complied with.
(b) The Depositor may, at its option, by delivery of an Officer's
Certificate to the Trustee set a record date to determine the Holders of any
subclass of Certificates entitled to give any consent, request, demand,
authorization, direction, notice, waiver or other act. Notwithstanding Section
316(c) of the Trust Indenture Act, such record date shall be the record date
specified in such Officer's Certificate, which shall be a date not more than
30 days prior to the first solicitation of Certificateholders in connection
therewith. If such a record date is fixed, such consent, request, demand,
authorization, direction, notice, waiver or other act may be given before or
after such record date, but only the Holders of record of Certificates of the
applicable subclass at the close of business on such record date shall be
deemed to be Certificateholders of such subclass for the purposes of
determining whether Holders of the requisite aggregate principal amount of
Outstanding Certificates of such subclass have authorized or agreed or
consented to such consent, request, demand, authorization, direction, notice,
waiver or other act, and for that purpose the aggregate principal amount of
the Outstanding Certificates of such subclass shall be computed as of such
record date; provided, however, that no such consent, request, demand,
authorization, direction, notice, waiver or other act by the Holders of
Certificates of such subclass on such record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Trust
Agreement not later than one year after the record date.
ARTICLE II
Declaration of Trusts; Issuance of Certificates; Purpose and Classification of
Trusts
SECTION 2.01. Creation and Declaration of Trusts: Assignment of
Underlying Securities. (a) The Depositor, concurrently with the execution and
delivery hereof, does hereby agree to 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
20
Depositor, including any security interest therein for the benefit of the
Depositor, in, to and under the Underlying Securities attributable to each
such Series (except for the Underlying Securities attributable to such Series
which are not Granted by the Depositor, as specified in the applicable Series
Supplement), now existing or hereafter acquired, in each case as identified in
the applicable Series Supplement, and any other Trust Property included or 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, as well as any other amounts, received by or on behalf of
the Depositor of, on or with respect to any such Trust Property due after the
applicable Issue Date, and, unless otherwise specified in the Series
Supplement, will exclude all interest, premium (if any) and principal of, on
or with respect to any such Underlying Securities due on or before the
applicable Issue Date.
(b) In connection with each Grant referred to in the preceding
paragraph, the Depositor shall, not later than the applicable Issue Date,
either (i) deposit the Underlying Securities for a given Series (except for
the Underlying Securities attributable to such Series which are to be acquired
from a Person other than the Depositor, as specified in the applicable Series
Supplement) with the Trustee by physical delivery of such Underlying
Securities, duly endorsed, to the Trustee or (ii) have delivered such
Underlying Securities to a Clearing Agency, in which event (A) the Trustee has
accepted delivery of such Underlying Securities through such Clearing Agency,
and (B) the Underlying Securities have been credited to a trust account of the
Trustee, or its authorized agent, and the Trustee shall have the right to hold
and maintain such Underlying Securities on deposit with such Clearing Agency
for all purposes of this Trust Agreement.
(c) Unless otherwise specified in the applicable Series Supplement,
the Grant of such Underlying Securities 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.
(d) In the case of each delivery of Underlying Securities to the
Trustee, the Depositor shall be deemed thereby to represent and warrant to the
Trustee that:
(i) the Depositor is duly authorized to so deliver such
Underlying Securities;
(ii) the Underlying Securities so delivered are genuine;
(iii) at the time of delivery of the Underlying Securities, the
Depositor owns such Underlying Securities, has the right to transfer
its interest in such Underlying Securities and such Underlying
Securities are free and clear of any lien, pledge, encumbrance,
right, charge, claim or other security interest; and
(iv) such delivery is irrevocable and free of any continuing
claim by the Depositor except such as the Depositor may have as a
Certificateholder of a Certificate.
The above representations and warranties shall survive the delivery
of such Underlying Securities and the Certificates in respect thereof.
21
(e) Unless otherwise specified in the related Series Supplement, it
is the intention of all of the parties hereto that the transfer of the Trust
Property hereunder and under any Series Supplement shall constitute a sale and
the Trust created hereunder and thereunder shall constitute a fixed investment
trust for federal income tax purposes under Treasury Regulation Section
301.7701-4, and all parties hereto and thereto agree to treat the Trust, any
distributions therefrom and the beneficial interest in the Certificates
consistently with such characterization. The provisions of this Trust
Agreement shall be interpreted consistently with such characterization.
(f) Unless otherwise specified in the related Series Supplement, any
Trust created hereunder shall not engage in any business or activities other
than in connection with, or relating to, the holding, protecting and
preserving of the related Trust Property and the issuance of the related
Certificates, and other than those required or authorized by this Trust
Agreement or incidental and necessary to accomplish such activities. Any Trust
created hereunder shall not issue or sell any certificates or other
obligations other than the related Certificates, or otherwise incur, assume or
guarantee any indebtedness for money borrowed.
(g) No Trust shall merge or consolidate with any other entity
without a Rating Agency Condition with respect thereto having been satisfied.
SECTION 2.02. Acceptance by Trustee. With respect to each Series,
the Trustee will acknowledge receipt by it, or by a custodian on its behalf,
of the related Underlying Securities and the related documents referred to in
Section 2.01, now existing or hereafter acquired, and declares that it will
hold such Underlying Securities and documents and all other documents
delivered to it pursuant to this Trust Agreement, and that it will hold all
such assets and such other assets (including Underlying Securities 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 Trust Agreement.
SECTION 2.03. Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to the Trustee as
of the date hereof and as of each Issue Date or as of such other date
specifically provided herein or in the applicable Series Supplement that:
(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 therein with respect to the
related Underlying Securities 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 the related Trust Agreement
by the Depositor and its performance of, and compliance with, the
terms of the related Trust 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
22
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; and
(iv) the Depositor has the full power and authority to enter
into and consummate all transactions contemplated by each Trust
Agreement, has duly authorized the execution, delivery and
performance of each Trust Agreement (as of the date of the related
Series Supplement) and has duly executed and delivered each Trust
Agreement. The related Trust 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, 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).
(b) It is the express intent of the parties hereto that the Grant of
any Underlying Securities by the Depositor to the Trustee be, and be construed
as, a sale of such Underlying Securities by the Depositor and not a pledge of
such Underlying Securities by the Depositor to secure a debt or other
obligation of the Depositor. In the event that, notwithstanding the
aforementioned intent of the parties, the Underlying Securities attributable
to any Series are held to be property of the Depositor, then, it is the
express intent of the parties that such Grant be deemed a pledge of such
Underlying Securities and all proceeds thereof by the Depositor to the Trustee
to secure a debt or other obligation of the Depositor, pursuant to Section
10.07. In connection with any such Grant of a security interest in such
Underlying Securities and all proceeds thereof, the Depositor hereby
represents and warrants to Trustee as follows with respect to the Underlying
Securities attributable to each Series:
(i) In the event the Underlying Securities attributable to any
Series are held to be property of the Depositor, then the related
Trust Agreement creates a valid and continuing security interest (as
defined in the UCC) in such Underlying Securities in favor of the
Securities Intermediary, which security interest is prior to all
other liens, and is enforceable as such as against creditors of, and
purchasers from, the Depositor.
(ii) The Underlying Securities attributable to each Series will
be credited to a trust account (each, a "Securities Account") in
respect of the related Trust established in the name of the Trustee
in accordance with Section 2.01. The Securities Intermediary will
establish each Securities Account and agree to treat the Underlying
Securities as "financial assets" within the meaning of the UCC.
(iii) Immediately prior to the transfer of the Underlying
Securities to the related Trust, the Depositor will own and hire
good and marketable title to such Underlying Securities free and
clear of any lien, claim or encumbrance of any Person.
23
(iv) The Depositor will obtain all consents and approvals
required by the terms of any Underlying Securities for the transfer
to the Trustee all of the Depositor's interest and rights therein as
contemplated by this Trust Agreement.
(v) The Depositor will take all steps necessary to cause the
Securities Intermediary to identify on its records that the Trustee
is the Person owning the security entitlements credited to each
Securities Account.
(vi) Immediately prior to the transfer of the Underlying
Securities attributable to any Series to the Depositor (x) the
Depositor will not have assigned, pledged, sold, granted a security
interest in or otherwise conveyed any interest in the Underlying
Securities (or, if any such interest has been assigned, pledged or
otherwise encumbered, it has been released) other than the security
interest granted to the Trust pursuant to the related Trust
Agreement and (y) the Depositor will not have authorized the filing
of and will be deemed not be aware of any financing statements
against the Depositor that include a description of such Underlying
Securities other than any financing statement relating to the
security interest granted to the Trust under the related Trust
Agreement. The Depositor is not aware of any judgment or tax lien
filings against the Depositor.
(vii) Each Securities Account will not be in the name of any
Person other than the Securities Intermediary. The Depositor has not
consented to the compliance by the Securities Intermediary with
entitlement orders of any Person other than the Trustee.
It is understood and agreed that the representations and warranties
of the Depositor set forth in this Section 2.03 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 or
the Trustee of a breach of any of the foregoing representations and warranties
in respect of the Underlying Securities attributable to any Series which
materially and adversely affects the interests of the related
Certificateholders, the party discovering such breach shall give prompt
written notice thereof to the other party.
SECTION 2.04. Breach of Representation, Warranty or Covenant. 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 2.03 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.
SECTION 2.05. 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 Underlying Securities and delivery to it by
the Depositor of executed Certificates of such Series, cause to be
authenticated and delivered to or upon the written order of the Depositor, in
exchange for the Underlying Securities and such other assets constituting the
Trust for a given Series, Certificates duly authenticated by or on behalf of
the Trustee in authorized denominations
24
evidencing ownership of the entire Trust for such Series, all in accordance
with the terms and subject to the conditions of Sections 5.02 and 5.14.
ARTICLE III
Administration of each Trust
SECTION 3.01. Administration of each Trust. (a) The Trustee shall
administer the Underlying Securities for each given Trust for the benefit of
the Certificateholders of the related Series. In engaging in such activities,
the Trustee shall follow or cause to be followed, collection procedures in
accordance with the terms of these Standard Terms and the applicable Series
Supplement, the respective Underlying Securities and any applicable Credit
Support Instruments. With respect to each Trust, and subject only to the
above-described standards and the terms of these Standard Terms, the related
Series Supplement and the respective Underlying Securities and applicable
Credit Support Instruments, if any, the Trustee shall have full power and
authority, acting alone or through Sub-Administrative Agents as provided in
Section 7.02, 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 these
Standard Terms and the applicable Series Supplement.
(b) The duties of the Trustee shall be performed in accordance with
applicable local, state and federal law, and the Trustee 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.
SECTION 3.02. Collection of Certain Underlying Security Payments.
With respect to any Series or Class of Certificates, the Trustee shall make
reasonable efforts to collect all payments required to be made pursuant to the
terms of the Underlying Securities in a manner consistent with the terms of
the related Trust Agreement, such Underlying Securities and any related Credit
Support Instruments.
SECTION 3.03. 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, not later than the close of business on the Business Day on
which the Trustee receives such amounts in the form of immediately available
funds (so long as such funds are received by the Trustee by 3:00 p.m. New York
City time, and on the next Business Day otherwise), the Trustee shall deposit
or cause to be deposited in the Certificate Account all amounts received by it
with respect to the Underlying Securities, any Credit Support and all
Liquidation Proceeds related to such Series including:
(i) all payments on account of principal of such Underlying
Securities;
25
(ii) all payments on account of interest on such Underlying
Securities;
(iii) all payments on account of premium (if any) on such
Underlying Securities;
(iv) any payments in respect of any such Credit Support; and
(v) 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 all payments in the nature of prepayment or
redemption penalties, late payment charges, default interest or reinvestment
income received by the Trustee shall be deposited by the Trustee in the
Certificate Account and shall not be retained by the Trustee for its own
account.
If, at any time, the Certificate Account for any Series ceases to be
an Eligible Account, the Trustee shall within five 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 the Trustee shall within five Business Days 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 Depositor and the Rating
Agency of the location of each Eligible Account constituting the Certificate
Account and prior to any change thereof.
SECTION 3.04. Liquidation of the Underlying Securities; Sale
Procedures. (a) Subject to Sections 3.11, 4.01(d) and 4.01(i), upon the
occurrence of certain specified events in respect of the Underlying Securities
attributable to any Series, including an Event of Default or an SEC Reporting
Failure, the Trustee shall, or, if applicable, shall direct the Market Agent
to, sell such Underlying Securities in compliance with Section 3.04(b) below
and shall deposit or cause the Market Agent to deposit the Liquidation
Proceeds therefrom into the Certificate Account pursuant to Section 3.03(a)
hereof. Except as expressly provided herein and in the applicable Series
Supplement, the Certificateholders of a Series shall not be entitled to
terminate the related Trust or cause the sale or other disposition of any
Underlying Securities.
(b) In the event of a sale of Underlying Securities pursuant to
these Standard Terms, the Trustee or the Market Agent shall, or, if
applicable, shall direct an auction agent to, solicit bids for the sale of the
related Underlying Securities from various Persons, including at least two
Approved Dealers. The method of conducting any sale of Underlying Securities
and the specific terms of any such sale, including the method and timing of
any bidding and settlement, shall be determined at the time of the proposed
sale. Neither the Trustee nor the Market Agent shall be responsible for the
failure to obtain a bid so long as such Person or any auction agent acting on
their behalf has made reasonable efforts to obtain bids. If a bid for the sale
of the Underlying Securities has been accepted by the Trustee and/or the
Market Agent but the sale has failed to settle on the proposed settlement
date, the Trustee and/or the Market Agent
26
shall request new bids from various potential purchasers (including at least
two such Approved Dealers).
SECTION 3.05. Investment of Funds in the Accounts. Unless otherwise
specified in the applicable Series Supplement, the Trustee on behalf of the
Trust may 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 at the specific written direction of the Depositor in one or
more Eligible 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 Eligible
Investment. If the Depositor does not provide any investment directions, funds
held in any Account will be invested in the Eligible Investments specified in
clause (ii) of the definition thereof. Investments of such funds shall be
invested in Eligible Investments that will mature so that such funds will be
available for distribution on the next Distribution Date. Except as otherwise
provided in the applicable Series Supplement, any earnings with respect to
such Eligible Investments shall be paid to the Certificateholders pro rata in
proportion to their interest in the invested funds. In the event amounts on
deposit in an Account are at any time invested in an Eligible 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 Eligible
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 Eligible Investment would
not constitute an Eligible Investment in respect of funds thereafter
on deposit in any Account.
SECTION 3.06. Maintenance of Credit Support. (a) On the applicable
Issue Date, the Trustee at the written direction of the Depositor or, if so
specified in the applicable Series Supplement, the Depositor 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. Unless the Series Supplement for a given Series provides
otherwise, if a Reserve Account exists for such Series, collections with
respect to the Underlying Securities attributable to such Series not
distributed to the Certificateholders of such Series shall be deposited in the
Reserve Account. The Reserve Account, if any, shall be an asset of the
Depositor (and the income earned on any amounts held in the Reserve Account
shall be allocable to the Depositor, who agrees to include any such income in
its gross income for all federal, state and local income and franchise tax
purposes) and will not be a part of or otherwise be includible in the Trust
but will be held for the benefit of the Certificateholders.
(b) 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
27
distributions of principal of and premium (if any) and interest on the
Certificates of such Series as required pursuant to Section 4.01 and the
applicable Series Supplement to the extent that funds are not otherwise
available for such purpose.
SECTION 3.07. Realization Upon Defaulted Underlying Securities. (a)
The Trustee, on behalf of the Certificateholders, shall assert claims under
each applicable Credit Support Instrument, and shall take such reasonable
steps as are necessary to receive payment or to permit recovery thereunder
with respect to any defaulted Underlying Securities, subject in all cases to
the provisions of Article VII hereof.
(b) Unless otherwise provided in the related Series Supplement, if
the Trustee is unable to obtain full recovery in respect of a defaulted
Underlying Security and any related Credit Support Instrument pursuant to
Section 3.07(a), the Trustee shall follow or cause to be followed such normal
practices and procedures as it deems necessary or advisable to realize upon
such defaulted Underlying Security and such Credit Support Instrument, subject
in all cases to the provisions of Article VII hereof.
(c) If the Liquidation Proceeds of a defaulted Underlying Security
are less than the sum of (i) the outstanding principal balance of the
defaulted Underlying Security, (ii) interest accrued but unpaid thereon at the
applicable interest rate and (iii) the aggregate amount of expenses incurred
by the Trustee in connection with the practices and procedures referred to in
paragraph (b) of this Section 3.07 to the extent reimbursable under these
Standard Terms and the related Series Supplement, the Trust for the applicable
Series shall recognize a Realized Loss equal to the amount of such difference.
Unless otherwise specified in the applicable Series Supplement, any such
Realized Loss shall be allocated pursuant to Section 4.04 among the
Certificateholders of such Series, pro rata, based on their entitlement to the
principal payments on such Underlying Securities.
(d) Unless otherwise specified in the applicable Series Supplement,
with respect to any related Underlying Securities, if any related document or
instrument is found to be missing or defective in any material respect,
neither the Trustee nor the Depositor shall be obligated to repurchase or
provide a substitute for such Underlying Securities.
SECTION 3.08. Access to Certain Documentation. The Trustee shall
provide to any federal, state or local regulatory authority that may exercise
authority over any Certificateholder access to the documentation regarding the
Underlying Securities required by applicable laws and regulations. Such access
shall be afforded without charge, but only upon reasonable request and during
normal business hours at the offices of the Trustee designated by it. In
addition, access to the documentation regarding the Underlying Securities
related to a given Series (or Class within such Series) will be provided to
any Certificateholder of such Series (or Class) upon reasonable request during
normal business hours at the offices of the Trustee designated by it at the
expense of the Certificateholder requesting such access.
28
SECTION 3.09. Preparation and Filing of Exchange Act Reports;
Obligations of the Depositor and the Trustee.
(a) The Trustee shall be liable in accordance herewith only to the
extent of the obligations specifically imposed by these Standard Terms and the
related Series Supplement. The Trustee shall:
(i) on behalf of each Trust, prepare for signature by the
Depositor and file with the Commission, following the execution
thereof by the Depositor, within the time period set forth below,
copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe), if any, which the 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 each Trust. The names of such Reports, as of the date
hereof, and the dates on which they are required to be filed with
the Commission are as follows:
(A) Form 8-K, in substantially the form previously
provided by the Depositor to the Trustee, within the
period prescribed by the Commission after each Issue Date
and each Distribution Date, and within the time advised to
the Trustee by the Depositor if the filing of Form 8-K is
necessary for any other reason;
(B) Form 10-K, within the period prescribed by the
Commission after December 31 of each year; it being
understood that such Form 10-K shall include an annual
compliance report by the Trustee, if any, as may be
required by rules and regulations prescribed from time to
time by the Commission; and
(C) such other Reports as the Depositor requests the
Trustee to prepare and file from time to time as may be
required pursuant to the Exchange Act;
(ii) receive from the Depositor, 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
these Standard Terms, if any, as may be required to be filed with
the Commission from time to time by such rules and regulations;
(iii) receive from the Depositor and transmit by mail to all
Holders described in TIA Section 313(c), in the manner and to the
extent provided therein, such summaries of any information,
documents and reports required to be filed by the Depositor and
received pursuant to clauses (A) and (B) of this Section 3.09(a),
29
if any, as may be required by rules and regulations prescribed from
time to time by the Commission.
Notwithstanding the foregoing, following any change by the
Commission in the forms to be filed by the Depositor, the Trustee shall make
filings on such changed form.
(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 on or prior to the date of the
annual report on Form 10-K contemplated by clause (a)(i)(B) above, stating for
such prior year that:
(i) a review of the activities of the Depositor during such
fiscal year and of performance under the related Trust Agreement has
been made under such Executive Officer's supervision;
(ii) to the best of such Executive Officer's knowledge, based
on such review, the Depositor and the Trustee have each fulfilled
its obligations under the related Trust 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;
(iii) to the best of such Executive Officer's knowledge, based
on such review, the reports filed pursuant to Section 3.09(a), taken
as a whole, do not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were
made, not misleading as of the last day of the period covered by
such certificate; and
(iv) to the best of such Executive Officer's knowledge, based
on such review and reasonable reliance on information provided by
the Trustee, the distribution and servicing information required to
be provided to the Depositor by the Trustee for inclusion in the
reports filed pursuant to Section 3.09(a)(i)(A) is included in such
reports.
In the event of any change in Commission requirements relating to
certifications that must be given by a depositor (and included in an annual
report), the text of the Officer's Certificate shall be revised accordingly.
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.
SECTION 3.10. Charges and Expenses. Except as otherwise provided in
these Standard Terms or the related Series Supplement, no amounts in the
nature of fees or charges shall be payable by or withheld from the Trust, the
Depositor or any other person. There shall be no recourse or claim against the
Trust or the property of the Trust for all or any part of any fees or charges
payable to any person.
30
SECTION 3.11. SEC Reporting Failure. If the Depositor, in connection
with its filing of any distribution report or annual report on the appropriate
form with the Commission in respect of a Trust, shall determine that an SEC
Reporting Failure has occurred in respect of such Trust, then, subject to the
related Call Warrant holders' right to exercise their Call Warrants, the
Depositor shall either (i) within 30 days after the filing of the related
distribution report or annual report, file current and periodic reports
containing the information that such Concentrated Underlying Securities
Obligor would otherwise file or, in the case of any GSE issuer, make publicly
available the information that such GSE issuer would otherwise make publicly
available or (ii) instruct the Trustee to, within 30 days after the filing of
the related distribution report or annual report, sell such Underlying
Securities in accordance with Section 3.04 and distribute the proceeds
received to the Certificateholders. The Trustee shall comply with instructions
given by the Depositor pursuant to clause (ii) of this Section 3.11, except to
the extent that the Trustee is directed by any P&I Class or Strip Class
Certificateholder, pursuant to Section 4.01(i)(w) hereof, to distribute all or
a portion of such Certificateholder's pro rata share of the related Underlying
Securities to it in lieu of any proceeds received upon liquidation of the
Underlying Securities.
ARTICLE IV
Distributions and Reports to Certificateholders
SECTION 4.01. Distributions. (a) 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 following manner and priority:
(i) For any PO Strip Class Series of Certificates, the Trustee
shall apply Available Funds in the Certificate Account for such
Series as follows:
(1) The Trustee will pay the interest portion of Available
Funds:
(A) first, to the Trustee, as reimbursement for
any Extraordinary Trust Expenses incurred by the
Trustee in accordance with Section 7.06(b) below
and approved by 100% of the Certificateholders;
and
(B) second, to the Holders of the P&I Class
Certificates, as interest at the per annum rate
specified in the related Series Supplement on
the outstanding Certificate Principal Balance of
the P&I Class Certificates.
The PO Strip Class Certificates are not entitled to
distributions of interest.
(2) The Trustee will pay the principal portion of
Available Funds:
31
(A) first, to the Trustee, as reimbursement for
any remaining Extraordinary Trust Expenses
incurred by the Trustee in accordance with
Section 7.06(b) below and approved by 100% of
the Certificateholders; and
(B) second, to the Holders of the P&I Class
Certificates and the PO Strip Class
Certificates, the remaining available principal
portion of Available Funds (in an aggregate
amount not to exceed the outstanding Certificate
Principal Balance of the P&I Class Certificates
and the PO Strip Class Certificates) pro rata in
proportion to their outstanding Certificate
Principal Balances.
(3) Any Available Funds remaining in the Certificate
Account after the payments set forth in clauses
4.01(a)(i)(1) and 4.01(a)(i)(2) above shall be paid to the
Trustee as reasonable compensation for services rendered
to the Depositor, up to $1,000.
(4) The Trustee will pay any Available Funds
remaining in the Certificate Account after the payments
set forth in clauses 4.01(a)(i)(1) through 4.01(a)(i)(3)
above to the Holders of the P&I Class Certificates and the
PO Strip Class Certificates pro rata in proportion to
their original Certificate Principal Balances.
(ii) For any IO Strip Class Series of Certificates, the Trustee
shall apply Available Funds in the Certificate Account for such
Series as follows:
(1) The Trustee will be pay the interest portion of
Available Funds:
(A) first, to the Trustee, as reimbursement for
any Extraordinary Trust Expenses incurred by the
Trustee in accordance with Section 7.06(b) below
and approved by 100% of the Certificateholders;
and
(B) second, to the Holders of the P&I Class
Certificates, accrued and unpaid interest at the
per annum rate specified in the related Series
Supplement, and to the Holders of the IO Strip
Class Certificates, (x) accrued interest at the
rate specified in the related Series Supplement
and (y) any unpaid Notional Distribution Amount
for the related, and any prior, Distribution
Date, pro rata in proportion to their
entitlements thereto.
(2) The Trustee will pay the principal portion of
Available Funds:
(A) first, to the Trustee, as reimbursement for
any remaining Extraordinary Trust Expenses
incurred by the Trustee in
32
accordance with Section 7.06(b) below and
approved by 100% of the Certificateholders; and
(B) second, to the Holders of the P&I Class
Certificates, an amount equal to the Certificate
Principal Balance of the P&I Class Certificates.
The IO Strip Class Certificates are not entitled
to distributions of principal.
(3) Any Available Funds remaining in the Certificate
Account after the payments set forth in clauses
4.01(a)(ii)(1) and 4.01(a)(ii)(2) above shall be paid to
the Trustee as reasonable compensation for services
rendered to the Depositor, up to $1,000.
(4) The Trustee will pay any Available Funds
remaining in the Certificate Account after the payments
set forth in clauses 4.01(a)(ii)(1) through 4.01(a)(ii)(3)
above to the Holders of the P&I Class Certificates and the
IO Strip Class Certificates pro rata in proportion to the
interest rate on each such Class of Certificates.
(iii) For any Series of Certificates that includes classes
other than as described in the preceding clauses (i) and (ii), the
Trustee shall apply Available Funds in the Certificate Account for
such Series in the manner and priority set forth in the related
Series Supplement.
Unless otherwise set forth in the related Series Supplement, however, any
amounts collected during any period shall be distributed to the
Certificateholders no later than the Distribution Date immediately following
the receipt thereof.
(b) All distributions on the Certificates shall be payable only from
Available Funds, and no provision of this Trust Agreement shall be deemed to
create any obligation on the part of the Trustee or the Depositor to make any
distribution from any other source.
(c) Unless otherwise provided in the applicable Series Supplement,
on the Initial Distribution Date for a given Series of Certificates, the
Trustee shall cause the Trust to pay to the Depositor the amount of Initial
Accrued Interest. In the event an Optional Exchange shall occur prior to the
Initial Distribution Date, a pro rata portion of any Initial Accrued Interest
shall be paid to the Depositor on the Optional Exchange Date in accordance
with the provisions of Section 4.06(b)(x) hereof (and the amount of Initial
Accrued Interest shall correspondingly be reduced by any payments to the
Depositor under Section 4.06(b)(x)). If the Depositor is not paid any such
amount on such date, it shall have a claim for such amount. If Available Funds
are insufficient to pay such amount, the Trustee will pay the Depositor its
pro rata share, based on the ratio the amount owed to the Depositor bears to
all amounts owed on the related Certificates in respect of accrued interest,
of any proceeds from the recovery on the Underlying Securities.
(d) With respect to a given Series, unless instructed by holders of
Certificates representing a majority of the Voting Rights, 30 Business Days
after giving notice of an Event of
33
Default pursuant to Section 5.17 hereof, the Trustee shall direct the Market
Agent to sell the related Underlying Securities pursuant to Section 3.04
hereof and deposit the Liquidation Proceeds, if any, into the related
Certificate Account for distribution not later than two Business Days after
the receipt of immediately available funds in accordance with the applicable
provision of the Series Supplement; provided, however, that if any Strip Class
Certificateholder, pursuant to Section 4.01(i)(x) hereof, directs the Trustee
to distribute all or a portion of such Certificateholder's pro rata share of
the related Underlying Securities to it in lieu of any proceeds received upon
liquidation of the Underlying Securities, the Trustee shall distribute such
Certificateholder's pro rata share of the Underlying Securities accordingly;
provided, further, however, that if any Warrant Holder designates any day on
or prior to the proposed sale date as a Call Date and Optional Exchange Date
pursuant to Section 4.06, the portion of Underlying Securities related to such
Optional Exchange shall not be sold but shall be distributed to the Warrant
Holder pursuant to Section 4.06 and the related Warrant Agent Agreement;
provided, further, however, that the Market Agent shall not sell the related
Underlying Securities if the Event of Default shall have been cured at the
time of the proposed sale.
(e) With respect to a given Series, if the Trustee receives non-cash
property in respect of the related Underlying Securities as a result of a
payment default on such Underlying Securities (including from the sale
thereof), the Trustee will promptly give notice to the Depository, or for any
Certificates of such Series which are not then held by DTC or any other
depository, directly to the registered Holders of the Certificates of such
Series then outstanding and unpaid and, if applicable, to the related Warrant
Agent. Such notice shall state that the Trustee shall, and the Trustee shall,
not later than 30 days after the receipt of such property, allocate and
distribute such property to the Holders of P&I Class Certificates and Strip
Class Certificates then outstanding and unpaid (after deducting the costs
incurred in connection therewith) in accordance with (x) the ratio of the P&I
Class Allocation to the related Strip Class Allocations or (y) such other
ratio that may be set forth in the related Series Supplement. At the time of
such distribution, the Trustee, at the direction of the Depositor, shall
establish commercially reasonable procedures for such distribution. Property
other than cash will be liquidated by the Trustee, and the proceeds thereof
distributed in cash, only to the extent necessary to avoid distribution of
fractional securities to Certificateholders. Unless otherwise specified in the
related Series Supplement, if any in-kind distribution of property to the
holders of the Underlying Securities reduces the principal amount of such
Underlying Securities, then the in-kind distribution of such property to
Certificateholders, based on the market value of such property as of the date
of distribution to Certificateholders, will be deemed to reduce the
Certificate Principal Balance, Amortizing Notional Balance or Notional Amount,
as applicable, of Certificates of a Class as follows:
(i) the aggregate Certificate Principal Balance of any P&I
Class Certificates shall be reduced by an amount equal to the
reduction in the principal amount of Underlying Securities
attributable to the property that is either distributed to holders
of such Certificates or liquidated in lieu of any such distribution;
(ii) the Amortizing Notional Balance of any IO Strip Class
Certificates shall be reduced to an amount, determined by the
Calculation Agent, which reflects the present value (discounted at
the related Amortizing Notional Discount
34
Rate) of the difference between (x) the interest payments to be
received by the Trust in respect of the related Underlying
Securities (giving effect to any distribution of Underlying
Securities to Certificateholders pursuant to this Section 4.01(e))
from the date of any distribution to Certificateholders until the
related Final Scheduled Distribution Date and (y) the interest
portion of Available Funds to be distributed to the Holders of the
related P&I Class Certificates from the date of any distribution to
Certificateholders until the related Final Scheduled Distribution
Date, assuming, in each case, that the payments and distributions
were made when due and that the Underlying Securities remaining in
the Trust following any such distribution or liquidation were not
redeemed, prepaid or liquidated prior to the Final Scheduled
Distribution Date;
(iii) the aggregate Notional Amount or Amortizing Notional
Balance of any IO Strip Class Certificates shall be reduced by an
amount equal to the reduction in the principal amount of Underlying
Securities that are removed from the assets of the related Trust as
a result of any such distribution to Certificateholders; and
(iv) the aggregate Certificate Principal Balance of any PO
Strip Class Certificates shall be reduced by an amount equal to the
reduction in the principal amount of Underlying Securities
attributable to the property that is either distributed to holders
of such Certificates or liquidated in lieu of any such distribution.
(f) Subject to Section 4.01(j) hereof, to the extent Available Funds
are insufficient to make scheduled interest or principal payments on any Class
of Certificates of a given Series on any Distribution Date, an amount equal to
the amount of such shortfall will be carried over and will be distributed on
the next Distribution Date for such Class of Certificates (or date referred to
in Section 4.01(g) hereof) on which sufficient funds are available to pay such
amount.
(g) If, with respect to a Series, a payment with respect to the
related Underlying Securities is made to the Trustee (i) after the payment
date for such Underlying Securities on which such payment was due or (ii)
after such Underlying Securities are redeemed, prepaid or liquidated, in whole
or in part, for any reason other than due to (A) an exercise of a Call Warrant
related to the Underlying Securities or (B) the occurrence of an Event of
Default, an SEC Reporting Failure or at their maturity, then the Trustee will
distribute any such amounts received in accordance with the provisions of this
Section 4.01 and any applicable provisions of the Series Supplement on the
next occurring Business Day (a "Special Distribution Date") as if the funds
had constituted Available Funds on the Distribution Date immediately preceding
such Special Distribution Date; provided, however, that the Record Date for
such Special Distribution Date shall be one Business Day prior to the day on
which the related payment was received with respect to the Underlying
Securities.
(h) Unless otherwise specified in the related Series Supplement in
respect of a Series containing an IO Strip Class, then on any date on which
Underlying Securities are redeemed, prepaid or liquidated for any reason, the
Notional Amount or Amortizing Notional
35
Balance, as applicable, of the IO Strip Class Certificates of such Series
shall be reduced by an amount equal to the principal amount of the Underlying
Securities so redeemed, prepaid or liquidated, the reduction for the IO Strip
Class Certificates to be allocated pro rata among all IO Strip Class
Certificates.
(i) (w) Within five Business Days (or such longer period as shall be
acceptable to the Trustee) of receipt of notice from the Trustee of an SEC
Reporting Failure, any P&I Class Certificateholder or Strip Class
Certificateholder may direct the Trustee to distribute all or a portion of
such Certificateholder's pro rata share of the related Underlying Securities
to it, in lieu of any proceeds received upon liquidation of the Underlying
Securities. Notwithstanding any such direction, the Trustee shall liquidate a
portion of the Underlying Securities in accordance with Section 3.04 hereof
and apply the related Liquidation Proceeds towards the payment of any
extraordinary Trust Expenses incurred by the Trustee in accordance with
Section 7.06(b) below and approved by 100% of the Certificateholders.
Thereafter, the respective pro rata shares of the P&I Class and Strip Class
Certificateholders in the Underlying Securities shall be determined by
allocating the remaining principal amount of the Underlying Securities to the
P&I Class Certificateholders and the Strip Class Certificateholders in
accordance with the ratio of the related P&I Class Allocation to the
applicable Strip Class Allocations. Further allocations of the related
Underlying Securities (and any remaining Liquidation Proceeds) shall be
determined as follows:
(1) As between Certificateholders of a P&I Class, the
pro rata share of each of the P&I Class Certificateholders
in the Underlying Securities (and any remaining
Liquidation Proceeds) to be distributed to such P&I Class
Certificateholders shall be determined based on the then
unpaid Certificate Principal Balances of their respective
P&I Class Certificates.
(2) As between Certificateholders of an IO Strip
Class, the pro rata share of each of the IO Strip Class
Certificateholders in the Underlying Securities (and any
remaining Liquidation Proceeds) to be distributed to such
IO Strip Class Certificateholders shall be determined
based on the then outstanding Notional Amounts or
Amortizing Notional Balances, as applicable, of their
respective IO Strip Class Certificates.
(3) As between Certificateholders of a PO Strip
Class, the pro rata share of each of the PO Strip Class
Certificateholders in the Underlying Securities (and any
remaining Liquidation Proceeds) to be distributed to such
PO Strip Class Certificateholders shall be determined
based on the then unpaid Certificate Principal Balances of
their respective PO Strip Class Certificates.
(x) Within five Business Days (or such longer period as
shall be acceptable to the Trustee) of receipt from the Trustee
of notice of an Event of Default or any other liquidation event
in respect of the related Underlying Securities, any Strip
Class Certificateholder may direct the Trustee to distribute
all or a portion of such Strip Class Certificateholder's pro
rata share (as
36
determined by the Calculation Agent in accordance with this
Section 4.01(i)) of the Underlying Securities to it, in lieu of
any proceeds received upon liquidation of the Underlying
Securities and the Trustee shall distribute Underlying
Securities to any such Certificateholder accordingly.
(1) Upon the occurrence of an Event of Default, each
Certificateholder's pro rata share of the Underlying
Securities shall be determined by allocating the principal
amount of the Underlying Securities to the P&I Class
Certificateholders and the Strip Class Certificateholders
in accordance with the ratio of the related P&I Class
Allocation and the applicable Strip Class Allocations.
Further allocations of the related Underlying Securities
shall be determined as follows:
(A) As between Certificateholders of a P&I
Class, the pro rata share of each of the P&I
Class Certificateholders in the Underlying
Securities to be distributed to such P&I Class
Certificateholders shall be determined based on
the then unpaid Certificate Principal Balances
of their respective P&I Class Certificates.
(B) As between Certificateholders of an IO Strip
Class, the pro rata share of each of the IO
Strip Class Certificateholders in the Underlying
Securities to be distributed to such IO Strip
Class Certificateholders shall be determined
based on the then outstanding Notional Amounts
or Amortizing Notional Balances, as applicable,
of their respective IO Strip Class Certificates.
(C) As between Certificateholders of a PO Strip
Class, the pro rata share of each of the PO
Strip Class Certificateholders in the Underlying
Securities to be distributed to such PO Strip
Class Certificateholders shall be determined
based on the then unpaid Certificate Principal
Balances of their respective PO Strip Class
Certificates.
(2) In the event of a liquidation of the Underlying
Securities by the Trustee for any reason other than upon
the occurrence of an Event of Default or an SEC Reporting
Failure, the Trustee shall allocate Available Funds in the
manner set forth in the related Series Supplement;
provided, however, that unless otherwise specified in any
such Series Supplement, the respective pro rata shares of
the Strip Class Certificateholders in the related
Underlying Securities (after allocation of such Underlying
Securities of the Liquidation Proceeds in respect thereto
as provided in the related Series Supplement) shall be
determined as follows:
37
(A) As between Certificateholders of an IO Strip
Class, the pro rata share of each of the IO
Strip Class Certificateholders in the Underlying
Securities to be distributed to such IO Strip
Class Certificateholders shall be equal to the
lesser of (x) a pro rata share (based on the
proportion of the aggregate Notional Amount or
Amortizing Notional Balance, as applicable, of
such Holder's IO Strip Class Certificates to the
outstanding aggregate Notional Amount or
Amortizing Notional Balance, as applicable, of
all IO Strip Class Certificates of such Class)
of the principal amount of Underlying Securities
remaining after the Trustee has allocated
Available Funds towards certain payments
specified in the related Series Supplement and
(y) the present value of all amounts that would
otherwise have been payable on such IO Strip
Class Certificate for the period from the date
of such redemption or prepayment to the Final
Scheduled Distribution Date using the applicable
Allocation Discount Rate, assuming no
delinquencies, deferrals, redemptions or
prepayments on the Underlying Securities.
(B) As between Certificateholders of a PO Strip
Class, the pro rata share of each of the PO
Strip Class Certificateholders in the Underlying
Securities to be distributed to such PO Strip
Class Certificateholders shall be equal to a pro
rata share (based on the proportion of the
aggregate Certificate Principal Balance of such
Holder's PO Strip Class Certificates to the
outstanding aggregate Certificate Principal
Balance of all PO Strip Class Certificates of
such Class) of the principal amount of
Underlying Securities remaining after the
Trustee has allocated Available Funds towards
certain payments specified in the related Series
Supplement.
(y) The amount requested to be distributed pursuant to
Section 4.01(i)(w) or 4.01(i)(x) must be in an even multiple of
the minimum denomination of the Underlying Securities and may
not exceed such requesting Certificateholder's pro rata share
(as determined by the Calculation Agent in accordance
with this Section 4.01(i)) of the Underlying Securities. Upon
receipt of any such direction from a P&I Class
Certificateholder or Strip Class Certificateholder, the Trustee
shall not liquidate the requested portion of Underlying
Securities and instead shall cause such Underlying Securities
to be distributed to the requesting P&I Class Certificateholder
or Strip Class Certificateholder; provided, however, that the
Trustee shall not cause the distribution of any Underlying
Securities to any P&I Class Certificateholder or Strip Class
Certificateholder unless, but for the requesting P&I Class
Certificateholder or Strip Class Certificateholder's giving
direction in accordance
38
with this Section 4.01(i), such Underlying Securities would be
liquidated as otherwise provided in these Standard Terms. Any
portion of any P&I Class Certificateholder's or Strip Class
Certificateholder's pro rata share of the Underlying Securities
that is not distributed, based on the failure to meet the
minimum denomination requirements or otherwise, shall be sold
in accordance with the provisions of Section 4.01(d) or 3.12
hereof, as applicable, and the proceeds thereof distributed to
such P&I Class Certificateholder or Strip Class
Certificateholder.
(z) All decisions and determinations of any Calculation
Agent pursuant to this Section 4.01(i) shall be in its sole
discretion and shall, in the absence of manifest error, be
conclusive for all purposes and irrevocably binding upon the
Certificateholders of the relevant Series or Class.
(j) If the Trustee has not received payment with respect to a
Collection Period on the Underlying Securities on or prior to the related
Distribution Date, such distribution will be made promptly upon receipt of
such payment. No additional amounts shall accrue on the Certificates or be
owed to Certificateholders as a result of such delay; provided, however, that
any additional interest owed and paid by the Underlying Securities Issuer as a
result of such delay shall be paid to the Certificateholders pro rata in
proportion to their respective entitlements to such delayed payments.
SECTION 4.02. Distributions on Certificates. (a) Distributions on
any Registered Certificate that are payable and are 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.
(b) The distributions of interest and principal on Registered
Certificates shall be made as follows:
(i) if the Certificateholder is a Depository, to the
Depository, which shall credit the relevant Participant's account at
such Depository in accordance with the policies and procedure of the
Depository, or
(ii) if the Certificateholder is not a Depository, at the
Corporate Trust Office (except as otherwise specified in the related
Series Supplement) 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 in the related
Series Supplement 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.
Notwithstanding the foregoing paragraph, with respect to a
Certificateholder of Certificates not held in a Depository and
having at least the Minimum Wire Denomination, such payment shall be
made by wire transfer of immediately available funds to the account
designated by such Certificateholder in a written request received
by the Trustee not later than 10
39
days prior to such Distribution Date; provided, however, that if a
wire transfer cannot be made for any reason, payment shall be made
by check. The Trustee shall not be required to send federal funds
wires until any corresponding payments which were not same day funds
when received by it have become same day funds.
(c) Subject to the foregoing provisions of this Section 4.02, each
Certificate delivered under this Trust 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 these Standard Terms, 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) Unless specified otherwise in a Series Supplement, the final
distribution of principal and/or premium shall be made upon presentation and
surrender of such Certificates at the Corporate Trust Office.
SECTION 4.03. Reports to Certificateholders.
(a) Unless otherwise specified in the applicable Series Supplement,
on the next Business Day following each such Distribution Date the Trustee
shall forward or cause to be forwarded to the Depositor, each
Certificateholder of such Series, to each Rating Agency rating such Series and
such other Persons as may be specified in such Series Supplement, a statement
setting forth:
(i) the amounts received by the Trustee as of the last such
statement in respect of principal, interest and premium on the
Underlying Securities and the Swap Receipt Amount, if any;
(ii) the Swap Distribution Amount, if any, for such date;
(iii) 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;
(iv) in the case of each Class of Floating Rate Certificates of
such Series, the respective Floating Interest Rate applicable to
each such Class on such
40
Distribution Date, as calculated in accordance with the method
specified in such Certificates and the related Series Supplement;
(v) the amount of compensation received by the Trustee for the
period relating to such Distribution Date, and such other customary
information as the Trustee deems necessary or desirable, (or that
any such Certificateholder reasonably requests,) to enable such
Certificateholders to prepare their tax returns;
(vi) the aggregate stated principal amount and, if applicable,
notional amount of the Underlying Securities related to such Series,
and the current interest rate or rates thereon at the close of
business on such Distribution Date;
(vii) the aggregate Certificate Principal Balance (or Notional
Amount or Amortizing Notional Balance, if applicable) of each Class
of such Series at the close of business on such Distribution Date,
separately identifying any reduction in such aggregate Certificate
Principal Balance (or Notional Amount or Amortizing Notional
Balance) due to the allocation of any Realized Losses on such
Distribution Date or otherwise;
(viii) 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 (iii) and (v)
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 (iii) and (v) 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. The Trustee shall supply to Certificateholders who so request all
materials received by the Trustee from the Underlying Securities Issuer.
(b) Unless otherwise specified in the applicable Series Supplement,
the Trustee shall appoint a firm of independent certified public accountants
to review each of the distribution reports prepared by the Trustee pursuant to
this Section 4.03 and to verify (x) the assertions of the Depositor and
Trustee in any report filed pursuant to this Section 4.03 and Section 3.09(a)
are fairly stated in all material respects and (y) that the Depositor and the
Trustee have each fulfilled their obligations under this Trust Agreement. The
Trustee shall instruct the accountants (i) to promptly report to the Trustee
any errors in such distribution reports discovered in verifying such
calculations and (ii) to render to the Trustee an annual examination report,
prepared in compliance with established or stated criteria as set forth in the
professional standards of the American Institute of Certified Public
Accountants, within 45 days (or such
41
longer period as may be acceptable to the Trustee) following the end of each
calendar year that specifies the calculations made in reviewing the
distribution reports prepared by the Trustee for the previous calendar year
and such accountants' associated findings.
(c) If any Certificates of a given Series are listed on the New York
Stock Exchange, the Trustee shall simultaneously forward reports to
Certificateholders pursuant to this Section 4.03 of the Standard Terms to the
New York Stock Exchange.
SECTION 4.04. Allocation of Realized Losses and Trust Expenses. With
respect to any Series of Certificates, the manner and priority of the
allocation of Realized Losses, Administrative Fees, Eligible Expenses,
Allowable Expense Amounts and Extraordinary Trust Expenses, if any, on any
Distribution Date among the Classes, if any, of such Series shall be as set
forth in the related Series Supplement. Notwithstanding the foregoing, unless
otherwise so specified in the applicable Series Supplement, the outstanding
Certificate Principal Balance, Amortizing Notional Balance or Notional Amount,
as the case may be, of the Certificates of such Series shall not be reduced by
the amount of any Realized Losses.
SECTION 4.05. Compliance with Withholding Requirements.
(a) Notwithstanding any other provision of this Trust 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.
(b) Each Certificateholder will provide the Trustee (and, so long as
the Certificates are held at a Depository in the form of Global Securities,
each Beneficial Owner of the Certificates will provide such Depository and the
Trustee) with evidence that there should not be any withholding tax assessed
for federal income tax purposes in respect of distributions to such
Certificateholder, such evidence to take the form of a statement, on a duly
executed and up-to-date Internal Revenue Service Form W-8BEN (or successor
form), Form W-9 (or successor form), or Form 4224 (or successor form), as
applicable, that identifies the Beneficial Owner of the Certificate; provided,
however, that for so long as the Certificates are held at a Depository in the
form of Global Securities, the Certificateholder shall have no obligation to
provide the Trustee with any such evidence except to the extent it has
received such evidence from Beneficial Owners of the Certificates. The Trustee
shall not be required to accept any such Internal Revenue Service forms if it
believes that they are not accurate (but the Trustee shall not be required to
make any independent investigation to determine their accuracy).
(c) If any tax or other governmental charge shall become payable by
or on behalf of the Trustee, including any tax or governmental charge required
to be withheld from any payment by the Trustee under the provisions of any
applicable law or regulation with respect to any Underlying Securities or the
Certificates, such tax or governmental charge shall be payable by the
Certificateholder and may be withheld by the Trustee. The consent of
Certificateholder shall not be required for such withholding. In the event the
Trustee does withhold any amount from interest or original issue discount
distributions to any Certificateholder pursuant to Federal
42
withholding requirements, the Trustee shall indicate in the statement required
pursuant to Section 4.03 the amount so withheld.
(d) The Depositor and the Trustee shall have the right to refuse the
surrender, registration of transfer or exchange of any Certificate with
respect to which such tax or other governmental charge shall be payable until
such payment shall have been made by the Certificateholder.
SECTION 4.06. Optional Exchange. (a) On any Exchange Date, any
Holder of a like percentage of (x) P&I Class Certificates of a Series, (y)
each Strip Class Certificates, if any, of a Series and (z) the related Call
Warrants, if Call Warrants related to the related Underlying Securities are
outstanding, may exchange such Certificates and, if applicable, such Call
Warrants, for a distribution of Underlying Securities representing the same
percentage of the Underlying Securities as the aggregate Certificate Principal
Balance, Amortizing Notional Balance or Notional Amount, as applicable, of
such P&I Class Certificates and Strip Class Certificates represent, with
respect to their respective Classes, of all outstanding Certificates in their
respective Classes.
(b) The following conditions shall apply to any Optional Exchange.
(i) A notice specifying the number of Certificates being
surrendered and the Optional Exchange Date shall be delivered to the
Trustee no less than 20 days but not more than 30 days before the
Optional Exchange Date.
(ii) Certificates and, if applicable, the Call Warrants, shall
be surrendered to the Trustee no later than 10:00 a.m. (New York
City time) on the Optional Exchange Date.
(iii) P&I Class Certificates and Strip Class Certificates
representing a like percentage (or, subject to clause (viii) below,
as close as practical thereto) of the Certificate Principal Balance,
Amortizing Notional Balance or Notional Amount, as applicable, of
all Outstanding Certificates and Certificates of their respective
Classes shall be surrendered.
(iv) The Trustee shall have received upon its request an
Opinion of Counsel that (x) such exchange would not be inconsistent
with the Depositor's and the Trustee'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 (y) such Optional Exchange would not
cause the Trust to be treated as an association or publicly traded
partnership taxable as a corporation for federal income tax
purposes.
(v) The Trustee shall have received a certification from the
Certificateholder that any Certificates being surrendered have been
held for at least six months.
43
(vi) Except where all of the Certificates and Call Warrants
related to a Series are being exercised, the Certificates being
surrendered may represent no more than 5% of the initial aggregate
Certificate Principal Balance, Amortizing Notional Balance or
Notional Amount, as applicable, of the Certificates.
(vii) The Trustee shall not be obligated to determine whether
an Optional Exchange complies with the applicable provisions for
exemption under Rule 3a-7 of the Investment Company Act of 1940, as
amended, or the rules or regulations promulgated thereunder.
(viii) This Section 4.06 shall not provide any person with a
lien against, an interest in or a right to specific performance with
respect to the Underlying Securities; provided, however, that
satisfaction of the conditions set forth in this Section 4.06 shall
entitle the Certificateholder or Warrant Holder, as applicable, to a
distribution thereof.
(ix) The aggregate Certificate Principal Balance, Amortizing
Notional Balance or Notional Amount, as the case may be, of
Certificates exchanged in connection with any Optional Exchange
pursuant to this Section shall be in an amount that will entitle the
Certificateholders thereof to Underlying Securities in an even
multiple of the minimum denomination of such Underlying Securities.
In the event that the face amount of Underlying Securities to be
distributed in connection with any Optional Exchange pursuant to
this Section 4.06 is not an even multiple of the minimum
denomination of the Underlying Securities, such amount shall be
rounded down to such minimum denomination. Following such a
rounding, the aggregate Certificate Principal Balance, Amortizing
Notional Balance or Notional Amount of Certificates accepted for
exchange shall be reduced to take into account the effect of such
rounding and the Certificateholders (and, if applicable, the
relevant Warrant Holders) requesting the Optional Exchange shall be
issued Certificates in the amount of the remainder. If such
Certificates are called Certificates, they may be exchanged for a
distribution of Underlying Securities on any subsequent Call Date on
which the other requirements of this Section 4.06 are met. For
purposes of this provision, in any Optional Exchange of Certificates
for Underlying Securities on a Call Date by two or more
Certificateholders (and, if applicable, the relevant Warrant
Holders), the Trustee shall determine the effects of rounding for
purposes of the second preceding sentence with regard to the
aggregate amount of Underlying Securities to be distributed (rather
than each such Certificateholder's (and, if applicable, Warrant
Holder's) individual allotment) and shall round each
Certificateholder's (and, if applicable, Warrant Holder's)
proportionate distribution in accordance with such instructions from
such parties.
(x) In the event such Optional Exchange shall occur prior to
the Initial Distribution Date, the Certificateholders exercising the
Optional Exchange shall pay an amount to the Trustee, on the
Optional Exchange Date, an equal to the sum obtained by multiplying
the amount of Initial Accrued Interest by a fraction, the numerator
of which shall be the Certificate Principal Balance of P&I
Certificates
44
being exchanged on such Optional Exchange Date and the denominator
of which shall be the total Certificate Principal Balance of P&I
Certificates, which amount shall be paid by the Trustee to the
Depositor.
(c) The related Series Supplement may set forth additional terms
and/or conditions of an Optional Exchange that may relate to, but are not
limited to, the following:
(1) limitations on the right of an exchanging Holder to
receive any benefit upon exchange from any Credit Support; and
(2) adjustments to the value of the proceeds of any
exchange based upon required prepayment of future expense
allocations and the establishment of a reserve for any
anticipated Extraordinary Trust Expenses.
(d) Unless otherwise provided in the applicable Series Supplement,
no Certificate may be exchanged pursuant to this Section unless the Trustee
has received at least 20 days but not more than 30 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 Depository (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, Amortizing Notional Balance or Notional
Amount, as applicable, 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 at 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, Amortizing
Notional Balance or Notional Amount, as applicable, of such Certificate as
long as the Certificate Principal Balance, Amortizing Notional 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, Amortizing Notional Balance or Notional Amount,
as applicable, thereof shall be issued (which, in the case of any Registered
Certificate, shall be in the name of the Holder of such exchanged
Certificate).
(e) Upon the completion of any such optional exchange, the Trustee
shall give prompt written notice thereof to each Rating Agency then rating
Certificates of the related Series.
45
SECTION 4.07. Optional Call. (a) If applicable with respect to a
Series of Certificates, concurrently with the execution of the related Series
Supplement, the Depositor shall execute a Warrant Agent Agreement dated as of
the related Issue Date, substantially in the form attached as an exhibit to
the related Series Supplement, which will provide the related Warrant Holder
with a right to call the related Underlying Securities.
(b) Unless otherwise specified in the related Series Supplement, if
the Trustee receives notice of a tender offer for some or all of the related
Underlying Securities, the Trustee shall, within one Business Day, notify the
Warrant Agent and forward to the Warrant Agent copies of all materials
received by the Trustee in connection therewith. Upon the commencement of a
tender offer from the Underlying Securities Issuer or an affiliate thereof and
if the Trustee receives a Call Notice from any Warrant Holder no later than
five Business Days prior to the expiration of the tender offer acceptance
period that such Warrant Holder desires to exercise all or a portion of its
Call Warrants in connection with the consummation of any such tender offer,
then the Trustee shall tender, in compliance with the tender offer
requirements, an amount of Underlying Securities equal to the amount of
Underlying Securities that would be distributable to the Warrant Holder in
connection with the exercise of such Call Warrants.
(c) If the Trustee receives notice of a redemption by the Underlying
Securities Issuer or an Affiliate thereof for some or all of the Underlying
Securities, the Trustee shall, within one Business Day, notify the Warrant
Agent, if any, and forward to any such Warrant Agent copies of all materials
received by the Trustee in connection therewith. Any Warrant Holder that
desires to call Underlying Securities in connection with a redemption by the
Underlying Securities Issuer shall send a Call Notice to the Trustee no later
than five Business Days prior to the date such Underlying Securities are to be
redeemed.
(d) Proceeds received by the Trustee in connection with any exercise
of Call Warrants will be allocated to the related Certificateholders in the
manner set forth in the related Series Supplement.
(e) A Plan fiduciary, whether or not a Certificateholder at such
time, may request in writing that the Trustee provide such Plan fiduciary with
such information as shall be necessary for it to determine whether any of the
related Call Warrant Holders is (i) a "party in interest" (within the meaning
of ERISA, Section 3(14)); or (ii) a "disqualified person" within the meaning
of Internal Revenue Code ("Code") Section 4975(e)(2) with respect to any
employee benefit plan or Plan identified to the Trustee by such Plan fiduciary
at the time such request is made in order for the Plan fiduciary to determine
whether an investment in the Certificates by such Plan is or would be
permissible under ERISA or the Code. Any such written request of a Plan
fiduciary shall be accompanied by a certification of the Plan fiduciary,
opinion of counsel experienced in such issues, and such other documentation as
the Trustee may require, in order to establish that such disclosure is
necessary for the Plan fiduciary to determine compliance with ERISA and the
Code, as well as a confidentiality agreement, whereby the Plan fiduciary
agrees not to disclose the identity of any Call Warrant Holders except to any
legal or other experts as necessary to make such determination.
46
ARTICLE V
The Certificates
SECTION 5.01. The Certificates. (a) The Certificates of any Series
(or Class within such Series) may be issued in fully registered form as
Registered Certificates and shall be substantially in the form of the exhibits
with respect thereto attached to the applicable Series Supplement.
(b) The Certificates may be issued in one or more Series, each of
which Series may, subject to the provisions of the Code and the intended
status of each Trust to constitute a fixed investment trust for federal income
tax purposes, be issued in one or more Classes, with such further particular
designation added or incorporated in such title for the Certificates of any
particular Series or Class within such Series as the Depositor may determine.
Each Certificate shall bear upon its face the designation so selected for the
Series and Class to which it belongs. All Certificates of the same Series and
Class shall be identical in all respects except for the denominations thereof.
All Certificates of all Classes within any one Series at any time Outstanding
shall be identical except for differences among the Certificates of the
different Classes within such Series specified in the applicable Series
Supplement. Except as otherwise provided in a Series Supplement, all
Certificates of a particular Series (and all Classes within such Series)
issued under this Trust 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 Trust Agreement.
(c) Each Series (and all Classes within such Series) of Certificates
shall be created by a Series Supplement authorized by the Depositor and
establishing the terms and provisions of such Series. The several Series may,
subject to the provisions of the Code and the intended status of each Trust to
constitute a fixed investment trust for federal income tax purposes, differ as
between Series and any given Class may vary as between the other Classes
within any given Series.
SECTION 5.02. Execution, Authentication and Delivery. (a) The
Certificates of a Series shall be executed by the Trustee, upon written
direction by the Depositor. The signature of the Trustee may be manual or
facsimile. Certificates bearing the manual or facsimile signature of
individuals who were at any time the proper officers of the Trustee shall be
binding, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates.
(b) Each Certificate shall be dated as of the later of the date
specified in the related Series Supplement and the date of its authentication.
(c) No Certificate shall be entitled to any benefit under this Trust
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 or in the form of Certificate attached to the
related Series Supplement executed by the Trustee by the manual signature of
one
47
of its authorized signatories, and such certificate of authentication upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Trust Agreement.
SECTION 5.03. Temporary Certificates. Pending the preparation of
Definitive Certificates of any Series (or Class within each 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 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, (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 5.04 in
connection with a transfer, and (b) upon surrender for cancellation of any one
or more temporary Certificates of any Series or Class within such Series
(accompanied by any unmatured coupons appertaining thereto), the Depositor
shall execute and the Trustees shall authenticate and deliver in exchange
therefore Definitive Certificates with a like Certificate Principal Balance,
Notional Amount or Amortizing Notional Balance, as applicable, of the same
Series (or Class within such Series) of authorized denominations and of like
tenor. Until so exchanged, temporary Certificates of any Series (or Class
within such Series) shall in all respects be entitled to the same benefits
under this Trust Agreement as Definitive Certificates of such Series or Class,
except as otherwise specified in the applicable Series Supplement with respect
to the payment of interest on Global Securities in temporary form.
Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the individual Definitive Certificates
represented thereby pursuant to this Section 5.03 or Section 5.04, the
temporary Global Security shall be endorsed by the Trustee to reflect the
reduction of the aggregate Certificate Principal Balance, Notional Amount or
Amortizing Notional Balance, as applicable, evidenced thereby, whereupon the
aggregate Certificate Principal Balance, Notional Amount or Amortizing
Notional Balance, as applicable, of such temporary Global Security shall be
reduced for all purposes by the amount so exchanged and endorsed.
SECTION 5.04. Registration; Registration of Transfer and Exchange.
(a) The Trustee shall cause to be kept a register for each Series of
Registered Certificates
48
(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 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.
(b) Upon surrender for registration of transfer 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 UCC 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, Notional Amount or Amortizing Notional Balance, as
applicable.
(c) Notwithstanding any other provisions 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 Depository for such Series or Class to a nominee of
such Depository or by a nominee of such Depository to such Depository or
another nominee of such Depository or by such Depository or any such nominee
to a successor Depository for such Series or Class or a nominee of such
successor Depository.
(d) 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, Notional Amount or
Amortizing Notional Balance, as applicable, upon surrender of the Registered
Certificates to be exchanged at the office or agency of the Trustee maintained
for such purpose.
(e) If at the time the Depository for the Certificates of a Series
(or Class within such Series) notifies the Depositor that it is unwilling or
unable to continue as Depository for the Certificates of such Series or Class
or if at any time the Depository for the Certificates of such Series or Class
shall no longer be eligible under Section 5.08(b), the Depositor shall appoint
a successor Depository with respect to the Certificates of such Series or
Class. If a successor
49
Depository 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 as specified in
the related Series Supplement 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, Notional Amount or Amortizing Notional Balance,
as applicable, equal to the aggregate Certificate Principal Balance, Notional
Amount or Amortizing Notional Balance, as applicable, of the Global Security
or Securities representing Certificates of such Series or Class in exchange
for such Global Security or Securities.
(f) 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, Notional Amount or
Amortizing Notional Balance, as applicable, equal to the aggregate Certificate
Principal Balance, Notional Amount or Amortizing Notional Balance, as
applicable, of the Global Security or Securities representing Certificates of
such Series or Class in exchange for such Global Security or Securities.
(g) If specified by the Depositor pursuant to the related Series
Supplement with respect to a Series (or Class within such Series) of
Certificates, the Depository 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 Depository. 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 Depository 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, Notional Amount or
Amortizing Notional Balance, as applicable, equal to and in exchange
for such Person's beneficial interest in the Global Security; and
(ii) to such Depository a new Global Security in a denomination
equal to the difference, if any, between the aggregate Certificate
Principal Balance, Notional Amount or Amortizing Notional Balance,
as applicable, of the surrendered Global Security and the aggregate
Certificate Principal Balance, Notional Amount or Amortizing
Notional Balance, 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
50
deliver individual Certificates in registered form in authorized
denominations, if the Certificates of such Series or Class are issuable as
Registered Certificates.
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
5.04 shall be registered in such names and in such authorized denominations as
the Depository 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 Person
in whose names such Registered Certificates are so registered.
(h) 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 Trust Agreement as the Certificates surrendered upon
such registration of transfer or exchange.
(i) 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 or 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).
(j) 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 5.03 not involving any
transfer.
(k) (i) No Private Certificate may be offered, resold, assigned or
otherwise transferred (including by pledge or hypothecation) unless the
purchaser or transferee is a QIB or an Accredited Investor; provided, however,
that if such purchaser or transferee is a QIB, it shall be required to
represent that (a) if it is a dealer of the type described in paragraph
(a)(1)(ii) of Rule 144A, such purchaser or transferee owns and invests on a
discretionary basis not less than U.S. $25,000,000 in securities of issuers
that are not affiliated with it and (b) it is not a participant-directed
employee plan, such as a 401(k) plan, or any other type of plan referred to in
paragraph (a)(1)(i)(D) or (a)(1)(i)(E) of Rule 144A, or a trust fund referred
to in paragraph (a)(1)(i)(F) of Rule 144A that holds the assets of such a
plan, unless investment decisions with respect to the plan are made solely by
the fiduciary, trustee or sponsor of such plan.
(A) Prior to any offer, resale, assignment or transfer of any
Private Certificates to a QIB in accordance with Rule 144A, the
prospective transferee shall deliver to the Trustee an executed
copy of an Investment
51
Letter with respect to the Private Certificates to be
transferred and the transferor must provide the Trustee with a
Transferor Certificate. In the event the resale, assignment or
transfer shall involve Private Certificates then being held in
physical form, such Private Certificates shall be delivered to
the Trustee for cancellation and the Trustee shall instruct the
Depository to increase (x) in the case of an IO Strip Class,
the aggregate Notional Amount or Amortizing Notional Balance,
as applicable, or (y) in the case of a P&I Class or a PO Strip
Class, the aggregate Certificate Principal Balance, of such
Private Certificates held in book-entry form by an amount equal
to the aggregate notional amount or aggregate principal amount,
as the case may be, of the Private Certificates so resold,
assigned or transferred and to issue a beneficial interest in
such global Private Certificates to such transferee.
(B) Prior to any offer, resale, assignment or transfer of any
Private Certificates to an Accredited Investor, the prospective
transferee and the prospective transferor shall be required to
deliver to the Trustee documentation certifying that the offer,
resale, assignment or transfer is made pursuant to an available
exemption from registration provided under the Securities Act
and in accordance with any applicable securities laws of any
state of the United States and other jurisdictions and, in the
event any such Private Certificate shall then be held in book
entry form and such resale, assignment or transfer shall be to
an Accredited Investor that is not a QIB, the Trustee shall
instruct the Depository to decrease (x) in the case of an IO
Strip Class, the aggregate Notional Amount or Amortizing
Notional Balance, as applicable, or (y) in the case of a P&I
Class or a PO Strip Class, the Certificate Principal Balance,
of such Private Certificates held in book entry form and the
Trustee shall authenticate and deliver one or more Private
Certificates in physical form in an aggregate notional amount
or aggregate principal amount, as the case may be, equal to the
amount of Private Certificates resold, assigned or transferred.
The Trustee may conclusively rely on the statements in any
Investment Letter, Transferor Certificate or other documentation provided
pursuant to Section 5.04(l)(i)(A) or 5.04(l)(i)(B) and shall be entitled to
rely conclusively on the continuing accuracy thereof from time to time (unless
and until otherwise notified in writing by the signatory thereto) in
determining whether the provisions of this Section 5.04(l) have been complied
with. None of the Certificate Trustee, the Depositor or any other Person shall
be required to register the Certificates under the Securities Act or any state
securities laws.
(ii) In addition to the foregoing, each prospective transferee
of any Private Certificates shall acknowledge, represent and agree
as follows:
(A) The transferee (1) is a QIB and (x) is aware that the sale
to it is being made in reliance on Rule 144A and (y) is
acquiring such Private Certificates for its own account or for
the account of a QIB or (2) is an Accredited Investor. If such
beneficial owner is a QIB, then (a) if it is a
52
dealer of the type described in paragraph (a)(1)(ii) of Rule
144A under the Securities Act, it owns and invests on a
discretionary basis not less than U.S. $25,000,000 in
securities of issuers that are not affiliated with it and (b)
it is not a participant-directed employee plan, such as a
401(k) plan, or any other type of plan referred to in paragraph
(a)(1)(i)(D) or (a)(1)(i)(E) of Rule 144A, or a trust fund
referred to in paragraph (a)(1)(i)(F) of Rule 144A that holds
the assets of such a plan, unless investment decisions with
respect to the plan are made solely by the fiduciary, trustee
or sponsor of such plan.
(B) The transferee understands that the Private Certificates
are being offered in a transaction not involving any public
offering in the United States within the meaning of the
Securities Act, and that the Private Certificates have not been
and will not be registered under the Securities Act.
(C) The transferee agrees that (x) if in the future it decides
to offer, resell, pledge or otherwise transfer the Private
Certificates, such Private Certificates shall only be offered,
resold, assigned or otherwise transferred (1) to a QIB, in
accordance with Rule 144A or (2) to an Accredited Investor,
and, in each case, in accordance with any applicable securities
laws of any state of the United States and other jurisdictions
and (y) the transferee will, and each subsequent Holder is
required to, notify any subsequent purchaser of such Private
Certificates from it of the resale restrictions referred to in
subclause (x) above.
(D) The transferee understands that none of the Trustee, the
Depositor or the Underwriter is acting as a fiduciary or
financial or investment adviser for such transferee. (E) The
transferee agrees that it is not relying (for purposes of
making any investment decision or otherwise) upon any advice,
counsel or representations (whether written or oral) of the
Trustee, the Depositor or the Underwriter other than any
statements in a current offering memorandum for such
Certificates.
(F) The transferee agrees that it has consulted with its own
legal, regulatory, tax, business, investment, financial and
accounting advisers to the extent it has deemed necessary and
has made its own investment decisions (including decisions
regarding the suitability of any transaction pursuant to the
Trust Agreement) based upon its own judgment and upon any
advice from such advisers as it has deemed necessary and not
upon any view expressed by the Trustee, the Depositor or the
Underwriter.
(G) The transferee understands that the Private Certificates
are being offered only in a transaction not involving any
public offering in the United States within the meaning of the
Securities Act, the Private
53
Certificates have not been and will not be registered under the
Securities Act, and, if in the future such beneficial owner
decides to offer, resell, pledge or otherwise transfer the
Private Certificates, such Private Certificates may be offered,
resold, pledged or otherwise transferred only in accordance
with the provisions of the Trust Agreement and the legend on
such Private Certificates. Such transferee acknowledges that no
representation has been made as to the availability of any
exemption under the Securities Act or any state securities laws
for resale of the Private Certificates.
(iii) No Private Certificate may be sold or transferred
(including, without limitation by pledge or hypothecation) unless
such sale or transfer is exempt from the registration requirements
of the Securities Act and is exempt under applicable state
securities laws. No purported transfer of any interest in any
Private Certificate of any Series or any portion thereof that is not
made in accordance with this Section 5.04(l) shall not be effective
against or binding upon the Trust and any such purported transfer
shall be null and void ab initio and vest in the purported
transferee no rights under this Trust Agreement or against the
related Underlying Assets in respect of such Series.
(l) The Private Certificates of a Series will, unless otherwise
agreed by the Depositor and the Trustee, bear a legend substantially to the
following effect:
"THIS CERTIFICATE (OR ITS PREDECESSOR) HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT
WHILE A REGISTRATION UNDER SUCH ACT IS IN EFFECT OR PURSUANT
TO AN EXEMPTION THEREFROM UNDER SUCH ACT. THE CERTIFICATE
REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN ACCORDANCE
WITH THE TERMS OF THE TRUST AGREEMENT.
EACH PURCHASER OF THIS CERTIFICATE IS HEREBY NOTIFIED THAT
THE SELLER OF THIS CERTIFICATE MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT PROVIDED BY RULE 144A THEREUNDER."
SECTION 5.05. Mutilated, Destroyed, Lost and Stolen Certificates. If
(i) any mutilated Certificate is surrendered to the Trustee at its Corporate
Trust Office or (ii) the Depositor and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate, 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
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 any such mutilated Certificate, or in lieu of any
54
such destroyed, lost or stolen Certificate, a new Certificate of the same
Series or Class of like tenor, form, terms and principal amount, bearing a
number not contemporaneously Outstanding.
Upon the issuance of any new Certificate under this Section, the
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 issued pursuant to this
Section shall constitute complete and indefeasible evidence of ownership in
the Trust related to such Series, whether or not the destroyed, lost or stolen
Certificate shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Trust Agreement equally and proportionately with
any and all other Certificates of that Series or Class duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Certificates.
SECTION 5.06. Persons Deemed Owners. (a) The Depositor, the Trustee
and any agent of the Depositor or the Trustee 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 4.02) 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 or the
Trustee, nor any agent of the Depositor or the Trustee shall be affected by
notice to the contrary.
(b) None of the Depositor, the Trustee 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.
SECTION 5.07. Cancellation. Unless otherwise specified in the
related Series Supplement for Certificates of any Series, all Certificates
surrendered for payment, redemption, transfer or exchange shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. No Certificates shall be authenticated
in lieu of or in exchange for any Certificates cancelled as provided in this
Section, except as expressly permitted by this Trust Agreement.
SECTION 5.08. Global Securities. (a) If the Series Supplement
pursuant to Section 5.01 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, Notional Amount or Amortizing Notional Balance,
as applicable, equal to the aggregate initial Certificate Principal Balance,
Notional Amount or Amortizing Notional Balance, 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 Depository for such Global Security or Securities or the nominee
of such
55
Depository, (iii) shall be delivered by the Trustee to such Depository or
pursuant to such Depository's instruction and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for the individual Certificates represented hereby, this
Global Security may not be transferred except as a whole by the Depository to
a nominee of the Depository or by a nominee of the Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such
successor Depository."
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 5.09. Unless and until
definitive, fully registered Certificates (the "Definitive Certificates") have
been issued to Holders of such Series or Class pursuant to Section 5.10:
(i) the provisions of this Section 5.08 shall be in full force
and effect;
(ii) the Certificate Registrar and the Trustee shall be
entitled to deal with the Depository for all purposes of this Trust
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 5.08
conflict with any other provisions of this Trust Agreement, the
provisions of this Section 5.08 shall control;
(iv) the rights of Certificate Owners of such Series or Class
shall be exercised only through the Depository and shall be limited
to those established by law and agreements between such Certificate
Owners and the Depository or its Participants; and
(v) whenever this Trust 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 Depository 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
Depository'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 Depository designated in the related Series Supplement for
a Global Security in registered form must, at the time of its designation and
at all times while it serves as such Depository, be a clearing agency
registered under the Exchange Act and any other applicable statute or
regulation.
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SECTION 5.09. Notices to Depository. 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 Trust
Agreement, unless and until Definitive Certificates for such Series or Class
shall have been issued to such Certificate Owners pursuant to Section 5.10,
the Trustee shall give all such notices and communications specified herein to
be given to Holders of the Certificates of such Series to the Depository, and
shall have no obligation to the Certificate Owners.
SECTION 5.10. 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 Depository 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 of such Series or
Class through the Depository or (iii) Certificate Owners representing
beneficial interests aggregating at least a majority (or such other Required
Percentage that may be specified in a Series Supplement) of the Voting Rights
of the Certificates of such Series or Class advise the Depository in writing
that the continuation of a book-entry system for such Series or Class through
the Depository is no longer in the best interests of the Certificates Owners
of such Series or Class, then the Depository shall notify all Certificate
Owners or Participants in the Depository'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 Depository, 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 Depository. 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 Series or Class, the Trustee
shall recognize the Holders of the Definitive Certificates of such Series or
Class as Holders.
SECTION 5.11. Currency of Distributions in Respect of Certificates.
(a) Except as otherwise specified in the related Series Supplement 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.
(b) For purposes of any provision of the Trust 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 in the related Series
Supplement for Certificates of such Series, as of the date for determining
whether the Holders
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entitled to perform such act have performed it or as of the date of such
decision or determination by the Trustee, as the case may be.
(c) With respect to Certificates of any Series, any decision or
determination to be made regarding exchange rates shall be made by an Exchange
Rate Agent appointed by the Depositor; provided, however, 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 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.
(d) If distributions in respect of a Certificate are required to be
made in a Specified Currency other than Dollars and such currency is
unavailable due to the imposition of exchange controls or other circumstances
beyond the control of the Trustee 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 5.12. 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 these Standard Terms and the
related Series Supplement. The Depositor shall execute and deliver
Certificates of such Series to the Trustee 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) The delivery of the Underlying Securities in
accordance with Section 2.01(b);
(2) Opinions of Counsel to the Depositor, addressed to the
Trustee, in a form acceptable to the Trustee;
(3) An Officer's Certificate of the Depositor, dated as of
the applicable Issue Date, to the effect that all of the
requirements of this Section 5.12 have been satisfied, and that
the Depositor is not in breach of this Trust Agreement and that
the issuance of the Certificates 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 by-laws, 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;
58
(4) A Series Supplement consistent with the applicable
provisions of these Standard Terms;
(5) If applicable, a fully executed copy of the Swap
Agreement or any Credit Support Instrument, together with all
documents and opinions required to be delivered to the Trust
upon execution thereof pursuant to the terms thereof; and
(6) Written instructions by the Depositor to the Trustee
directing the Trustee to enter into and perform any obligations
under the Swap Agreement, if applicable, and/or the Market
Agent Agreement, if applicable.
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 5.12 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 Certificate 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
this Section 5.12 shall be true and correct as if made on such date.
SECTION 5.13. 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 Trust Agreement in any material
respect. The Paying Agent shall initially be the Trustee and any co-paying
agent chosen by the Trustee and acceptable to the Depositor, 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 Trustee an instrument in
which such successor or additional Paying Agent shall agree with the Trustee
that 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
will agree to such other matters as are required by Section 317(b) of the
Trust Indenture Act. The Paying Agent shall return all unclaimed funds to the
Trustee and upon removal shall also return all funds in its possession to the
Trustee. The provisions of Sections 7.01, 7.03, 7.04 and 7.06 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 Trust 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
59
pursuant to this Section 5.13 shall not release the Trustee from the duties,
obligations, responsibilities or liabilities arising under this Trust
Agreement other than with respect to funds paid to such Paying Agent.
SECTION 5.14. 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 Trust 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. Notwithstanding
anything contained herein to the contrary, the appointment of an
Authenticating Agent pursuant to this Section 5.14 shall not release the
Trustee from the duties, obligations, responsibilities or liabilities arising
under this Trust 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 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 7.01, 7.03 and 7.04
shall be applicable to any Authenticating Agent.
(c) Pursuant to an appointment made under this Section, the
Certificates may have endorsed thereon, in lieu of the Trustee's certificate
of authentication, an alternate certificate of authentication in substantially
the following form:
"This is one of the Certificates described in the Standard Terms and
the related Series Supplement.
Dated:
60
as Authenticating Agent
for the Trustee,
By----------------------------------------
SECTION 5.15. Voting Rights with Respect to Underlying Securities.
(a) The Trustee, as holder of the Underlying Securities, has the right to vote
and give consents and waivers in respect of such Underlying Securities as
permitted by the depository with respect thereto and except as otherwise
limited by the Trust Agreement. In the event that the Trustee receives a
request from the Depository, Underlying Securities Trustee or Underlying
Securities Issuer for its consent to any amendment, modification or waiver in
respect of the Underlying Securities or any document relating thereto, or
receives any other solicitation for any action with respect to the Underlying
Securities, the Trustee shall mail a notice of such proposed amendment,
modification, waiver or solicitation to each Certificateholder of record as of
such date. The Trustee shall request instructions from the Certificateholders
as to whether or not to consent to or vote to accept such amendment,
modification, waiver or solicitation. The Trustee shall consent or vote, or
refrain from consenting or voting, in the same proportion (based on the
relative Voting Rights of the Certificates) as the Certificates of the Trust
were actually voted or not voted by the Certificateholders thereof as of a
date determined by the Trustee prior to the date on which such consent or vote
is required.
(b) Notwithstanding the foregoing paragraph (a), the Trustee shall
at no time vote in favor of or consent to any matter (i) which would defer the
timing or reduce the amount of any then presently scheduled payment on the
Underlying Securities, including, without limitation, the deferral or
elimination of any then existing right of Certificateholders to demand to
accelerate the Underlying Securities following a default thereon or (ii) which
would result in the exchange or substitution of any Underlying Security,
except in each case with (x) the unanimous consent of the Certificateholders
and (y) an opinion of counsel that such vote or consent would not materially
increase the risk that the related Trust would be taxed as an association or
publicly traded partnership taxable as a corporation under the Code; provided,
however, that if an Event of Default has occurred and is continuing on the
date on which any consent or vote described in clause (i) or (ii) of this
paragraph (b) is required, the requirement set forth in clause (x) of this
paragraph (b) shall not apply and the Trustee shall instead consent or vote,
or refrain from consenting or voting, in the same proportion (based on the
relative Voting Rights of the Certificates) as the Certificates of the Trust
were actually voted or not voted by the Certificateholders thereof as of a
date determined by the Trustee prior to the date on which such consent or vote
is required.
(c) Notwithstanding anything to the contrary stated herein, the
Trustee shall at no time vote in favor of or consent to any matter that would
cause the related Trust to be taxed as an association or publicly traded
partnership taxable as a corporation under the Code.
(d) The Trustee shall have no liability for any failure to act
resulting from Certificateholders' late return of, or failure to return,
directions requested by the Trustee from the Certificateholders.
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SECTION 5.16. Actions by Certificateholders.
(a) Wherever in this Trust Agreement a provision is made that an
action may be taken or a notice, demand or instruction given by
Certificateholders or Beneficial Owners, such action, notice or instruction
may be taken or given by any Certificateholder or Beneficial Owner.
(b) Certificateholders or Beneficial Owners shall not be required to
act in concert with any other Certificateholder or Beneficial Owner or any
other Person.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other act by a Certificateholder or Beneficial Owner of a
Certificate shall bind such Certificateholder or Beneficial Owner and every
subsequent Certificateholder or Beneficial Owner of such Certificate or any
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, suffered or omitted
to be done by the Certificateholder or Beneficial Owner or the Trustee in
reliance thereon, whether or not notation of such action is made upon such
Certificate.
(d) Certificateholders of Certificates are beneficial owners of the
right to receive principal payments and interest payments to which such
Certificates relate and, as such, will have the right following an event of
default with respect to any Underlying Security to proceed directly against
the Underlying Securities Issuer(s). Such Certificateholders are not required
to join other Certificateholders of Certificates, the Depositor or the Trustee
in order to proceed against the Underlying Securities Issuer(s).
SECTION 5.17. Notices of Events of Default, Defeasance. (a) As
promptly as practicable after, and in any event within 30 days after, the
occurrence of any Event of Default with respect to a Series actually known to
the Trustee, the Trustee shall give notice of such Event of Default to the
Depository, or, if any Certificates of such Series are not then held by DTC or
any other depository, directly to the registered Holders of such Certificates
and, if applicable, to the Warrant Agent. However, except in the case of an
Event of Default relating to the payment of principal of or interest on any of
the Underlying Securities, the Trustee will be protected in withholding such
notice if in good faith it determines that the withholding of such notice is
in the interest of the Certificateholders.
(b) In addition, if applicable with respect to a given Series, the
Trustee shall promptly notify each Rating Agency then rating the Certificates
of such Series upon its obtaining actual knowledge of the occurrence of a
defeasance under the applicable Underlying Securities Issuance Agreement with
respect to the Underlying Securities.
SECTION 5.18. Judicial Proceedings Instituted by Trustee; Trustee
May Bring Suit. If there shall be a failure to make payment of the principal
of or premium, if any, or interest on any Underlying Security, then the
Trustee, in its own name, and as trustee of an express trust, as holder of
such Underlying Security, shall be, to the extent permitted by and in
accordance with the terms of the Underlying Security, subject to the
limitations on acceleration and the exercise of remedies set forth therein,
entitled and empowered to institute any suits, actions or proceedings at law,
in equity or otherwise, including the power to make a demand on
62
the trustee in respect of such Underlying Security, if provided for, to take
action to enforce the Underlying Security for the collection of the sums so
due and unpaid on such Underlying Security and may prosecute any such claim or
proceeding to judgment or final decree with respect to the whole amount of any
such sums so due and unpaid.
SECTION 5.19. Control by Certificateholders. The Holders of
Certificates and Call Warrants of a Series, subject to the approval of (i)
Certificates representing not less than the Required Percentage and (ii) if
applicable, 100% of the Warrant Holders, shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee under
this Trust Agreement, including any right of the Trustee as holder of the
Underlying Securities; provided, however, that:
(1) such direction shall not be in conflict with any rule
of law or with this Trust Agreement and would not involve the
Trustee in personal liability or expense;
(2) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Holders of
Certificates of such Series not taking part in such direction;
and
(3) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 5.20. Waiver of Past Defaults. The Holders of the Required
Percentage of any Series may direct the Trustee to vote such percentage of the
Underlying Securities held by the Trustee as corresponds to the percentage of
the aggregate principal amount of the Certificates of such Series held by such
Holders to waive any past Event of Default thereunder with respect to such
Series of Certificates and its consequences or may instruct the Trustee, on
behalf of all Certificateholders of such Series, to waive any past default
under this Trust Agreement and its consequences, except a default:
(1) in the payment of the principal of or premium, if any,
or interest on the Underlying Securities or the Certificates;
(2) in respect of a covenant or provision hereof which
under Article X hereof cannot be modified or amended without
the consent of the Holder of each Outstanding Certificate
affected; or
(3) specified in the applicable Series Supplement, if any,
unless the applicable Series Supplement provides otherwise.
Upon any such direction, the Trustee shall vote such percentage of the
Underlying Securities of the corresponding Series held by the Trustee as
corresponds to the percentage of the aggregate principal amount of the
Outstanding Certificates of such Series held by Holders who directed the
Trustee to waive such default or Event of Default thereunder. Upon any waiver
that is effective under the terms of such Class of Underlying Securities to
waive such default or Event of Default, such default or Event of Default shall
cease to exist with respect to this Trust Agreement, and, in
63
the case of a default, any Event of Default arising therefrom shall be deemed
to have been cured for every purpose of this Trust Agreement and any direction
given by the Trustee on behalf of such Certificateholders or in respect of any
Underlying Securities shall be annulled with respect thereto; but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
SECTION 5.21. Right of Certificateholders to Receive Payments Not to
Be Impaired. Anything in this Trust Agreement to the contrary notwithstanding,
the right of any Certificateholder to receive distributions of payments
required pursuant to Section 4.01 hereof on the Certificates when due, or to
institute suit for enforcement of any such payment on or after the applicable
Distribution Date, Special Distribution Date or other date specified herein
for the making of such payment, shall not be impaired or affected without the
consent of such Certificateholder.
SECTION 5.22. Remedies Cumulative. Every remedy given hereunder to
the Trustee or to any of the Certificateholders shall not be exclusive of any
other remedy or remedies, and every such remedy shall be cumulative and in
addition to every other remedy given hereunder or now or hereafter given by
statute, law, equity or otherwise.
ARTICLE VI
The Depositor
SECTION 6.01. Liability of the Depositor. The Depositor shall be
liable in accordance herewith only to the extent of the obligations
specifically imposed by these Standard Terms and the related Series
Supplement.
SECTION 6.02. Limitation on Liability of the Depositor. (a) The
Depositor shall not 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 power
if reasonable grounds exist for believing that the repayment or such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
(b) Neither the Depositor nor any of its directors, officers,
employees or agents 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 Trust Agreement, or
for errors in judgment; provided, however, that this provision shall not
protect the Depositor against any breach of representations, warranties or
covenants made herein, or against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of reckless disregard of its obligations
and duties hereunder.
Unless otherwise provided in a related Series Supplement, each Trust
will indemnify and hold harmless the Depositor and any director, officer,
employee or agent of the Depositor against any loss, liability or expense
incurred in connection with any legal action relating to the Trust Agreement
or the Certificates, other than any loss, liability or expense
64
incurred by reason of willful misfeasance, bad faith or gross negligence in
the performance of duties by the Depositor and any of its directors, officers,
employees or agents hereunder or by reason of reckless disregard of their
obligations and duties hereunder.
(c) The Depositor shall not be under any obligation to appear in,
prosecute or defend any legal action unless such action is related to its
respective duties under this Trust Agreement and, in its opinion, does not
involve it in any expense or liability; provided, however, that the Depositor
may in its discretion undertake any such action which it may deem necessary or
desirable with respect to this Trust Agreement and the rights and duties of
the parties hereto and the interests of the Certificateholders hereunder. The
Depositor shall be under no obligation whatsoever to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Underlying
Securities.
(d) The Depositor shall not be liable to any Certificateholder for
any action or non-action by it in reliance upon the advice of or information
from legal counsel, accountants, any Certificateholder of a Certificate or any
other person believed by it in good faith to be competent to give such advice
or information, including, without limitation, the Calculation Agent, the
Market Agent or the other party to this Trust Agreement. The Depositor may
rely and shall be protected in acting upon any written notice, request,
direction or other document believed by it to be genuine and to have been
signed or presented by the proper party or parties.
(e) The Depositor shall not incur any liability to any
Certificateholder if, by reason of any provision of any present or future law,
or regulation thereunder, or any governmental authority, or by any reason of
any act of God or war or other circumstance beyond the control of the relevant
party, the Depositor shall be prevented or forbidden from doing or performing
any act or thing which the terms of this Trust Agreement provide shall be done
or performed; and the Depositor shall not incur any liability to any
Certificateholder by reason of any non-performance or delay, caused as
aforesaid, in the performance of any act or thing which the terms of this
Trust Agreement provide shall or may be done or performed, or by reason of any
exercise of, or failure to exercise, any discretion provided for in this Trust
Agreement.
SECTION 6.03. 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. If Certificates are owned by Persons other than
the Depositor, then the Certificates beneficially owned by the Depositor will
be disregarded for purposes of determining whether the Required Percentage of
the aggregate Voting Rights has given any request, demand, authorization,
direction, notice, consent or waiver hereunder.
SECTION 6.04. Merger or Consolidation of the Depositor. Nothing in
this Trust Agreement shall prevent any consolidation or merger of the
Depositor with or into any other corporation, or any consolidation or merger
of any other corporation with or into the Depositor or any sale or transfer of
all or substantially all of the property and assets of the Depositor to any
other Person lawfully entitled to acquire the same; provided, however, that,
so long as Certificates are outstanding hereunder, the Depositor covenants and
agrees that any such consolidation, merger, sale or transfers shall be upon
the condition that the due and punctual performance and observance of all the
terms, covenants and conditions of this Trust Agreement
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to be kept or performed by the Depositor shall be assumed by the Person (if
other than the Depositor) formed by or resulting from any such consolidation
or merger, or which shall have received the transfer of all or substantially
all of the property and assets of the Depositor, just as fully and effectually
as if successor Person had been the original party of the first part hereto;
and in the event of any such sale or transfer the predecessor Depositor may be
dissolved, wound up and liquidated at any time thereafter.
SECTION 6.05. No Liability of the Depositor with Respect to the
Underlying Securities; Certificateholders to Proceed Directly Against the
Underlying Securities Issuer(s). (a) The sole obligor with respect to any
Underlying Security is the Underlying Securities Issuer thereof. The Depositor
shall not have any obligation on or with respect to the Underlying Securities;
and its obligations with respect to Certificates shall be solely as set forth
in this Trust Agreement.
(b) The Depositor is not authorized to proceed against the
Underlying Securities Issuer of any Underlying Security in the event of a
default or to assert the rights and privileges of Certificateholders of
Certificates and has no duty in respect thereof.
ARTICLE VII
Concerning the Trustee
SECTION 7.01. Duties of Trustee. (a) The Trustee undertakes to
perform such duties and only such duties as are specifically set forth in
these Standard Terms and the related Series Supplement. The Trustee shall
exercise such of the rights and powers vested in it by this Trust 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. The Trustee shall exercise those rights in a manner
consistent with the status of any Trust created hereunder as a fixed
investment trust for federal income tax purposes. The Trustee shall not have
any power to vary the investment of any Certificateholders of any Series or to
accept any assets (other than proceeds of the Underlying Securities) other
than the Underlying Securities transferred to it on the Issue Date of any
Series. Any permissive right of the Trustee enumerated in this Trust Agreement
shall not be construed as a duty and shall be interpreted consistently with
the status of the Trust as a fixed investment trust.
(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 Trust Agreement, shall examine them to
determine whether they conform to the requirements of this Trust Agreement. If
any such instrument is found not to conform to the requirements of this Trust
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 and
Certificateholders.
(c) No provision of this Trust 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:
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(i) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Trust Agreement,
the Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Trust
Agreement, no implied covenants or obligations shall be read into
this Trust Agreement against the Trustee and, in the absence of bad
faith on the part of the Trustee, the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Trustee that conform to the requirements of this
Trust 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;
(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 of the aggregate Voting Rights of a given Series (or
Class or group of Classes within such Series), as specified in the
applicable Series Supplement 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 Trust 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;
(v) except for actions expressly authorized by this Trust
Agreement, the Trustee shall take no actions reasonably likely to
impair the interests of the Trust in any Underlying Security now
existing or hereafter acquired or to impair the value of any
Underlying Security now existing or hereafter acquired;
(vi) except as expressly provided in this Trust 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
Underlying Security initially assigned to the Trustee under Section
2.01, (B) adding any other investment, obligation or security to the
Trust or (C) withdrawing from the Trust any Underlying Securities;
(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 Trust
Agreement, the Trustee shall be obligated promptly upon its
knowledge thereof to perform such obligation, duty or agreement in
the manner so required;
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(viii) the Trustee shall not be liable to any Certificateholder
for any action or non-action by it in reliance upon the advice of or
information from legal counsel, accountants, any Certificateholder
of a Certificate or any other person believed by it in good faith to
be competent to give such advice or information, including, without
limitation, the Calculation Agent, the Market Agent or the other
party to this Trust Agreement. The Trustee may rely and shall be
protected in acting upon any written notice, request, direction or
other document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(ix) the Trustee shall not incur any liability to any
Certificateholder if, by reason of any provision of any present or
future law, or regulation thereunder, or any governmental authority,
or by any reason of any act of God or war or other circumstance
beyond the control of the relevant party, the Trustee shall be
prevented or forbidden from doing or performing any act or thing
which the terms of this Trust Agreement provide shall be done or
performed; and the Trustee shall not incur any liability to any
Certificateholder by reason of any non-performance or delay, caused
as aforesaid, in the performance of any act or thing which the terms
of this Trust Agreement provide shall or may be done or performed,
or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Trust Agreement;
(x) the Trustee shall be under no obligation whatsoever to
appear in, prosecute or defend any action, suit or other proceeding
in respect of any Underlying Securities;
(xi) whenever in the administration of this Trust Agreement the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate; and
(xii) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in reliance thereon,
unless the Trustee's taking, suffering or omitting such action shall
have been willful misconduct, in bad faith or negligent.
(d) As promptly as practicable after, and in any event within 10
days after, the occurrence of any default (as such term is defined below)
hereunder with respect to any Class of Certificates, the Trustee shall
transmit by mail to the Depositor and the Holders of Certificates of such
Class in accordance with Section 313(c) of the Trust Indenture Act, notice of
such default hereunder known to the Trustee, unless such default shall have
been cured or waived; provided, however, that, except in the case of a default
in the payment of the principal of or premium, if any, or interest on any
Underlying Security, the Trustee shall be protected in withholding such notice
if and so long as a trust committee of Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interests
of the Holders of the Certificates
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of such Class. For the purpose of this Section, the term "default" means, with
respect to any Class of Certificates, any event that is, or after notice or
lapse of time or both would become, an Event of Default with respect to such
Class of Certificates.
(e) Within five (5) Business Days after the receipt by the Trustee
of a written application by any three or more Certificateholders stating that
the applicants desire to communicate with other Certificateholders with
respect to their rights under this Trust Agreement or under the Certificates,
and accompanied by a copy of the form of proxy or other communication which
such applicants propose to transmit, and by reasonable proof that each such
applicant has owned its Certificates for a period of at least six (6) months
preceding the date of such application, the Trustee shall, at its election,
either:
(i) afford to such applicants access to all information so
furnished to or received by the Trustee; or
(ii) inform such applicants as to the approximate number of
Certificateholders according to the most recent information so
furnished to or received by the Trustee, and as to the approximate
cost of mailing to such Certificateholders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to all such Certificateholders copies of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of such mailing.
(f) The Trustee shall file periodic reports pursuant to the Exchange
Act in accordance with the customary practices of the Depositor. The Depositor
will respond reasonably promptly to any inquiry of the Trustee as to such
customary practices of the Depositor. Unless otherwise specified in the
applicable Series Supplement, any such periodic reports filed by the Trustee
need not contain any independent reports.
(g) In the event that the Internal Revenue Service challenges the
characterization of a Trust as a grantor trust, the Trustee shall then file
such forms as the Depositor may specify to establish the Trust's election
pursuant to Section 761 of the Code to exclude the Trust from the application
of Subchapter K of the Code and is hereby empowered to execute such forms on
behalf of the related Certificateholders.
SECTION 7.02. Between Trustee and Sub-Administrative Agents. (a)
Unless otherwise provided in a Series Supplement, the Trustee may enter into
Sub-Administration Agreements with one or more Sub-Administrative Agents in
order to delegate certain of its administrative obligations with respect to a
related Series under this Trust Agreement to such Sub-Administrative Agents;
provided, however, that (i) such delegation shall not release the Trustee from
the duties, obligations, responsibilities or liabilities arising under this
Trust 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
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these Standard Terms 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 3.01 and provide for administration of the related Trust and all or
certain specified Underlying Securities for such Series consistent with the
terms of this Trust Agreement. Additional requirements relating to the scope
and contents of any Sub-Administration Agreement may be provided in the
applicable Series Supplement. The Trustee shall deliver to the Depositor
copies of all Sub-Administration Agreements which it enters into, and any
amendments or modifications thereof, promptly upon the Trustee's execution and
delivery of any such instruments.
(b) The Trustee shall 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 Trustee 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 shall administer directly the related
Underlying Securities or shall enter into a Sub-Administration Agreement with
a successor Sub-Administrative Agent which so qualifies under this Section
7.02.
(c) Unless otherwise provided in the applicable Series Supplements,
in the event a Sub-Administrative Agent is administering one or more
Underlying Securities pursuant to a Sub-Administration Agreement, the
Sub-Administrative Agent shall be required immediately to direct the Trustee
to deposit into a Sub-Administration Account any amounts collected with
respect thereto, and all such amounts shall be deposited into the related
Certificate Account not later than the Business Day after receipt thereof.
SECTION 7.03. Certain Matters Affecting the Trustee. (a) Except as
otherwise provided in this Article VII:
(i) the Trustee may request and rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) the Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder
in good faith and in accordance with such Opinion of Counsel;
(iii) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Trust 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 Trust
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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;
(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 Trust Agreement;
(v) 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 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 Trust Agreement, the Trustee may
require reasonable indemnity against such expense or liability as a
condition to taking any such action;
(vi) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian; and
(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 the Depositor
pursuant to Section 3.05.
(b) All rights of action under this Trust 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 Trust Agreement.
SECTION 7.04. Trustee Not Liable for Recitals in Certificates or
Underlying Securities. The Trustee assumes no responsibility for the
correctness of the recitals contained herein and in the Certificates or in any
document issued in connection with the sale of the Certificates (other than
the signature and authentication on the Certificates). Except as set forth in
Section 7.11, the Trustee makes no representations or warranties as to the
validity or sufficiency of this Trust Agreement or of the Certificates of any
Series (other than the signature and authentication on the Certificates) or of
any Underlying Security or related document. The Trustee shall not be
accountable for the use or application by the Depositor, of any of the
Certificates or of the proceeds of such Certificates.
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SECTION 7.05. 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;
provided, however, that in determining whether the required percentage of
aggregate Voting Rights shall have consented to any action hereunder requiring
the consent of the Certificateholders, the Trustee's interest shall be
excluded.
SECTION 7.06. Trustee's Fees and Expenses. (a) As compensation for
its services hereunder with respect to each Series for which the Trustee acts
as Trustee, the Trustee shall be entitled to the Trustee Fee and any amounts
that constitute any Extraordinary Trust Expenses approved by 100% of the
Certificateholders. The Trustee Fee with respect to any Series shall be paid
by the Depositor and not from any related Trust Property. The Trustee shall
bear all Ordinary Expenses. Failure by the Depositor to pay such amount shall
not entitle the Trustee to any payment or reimbursement from the related
Trust, nor shall such failure release the Trustee from the duties it is
required to perform under the Trust Agreement.
(b) Extraordinary Expenses shall not be paid out of the Trust
Property of a given Series unless all the Holders of the P&I Class
Certificates and Strip Class Certificates of such Series then Outstanding have
directed the Trustee to incur such Extraordinary Expenses. The Trustee may
incur other Extraordinary Expenses if any lesser percentage of the
Certificateholders requesting such action pursuant hereto reimburse the
Trustee for the cost thereof from their own funds in advance. If Extraordinary
Expenses are not approved unanimously as set forth in the first sentence of
this Section 7.06(b), such Extraordinary Expenses shall not be an obligation
of the Trust, and the Trustee shall not file any claim against the Trust
therefor notwithstanding failure of Certificateholders to reimburse the
Trustee.
(c) If the Prepaid Ordinary Expenses set forth in the Series
Supplement is greater than zero, the Trustee acknowledges that the Depositor
has paid to the Trustee an amount equal to the Prepaid Ordinary Expenses, and
the Trustee agrees that the payment of such amount shall constitute full and
final satisfaction of and payment for all Ordinary Expenses.
(d) If the Prepaid Ordinary Expenses set forth in the Series
Supplement is zero, the Series Supplement may indicate that Ordinary Expenses
will be paid for by the Trust, in which case the Trustee shall be paid on a
periodic basis by the Trust at the rate or amount and on the terms provided
for in the Series Supplement. The Trustee agrees that its right to receive
such payments from the Trust shall constitute full and final satisfaction of
and payment for all Ordinary Expenses and that the Trustee shall have no claim
on payment of Ordinary Expenses from any other source, including the
Depositor.
(e) If the Prepaid Ordinary Expenses set forth in the Series
Supplement is zero, the Series Supplement may provide that the Depositor shall
pay to the Trustee from time to time a fee for its services and expenses as
Trustee as set forth in the Series Supplement payable at the times set forth
therein. The Trustee agrees that its right to receive such payments from the
Depositor shall constitute full and final satisfaction of and payment for all
Ordinary Expenses and that the Trustee shall have no claim for payment of
Ordinary Expenses from the Trust. The Trustee further agrees that,
notwithstanding any failure by the Depositor to make such periodic payments of
the Ordinary Expenses, the Trustee shall continue to perform its obligations
under this Trust Agreement. The Depositor's obligations to pay Ordinary
Expenses under this Trust
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Agreement shall be extinguished and of no further effect upon the payment of
Ordinary Expenses due and owing on the termination of the Trust pursuant to
Section 9.01 hereof.
(f) Subject to subsection 7.06(g), all Extraordinary Trust Expenses,
to the extent not paid by a third party are, and shall be, obligations of the
Trust and when due and payable shall be satisfied solely by the Trust.
(g) The Trustee shall not take any action, including appearing in,
instituting or conducting any action or suit hereunder or in relation hereto,
which is not indemnifiable under Section 7.12 hereof which, in the Trustee's
opinion, would or might cause it to incur costs, expenses or liabilities that
are Extraordinary Trust Expenses unless (i) the Trustee is satisfied that it
will have adequate security or indemnity in respect of such costs, expenses
and liabilities, (ii) the Trustee has been instructed to do so by
Certificateholders representing not less than the Required Percentage of the
aggregate principal amount of Certificates then outstanding, and (iii) the
Certificateholders, pursuant to the instructions given under clause (ii)
above, have agreed that such costs, expenses or liabilities shall either be
(x) paid by the Trustee from the Trust, in the case of a vote of 100% of the
aggregate principal amount of Certificates then outstanding, or (y) paid by
the Trustee (which payment shall be made out of its own funds and not from
monies on deposit in the Trust) in which case the Trustee shall be entitled to
receive, upon demand, reimbursement from those Certificateholders who have
agreed to bear the entire amount of such costs, expenses or liabilities, on a
pro rata basis among such Certificateholders.
SECTION 7.07. Eligibility Requirements for Trustee. (a) The Trustee
hereunder shall at all times be a corporation or an association which is not
an Affiliate of the Depositor, the Underlying Securities Issuer or the Credit
Support Provider (but may have normal banking relationships with such parties
and their Affiliates) organized and doing business under the laws of any State
or the United States, authorized under such laws to exercise corporate trust
powers which shall be eligible to act as a trustee under Section 310(a) of the
Trust Indenture Act, 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 (or its parent) publishes
reports of conditions at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation
or association shall be deemed to be its combined capital and surplus as set
forth in its most recent report of conditions so published. Such corporation
or association (or its parent) must be rated in one of the four highest rating
categories by the Rating Agency. In the event that at any time such Trustee
shall cease to be eligible in accordance with the provisions of this Section,
such Trustee shall resign immediately in the manner and with the effect
specified in Section 7.08.
(b) In determining whether the Trustee has a conflicting interest
with respect to any Class of Certificates under Section 310(b) of the Trust
Indenture Act and this Section, each other Class of Certificate will be
treated as having been issued under an indenture other than this Trust
Agreement.
SECTION 7.08. Resignation or Removal of the Trustee; Appointment of
Successor Trustee. (a) The Trustee may at any time resign as Trustee hereunder
by written notice of its election so to do, delivered to the Depositor and
each Rating Agency, and such
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resignation shall take effect upon the appointment of a successor Trustee and
its acceptance of such appointment as hereinafter provided; provided, however,
that in the event of such resignation, the Trustee shall (a) assist the
Depositor in finding a successor Trustee acceptable to the Depositor and (b)
negotiate in good faith concerning any prepaid but unaccrued fees.
(b) The Trustee may be removed as Trustee hereunder (i) by the
Depositor at any time by written notice delivered to the Trustee and each
Rating Agency in the manner provided in Section 10.04 hereof or (ii) by the
Holders of the Required Percentage of Certificates upon 60 days prior written
notice delivered to the Trustee and each Rating Agency in the manner provided
in Section 10.04 hereof. Any such removal shall take effect upon the
appointment of the successor trustee and its acceptance of such appointment as
provided in the succeeding paragraph; provided, however, that in the event of
such removal, the Depositor shall negotiate in good faith with the Trustee in
order to agree regarding payment of the termination costs of the Trustee
resulting from such removal.
(c) Upon the designation of a successor Trustee, following either
resignation or removal of the Trustee, the Trustee shall deliver to the
successor Trustee all records relating to the Certificates in the form and
manner then maintained by the Trustee, which shall include a hard copy thereof
upon written request of the successor Trustee.
(d) If at any time the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property of affairs for the purpose of
rehabilitation, conservation or liquidation, the Depositor shall petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee. In the event the Trustee resigns or is
removed, the Trustee shall reimburse the Depositor for any fees or charges
previously paid to the Trustee in respect of duties not yet performed under
this Trust Agreement which remain to be performed by a successor Trustee.
(e) In case at any time the Trustee acting hereunder notifies the
Depositor that it elects to resign or the Depositor or Holders of the Required
Percentage of Certificates notifies or notify the Trustee that it or they
elects or elect to remove the Trustee as Trustee, the Depositor shall, within
ninety (90) days after the delivery of the notice of resignation or removal,
appoint a successor Trustee, which shall satisfy the requirements for a
trustee under Section 7.07. If no successor Trustee has been appointed within
90 days after the Trustee has given written notice of its election to resign
or the Depositor or Holders of the Required Percentage of Certificates have
given written notice to the Trustee of its or their election to remove the
Trustee, as the case may be, the Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee. Every successor
Trustee shall execute and deliver to its predecessor and to the Depositor an
instrument in writing accepting its appointment hereunder, and thereupon such
successor Trustee, without any further act or deed, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor and for
all purposes shall be the Trustee under this Trust Agreement, and such
predecessor, upon payment of all sums due it and on the written request of the
Depositor, shall execute and deliver an instrument transferring to such
successor all rights, obligations and powers of such predecessor hereunder,
and shall duly assign, transfer and deliver all right, title and interest in
the Underlying Securities and parts thereof to such successor Trustee. Any
successor Trustee shall promptly give notice of its appointment to the
74
Certificateholders of Certificates for which it is successor Trustee in the
manner provided in Section 10.04 hereof.
(f) Any corporation into or with which the Trustee may be merged,
consolidated or converted shall be the successor of such Trustee without the
execution or filing of any document or any further act.
SECTION 7.09. Merger or Consolidation of Trustee. Any corporation or
association into which the Trustee may be merged or converted or with which it
may be consolidated or any corporation or association resulting from any
merger, conversion or consolidation to which the Trustee shall be party, or
any corporation or association succeeding to the trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation or association shall be eligible under the provisions of Section
7.07, 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 7.10. 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 Trust Agreement may be served.
SECTION 7.11. 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 Trust Agreement, nor the consummation by it of the transactions
contemplated hereby nor compliance by it with any of the terms or
provisions hereof will contravene any Federal or New York law,
governmental rule or regulation governing the banking or trust
powers of the Trustee or any judgment or order binding on it, or
violate its charter documents or by-laws or constitute a default
under (or an event which, without notice or lapse of time or both,
would constitute a default) under, or result in the breach or
acceleration of any material contract, indenture, mortgage,
agreement or instrument to which it is a party or by which any of
its properties may be bound.
(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 Trust Agreement;
(iv) this Trust Agreement has been duly executed and delivered
by the Trustee and constitutes the legal, valid and binding
obligation of the Trustee, enforceable in accordance with its terms,
except as enforcement may be limited by the applicable bankruptcy,
insolvency, reorganization, moratorium or similar
75
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);
(v) the Trustee is not in violation, and the execution and
delivery of the Trust Agreement by the Trustee and its performance
and compliance with the terms thereof 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 Trustee or its properties, which
violation would reasonably be expected to have a material adverse
effect on the condition (financial or otherwise) or operations of
the Trustee or its properties or on the performance of its duties
hereunder;
(vi) there are no actions or proceedings against, or
investigations of, the Trustee pending, or, to the knowledge of the
Trustee, threatened, before any court, administrative agency or
other tribunal (A) that could reasonably be expected to prohibit its
entering into the Trust Agreement, (B) seeking to prevent the
issuance of the Certificates contemplated by the Trust Agreement or
(C) that could reasonably affect the performance by the Trustee of
its obligations under, or the validity or enforceability against the
Trustee of, the Trust Agreement; and
(vii) no consent, approval, authorization or order of any
court, governmental agency or body is required for the execution,
delivery and performance by the Trustee of, or compliance by the
Trustee with, the Trust Agreement, or for the consummation of the
transactions contemplated by the Trust Agreement, except for such
consents, approvals, authorizations and orders, if any, that have
been obtained prior to the date hereof.
The representations and warranties of the Trustee set forth in this Section
7.11 shall survive the receipt of Underlying Securities by the Trustee and
shall survive the delivery of the Trust Agreement by the Trustee to the
Depositor.
SECTION 7.12. Indemnification of Trustee by the Depositor;
Contribution. (a) The Depositor agrees, to the extent the Trustee is not
reimbursed pursuant to Section 7.06 hereof, to indemnify the Trustee against,
and hold it harmless from, any loss, expense or liability incurred in
connection with any legal action relating to this Trust 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 Trust Agreement or (ii) incurred by reason
of willful 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.
(b) If the indemnification provided for in the preceding paragraph
is invalid or unenforceable in accordance with its terms, then the Depositor
shall contribute to the amount paid or payable by the Trustee as a result of
such liability in such proportion as is appropriate to reflect the relative
benefits received by the Depositor on one hand and the Trustee as Trustee on
the other hand. For this purpose (i) the benefits received by the Depositor
shall be the aggregate
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amount received by it upon the sale of such Certificates, less the costs and
expenses of such sale, including the cost of acquisition of the Underlying
Securities or parts thereof evidenced thereby, and (ii) the benefits received
by the Trustee as Trustee shall be the aggregate amount of fees received by it
as Trustee, less costs and expenses incurred by it as Trustee in relation to
such Certificates. If, however, the allocation provided by the immediately
preceding two sentences is not permitted by applicable law, then the Depositor
shall contribute to such amount paid or payable by the Trustee in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Depositor on the one hand and the Trustee on
the other in connection with the actions or omissions which resulted in such
liability, as well as any other relevant equitable considerations.
(c) In case any claim shall be made or action brought against the
Trustee for any reason for which indemnity may be sought against the Depositor
as provided above, the Trustee shall promptly notify the Depositor in writing
setting forth the particulars of such claim or action and the Depositor may
assume the defense thereof. In the event that the Depositor assumes the
defense, the Trustee shall have the right to retain separate counsel in any
such action but shall bear the fees and expenses of such counsel unless (i)
the Depositor shall have specifically authorized the retaining of such counsel
or (ii) the parties to such suit include the Trustee and the Depositor, and
the Trustee has been advised in writing by such counsel that one or more legal
defenses may be available to it which may not be available to the Depositor,
in which case the Depositor shall not be entitled to assume the defense of
such suit notwithstanding its obligation to bear the reasonable fees and
expenses of such counsel.
(d) The term "liability," as used in this Section 7.12, shall
include any losses, claims, damages, expenses (including without limitation
the Trustee's reasonable costs and expenses) in defending itself against any
losses, claims or investigations of any nature whatsoever.
(e) The obligations of the Depositor under this Section 7.12 shall
be in addition to any liability which the Depositor may otherwise have and
shall extend, upon the same terms and conditions, to each officer and director
of the Trustee, and to each person, if any, who controls the Trustee within
the meaning of the Exchange Act.
(f) Notwithstanding anything to the contrary contained in this
Section 7.12, the Depositor shall not be liable for settlement of any such
claim by the Trustee entered into without the prior written consent of the
Depositor, which consent shall not be unreasonably withheld.
(g) The indemnity provided in this Section shall survive the
termination or discharge of this Trust Agreement.
SECTION 7.13. Indemnification of Depositor by Trustee. The Trustee,
in its individual capacity and not from the assets of the Trust, shall
indemnify the Depositor and any successor trustee against any losses, claims,
damages, expenses (including without limitation the Depositor's costs and
expenses in defending itself against any losses, claims or investigations of
any nature whatsoever) or other liabilities, joint or several, which may arise
out of acts
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performed or omitted by the Trustee or its agents due to its or their
negligence, bad faith or willful misconduct.
SECTION 7.14. No Liability of the Trustee with Respect to the
Underlying Securities; Certificateholders to Proceed Directly Against the
Underlying Securities Issuer(s). (a) The sole obligor with respect to any
Underlying Security is the Underlying Securities Issuer thereof. The Trustee
shall not have any obligation on or with respect to the Underlying Securities;
and its obligations with respect to Certificates shall be solely as set forth
in this Trust Agreement. (b) The Trustee is not authorized to proceed against
the Underlying Securities Issuer of any Underlying Security in the event of a
default or to assert the rights and privileges of Certificateholders of
Certificates and has no duty in respect thereof except as expressly provided
herein.
SECTION 7.15. The Depositor To Furnish Trustee with Names and
Addresses of Certificateholders. The Depositor will furnish to the Trustee
within 15 days after each Record Date with respect to any Distribution Date,
and at such other times as the Trustee may request in writing, within 30 days
after receipt by the Depositor of any such request, a list, in such form as
the Trustee may reasonably require, of all information in the possession or
control of the Depositor as to the names and addresses of the
Certificateholders, in each case as of a date not more than 15 days prior to
the time such list is furnished; provided, however, that so long as the
Trustee is the sole Certificate Registrar, no such list need be furnished.
SECTION 7.16. Preservation of Information. The Trustee shall
preserve, in as current a form as is reasonably practicable, the names and
addresses of Certificateholders contained in the most recent list furnished to
the Trustee as provided in Section 7.15, and the names and addresses of
Certificateholders received by the Trustee in its capacity as Certificate
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 7.15, upon receipt of a new list so furnished.
SECTION 7.17. Reports by Trustee. If required, within 60 days after
May 15 of each year, commencing with the year 2004, the Trustee shall transmit
to the Certificateholders, as provided in Section 313(c) of the Trust
Indenture Act, a brief report dated as of such May 15, if required by Section
313(a) of the Trust Indenture Act.
SECTION 7.18. Trustee's Application for Instructions from the
Depositor. Any application by the Trustee for written instructions from the
Depositor may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Trust Agreement and
the date on and/or after which such action shall be taken or such omission
shall be effective, if, but only if, the obligations of the Trustee with
respect to such proposed action or omission are not set forth reasonably
clearly in these Standard Terms and the related Series Supplement. The Trustee
shall not be liable for any action taken by, or omission of, the Trustee in
accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than ten (10)
Business Days after the date an officer of the Depositor actually receives
such application, unless any such officer shall have consented in writing to
any earlier date) unless, prior to taking any such action (or the
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effective date in the case of an omission), the Trustee shall have received
written instructions in response to such application specifying the action to
be taken or omitted; provided, however, that this provision shall not protect
the Trustee from liability for any action or omission constituting willful
misconduct, bad faith or negligence.
ARTICLE VIII
Market Agent
SECTION 8.01. Market Agent. On or after an Issue Date in respect of
any Trust, the Trustee may enter into one or more Market Agent Agreements with
Xxxxxx Brothers Inc. (or any other Person approved by the Depositor that is
eligible to act as Market Agent pursuant to this Section), as the initial
Market Agent. The Market Agent shall serve as such under the terms and
provisions hereof and of the Market Agent Agreement. The Market Agent,
including any successor appointed pursuant hereto, shall be a member of the
National Association of Securities Dealers, Inc., have capitalization of at
least $25,000,000, and be authorized by law to perform all the duties imposed
upon it by this Trust Agreement and the Market Agent Agreement. The Market
Agent may be removed at any time by the Trustee, acting at the direction of
the Depositor; provided, however, that such removal shall not take effect
until the appointment of a successor Market Agent. The Market Agent may resign
upon 30 days' written notice delivered to the Trustee. The Trustee shall use
its best efforts to appoint a successor Market Agent that is a qualified
institution, effective as of the effectiveness of any such resignation or
removal.
ARTICLE IX
Termination
SECTION 9.01. Termination upon Liquidation of All Underlying
Securities.
(a) The respective obligations and responsibilities under this Trust
Agreement of the Depositor, and the Trustee (other than the obligations of the
Trustee to make distributions to Holders of the Certificates of any given
Series as hereafter set forth and to provide information reports and
information tax reporting) shall terminate upon the distribution to such
Holders of all amounts held in all the Accounts for such Series and required
to be paid to such Holders pursuant to this Trust Agreement on the
Distribution Date coinciding with the final payment on or other liquidation
(which may include redemption or other purchase thereof by the applicable
Underlying Securities Issuer or purchase thereof pursuant to an exercise of
Call Warrants) of the last Underlying Security remaining in the Trust for such
Series or the disposition of all property acquired upon liquidation of any
such Underlying Security; provided, however, that in no event shall the Trust
created hereby continue beyond the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador
of the United States to the Court of St. Xxxxx, living on the date hereof.
(b) Written notice of any termination shall be provided as set forth
in Section 10.04.
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(c) Upon presentation and surrender of the Certificates by the
Certificateholders to the Trustee at its Corporate Trust Office in New York
City on the Final Scheduled Distribution Date or the Distribution Date
coinciding with or next following the earlier to occur of the occurrences
specified in 9.01(a), with respect to the applicable Series of Certificates,
the Trustee shall, upon its cancellation of each surrendered Certificate,
distribute to each Holder presenting and surrendering its Certificates (i) the
amount otherwise distributable on such Distribution Date in accordance with
Section 4.01 in respect of the Certificates so presented and surrendered, or
(ii) as specified in the applicable Series Supplement, if in connection with
the Trustee's sale of all the remaining Underlying Securities. Any funds not
distributed on such Distribution Date shall be set aside and held in trust for
the benefit of Certificateholders not presenting and surrendering their
Certificates in the aforesaid manner, and shall be disposed of in accordance
with this Section 9.01 and Section 4.01 hereof. Immediately following the
deposit of funds in trust hereunder, the Trust for such Series shall
terminate.
ARTICLE X
Miscellaneous Provisions
SECTION 10.01. Amendment. (a) This Trust Agreement may be amended
from time to time by the Depositor and the Trustee without the
consent of any of the Certificateholders for any of the following purposes:
(i) to cure any ambiguity;
(ii) to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein or in the
prospectus supplement;
(iii) to evidence and provide for the acceptance of appointment
hereunder of a change in Trustee as Trustee for a Series of
Certificates subsequent to the Issue Date for such Series, and to
add to or change any of the provisions of this Trust 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 5.01 hereof;
(iv) 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 to or change any of the provisions of
this Trust Agreement as shall be necessary to provide for or
facilitate the administration of the trusts hereunder;
(v) 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 than 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);
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(vi) to add to the covenants, restrictions or obligations of
the Depositor, the Sub-Administrative Agent, if any, or the Trustee
for the benefit of the Certificateholders;
(vii) to provide for the issuance of a new Series of
Certificates pursuant to a Series Supplement issued hereunder
pursuant to Sections 5.01 and 5.12 hereof; or
(viii) to comply with any requirements imposed by the Code or
the Investment Company Act of 1940.
(b) Without limiting the generality of the foregoing, with respect
to any Series, unless otherwise specified in a related Series Supplement, this
Trust 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 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 Trust Agreement or of modifying in any manner the
rights of the Holders of Certificates; provided, however, that, unless
otherwise specified in a related Series Supplement, no such amendment shall
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Underlying Securities which are required to be distributed on any
Certificate without the consent of 100% 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 of
the aggregate Voting Rights of such Series or Class or (iii) reduce the
percentage of aggregate Voting Rights required by (i) or (ii), as described in
(i) and (ii), without the consent of the Holders of all Certificates of such
Series or Class then Outstanding.
Notwithstanding any other provision of this Trust Agreement, for
purposes of the giving or withholding of consents pursuant to this Section
10.01, Certificates registered in the name of the Depositor or the Trustee or
any Affiliate thereof shall not be entitled to Voting Rights with respect to
matters affecting such Certificates, except that in the case of any
modification or amendment requiring the consent of 100% of the Holders of
Certificates of a particular Series (or Class within a Series), Certificates
registered in the name of the Depositor or the Trustee or any Affiliate shall
be entitled to Voting Rights will respect to such modification or amendment;
and provided, further, that in the event the Rating Agency Condition is not
satisfied with respect to such modification or amendment, the Required
Percentage shall be increased to require an aggregate percentage of the
aggregate Voting Rights in the amount specified in the applicable Series
Supplement. Notwithstanding any other provision of this Trust Agreement, this
Section 10.01(b) shall not be amended without the unanimous consent of the
Holders of all such Certificates.
(c) Notwithstanding anything herein to the contrary, the Trustee
shall not consent to any amendment or modification of these Standard Terms,
the related Series Supplement or related Warrant Agent Agreement which would
adversely affect the Warrant Holders or any Certificateholder in respect of
any Class of Certificates within any Series
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(including, without limitation, any alteration of the timing or amount of any
payment of the related Call Price in a manner adverse to such Warrant Holders)
without the prior written consent of 100% of such Warrant Holders and 100% of
the Holders of such Certificates.
(d) Promptly after the execution of any such amendment or
modification, the Trustee shall furnish a copy of such amendment or
modification to each Certificateholder of the affected Series or Class and to
the Rating Agency. It shall not be necessary for the consent of
Certificateholders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
SECTION 10.02. Limitation on Rights of Certificateholders. (a) The
death or incapacity of any Certificateholder shall not operate to terminate
this Trust Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the applicable Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
(b) No Certificateholder of a given Series shall have any right to
vote (except as expressly provided for herein) or in any manner otherwise
control the operation and management of any Trust, or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Certificates, be construed so as to constitute the Certificateholders
from time to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Trust Agreement pursuant to any provision
hereof.
(c) No Certificateholder of a given Series shall have any right by
virtue of any provision of this Trust Agreement to institute any suit, action
or proceeding in equity or at law upon or under or with respect to this Trust
Agreement, unless (i) such Holder previously shall have given to the Trustee a
written notice of breach and of the continuance thereof, (ii) the Holders of
Certificates of such Series evidencing not less than the Required Percentage
of the aggregate Voting Rights of such Series shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name
as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, (iii) 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, and (iv) no
direction inconsistent with such written request has been given to the Trustee
during such 15-day period by Certificateholders evidencing not less than the
Required Percentage of the aggregate Voting Rights of such Series. It is
understood and agreed that the Trustee shall not be obligated to make any
investigation of matters arising under this Trust 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 security or
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
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provision of this Trust 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 Trust 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 10.03. GOVERNING LAW. THIS TRUST 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 IN THE STATE OF NEW
YORK AND WITHOUT GIVING EFFECT 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 10.04. Notices. (a) All directions, demands and notices
required hereunder or under the applicable Series Supplement shall be in
writing and shall be delivered as set forth below (unless written notice is
otherwise provided to the Trustee):
If to the Depositor, to:
Select Asset Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Credit Trading
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Trustee or the Warrant Agent, to:
[ ]
[ ]
[ ]
Attention: [ ]
Telephone: [ ]
Facsimile: [ ]
If to the Rating Agencies, to, as applicable:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: CBO/CLO Monitoring Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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and to:
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Surveillance Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the New York Stock Exchange, to:
New York Stock Exchange, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxx, Senior Listing Representative
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) 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 Trust Agreement shall be
conclusively presumed to have been duly given when mailed, whether or not the
Certificateholder receives such notice. Any and all notices to be given to the
Depositor shall be deemed to have been duly given if sent by facsimile
transmission to the Depositor at the number set forth in clause (a) above. The
Depositor may change this information by written notice to the Trustee. Any
and all notices to be given to the Trustee shall be deemed to have been duly
given if sent by facsimile transmission to the Trustee at the number set forth
in clause (a) above. The Trustee may change this information by notice to the
Depositor.
(c) If applicable with respect to a given Series, copies of all
directions, demands and notices required to be given to the Certificateholders
hereunder or under the Series Supplement will also be given to the Warrant
Holders in writing as set forth in the Series Supplement, and copies of all
directions, demands and notices required to be given to the Trustee hereunder
or under the Series Supplement will also be given to the Warrant Agent in
writing as set forth in the Series Supplement.
(d) Any and all notices to be given to the Swap Counterparty, if
any, will be specified in the Series Supplement or in the related Swap
Agreement.
SECTION 10.05. Notice to Rating Agencies. (a) The Trustee shall use
its best efforts promptly to provide notice to each Rating Agency with respect
to each of the following of which it has actual knowledge:
(i) any change or amendment to this Trust Agreement;
(ii) the resignation or termination of the Trustee;
(iii) the final payment to Holders of the Certificates of any
Class;
84
(iv) any change in the location of the Certificate Account;
(v) the occurrence of an SEC Reporting Failure;
(vi) the exercise of any Call Warrant; and
(vii) any liquidation of the Underlying Securities, whether
following an Underlying Securities Event of Default, an SEC
Reporting Failure or otherwise.
(b) In addition, the Trustee shall promptly furnish to each Rating
Agency copies of each report to Certificateholders described in Section 4.03.
(c) Any notice given pursuant to this Section 10.05 shall be in
writing and shall be deemed to have been duly given if (i) personally
delivered or mailed by first class mail, postage prepaid, or by express
delivery service to each Rating Agency at the address specified in Section
10.04 or in the applicable Series Supplement, or (ii) sent by facsimile
transmission to each Rating Agency at the facsimile transmission number
specified in Section 10.04 or in the applicable Series Supplement. Any Rating
Agency may change the information set forth in Section 10.04 by notice to the
Depositor and the Trustee.
SECTION 10.06. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Trust Agreement shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Trust Agreement and shall in no way
affect the validity or enforceability of the other provisions of this Trust
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 10.07. Grant of Security Interest. (a) It is the express
intent of the parties hereto that each conveyance of any Underlying Securities
by the Depositor to the Trustee be, and be construed as, a sale of the
Underlying Securities by the Depositor and not a pledge of any Underlying
Securities by the Depositor to secure a debt or other obligation of the
Depositor.
(b) In the event that, notwithstanding the aforementioned intent of
the parties, any Underlying Securities are held to be property of the
Depositor, then, (x) it is the express intent of the parties that such
conveyance be deemed a pledge of such Underlying Securities by the Depositor
to the Trustee to secure a debt or other obligation of the Depositor and
(y)(1) this Trust Agreement shall also be deemed to be a security agreement
within the meaning of Articles 8 and 9 of the UCC 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 2.01
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 Underlying Securities and all amounts payable to the holders of such
Underlying Securities in accordance with the terms hereof 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 Trust Agreement, including the obligation to provide to
the
85
Certificateholders the benefits of this Trust Agreement relating to such
Underlying Securities and the applicable Trust; and (4) notifications to
persons holding such property, and acknowledgements, receipts or confirmations
from persons holding such property, shall be deemed notifications to, or
acknowledgements, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law.
Accordingly, the Depositor hereby grants to the Trustee a security interest in
the Underlying Securities and all other property described in clause (y)(2) of
the preceding paragraph, for the purpose of securing to the Trustee the
performance by the Depositor of the obligations described in clause (y)(3) of
the preceding paragraph. Notwithstanding the foregoing, the parties hereto
intend the Grant pursuant to Section 2.01 to be a true, absolute and
unconditional sale of the Underlying Securities and assets constituting the
applicable Trust by the Depositor to the Trustee.
(c) The Depositor and the Trustee shall to the extent consistent
with this Trust Agreement, take such actions as may be necessary to ensure
that, if this Trust Agreement were deemed to create a security interest in the
Underlying Securities, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such for so long as any of the Underlying Securities remain
outstanding. Without limiting the generality of the foregoing, the Trustee
shall file, or shall cause to be filed, all filings necessary to maintain the
effectiveness of any original filings necessary under the UCC as in effect in
any jurisdiction to perfect the Trustee's security interest in or lien on the
Underlying Securities, including (x) continuation statements and (y) such
other statements as may be occasioned by (1) any change of name of the
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 Underlying Security.
SECTION 10.08. Nonpetition Covenant. Notwithstanding any prior
termination of this Trust Agreement, each of the Trustee (including any
Sub-Administrative Agent, Authenticating Agent, Calculation Agent, or Paying
Agent), the Depositor and each Certificateholder agrees that it shall not,
until the date which is one year and one day after the termination of the
Trust 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 10.09. No Recourse. Neither the Trustee (including any
Sub-Administrative Agent, Authenticating Agent, Calculation Agent, or Paying
Agent) nor the Depositor shall have any recourse to the Underlying Securities,
except for as specifically provided in the related Series Supplement.
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SECTION 10.10. Article and Section References. All article and
section references used in these Standard Terms, unless otherwise provided,
are to articles and sections in these Standard Terms.
SECTION 10.11. Counterparts. These Standard Terms 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 one and
the same instrument.
SECTION 10.12. Trust Indenture Act Controls. This Trust Agreement is
subject to the provisions of the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions. The Trustee agrees to take all
actions within its control to prevent these Standard Terms, as supplemented by
any Series Supplements, from failing to qualify under the Trust Indenture Act.
SECTION 10.13. Segregation Provisions.
(a) Each Trust established hereunder is a legal entity separate and
apart from each other Trust established by the Depositor under these Standard
Terms or otherwise.
(b) Pursuant to Section 2.01 hereof, each Trust will issue only one
Series of securities, unambiguously identified with the Underlying Securities
unambiguously identified on a series-by-series basis in the Basic Documents,
and the Underlying Securities will be held separate and apart from the
Underlying Securities relating to any other Series and separate and apart from
any property backing any other securities caused to be issued by the
Depositor.
(c) Any swap transaction entered into by a Trust for a Series will
be separate from any other swap transaction for any other Series.
(d) A first priority ownership or, pursuant to Section 10.07 hereof,
security interest shall be created and perfected over all of the Underlying
Securities with respect to each Series and it shall be enforceable
notwithstanding the related Trust's insolvency.
(e) The Certificateholders of each Series shall have recourse solely
to the Underlying Securities deposited in the Trust issuing such Series, and
not to any Underlying Securities or other property deposited in any other
Trust. If the foregoing provisions of this paragraph 10.13(e) are
unenforceable for any reason, or for any reason notwithstanding such
provisions any Certificateholder with respect to a Series issued by a Trust is
deemed to have an interest in the assets of a different Trust (the
"Non-Issuing Trust") such interest shall be subordinate to the interest of the
Holders of Certificates issued by the Non-Issuing Trust. Such
Certificateholders are deemed to agree that the preceding sentence constitutes
a subordination agreement for purposes of Section 510(a) of the Bankruptcy
Code. Creditors of the Depositor, and claimants with respect to trusts
established pursuant to other instruments, shall have no recourse with respect
to the assets of any Trust established hereunder.
(f) Except as provided in Section 10.02(b) hereof, only the Trustee
shall be entitled to exercise remedies on behalf of the Certificateholders in
accordance with the related Series Supplement.
87
(g) Any difference between the amount realized from the Underlying Securities
upon enforcement of the Underlying Securities and the amount that otherwise
would have been due pursuant to the related Series Supplement will not
constitute a claim against the related Trust, any other Trust, the Depositor,
the Trustee or any of their Affiliates.
(h) Each Trust shall not sell, assign or transfer the Underlying
Securities except as expressly provided for herein or in the related Series
Supplement.
(i) The Depositor agrees that it shall not issue any debt
obligations unless it first obtains written confirmation from each relevant
Rating Agency that such action will not result in the reduction, withdrawal or
qualification, of the rating of any outstanding Series of Certificates.
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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.
SELECT ASSET INC.,
as Depositor
By:-------------------------------------------
Name:
Title:
[TRUSTEE],
as Trustee
By:------------------------------------------
Name:
Title:
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EXHIBIT A
FORM OF INVESTMENT LETTER
EXHIBIT B
FORM OF TRANSFEROR CERTIFICATE
EXHIBIT C
FORM OF WARRANT AGENT AGREEMENT
FORM OF WARRANT AGENT AGREEMENT
SELECT ASSET INC. WARRANTS
Series 20[o]-[o] Trust
WARRANT AGENT AGREEMENT, dated as of [o] (the "Warrant Agent
Agreement"), by and between SELECT ASSET INC., as Warrant Originator (the
"Warrant Originator"), and [o], as Warrant Agent (the "Warrant Agent").
W I T N E S S E T H:
In consideration of the mutual covenants expressed herein, the
Warrant Originator and the Warrant Agent have duly authorized the execution
and delivery of this Warrant Agent Agreement to provide for the issuance of
Call Warrants, issuable as provided herein.
ARTICLE I
DEFINITIONS
As used herein, unless the context otherwise requires, the following
terms have the following respective meanings:
"Business Day": As defined in the Trust Agreement.
"Call Date": Any Business Day that any Holder of Call Warrants
designates as a Call Date occurring on or after the Scheduled Call
Commencement Date or prior thereto on any Business Day (i) on which the
Underlying Securities Issuer redeems, prepays or otherwise makes an
unscheduled payment of principal on the Underlying Securities, (ii) following
notification from the Trustee to Certificateholders of any proposed sale of
the Underlying Securities pursuant to Section 3.11 or 4.01(i) of the Agreement
or (iii) on which the Underlying Securities Issuer or an Affiliate thereof
consummates a tender offer for some or all of the Underlying Securities.
"Call Notice": As defined in Section 3.1(a)(ii) hereof.
"Call Price": With respect to each Call Warrant being exercised, an
amount equal to the sum of (i) $[o] (correlating to the aggregate principal
balance of P&I Class Certificates that will be redeemed with the proceeds of
the exercise of the Call Warrant); (ii) in connection with any exercise of a
Call Warrant prior to the Scheduled Call Commencement Date, $[o] (correlating
to $1.50 per $25 in principal balance of P&I Class Certificates that will be
redeemed in connection with the exercise of the Call Warrant); (iii) the
present value (discounted at a rate
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of [o]% per annum) of any unpaid amounts due or to become due on $[o]
aggregate principal or notional amount of the Strip Class Certificates related
to the Called Underlying Securities (assuming that such Strip Class
Certificates were paid when due and were not redeemed or prepaid prior to
their stated maturity); and (iv) accrued and unpaid interest at the P&I Class
Interest Rate on the principal balance of P&I Class Certificates that will be
redeemed with the proceeds of the Call Warrant.
"Call Warrants": As defined in the recitals.
"Called Underlying Securities": As defined in Section 3.1(b) hereof.
"Certificate Account": As defined in the Trust Agreement.
"Certificated Call Warrant": A definitive physical Call Warrant in
fully registerable form.
"Corresponding Strip Class Certificates": Means, in connection with
any exercise of a Call Warrant, Strip Class Certificates having an aggregate
[Amortizing Notional Balance] [Certificate Principal Balance] equal to [o]% of
the principal amount of the Called Underlying Securities.
"Depositor": As defined in the recitals.
"Depositor Order": As defined in the Trust Agreement.
"Depository": [o]
"Global Call Warrant": Means a definitive, fully registered Call
Warrants deposited with the Warrant Agent as custodian for, and registered in
the name of, a nominee of the Depository.
"Investor Representation Letter": A letter substantially in the form
of Exhibit A attached hereto, duly completed as appropriate.
"Issue Date": [o]
"Participant": A broker, dealer, bank, other financial institution
or other Person for whom from time to time a Depository effects book-entry
transfers and pledges of securities deposited with the Depository.
"Person" Any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency
or political subdivision thereof.
"Purchaser": Any Person who acquires a Call Warrant represented by
an interest in a Global Call Warrant or Certificated Call Warrant.
"QIB": As defined in Section 4.1 hereof.
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"Rating Agencies": Standard & Poor's Ratings Services, a division of
The McGraw Hill Companies, Inc. and Xxxxx'x Investors Service, Inc. and any
successor thereto.
"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 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 actual knowledge of and familiarity with the particular subject.
"Required Percentage--Amendment": As defined in the Trust Agreement.
"Rule 144A": As defined in Section 4.1.
"Securities Act": The Securities Act of 1933, or any similar federal
statute, and the rules and regulations of the Commission thereunder, all as
the same shall be in effect at the time.
"Scheduled Call Commencement Date": The fifth anniversary of the
Issue Date.
"Securities Act" The United States Securities Act of 1993, as
amended.
"Trust": As defined in the recitals.
"Trust Agreement": As defined in the recitals.
"Trustee": As defined in the recitals, or any successor thereto
under the Trust Agreement.
"Warrant Agent": As defined in the recitals, or any successor
thereto under this Warrant Agent Agreement.
"Warrant Agent Agreement": As defined in the recitals.
"Warrant Holder": As defined in Section 3.1(a) hereof.
Capitalized terms used herein but not defined herein have the
meanings set forth in the Trust Agreement.
ARTICLE II
CREATION OF CALL WARRANTS
SECTION 2.01. The Trust.
(a) Select Asset Inc. (the "Depositor") and [o], not in its
individual capacity but solely as Trustee (the "Trustee"), will form the
[Select Asset Inc. [o] [Note][Debenture]-Backed Series 20[o]-[o] Trust] (the
"Trust") pursuant to a Standard Terms for Trust Agreements, dated as of [o],
2005 (the "Agreement"), as supplemented by the Series Supplement [o]
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[Note][Debenture]-Backed Series 20[o]-[o], dated as of the date hereof (the
"Series Supplement" and, together with the Agreement, the "Trust Agreement").
(b) The sole asset of the Trust will be $[o] aggregate principal
amount of [o]% [Notes][Debentures] (the "Underlying Securities") issued by [o]
(the "Underlying Securities Issuer").
SECTION 2.02. The Warrants. The Call Warrants shall consist
initially of [o] call warrants with respect to the Underlying Securities, each
relating to $1000 principal amount of Underlying Securities (the "Call
Warrants").
ARTICLE III
EXERCISE OF CALL WARRANTS
SECTION 3.01. Manner of Exercise.
(a) Call Warrants may be exercised by any holder thereof (each, a
"Warrant Holder") on any Call Date. The Warrant Holder shall represent and
agree to the following conditions that apply to any exercise of Call Warrants:
(i) Each exercise of Call Warrants must relate to at least 500
Call Warrants (or $500,000 aggregate principal amount of Underlying
Securities).
(ii) A written notice (each, a "Call Notice") specifying the
number of Call Warrants being exercised and the related Call Date
shall be delivered to the Warrant Agent and the Trustee at least
five but not more than 30 Business Days before such Call Date.
(iii) The Warrant Holder shall surrender the Call Warrants with
respect to the called Underlying Securities to the Warrant Agent at
its office specified in Section 6.3 hereof no later than 10:00 a.m.
(New York City time) on such Call Date.
(iv) Except as otherwise provided herein in connection with a
Call Notice relating to a tender offer for, or redemption of,
Underlying Securities, the Warrant Holder shall have made payment to
the Warrant Agent, by wire transfer or other immediately available
funds acceptable to the Warrant Agent, in the amount of the Call
Price, no later than 10:00 a.m. (New York City time) on the Call
Date.
(v) The Warrant Holder shall be solvent at the time of any
exercise of the Call Warrants.
(b) Upon exercise of Call Warrants, any Warrant Holder shall be
entitled to delivery of the Called Underlying Securities. The "Called
Underlying Securities" shall be the Underlying Securities with a principal
amount equal to $1000 per Call Warrant exercised on the related Call Date.
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(c) The Warrant Agent shall notify the Trustee immediately upon its
receipt of a Call Notice and upon receipt of payment of the Call Price. The
Warrant Agent shall transfer the amount of any paid Call Price to the Trustee
in immediately available funds, for deposit in the Certificate Account and
application pursuant to the Trust Agreement on the applicable Call Date (and,
pending such transfer, shall hold such amount for the benefit of the Warrant
Holder in a segregated trust account).
(d) Delivery of a Call Notice does not give rise to an obligation on
the part of the Warrant Holder to pay the Call Price. If, by 10:00 a.m. (New
York City time) on the Call Date, the Warrant Holder has not paid the Call
Price, except in connection with a Call Notice relating to a tender offer for,
or redemption of, Underlying Securities, then the Call Notice shall
automatically expire and none of the Warrant Holder, the Warrant Agent or the
Trustee shall have any obligation with respect to the Call Notice. The
expiration of a Call Notice shall in no way affect the Warrant Holder's right
to deliver a Call Notice at a later date. The Call Price for a call in
connection with a tender offer or redemption shall be deducted from the
proceeds of a tender offer or a redemption by the Trust, deposited in
Available Funds and distributed to Certificateholders pursuant to Series
Supplement.
SECTION 3.02. Transfer of Called Underlying Securities.
(a) As soon as practicable after each surrender of the Call Warrants
on the Call Date and upon satisfaction of all other requirements described in
Section 3.1 hereof and upon satisfaction of all other requirements described
in the Call Warrants, the Warrant Agent shall instruct the Trustee to cause
the Called Underlying Securities represented by the number of Call Warrants
being exercised to be registered on the book-entry system of the related
depository in the registered name or names furnished by the Warrant Holder,
or, as applicable, transfer the Called Underlying Securities to the Warrant
Holder.
(b) If such exercise is of less than all the outstanding Call
Warrants, (i) with respect to the Certificated Call Warrants, the Warrant
Agent shall authenticate new Call Warrants, of like tenor, representing the
outstanding Certificated Call Warrants and the Warrant Agent shall deliver
such Certificated Call Warrant to the Holders thereof and (ii) with respect to
Global Call Warrants registered with a Depository, the Warrant Agent shall
modify the schedule thereto accordingly to reflect the outstanding Call
Warrants represented by one or more Global Call Warrant for such Holders
possessing a beneficial interest therein.
(c) If any Call Warrant is exercised in connection with a partial
redemption of the Underlying Securities, the Trustee shall, to the extent
possible, deliver to the exercising Warrant Holder, Underlying Securities that
have been selected for redemption.
SECTION 3.03. Cancellation and Destruction of Call Warrants. All
Call Warrants surrendered to the Warrant Agent for the purpose of exercise
pursuant to Section 3.1 and actually exercised, or for the purpose of transfer
or exchange pursuant to Article V, shall be cancelled by the Warrant Agent,
and no Call Warrant (other than that reflecting any such transfer or exchange)
shall be issued in lieu thereof. The Warrant Agent shall destroy all cancelled
Call Warrants.
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SECTION 3.04. No Rights as Holder of Trust Securities Conferred by
Call Warrants. The Call Warrants shall not entitle the Warrant Holder to any
of the rights of a holder of any securities which may be issued by the Trust,
including, without limitation, the right to receive the payment of any amount
on or in respect of any such securities or to enforce any of the covenants of
the Trust Agreement applicable to any holders of such securities.
SECTION 3.05. No Rights of Trustee in Call Warrants; Delivery of
Underlying Securities. The Trustee, as holder of the Underlying Securities,
(a) shall have no right, title or interest in the Call Warrants created
hereunder and (b) shall hereinafter accept delivery of the Underlying
Securities from the Depositor subject to the terms of this Warrant Agent
Agreement, which restricted acceptance shall be acknowledged in a writing
evidencing receipt by the Trustee as holder of such Underlying Securities.
SECTION 3.06. Pro Rata Reduction of Call Warrants if Partial
Redemption of Underlying Securities. If Underlying Securities are redeemed in
part by the Underlying Securities Issuer and the Warrant Holders do not
exercise their Call Warrants in connection with such partial redemption, the
number of Call Warrants held by each Warrant Holder shall be reduced
proportionately so that the aggregate principal amount of Underlying
Securities callable by Call Warrants shall equal the amount of outstanding
Underlying Securities held by the Trustee after giving effect to such partial
redemption; provided, that, in no event shall partial Call Warrants be issued
in the event of any such proportionate reduction. The Warrant Agent shall make
such adjustments to its records as shall be necessary to reflect such
reductions, shall round the adjusted number of Call Warrants downward, as
appropriate, to ensure that each Call Warrant relates to Underlying Securities
having a principal amount of $1,000 and shall notify each Warrant Holder of
such adjustments.
SECTION 3.07. Selection of Called Underlying Securities in the
event of a Call in Connection with a Partial Redemption. If a Warrant Holder
exercises Call Warrants in connection with a partial redemption of the
Underlying Securities, the Trustee shall, to the extent possible, select
Called Underlying Securities for transfer to the Warrant Holder that have been
selected by the Underlying Securities Issuer for redemption. If more than one
Warrant Holder exercises Call Warrants in such circumstances, such Called
Underlying Securities that have been selected for redemption shall be
allocated among such Warrant Holders in proportion to the number of Call
Warrants exercised by each.
ARTICLE IV
RESTRICTIONS ON TRANSFER
SECTION 4.01. Restrictive Legends. No Call Warrant may be offered,
resold, assigned or otherwise transferred (including by pledge or
hypothecation) unless such offer, resale, assignment or transfer is to a
qualified institutional buyer (a "QIB"), as such term is defined in Rule 144A
promulgated under the Securities Act ("Rule 144A"), in accordance with Rule
144A (or in the case of the initial sale by the Warrant Originator, in
reliance on Section 4(2) under the Securities Act) acquiring the Call Warrants
for its own account or for the account of a QIB. Prior to any offer, resale,
assignment or transfer of any Certificated Call Warrant, the prospective
transferee shall be required to deliver to the Warrant Agent an executed copy
of a
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Investor Representation Letter with respect to any Call Warrant to be
transferred substantially in the form of Exhibit A attached hereto. Each Call
Warrant (including each Call Warrant issued upon the transfer of any Call
Warrant) shall be issued with a legend in substantially the following form
(unless the Warrant Agent shall have received an opinion of counsel reasonably
satisfactory to the Warrant Originator and the Warrant Agent that such legend
is no longer required to ensure compliance with the Securities Act):
"THIS CALL WARRANT (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED, SOLD OR
OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION UNDER SUCH ACT IS IN
EFFECT OR PURSUANT TO AN EXEMPTION THEREFROM UNDER SUCH ACT. THE CALL
WARRANT REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH THE
CONDITIONS SPECIFIED IN THE CALL WARRANTS.
EACH PURCHASER OF THIS CALL WARRANT IS HEREBY NOTIFIED THAT THE SELLER OF
THIS CALL WARRANT MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER."
SECTION 4.02. Representation of Warrant Holder. Each Purchaser of a
Call Warrant shall represent and agree, or in the case of a Global Call
Warrant be deemed to represent and agree, as follows:
(a) In connection with the purchase of the Call Warrants:
(i) The Purchaser represents that in making its investment
decision to acquire the Call Warrants, the Purchaser has not relied
on representations, warranties, opinions, projections, financial or
other information or analysis, if any, supplied to it by any person,
including the Warrant Originator or Warrant Agent, or any of their
respective affiliates, except as expressly contained in written
information, if any.
(ii) The Purchaser has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of an investment in the Call Warrants, and the
Purchaser is able to bear the substantial economic risks of such an
investment. The Purchaser has relied upon its own tax, legal and
financial advisors in connection with its decision to purchase the
Call Warrants.
(iii) The Purchaser (A) is a QIB and (B) is acquiring the Call
Warrants for its own account or for the account of an investor of
the type described in clause (A) above as to each of which the
Purchaser exercises sole investment discretion. The Purchaser is
purchasing the Call Warrants for investment purposes and not with a
view to, or for, the offer or sale in connection with, a public
distribution or in any other manner that would violate the
Securities Act or the securities or blue sky laws of any state.
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(iv) The Purchaser understands that the Call Warrants have not
been and will not be registered under the Securities Act or under
the securities or blue sky laws of any state, and that (x) if it
decides to resell, pledge or otherwise transfer any Security, such
resale, pledge or other transfer must comply with the provisions of
the Warrant Agent Agreement relating to the Call Warrants
(including, without limitation, the provisions of Section 4.1 of the
Warrant Agent Agreement) and (y) it will, and each subsequent holder
will be required to, notify any purchaser of any Call Warrant from
it of the resale restrictions referred to in clause (x) above.
(v) The Purchaser understands that each of the Call Warrants
will bear a legend described in Section 4.1 of the Warrant Agent
Agreement unless otherwise agreed by the Warrant Originator and the
Warrant Agent.
(vi) The Purchaser understands that no subsequent transfer of
the Call Warrants is permitted unless (A) such transfer is of at
least 500 Call Warrants (or Call Warrants relating to $500,000
aggregate principal amount of Underlying Securities) and (B) the
Purchaser causes the proposed transferee to provide to the Depositor
and the Trustee such documentation as may be required pursuant to
Section 4.1 of the Warrant Agent Agreement, or such other written
statement as the Warrant Agent shall reasonably prescribe.
(vii) The Purchaser is a person or entity (a "Person") who is
either:
(A) (1) a citizen or resident of the United States, (2) a
corporation, partnership or other entity organized in
or under the laws of the United States or any
political subdivision thereof, (3) an estate the
income of which is includible in gross income for
federal income tax purposes regardless of source, or
(4) a trust if a court within the United States is
able to exercise primary supervision of the
administration of the trust and one or more United
States persons have the authority to control all
substantial decisions of the trust, or
(B) a Person not described in (A), whose ownership of
such Call Warrant is effectively connected with such
Person's conduct of a trade or business within the
United States within the meaning of the Internal
Revenue Code of 1986, as amended (the "Code"), and
its ownership of any interest in such Call Warrant
---- will not result in any withholding obligation
with respect to any payments with respect to the Call
Warrants by any Person (other than withholding, if
any, under Section 1446 of the Code), or
(C) a Person not described in (A) or (B) above, who is
not a Person: (1) that owns, directly or indirectly,
10% or more
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of the total combined voting power of all
classes of stock in the Underlying Securities
Issuer (as defined in the Prospectus Supplement)
entitled to vote, (2) that is a controlled
foreign corporation related to the Underlying
Securities Issuer within the meaning of Section
864(d)(4) of the Code, or (3) that is a bank
extending credit pursuant to a loan agreement
entered into in the ordinary course of its trade
or business.
(viii) The Purchaser agrees that (I) if it is a Person
described in clause (A) above, it will furnish to the Depositor and
the Trustee a properly executed IRS Form W-9, and (II) if it is a
Person described in clause (B) above, it will furnish to the
Depositor and the Trustee a properly executed IRS Form W-8ECI, and
(III) if it is a Person described in clause (C) above, it will
furnish to the Depositor and the Trustee a properly executed IRS
Form W-8BEN (or, if the Purchaser is treated as a partnership for
federal income tax purposes, a properly executed IRS Form W-8IMY
with appropriate certification for all partners or members
attached). The Purchaser also agrees that it will provide a new IRS
form upon the expiration or obsolescence of any previously delivered
form, and that it will provide such other certifications,
representations or Opinions of Counsel as may be requested by the
Depositor and the Trustee.
(ix) The Purchaser agrees that if at some time in the future it
wishes to transfer or exchange any of the Call Warrants, it will not
transfer or exchange any of the Call Warrants unless such transfer
or exchange is in accordance with the terms of this Agreement and
other documents applicable to the Call Warrant. The Purchaser
understands that any purported transfer of the Call Warrants (or any
interest therein) in contravention of any of the restrictions and
conditions in the agreements, as applicable, shall be void, and the
purported transferee in such transfer shall not be recognized by any
Person as a holder of such Call Warrants, for any purpose.
SECTION 4.03. Notice of Proposed Transfer. Prior to any transfer of
any Call Warrant or portion thereof (other than to a Participant in compliance
with Rule 144A), the Warrant Holder will give five (5) Business Days (or such
lesser period acceptable to the Warrant Agent) prior written notice to the
Warrant Agent of such Warrant Holder's intention to effect such transfer. Each
transfer must relate to a whole number of Call Warrants.
ARTICLE V
REGISTRATION AND TRANSFER OF CALL WARRANTS, ETC.
SECTION 5.01. Warrant Register; Ownership of Call Warrants. The
Warrant Agent will keep a register in which the Warrant Agent will provide for
the registration of Call Warrants and the registration of transfers of Call
Warrants representing numbers of Call Warrants. The Warrant Agent may treat
the Person in whose name any Call Warrant is
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registered on such register as the owner thereof for all purposes, and the
Warrant Agent shall not be affected by any notice to the contrary.
SECTION 5.02. Transfer and Exchange of Call Warrants.
(a) Exchange of Global Call Warrant for Certificated Call Warrant.
If a Holder of a beneficial interest in a Call Warrant represented by a Global
Call Warrant wishes to exchange its interest in such Global Call Warrant for a
Certificated Call Warrant, or to transfer its interest in such Global Call
Warrant to a Person who wishes to take delivery thereof in the form of one or
more Certificated Call Warrants, such Holder may exchange, transfer or cause
the transfer of such Call Warrant upon receipt by the Warrant Agent of:
(i) instructions given in accordance with the Depository's
procedures from a Participant directing the Warrant Agent to reduce
the principal amount of the Global Call Warrant with instructions to
issue Certificated Call Warrants and
(ii) an Investor Representation Letter certifying that the
transfer is being made to a QIB in accordance with Rule 144A under
the Securities Act,
the Warrant Agent shall instruct the Depository to reduce the
principal amount of the Global Call Warrant; and the Warrant Agent shall
authenticate and deliver a Certificated Call Warrants in principal
amounts equal to the related reduction in principal amount of the Global
Call Warrant.
(b) Exchange of Certificated Call Warrant for Global Call Warrant.
If a Holder of Certificated Call Warrant wishes at any time to exchange its
interest in such Certificated Call Warrant for an interest in the
corresponding Global Warrant, or to transfer its interest in such Certificated
Call Warrant to a Person who wishes to take delivery thereof in the form of an
interest in the corresponding Global Call Warrant, upon receipt by the Warrant
Agent of:
(i) such Certificated Call Warrant properly endorsed for such
transfer and written instructions from such Warrant Holder directing
that the corresponding Global Call Warrant be credited with a
beneficial interest equal to the principal amount of such
Certificated Call Warrant,
(ii) a written order containing information regarding the
participant account with the Depositor to be credited with such
increase and any other information required by the Depositor, and
(iii) an Investor Representation Letter certifying that the
transfer is being made to a QIB in accordance with Rule 144A under
the Securities Act,
then the Warrant Agent shall cancel the Certificated Call Warrant,
record the transfer and instruct the Depository to credit or cause to be
credited to the securities account of the transferee beneficial interests
in the Call Warrants equal to the principal amount of the related
canceled Certificated Call Warrants.
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SECTION 5.03. Replacement of Call Warrants. Upon receipt of
evidence reasonably satisfactory to the Warrant Agent of the loss, theft,
destruction or mutilation of any Call Warrant and, in the case of any such
loss, theft or destruction of any Call Warrant, upon delivery of an indemnity
bond in such reasonable amount as the Warrant Agent may determine, or, in the
case of any such mutilation, upon the surrender of such Call Warrant for
cancellation to the Warrant Agent, the Warrant Agent shall execute and deliver
in lieu thereof, a new Call Warrant of like tenor bearing a number not
contemporaneously outstanding.
SECTION 5.04. Execution and Delivery of Call Warrants by Trustee.
The Warrant Agent hereby agrees (subject to compliance with Article IV) to
execute and deliver any new Call Warrants issued in accordance with Section
3.2 or this Article V.
ARTICLE VI
WARRANT AGENT
SECTION 6.01. Limitation on Liability. The Warrant Agent shall be
protected and shall incur no liability for or in respect of any action taken,
suffered or omitted by it in connection with its administration of the Call
Warrants in reliance upon any instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement or other paper or document in good faith believed by it
to be genuine and to be signed, executed and, where necessary, verified and
acknowledged, by the proper Person or Persons.
SECTION 6.02. Duties of Warrant Agent. The Warrant Agent undertakes
only the specific duties and obligations imposed hereunder upon the following
terms and conditions, by all of which the Depositor, the Trust, the Trustee
and each Warrant Holder shall be bound:
(a) The Warrant Agent may consult with legal counsel (who may be
legal counsel for the Warrant Originator), and the opinion of such counsel
shall be full and complete authorization and protection to the Warrant Agent
as to any action taken or omitted by it in good faith and in accordance with
such opinion, provided the Warrant Agent shall have exercised reasonable care
in the selection by it of such counsel.
(b) Whenever in the performance of its duties hereunder, the Warrant
Agent shall deem it necessary or desirable that any fact or matter be proved
or established prior to taking or suffering any action hereunder, such fact or
matter may be deemed to be conclusively proved and established by a Depositor
Order or a certificate signed by a Responsible Officer of the Trustee and
delivered to the Warrant Agent; and such certificate shall be full
authorization to the Warrant Agent for any action taken or suffered in good
faith by it hereunder in reliance upon such certificate.
(c) The Warrant Agent shall be liable hereunder only for its own
negligence, willful misconduct or bad faith.
(d) The Warrant Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained herein or be required to verify
the same.
C-11
(e) The Warrant Agent shall not have any responsibility in respect
of and makes no representation as to the validity of the Call Warrants or the
execution and delivery thereof (except the due execution hereof by the Warrant
Agent); nor shall it be responsible for any breach by any party of any
covenant or condition contained in the Call Warrants; nor shall it by any act
thereunder be deemed to make any representation or warranty as to the Called
Underlying Securities to be purchased thereunder.
(f) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Principal Executive Officer, Principal Financial Officer, President, Senior
Vice President, a Vice President, a Managing Director, a Director, Treasurer,
an Assistant Treasurer, Controller, an Assistant Controller, Secretary or an
Assistant Secretary of the Warrant Originator , and to apply to such officers
for advice or instructions in connection with its duties, and it shall not be
liable for any action taken or suffered to be taken by it in good faith in
accordance with instructions of any such officer.
(g) The Warrant Agent and any shareholder, director, officer or
employee of the Warrant Agent may buy, sell or deal in any of the Call
Warrants or otherwise act as fully and freely as though it were not Warrant
Agent hereunder, so long as such persons do so in full compliance with all
applicable laws. Nothing herein shall preclude the Warrant Agent from acting
in any other capacity for any other legal entity.
(h) The Warrant Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by
or through its attorneys or agents.
(i) The Warrant Agent shall act solely as the agent of the Warrant
Holders hereunder. The Warrant Agent shall not be liable except for the
failure to perform such duties as are specifically set forth herein, and no
implied covenants or obligations shall be read into the Call Warrants against
the Warrant Agent, whose duties shall be determined solely by the express
provisions thereof. The Warrant Agent shall not be deemed to be a fiduciary.
(j) The Warrant Agent shall not be under any obligation or duty to
institute, appear in or defend any action, suit or legal proceeding in respect
hereof, unless first indemnified to its satisfaction, but this provision shall
not affect the power of the Warrant Agent to take such action as the Warrant
Agent may consider proper, whether with or without such indemnity. The Warrant
Agent shall promptly notify the Warrant Originator in writing of any claim
made or action, suit or proceeding instituted against it arising out of or in
connection with the Call Warrants.
SECTION 6.03. Change of Warrant Agent. The Warrant Agent may resign
and be discharged from its duties hereunder upon thirty (30) days notice in
writing mailed to the Warrant Originator by registered or certified mail, and
to the Warrant Holders by first-class mail at the expense of the Warrant
Originator; provided, that, no such resignation or discharge shall become
effective until a successor Warrant Agent shall have been appointed hereunder.
The Warrant Originator may remove the Warrant Agent or any successor Warrant
Agent upon thirty (30) days notice in writing, mailed to the Warrant Agent or
successor Warrant Agent, as the case
C-12
may be, and to the Warrant Holders by first-class mail; provided, further,
that no such removal shall become effective until a successor Warrant Agent
shall have been appointed hereunder. If the Warrant Agent shall resign or be
removed or shall otherwise become incapable of acting, the Warrant Originator
shall promptly appoint a successor to the Warrant Agent, which may be
designated as an interim Warrant Agent. If an interim Warrant Agent is
designated, the Warrant Originator shall then appoint a permanent successor to
the Warrant Agent, which may be the interim Warrant Agent. If the Warrant
Originator shall fail to make such appointment of a permanent successor within
a period of thirty (30) days after such removal or within sixty (60) days
after notification in writing of such resignation or incapacity by the
resigning or incapacitated Warrant Agent or by the Warrant Holder, then the
Warrant Agent or registered Warrant Holder may apply to any court of competent
jurisdiction for the appointment of such a successor. Any successor to the
Warrant Agent appointed hereunder must be rated in one of the four highest
rating categories by the Rating Agencies. Any entity which may be merged or
consolidated with or which shall otherwise succeed to substantially all of the
trust or agency business of the Warrant Agent shall be deemed to be the
successor Warrant Agent without any further action.
SECTION 6.04. Warrant Agent Transfer Fee. The Warrant Agent will
assess a fee of $50.00 upon the issue of any new Call Warrant, such fee to be
assessed upon the new Call Warrant Holder.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Remedies. The remedies at law of the Warrant Holder
in the event of any default or threatened default by the Warrant Agent in the
performance of or compliance with any of the terms of the Call Warrants are
not and will not be adequate and, to the full extent permitted by law, such
terms may be specifically enforced by a decree for the specific performance of
any agreement contained herein or by an injunction against a violation of any
of the terms thereof or otherwise.
SECTION 7.02. Limitation on Liabilities of Warrant Holder. Nothing
contained in this Warrant Agent Agreement or the Call Warrants shall be
construed as imposing any obligation on the Warrant Holder to purchase any of
the Underlying Securities except in accordance with the terms hereof or
thereof.
SECTION 7.03. Notices. All notices and other communications under
this Warrant Agent Agreement shall be in writing and shall be delivered, or
mailed by registered or certified mail, return receipt requested, by a
nationally recognized overnight courier, postage prepaid, addressed (a) if to
any Warrant Holder, at the registered address of such Warrant Holder as set
forth in the register kept by the Warrant Agent or (b) if to the Warrant
Agent, to [o] or to such other address notice of which the Warrant Agent shall
have given to the Warrant Holder and the Trustee or (c) if to the Warrant
Originator to Select Asset Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000;
provided, that, the exercise of any Call Warrants shall be effective in the
manner provided in Article I. The Warrant Agent shall forward to the Warrant
Holder any notices received by it hereunder by facsimile within one Business
Day of receipt thereof.
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SECTION 7.04. Amendment.
(a) This Warrant Agent Agreement may be amended from time to time by
the Warrant Originator and the Warrant Agent without the consent of any
Warrant Holder, upon receipt of an opinion of counsel satisfactory to the
Warrant Agent that the provisions hereof have been satisfied and that such
amendment would not cause the Trust to be taxed as an association or publicly
traded partnership taxable as a Corporation under the Code, for any of the
following purposes: (i) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein or to provide for any other terms or modify any other
provisions with respect to matters or questions arising under the Call
Warrants which shall not adversely affect in any material respect the
interests of the Warrant Holders or any holder of a Certificate; provided,
however, that no amendment altering the timing or amount of any payment of the
Call Price shall be effected without the consent of each Warrant Holder; or
(ii) to evidence and provide for the acceptance of appointment hereunder of a
Warrant Agent other than [o].
(b) Without limiting the generality of the foregoing, any Call
Warrant may also be modified or amended from time to time by the Warrant Agent
with the consent of Warrant Holders of 66-2/3% of the outstanding Call
Warrants, upon receipt of an opinion of counsel satisfactory to the Warrant
Agent that the provisions hereof (including, without limitation, the following
proviso) have been satisfied, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Call
Warrants or of modifying in any manner the rights of the Warrant Holders;
provided, however, that no such amendment shall alter the terms on which Call
Warrants are exercisable or the amounts payable upon exercise of a Call
Warrant without the consent of the Trustee and 100% of the affected Warrant
Holders. Notwithstanding any other provision hereof or of the Call Warrants,
this Section 7.4(b) shall not be amended without the consent of 100% of the
affected Warrant Holders.
(c) Promptly after the execution of any such amendment or
modification, the Warrant Agent shall furnish a copy of such amendment or
modification to each Warrant Holder, to the Trustee and to the Rating
Agencies. It shall not be necessary for the consent of Warrant Holders to
approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization of the execution
thereof shall be subject to such reasonable regulations as the Warrant Agent
may prescribe. Any consent by a Warrant Holder (or any predecessor Warrant
Holder) shall be conclusive and binding on such Warrant Holder and upon all
future Warrant Holders of the same Call Warrant and of any Call Warrant issued
upon the transfer thereof or in exchange thereof or in lieu thereof, whether
or not notation of such consent is made upon the Call Warrant.
SECTION 7.05. Expiration. The right to exercise the Call Warrants
shall expire on the earliest to occur of (a) the cancellation thereof, (b) the
termination of the Trust Agreement, or (c) the liquidation, disposition, or
maturity of all of the Underlying Securities.
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SECTION 7.06. Descriptive Headings. The headings in this Warrant
Agent Agreement are for purposes of reference only and shall not limit or
otherwise affect the meaning hereof.
SECTION 7.07. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED
BY, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT
OF LAWS.
SECTION 7.08. Judicial Proceedings; Waiver of Jury. Any judicial
proceeding brought against the Warrant Originator or the Warrant Agent with
respect to this Warrant Agent Agreement may be brought in any court of
competent jurisdiction in the County of New York, State of New York or of the
United States of America for the Southern District of New York and, by
execution and delivery of the Call Warrants, the Warrant Agent (a) accepts,
generally and unconditionally, the nonexclusive jurisdiction of such courts
and any related appellate court, and irrevocably agrees that the Warrant
Originator and the Warrant Agent shall be bound by any judgment rendered
thereby in connection with this Warrant Agent Agreement or the Call Warrants,
subject to any rights of appeal, and (b) irrevocably waives any objection that
the Warrant Originator or the Warrant Agent may now or hereafter have as to
the venue of any such suit, action or proceeding brought in such a court or
that such court is an inconvenient forum.
SECTION 7.09. Nonpetition Covenant; No Recourse. Each of (i) the
Warrant Holder by its acceptance thereof, and (ii) the Warrant Agent agrees
that it shall not (and, in the case of the Warrant Holder, that it shall not
direct the Warrant Agent to), until the date which is one year and one day
after the exercise of or expiration of the Call Warrants, acquiesce, petition
or otherwise invoke or cause the Trustee, the Warrant Originator, or any such
other entity to invoke the process of the United States of America, any State
or other political subdivision thereof or any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government for the purpose of commencing or sustaining a case by or against
the Trustee, the Warrant Originator or any such other entity under a federal
or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official of the Trust, the Depositor or any such other entity or all or any
part of the property or assets of Trustee, the Warrant Originator or any such
other entity or ordering the winding up or liquidation of the affairs of the
Trustee, the Warrant Originator or any such other entity. Each of (i) the
Warrant Holder, by its acceptance thereof, and (ii) the Warrant Agent agrees
that it shall not have any recourse to the Trustee or the Warrant Originator.
C-15
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective duly authorized officers as of the date
first above written.
SELECT ASSET INC.,
as Warrant Originator
By:--------------------------------------
Name:
Title:
[o],
as Warrant Agent
By:-------------------------------------
Name:
Title:
C-16
EXHIBIT A
Investor Representation Letter
[o], as Warrant Agent
Ladies and Gentlemen:
We are delivering this letter in connection with our proposed transfer of
[o] Call Warrants relating to $[o] aggregate principal amount of [o]% [Notes]
[Debentures] (the "Underlying Securities") held by the [Select Asset Inc. [o]
[Note] [Debenture]-Backed Series 20[o]-[o] Trust] (the "Trust"). The Call
Warrants were issued under the warrant agent agreement (the "Warrant Agent
Agreement"), dated as of [o], 20[o] between Select Asset Inc., as Warrant
Originator and [o], as Warrant Agent.
Capitalized terms used but not defined in this letter have the respective
meanings ascribed to them in the Warrant Agent Agreement, dated as of [o] (the
"Warrant Agent Agreement"), by and between Select Asset Inc., as Warrant
Originator (the "Warrant Originator"), and [o], as Warrant Agent (the "Warrant
Agent").
(1) The Purchaser represents that in making its investment
decision to acquire the Call Warrants, the Purchaser has not relied
on representations, warranties, opinions, projections, financial or
other information or analysis, if any, supplied to it by any person,
including the Warrant Originator or Warrant Agent, or any of their
respective affiliates, except as expressly contained in written
information, if any.
(2) The Purchaser has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of an investment in the Call Warrants, and the
Purchaser is able to bear the substantial economic risks of such an
investment. The Purchaser has relied upon its own tax, legal and
financial advisors in connection with its decision to purchase the
Call Warrants.
(3) The Purchaser (i) is a QIB and (ii) is acquiring the Call
Warrants for its own account or for the account of an investor of
the type described in clause (i) above as to each of which the
Purchaser exercises sole investment discretion. The Purchaser is
purchasing the Call Warrants for investment purposes and not with a
view to, or for, the offer or sale in connection with, a public
distribution or in any other manner that would violate the
Securities Act or the securities or blue sky laws of any state.
C-A-1
(4) The Purchaser understands that the Call Warrants have not
been and will not be registered under the Securities Act or under
the securities or blue sky laws of any state, and that (x) if it
decides to resell, pledge or otherwise transfer any Security, such
resale, pledge or other transfer must comply with the provisions of
the Warrant Agent Agreement relating to the Call Warrants
(including, without limitation, the provisions of Section 4.1 of the
Warrant Agent Agreement) and (y) it will, and each subsequent holder
will be required to, notify any purchaser of any Call Warrant from
it of the resale restrictions referred to in clause (x) above.
(5) The Purchaser understands that each of the Call Warrants
will bear a legend described in Section 4.1 of the Warrant Agent
Agreement unless otherwise agreed by the Warrant Originator and the
Warrant Agent.
(6) The Purchaser understands that no subsequent transfer of
the Call Warrants is permitted unless (i) such transfer is of at
least 500 Call Warrants (or Call Warrants relating to $500,000
aggregate principal amount of Underlying Securities) and (ii) the
Purchaser causes the proposed transferee to provide to the Depositor
and the Trustee such documentation as may be required pursuant to
Section 4.1 of the Warrant Agent Agreement, or such other written
statement as the Warrant Agent shall reasonably prescribe.
(7) The Purchaser is a person or entity (a "Person") who is
either:
(A) (1) a citizen or resident of the United States, (2) a
corporation, partnership or other entity organized in or under the
laws of the United States or any political subdivision thereof, (3)
an estate the income of which is includible in gross income for
federal income tax purposes regardless of source, or (4) a trust if
a court within the United States is able to exercise primary
supervision of the administration of the trust and one or more
United States persons have the authority to control all substantial
decisions of the trust, or
(B) a Person not described in (A), whose ownership of such Call
Warrant is effectively connected with such Person's conduct of a
trade or business within the United States within the meaning of the
Internal Revenue Code of 1986, as amended (the "Code"), and its
ownership of any interest in such Call Warrant will not result in
any withholding obligation with respect to any payments with respect
to the Call Warrants by any Person (other than withholding, if any,
under Section 1446 of the Code), or
(C) a Person not described in (A) or (B) above, who is not a Person:
(1) that owns, directly or indirectly, 10% or more of the total
combined
C-A-2
voting power of all classes of stock in the Underlying Securities
Issuer (as defined in the Prospectus Supplement) entitled to vote,
(2) that is a controlled foreign corporation related to the
Underlying Securities Issuer within the meaning of Section 864(d)(4)
of the Code, or (3) that is a bank extending credit pursuant to a
loan agreement entered into in the ordinary course of its trade or
business.
(8) The Purchaser agrees that (I) if it is a Person described
in clause (A) above, it will furnish to the Depositor and the
Trustee a properly executed IRS Form W-9, and (II) if it is a Person
described in clause (B) above, it will furnish to the Depositor and
the Trustee a properly executed IRS Form W-8ECI, and (III) if it is
a Person described in clause (C) above, it will furnish to the
Depositor and the Trustee a properly executed IRS Form W-8BEN (or,
if the Purchaser is treated as a partnership for federal income tax
purposes, a properly executed IRS Form W-8IMY with appropriate
certification for all partners or members attached). The Purchaser
also agrees that it will provide a new IRS form upon the expiration
or obsolescence of any previously delivered form, and that it will
provide such other certifications, representations or Opinions of
Counsel as may be requested by the Depositor and the Trustee.
(9) The Purchaser agrees that if at some time in the future it
wishes to transfer or exchange any of the Call Warrants, it will not
transfer or exchange any of the Call Warrants unless such transfer
or exchange is in accordance with the terms of this Agreement and
other documents applicable to the Call Warrant. The Purchaser
understands that any purported transfer of the Call Warrants (or any
interest therein) in contravention of any of the restrictions and
conditions in the agreements, as applicable, shall be void, and the
purported transferee in such transfer shall not be recognized by any
Person as a holder of such Call Warrants, for any purpose.
Date:------------------------ ------------------------------------
[the Purchaser]
By:---------------------------------
Name:
Title:
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Reconciliation and tie between the Trust Agreement dated as of [_____], and
the Trust Indenture Act of 1939 as amended. This reconciliation does not
constitute part of Trust Agreement.
Trust Indenture Act Trust
of 1939 Section Agreement Section
310(a)(1) 7.07
(a)(2) 7.07
(a)(5) 7.07
310(b) 7.07
312(a) 7.15
313(a) 7.17
314(a) 3.10
(c)(1) 1.03
(c)(2) 1.03
(e) 1.03
315(a)(1) 7.01(a)
315(a)(2) 7.03(a)
315(b) 7.01(d)
315(d) 7.01(c)
316(a)(1)(A) 5.19
(a)(1)(B) 5.20
(b) 5.21
(c) 1.03(b)
317(a)(1) 5.18
(b) 5.13
318(a) 10.12
