OMNIBUS INSTRUMENT OF APPOINTMENT AND ACCEPTANCE OF
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(c)
This Agreement has been duly authorized, executed and delivered on
behalf of the Successor Trustee and constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms (subject to (i) applicable bankruptcy, insolvency,
receivership, reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (ii) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law).
enforceable in accordance with its terms (subject to (i) applicable bankruptcy, insolvency,
receivership, reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (ii) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law).
3.
Representations, Warranties and Covenants of the Predecessor Trustee. The
Predecessor Trustee hereby represents, warrants and covenants as of the date hereof and the
Effective Date that this Agreement has been duly authorized, executed and delivered on behalf of
the Predecessor Trustee and constitutes its legal, valid and binding obligation, enforceable in
accordance with its terms (subject to (i) applicable bankruptcy, insolvency, receivership,
reorganization, moratorium and other laws affecting the enforcement of creditors' rights
generally, and (ii) general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law).
Effective Date that this Agreement has been duly authorized, executed and delivered on behalf of
the Predecessor Trustee and constitutes its legal, valid and binding obligation, enforceable in
accordance with its terms (subject to (i) applicable bankruptcy, insolvency, receivership,
reorganization, moratorium and other laws affecting the enforcement of creditors' rights
generally, and (ii) general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law).
4.
Assignment of Interests in Certain Transaction Documents. With respect to each
Transaction, in connection with any insurance policy, mortgage insurance policy, pool insurance
policy, bond insurance policy or any other policy in which the trust formed under the related
Trust Agreement has an interest (each, an "Insurance Agreement" and collectively, the
"Insurance Agreements"), the Predecessor Trustee assigns as of the Effective Date any and all
interest it may have therein on behalf of each such trust to the Successor Trustee. To the extent
required in any Insurance Agreement, the Successor Trustee, from and after the Effective Date,
hereby (a) agrees to be bound by the terms of such Insurance Agreement, (b) makes any
representations required therein to be made in connection with such assignment, and (c) assumes
all rights and obligations as assignee thereunder.
policy, bond insurance policy or any other policy in which the trust formed under the related
Trust Agreement has an interest (each, an "Insurance Agreement" and collectively, the
"Insurance Agreements"), the Predecessor Trustee assigns as of the Effective Date any and all
interest it may have therein on behalf of each such trust to the Successor Trustee. To the extent
required in any Insurance Agreement, the Successor Trustee, from and after the Effective Date,
hereby (a) agrees to be bound by the terms of such Insurance Agreement, (b) makes any
representations required therein to be made in connection with such assignment, and (c) assumes
all rights and obligations as assignee thereunder.
5.
Notices and Deliverables. The Predecessor Trustee covenants to provide, or
cause to be provided, all requisite notices and copies of this Agreement under each Trust
Agreement (including notices and copies of this Agreement required to be provided by the
Appointing Party) related to the resignation of the Predecessor Trustee and from the Ancillary
Trust Roles and the appointment of the Successor Trustee for each Transaction to each party to
whom the related Trust Agreement requires notice regarding the resignation to be given and at
the addresses for notices set forth in such Trust Agreement. The Successor Trustee hereby
agrees to provide notice, including any notice required to be provided by the Appointing Party,
of its appointment as Successor Trustee and in the related Ancillary Trust Roles for each
Transaction to each party to whom the related Trust Agreement requires notice regarding such
appointment to be given.
Agreement (including notices and copies of this Agreement required to be provided by the
Appointing Party) related to the resignation of the Predecessor Trustee and from the Ancillary
Trust Roles and the appointment of the Successor Trustee for each Transaction to each party to
whom the related Trust Agreement requires notice regarding the resignation to be given and at
the addresses for notices set forth in such Trust Agreement. The Successor Trustee hereby
agrees to provide notice, including any notice required to be provided by the Appointing Party,
of its appointment as Successor Trustee and in the related Ancillary Trust Roles for each
Transaction to each party to whom the related Trust Agreement requires notice regarding such
appointment to be given.
6.
Liabilities and Responsibilities. The Predecessor Trustee shall retain continued
responsibility and liability for its actions and omissions as Trustee and in any Ancillary Trust
Roles pursuant to the terms of the Transaction Documents for each Transaction prior to the
Effective Date. The Successor Trustee shall be responsible and liable for its actions and
omissions as Successor Trustee and in any Ancillary Trust Roles under the Transaction
Documents for each Transaction on or after the Effective Date and the parties hereto
acknowledge and agree that the Predecessor Trustee shall be released from any obligations or
liabilities relating to such actions or omissions arising on or after such Effective Date. Nothing
Roles pursuant to the terms of the Transaction Documents for each Transaction prior to the
Effective Date. The Successor Trustee shall be responsible and liable for its actions and
omissions as Successor Trustee and in any Ancillary Trust Roles under the Transaction
Documents for each Transaction on or after the Effective Date and the parties hereto
acknowledge and agree that the Predecessor Trustee shall be released from any obligations or
liabilities relating to such actions or omissions arising on or after such Effective Date. Nothing
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in this Section 6 shall override any agreements or provisions set forth in the agreements between
the Successor Trustee and Predecessor Trustee in connection with the acquisition by the
Successor Trustee of the securitization trust administration business of the Predecessor Trustee,
including (without limitation) agreements with respect to reporting obligations, if any, pursuant
to Regulation AB promulgated by the U.S. Securities and Exchange Commission under the
Securities Act of 1933.
the Successor Trustee and Predecessor Trustee in connection with the acquisition by the
Successor Trustee of the securitization trust administration business of the Predecessor Trustee,
including (without limitation) agreements with respect to reporting obligations, if any, pursuant
to Regulation AB promulgated by the U.S. Securities and Exchange Commission under the
Securities Act of 1933.
7.
Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE
OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN
THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HERETO AND THE RELATED SECURITY HOLDERS FOR EACH
TRANSACTION SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS
WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF (OTHER
THAN THE PROVISIONS OF SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW, WHICH SHALL BE APPLICABLE HERETO).
OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN
THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HERETO AND THE RELATED SECURITY HOLDERS FOR EACH
TRANSACTION SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS
WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF (OTHER
THAN THE PROVISIONS OF SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW, WHICH SHALL BE APPLICABLE HERETO).
8.
Effect on Trust Agreement. In no event shall this Agreement be construed as a
modification, waiver or amendment of the terms of the Trust Agreement by any party thereto or
by the securityholders for each Transaction.
by the securityholders for each Transaction.
9.
Corporate Trust Office. References to the address of the Trustee or to the
Corporate Trust Office (as defined in each Trust Agreement) shall be deemed to refer to the
corporate trust office of the Successor Trustee which is presently located at 000 Xxxxx XxXxxxx
Xxxxxx, XX-XX-XX0X, Xxxxxxx, XX 00000, Attention: U.S. Bank Structured Finance.
corporate trust office of the Successor Trustee which is presently located at 000 Xxxxx XxXxxxx
Xxxxxx, XX-XX-XX0X, Xxxxxxx, XX 00000, Attention: U.S. Bank Structured Finance.
10.
Counterparts. This Agreement may be executed in any number of counterparts
each of which shall be an original, but such counterparts shall together constitute but one and the
same instrument. Delivery by a party hereto of an executed counterpart of this Agreement by
facsimile or similar electronic means shall be deemed effective as delivery of the original
executed counterpart by such party for purposes of execution hereof.
same instrument. Delivery by a party hereto of an executed counterpart of this Agreement by
facsimile or similar electronic means shall be deemed effective as delivery of the original
executed counterpart by such party for purposes of execution hereof.
[signatures appear on the following pages]
Date: December 16, 2011
U.S. BANK NATIONAL ASSOCIATION,
a national banking association, as Successor
Trustee and for the Ancillary Trustee Roles
for each Transaction
By:
/s/Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
BANK OF AMERICA, N.A., a national
banking association, as successor by merger
to LaSalle Bank National Association, a
national banking association, not in its
individual capacity, but solely as
Predecessor Trustee
By:
/s/Xxxxxxx Xxxxxxxxxx
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
MS STRUCTURED ASSET CORP., as
Appointing Party
By:
/s/In-Young Chase
Name: In-Young Chase
Title: Vice President
[certain acknowledgements appear on the following pages]
ACKNOWLEDGED:
Citadel Equity Fund as Swap Counterparty
By: /s/Xxxxx Xxxxx
Citadel Equity Fund as Swap Counterparty
By: /s/Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Authorized Signatory
Barclays Bank plc as Swap Counterparty
By: /s/X. Xxxxxxxxx
Name: X. Xxxxxxxxx
Title: M.D.
King Street Capital, L.P. as Swap
Counterparty
By: King Street Capital Management, L.P.
Its Investment Manager
By: /s/Xxx Xxxx
Name: Xxx Xxxx
Title: Chief Financial Officer
King Street Master Fund, Ltd. as Swap
Counterparty
By: King Street Capital Management, L.P.
Its Investment Manager
By: /s/Xxx Xxxx
Name: Xxx Xxxx
Title: Chief Financial Officer
Ionic Capital as Swap Counterparty
By: Ionic Capital Partners LP, its Investment
Advisor
By: Ionic Capital Management LLC, its
General Partner
By: /s/Xxxx Xxxxxxxxxx
Name: Xxxx Xxxxxxxxxx
Title: General Counsel
Deutsche Bank Securities as Swap
Counterparty
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Associate
Highbridge International LLC as Swap
Counterparty
By Highbridge Capital Management, LLC
as Trading Manager and not in its individual
capacity
By: /s/Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Managing Director
Hare & Co as Swap Counterparty
By: /s/Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Associate
Blue Mountain Credit Alternatives Fund LP As
Swap Counterparty and by BlueMountain
Capital Management LLC
Swap Counterparty and by BlueMountain
Capital Management LLC
By: /s/Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Deputy Head of Operations
Sch. 1
Xxxxxx Xxxxxxx & Co. LLC
as Swap Counterparty
By: /s/In-Young Chase
Name: In-Young Chase
Title: Vice President
Xxxxxx Xxxxxxx & Co. International plc as Swap Counterparty
By: /s/Xxx Xxxxxxxxx
Name: Xxx Xxxxxxxxx
Title: Vice President
To the extent applicable under each of the transactions listed on Schedule 1:
Xxxxxx Xxxxxxx & Co. LLC as Guarantor
By: /s/In-Young Chase
Name: In-Young Chase
Title: Vice President
Sch. 1
Schedule 1
List of Transactions
1.
Transaction: Structured Asset Trust Unit Repackagings No. 2001-6 (Bank of America)
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Xxxxxx Xxxxxxx & Co. International plc
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Xxxxxx Xxxxxxx & Co. International plc
2.
Transaction: Structured Asset Trust Unit Repackagings No. 2002-11 (AIG)
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Xxxxxx Xxxxxxx & Co. International plc
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Xxxxxx Xxxxxxx & Co. International plc
3.
Transaction: Structured Asset Trust Unit Repackagings No. 2003-1 (Sears Xxxxxxx
Acceptance Corp.)
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Citadel Equity Fund, Ltd
Acceptance Corp.)
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Citadel Equity Fund, Ltd
4.
Transaction: Structured Asset Trust Unit Repackagings CBT Series 2003-1
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Xxxxxx Xxxxxxx & Co. International plc
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Xxxxxx Xxxxxxx & Co. International plc
5.
Transaction: Structured Asset Trust Unit Repackagings No. 2003-6 (Goldman)
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Highbridge International LLC.
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Highbridge International LLC.
6.
Transaction: Structured Asset Trust Unit Repackagings No. 2003-7 (May Department
Stores)
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Xxxxxx Xxxxxxx & Co. LLC
Stores)
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Xxxxxx Xxxxxxx & Co. LLC
7.
Transaction: Structured Asset Trust Unit Repackagings No. 2003-15 (The Hertz
Corporation)
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Xxxxxx Xxxxxxx & Co. LLC.
Corporation)
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Xxxxxx Xxxxxxx & Co. LLC.
8.
Transaction: Structured Asset Trust Unit Repackagings No. 2004-2 (Goldman)
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Barclays Bank PLC
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Barclays Bank PLC
9.
Transaction: Structured Asset Trust Unit Repackagings No. 2004-4 (Goldman)
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Citadel Equity Fund, Ltd and Blue Mountain Credit Alternatives
Fund LP
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Citadel Equity Fund, Ltd and Blue Mountain Credit Alternatives
Fund LP
10.
Transaction: Structured Asset Trust Unit Repackagings No. 2004-6 (Goldman)
Sch. 1
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: King Street Capital, L.P., King Street Capital Master Fund, Ltd
and Hare and Co
Acknowledged Parties: King Street Capital, L.P., King Street Capital Master Fund, Ltd
and Hare and Co
11.
Transaction: Structured Asset Trust Unit Repackagings No. 2005-1 (Goldman)
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Xxxxxx Xxxxxxx & Co. LLC
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Xxxxxx Xxxxxxx & Co. LLC
12.
Transaction: Structured Asset Trust Unit Repackagings No. 2005-2 (Aon Capital)
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Xxxxxx Xxxxxxx & Co. LLC
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Xxxxxx Xxxxxxx & Co. LLC
13.
Transaction: Structured Asset Trust Unit Repackagings No. 2005-3 (Limited Brands
Inc.)
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Xxxxxx Xxxxxxx & Co. LLC
Inc.)
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Xxxxxx Xxxxxxx & Co. LLC
14.
Transaction: Structured Asset Trust Unit Repackagings No. 2006-2 (Cummins Engine
Company)
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Xxxxxx Xxxxxxx & Co. LLC
Company)
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Xxxxxx Xxxxxxx & Co. LLC
15.
Transaction: Structured Asset Trust Unit Repackagings No. 2007-1 (X.X. Xxxxxx
Company, Inc.)
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Ionic Capital Master Fund LTD and Deutsche Bank Securities
Inc.
Company, Inc.)
Appointing Party: Xxxxxx Xxxxxxx Structured Asset Corp
Acknowledged Parties: Ionic Capital Master Fund LTD and Deutsche Bank Securities
Inc.