[Execution Copy]
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BASE TRUST AGREEMENT
between
PRUDENTIAL SECURITIES STRUCTURED ASSETS, INC.
Depositor
and
THE BANK OF NEW YORK
Trustee
Dated as of August 28, 1997
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TABLE OF CONTENTS
ARTICLE I
Definitions and Assumptions
Section 1.1. Definitions.........................................1
Section 1.2. Rules of Construction..............................11
ARTICLE II
Declaration of Trusts; Issuance of Certificates
Section 2.1. Creation and Declaration of Trusts;
Assignment of Term Assets.........................12
Section 2.2. Acceptance by Trustee..............................12
Section 2.3. Repurchase or Substitution of Certain Term Assets..12
Section 2.4. Representations and Warranties of the Depositor....13
Section 2.5. Breach of Representation, Warranty or Covenant.....14
Section 2.6. Agreement to Execute, Authenticate and Deliver
Certificates......................................14
Section 2.7. Statement of Intent................................14
ARTICLE III
Administration of each Trust
Section 3.1. Administration of each Trust.......................14
Section 3.2. Collection of Certain Term Asset Payments..........15
Section 3.3. Certificate Account................................15
Section 3.4. Investment of Funds in the Accounts................16
Section 3.5. Maintenance of Credit Support......................17
Section 3.6. In-Kind Distribution Events........................17
Section 3.7. Retained Interest..................................18
Section 3.8. [Intentionally omitted]............................18
Section 3.9. Access to Certain Documentation....................18
Section 3.10. Depositor to Furnish Names and Addresses of
Holders to Trustee................................18
Section 3.11. Preservation of Information, Communications
to Holders........................................18
Section 3.12. Reports by Trustee.................................19
ARTICLE IV
Distributions and Reports to Certificateholders
Section 4.1. Distributions......................................19
Section 4.2. Reports to Certificateholders......................19
Section 4.3. Compliance with Withholding Requirements...........20
Section 4.4. No Charge for Reports to Certificateholders........20
ARTICLE V
The Certificates
Section 5.1. The Certificates...................................20
Section 5.2. Execution, Authentication and Delivery.............23
Section 5.3. Temporary Certificates.............................24
Section 5.4. Registration; Registration of Transfer
and Exchange......................................24
Section 5.5. Mutilated, Destroyed, Lost and Stolen Certificates.26
Section 5.6. Distributions on Certificate; Rights Preserved.....27
Section 5.7. Persons Deemed Owners..............................27
Section 5.8. Cancellation.......................................28
Section 5.9. Global Securities..................................28
Section 5.10. Notices to Depositary..............................28
Section 5.11. Definitive Certificates............................29
Section 5.12. Currency of Distributions in Respect of
Certificates......................................29
Section 5.13. Conditions of Authentication and Delivery
of New Series.....................................30
Section 5.14. Appointment of Paying Agent........................30
Section 5.15. Authenticating Agent...............................31
Section 5.16. Optional Exchange..................................32
ARTICLE VI
The Depositor
Section 6.1. Preparation and Filing of Exchange Act Reports;
Obligations of the Depositor......................32
Section 6.2. Merger or Consolidation of the Depositor...........33
Section 6.3. Limitation on Liability of the Depositor...........34
Section 6.4. Depositor May Purchase Certificates................34
Section 6.5. Preferential Collection of Claims Against
Depositor.........................................34
ARTICLE VII
Concerning the Trustee
Section 7.1. Duties of Trustee; Notice of Defaults..............34
Section 7.2. Certain Matters Affecting the Trustee..............36
Section 7.3. Trustee Not Liable for Recitals in Certificates
or Term Assets....................................37
Section 7.4. Trustee May Own Certificates.......................37
Section 7.5. Trustee's Fees and Expenses; Indemnification;
Undertaking for Costs.............................37
Section 7.6. Eligibility Requirements for Trustee...............38
Section 7.7. Resignation or Removal of the Trustee..............38
Section 7.8. Successor Trustee..................................39
Section 7.9. Merger or Consolidation of Trustee.................39
Section 7.10. Appointment of Co-Trustee or Separate Trustee......39
Section 7.11. Appointment of Office or Agency....................40
Section 7.12. Representations and Warranties of Trustee..........40
Section 7.13. Trustee to Act Only in Accordance With This
Agreement or Pursuant to Instructions of
Certificateholders................................41
Section 7.14. Accounting and Reports to Certificateholders,
Internal Revenue Service and Others...............41
ARTICLE VIII
Termination
Section 8.1. Termination upon Purchase or Liquidation of
All Term Assets...................................41
ARTICLE X
Miscellaneous Provisions
Section 9.1. Amendment..........................................42
Section 9.2. Counterparts.......................................43
Section 9.3. Limitation on Rights of Certificateholders.........43
Section 9.4. Governing Law......................................43
Section 9.5. Notices............................................43
Section 9.6. Severability of Provisions.........................44
Section 9.7. Notice to Rating Agency............................44
Section 9.8. Grant of Security Interest.........................44
Section 9.9. Nonpetition Covenant...............................45
Section 9.10. No Recourse........................................45
Section 9.11. Article and Section References.....................45
Section 9.12. Conflict with Trust Indenture Act..................45
BASE TRUST AGREEMENT dated as of August 28, 1997,
between Prudential Securities Structured Assets, Inc., a Delaware
corporation, as Depositor, and The Bank of New York, a New York
banking corporation, as Trustee.
PRELIMINARY STATEMENT
The Depositor and the Trustee have duly authorized the
execution and delivery of this Base Trust Agreement to provide
for one or more Series (and one or more Classes within each such
Series) of Trust Certificates, issuable from time to time as
provided in this Agreement. Each such Series (or each Class
within such Series) of Certificates will be issued only under a
separate Series Supplement to this Agreement duly executed and
delivered by the Depositor, if any, specified in the applicable
Series Supplement, and the Trustee. 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. The Depositor is entering into this Agreement,
and the Trustee is accepting the trusts created hereby, for good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged. All terms defined herein shall have
meanings solely with respect to the particular Series Supplement
in which these provisions are incorporated. Incorporation of
these provisions into a Series Supplement is for convenience
only, and each Trust created by a Series Supplement shall be a
legally separate and distinct Trust from any other Trust created
by any other Series Supplement into which these provisions may
also be incorporated. These provisions shall by themselves be of
no force and effect, and shall only have effect as and to the
extent incorporated by reference in a Series Supplement. The
Series Supplement into which this Base Trust Agreement is
incorporated by reference shall together constitute a single
trust agreement and are referred to herein as the "Trust
Agreement". In the event of a conflict between any Series
Supplement, including the Terms Schedule attached thereto, and
this Base Trust Agreement, the Series Supplement shall control.
ARTICLE I
Definitions and Assumptions
Section 1.1. Definitions. Except as otherwise
specified herein or in the applicable Series Supplement or as the
context may otherwise require, the following terms have the
respective meanings set forth below for all purposes of this
Agreement.
"Account": As defined in Section 3.4.
"Accounting Date": 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.
"Agreement": With respect to any Series of
Certificates, this Trust Agreement and all amendments hereof and,
unless the context otherwise requires, the related Series
Supplement.
"Authenticating Agent": As defined in Section 5.15.
"Authorized Newspaper": A newspaper in an official
language of the country of publication customarily published at
least once a day, and customarily published for at least five
days in each calendar week, and of general circulation in such
city or cities specified pursuant to Section 5.1 with respect to
the Certificates of any Series. Where successive publications are
required to be made in Authorized Newspapers, the successive
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publications may be made in the same or in different newspapers
in the same city meeting the foregoing requirements and in each
case on any Business Day in such city.
"Available Funds": Unless otherwise specified in the
applicable Series Supplement, for any Distribution Date in
respect of a given Series or Class, the sum of (i) all amounts
actually received on or with respect to the Term Assets
(including Liquidation Proceeds and investment income on amounts
in the Accounts) with respect to such Series during the related
Collection Period, (ii) all amounts received pursuant to any
Credit Support Instruments with respect to such Series for such
Distribution Date and (iii) all other amounts, if any, specified
by the applicable Series Supplement; in each case, only to the
extent that such amounts are same day funds.
"Basic Documents": With respect to any Series, if
applicable, as defined in the related Series Supplement.
"Board of Directors": Either the Board of Directors of
the Depositor or any executive or committee of such Board duly
authorized under applicable law to act on behalf of such Board.
"Board Resolution": A copy of a resolution certified
by the Secretary or an Assistant Secretary of the Depositor to
have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification and
delivery to the Trustee.
"Business Day": With respect to any Place of
Distribution specified pursuant to Section 5.1, any day that is
not a Saturday or a Sunday 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.
"Calculation Agent": With respect to each Series, as
defined in the related Series Supplement.
"Certificate Account": As defined in Section 3.3.
"Certificate Owners": As defined in Section 5.9.
"Certificate Principal Balance": With respect to an
Outstanding Certificate, as determined at any time, the maximum
amount that the Holder thereof is entitled to receive as
distributions allocable to principal payments on the Term Assets.
The Certificate Principal Balance, if any, of any Class within a
given Series (other than those Classes, if any, specified in the
related Series Supplement), as of any date of determination,
shall be equal to the aggregate initial Certificate Principal
Balance thereof less the sum of all amounts allocable to prior
distributions made to such Class in respect of principal of the
Term Assets.
"Certificate Register" and "Certificate Registrar": As
respectively defined in Section 5.4.
"Certificateholder": Any Holder of a Certificate.
"Certificates": Any Trust Certificates authorized by,
and authenticated and delivered under, this Agreement.
"Class": With respect to any Series, any one of the
classes of Certificates of such Series, each consisting of
Certificates having identical terms.
"Closing Date": With respect to any Series, the day on
which Certificates of such Series are first executed, authenticated
and delivered.
"Code": The Internal Revenue Code of 1986, as amended,
and Treasury Regulations promulgated thereunder.
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"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 U.S. Securities and Exchange Commission.
"Corporate Trust Office": The principal corporate
trust office of the Trustee located at the address set forth in
the related Series Supplement or such other addresses as the
Trustee may designate from time to time by notice to the Holders
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, 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 Term Assets for such Series or
Class, which in each case is specified as such in the related
Series Supplement. The Credit Support for any such Series or the
related Trust shall not constitute a Credit Support for any other
Series or any other Trust
"Credit Support Instrument": The instrument or
document pursuant to which the Credit Support for a given Series
(or any Class within such Series) is provided, as specified in
the applicable Series Supplement.
"Credit Support Provider": With respect to any Series
(or any Class within such Series), the Person, if any, that will
provide any Credit Support with respect to all or a portion of
the Term Assets for such Series or Class as specified in the
applicable Series Supplement.
"Currency": Dollars or Foreign Currency.
"Cut-off Date": With respect to any Series, the date
specified as such in the related Series Supplement. For purposes
of this Agreement, any Term Asset acquired by the Depositor after
the applicable Cutoff Date but prior to the applicable Closing
Date and included in the related Trust as of such Closing Date
shall be deemed to have been Outstanding as of such Cut-off Date
and references to the principal balance of such Term Asset as of
such Cut-off Date shall be deemed to be to the principal balance
of such Term Asset as of the date on which it was acquired by the
Depositor.
"Definitive Certificates": As defined in Section 5.9.
"Deleted Term Asset": A Term Asset replaced or to be
replaced by a Qualified Substitute Term Asset.
"Deliver" (and with correlative meaning, "delivers,"
"delivery" or "delivered"): when used with respect to any security:
(a) with respect to any security that is a
"certificated security" (as defined in Section 8-102 of the UCC)
transfer thereof:
(i) by physical delivery of such certificated
security to the Trustee, provided that if the certificated
security is in registered form, it shall be indorsed to, or
registered in the name of, the Trustee or indorsed in blank;
(ii) by physical delivery of such certificated
security, provided that it is in registered form, to an
Intermediary of the Trustee that is not a "clearing corporation"
(as defined in Section 8-102 of the UCC) specially indorsed to
the Trustee and thereafter reregistered in the name of the
Trustee; or
(iii) the crediting by an Intermediary of such
certificated security to a securities account of the Trustee and,
to the extent required by applicable law, the sending by such
Intermediary, if not a
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clearing corporation, of a confirmation of the purchase of such
security and the identification by such Intermediary by book
entry of the security as belonging to the Trustee;
(b) with respect to any security that is either a
certificated security or an uncertificated security (each, as
defined in Section 8-102 of the UCC) credited on the books of a
clearing corporation, transfer thereof:
(i) by the crediting of such security to (i) a
securities account of the Trustee or (ii) a securities account of
an Intermediary of the Trustee and the crediting by such
Intermediary of such security to a securities account of the
Trustee; and
(ii) to the extent required by applicable law,
(A) in the case of a security (1) that is
a certificated security, by the custody of such security
by the clearing corporation or a custodian or a nominee
of either subject to the control of the clearing corporation
and such security being in bearer form or indorsed in
blank by an appropriate person or registered in the name of the
clearing corporation or custodian or a nominee of either, and (2)
that is an uncertificated security, by the registration of such
security in the name of a clearing corporation or a custodian or
nominee of either and
(B) by (1) the making of appropriate entries
on the books of the clearing corporation reducing the account of a
transferor on the books of the clearing corporation and increasing
the account of the Trustee or its designee, if any (which shall be
an Intermediary), by the amount of the obligation or the number of
shares or rights transferred, (2) the sending by the designee, if any,
to the Trustee of confirmation of the purchase of such security by
the Trustee and (3) the identification by such Intermediary by book
entry of such security as belonging to the Trustee;
(c) with respect to any security that is a security
maintained in the form of an entry in the records of a Federal
Reserve Bank, (x) the crediting by such Federal Reserve Bank in
its records of such security to the securities account of the
Intermediary and (y) the crediting by such Intermediary of such
security to a securities account of the Trustee;
(d) with respect to any security that is an uncertificated
security and that is not governed by clause (b) or (c) above, transfer
thereof
(i) by registration of the transfer thereof to the
Trust, on the books and records of the issuer thereof; or
(ii) by the crediting by an Intermediary of such
security to a securities account of the Trustee and, to the
extent required by applicable law, the sending by such
Intermediary of a confirmation of the purchase of such security
and the identification by such Intermediary by book entry of the
security as belonging to the Trustee;
(e) with respect to any "instrument" within the
meaning of Section 9-105(a)(9) of the UCC (other than
certificated securities) that is susceptible of physical
delivery, transfer thereof to the Trust by physical delivery to
the Trustee, indorsed to the Trustee or its nominee or indorsed
in blank; and
(f) with respect to any deposit account with a
commercial bank located in New York, the establishment of such
account in the name of the Trustee, with the funds in such
account payable at maturity to an account of the Trustee.
Notwithstanding the foregoing, with respect to each of
the provisions of paragraphs (a) through (e), delivery may be
effected by such additional or alternative procedures as may
hereafter become appropriate to effect the complete transfer of
ownership of any such security to the Trustee free and clear of
any adverse claims, consistent with changes in applicable law or
regulation or the interpretation thereof.
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"Depositary": With respect to the Certificates of any
Series (or Class within such Series) issuable in whole or in part
in the form of one or more Global Securities, the Person designated
as Depositary by the Depositor pursuant to Section 5.1 until a
successor Depositary shall have become such pursuant to the
applicable provisions of this Agreement, and thereafter
"Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one
such Person, "Depositary" as used with respect to the
Certificates of any such Series or Class shall mean the
Depositary with respect to the Certificates of that Series or
Class.
"Depositor": Prudential Securities Structured Assets,
Inc., a Delaware corporation, and, if a successor Person shall
have become the Depositor pursuant to any applicable provisions
of this Agreement, "Depositor" shall mean such successor Person.
"Depositor Order" or "Depositor Request": A written
order or request, respectively, signed in the name of the
Depositor by any two of its Chief Executive Officer, Chief
Financial Officer, Chief Operating Officer, President, a Vice
President, its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary and delivered to the Trustee; provided
that (i) any such order or request shall be signed by either the
President or a Vice President and (ii) no person may sign in a
dual capacity.
"Depository Agreement": If applicable, the agreement
pursuant to which the Depositary will agree to act as Depositary
with respect to any Series (or Class within such Series) of
Certificates in accordance with Section 5.9.
"Distribution Date": With respect to any Series (or
Class within such Series) of Certificates, each date specified as
a "Distribution Date" for such Series (or Class) in the related
Series Supplement.
"Dollar" or "$" or "USD": Such currency of the United
States as at the time of payment is legal tender for the payment
of public and private debts.
"Eligible Account": Either (i) an account or accounts
maintained with a Federal or State chartered depository
institution or trust company the long term unsecured debt
obligations of which are rated by the Rating Agency the higher of
(w) at least the then current long-term rating of the Term Assets
or (x) in one of its two highest long-term rating categories
(unless otherwise specified in the Series Supplement) at the time
any amounts are held in deposit therein or (ii) a trust account
or accounts maintained as a segregated account or as segregated
accounts and held by a Federal or State chartered depository
institution or trust company in trust for the benefit of the
Certificateholders, provided, however, that such depositary
institution or trust company (y) has a long-term rating in one of
the four highest categories by the Rating Agency or (z) is the
Trustee.
"Exchange Act": The Securities Exchange Act of 1934, as
amended.
"Exchange Act Reports": As defined in Section 6.1 hereof.
"Exchange Rate Agent": With respect to any Series (or
Class within such Series) of Certificates, if applicable, the
Depositor or its agent so specified in the related Series
Supplement.
"Executive Officer": With respect to any corporation
other than the Trustee, the Chief Executive Officer, Chief
Operating Officer, Chief Financial Officer, President, any Vice
President, the Secretary or the Treasurer of such corporation;
with respect to the Trustee, any Vice President, any Assistant
Vice President or any Assistant Treasurer; with respect to any
partnership, any general partner thereof.
"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.
5
"Global Security": A Certificate evidencing all or part of
a Series (or Class within such Series) of Certificates, issued to
the Depositary for such Series or Class in accordance with
Section 5.9 and bearing the legend prescribed therein.
"Grant": To sell, convey, assign, transfer, deposit,
set over and confirm to the Trustee pursuant to this Agreement
and a related Series Supplement; and the terms "Granted" and
"Granting" have the meanings correlative to the foregoing. A
Grant of any Term Assets or of any other instrument shall include
all rights, powers and options (but none of the obligations) of
the Granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt
for principal, premium, if any, and interest payments in respect
of such Term Assets and all other moneys payable thereunder, to
give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options,
to bring Proceedings in the name of the Granting party or
otherwise, and generally to do and receive anything that the
Granting party is or may be entitled to do or receive thereunder
or with respect thereto.
"Holder": The registered holder of a Certificate.
"In-Kind Distribution": A distribution by the Trustee
of certain Term Assets pursuant to Section 3.6 hereof and the
Series Supplement.
"Independent": When used with respect to any specified
Person means that the Person specifies he or she (1) is in fact
independent of the Depositor and of any Affiliate of the
Depositor, (2) does not have any direct or indirect financial
interest in the Depositor or in any Affiliate of the Depositor
that is material with respect to such Person and (3) is not
connected with the Depositor, as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing
similar functions.
"Independent Certificate" means a certificate of an
Independent Person, as required by the TIA.
"Institutional Accredited Investor" means an
institutional "accredited investor" as defined in Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act.
"Intermediary" shall mean a clearing corporation or a
person, including a bank or broker, that in the ordinary course
of its business maintains securities accounts for others and is
acting in that capacity.
"Investment Company Act" means the Investment Company Act
of 1940, as amended.
"Letter of Credit": With respect to any Series or
Class within such Series, the letter of credit, if any, providing
for the payment of all or a portion of amounts due in respect of
such Series or Class, issued to the Trustee for the benefit of
the Holders of such Series or Class, issued by the related Credit
Support Provider, all as specified in the related Series
Supplement.
"Limited Guarantor": With respect to the Term Assets
relating to any Series (or Class within such Series), a Person
specified in the related Series Supplement as providing a
guarantee or insurance policy or other credit enhancement
supporting the distributions in respect of such Series (or Class)
as and to the extent specified in such Series Supplement.
"Limited Guaranty": With respect to any Series or
Class within such Series, any guarantee of or insurance policy or
other comparable form of credit enhancement with respect to
amounts required to be distributed in respect of such Series or
Class or payments under all or certain of the Term Assets
relating to such Series or Class, executed and delivered by a
Limited Guarantor in favor of the Trustee, for the benefit of the
Certificateholders, as specified in the related Series
Supplement.
"Liquidation Proceeds": The amounts received by the
Trustee in connection with the repurchase, substitution or sale of
a Term Asset.
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"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
payable on the Term Assets.
"Officer's Certificate": A certificate signed by any
one (or, if specified in this Agreement or any Series Supplement,
more than one) Executive Officer of the Depositor or, in the case
of the Trustee, a Responsible Officer.
"Opinion of Counsel": A written opinion of counsel,
who may, except as otherwise expressly provided in this
Agreement, be counsel for the Depositor acceptable to the
Trustee, except that any opinion of counsel relating to (i)
federal income tax characterization, (ii) the Investment Company
Act, and (iii) the qualification of any account required to be
maintained pursuant to this Agreement as an Eligible Account must
state that it is an opinion of counsel who is in fact Independent
of the Depositor.
"Outstanding": With respect to Certificates of a
specified Series (or Class within such Series), as of any date of
determination, all such Certificates theretofore authenticated
and delivered under this Agreement and the related Series
Supplement except:
(i) Certificates theretofore canceled by the
Certificate Registrar or delivered to the Certificate
Registrar for cancellation or lost or missing Certificates,
in exchange for which no new Certificates have been issued,
but with respect to which final payment has been made; and
(ii) Certificates in exchange for or in lieu of which
other Certificates have been authenticated and delivered
pursuant to this Agreement, unless proof satisfactory to
the Trustee is presented that any such Certificates are
held by a bona fide purchaser in whose hands such
Certificates are valid obligations of the Trust;
provided, however, that in determining whether the Holders of the
required percentage of the aggregate Voting Rights of the
Certificates have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Certificates
beneficially owned by the Depositor, or any Affiliate thereof,
shall be disregarded and deemed not to be Outstanding, and the
Voting Rights to which its Holder would otherwise be entitled
shall not be taken into account in determining whether the
requisite percentage of aggregate Voting Rights necessary to
effect any such consent or take any such action has been obtained
except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Certificates with respect to which the Depositor has provided the
Trustee an Officer's Certificate stating that such Certificates
are so owned shall be so disregarded. Certificates so owned that
have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee by
certifying to such effect in an Officer's Certificate the
pledgee's right so to act with respect to such Certificates and
that the pledgee is not, to the actual knowledge of the Trustee
without any duty of investigation, the Depositor or any Affiliate
thereof so owned.
"Participant": A broker, dealer, bank, other financial
institution or other Person for whom from time to time a
Depositary effects book-entry transfers and pledges of securities
deposited with the Depositary.
"Paying Agent": As defined in Section 5.14.
"Percentage Interest": With respect to a Certificate
of any Series or Class within a Series, the portion of such
Series or Class evidenced by such Certificate, expressed as a
percentage, equal to the product of (x) a fraction, the numerator
of which is the initial Certificate Principal Balance or Notional
Amount, as applicable, represented by such Certificate and the
denominator of which is the aggregate initial Certificate
Principal Balance or Notional Amount, as applicable, of all the
Certificates of such Series or Class and (y) 100.
"Permitted Investments": With respect to any Series,
unless otherwise specified in the related Series Supplement, any
one or more of the following obligations or securities, provided
that the total return
7
specified by the terms of each such obligation or security is at
least equal to the purchase price thereof and that such
Obligations, by their terms, convert into cash within a finite
period of time:
(i) direct obligations of, and obligations fully
guaranteed by, the United States, the Federal Home Loan
Mortgage Corporation, the Federal National Mortgage
Association, the Federal Farm Credit System or any agency
or instrumentality of the United States the obligations of
which are backed by the full faith and credit of the United
States of America; provided that obligations of, or
guaranteed by, the Federal Home Loan Mortgage Corporation,
the Federal National Mortgage Association or the Federal
Farm Credit System shall be Permitted Investments only if,
at the time of investment, it has the rating specified in
such Series Supplement for Permitted Investments;
(ii) demand and time deposits in, certificates of
deposit of, or banker's acceptances issued by any
depository institution or trust company (including the
Trustee or any agent of the Trustee acting in their
respective commercial capacities) incorporated under the
laws of the United States or any State and subject to
supervision and examination by Federal and/or State banking
authorities so long as the commercial paper and/or the
short-term debt obligations of such depository institution
or trust company (or, in the case of a depository
institution which is the principal subsidiary of a holding
company, the commercial paper or other short-term debt
obligations of such holding company) at the time of such
investment or contractual commitment providing for such
investment have the rating specified in such Series
Supplement for Permitted Investments; provided, however,
that such rating shall be no lower than the rating on the
Term Assets at the time of purchase of the investments;
(iii) securities bearing interest or sold at a
discount issued by any corporation incorporated under the
laws of the United States or any State that have the rating
specified in such Series Supplement for Permitted
Investments at the time of such investment or contractual
commitment providing for such investment; provided,
however, that such rating shall be no lower than the rating
on the Term Assets; provided, further, that securities
issued by any particular corporation will not be Permitted
Investments to the extent that investment therein will
cause the then outstanding principal amount of securities
issued by such corporation and held as part of the Trust
for such Series to exceed 10% of the aggregate outstanding
principal balances and amounts of all the Term Assets and
Permitted Investments held as part of the Trust for such
Series; and
(iv) commercial paper having at the time of such
investment the rating specified in the Series Supplement
for Permitted Investments.
"Person": Any individual, corporation, partnership,
joint venture, association, joint stock company, limited
liability company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Distribution": With respect to any Series
(or Class within such Series) of Certificates, the place or
places where the principal of (and premium, if any) and interest
on the Certificates of such Series (or Class) are distributable
as specified pursuant to Section 5.1.
"Predecessor Certificate": With respect to any
particular Certificate, every previous Certificate evidencing all
or a portion of the same interest as that evidenced by such
particular Certificate; and, for the purpose of this definition,
any Certificate authenticated and delivered under Section 5.5 in
lieu of a lost, destroyed or stolen Certificate shall be deemed
to evidence the same interest as the lost, destroyed or stolen
Certificate.
"Proceeding": Any suit in equity, action at law or
other judicial or administrative proceeding.
"Purchase Price": With respect to any Term Asset
required to be repurchased by the Depositor pursuant to Sections
2.3 or 2.5 and as confirmed by an Officer's Certificate from the
Depositor to the Trustee, an amount equal to the sum of (i) 100%
of the principal balance (if any) thereof as of the date of such
repurchase, (ii) accrued and unpaid interest thereon from the
immediately preceding interest payment date on the Term Asset, or if
8
no interest has been paid to the Trust with respect thereto, from
the Cut-Off Date, in each case adjusted, if applicable, to the
rate at which interest on such Term Asset is distributable to the
applicable Certificateholder, as specified in the applicable
Series Supplement, on the principal balance of such Term Asset as
of the close of business on the Business Day immediately
preceding the date of purchase or such other day as may be
specified in the applicable Series Supplement on which such
purchase is to occur, (iii) expenses reasonably incurred or to be
incurred by the Trustee in respect of the breach or defect giving
rise to the purchase obligation, including any expenses arising
out of the enforcement of the purchase obligation and (iv) any
realized losses previously incurred with respect to such Term
Asset and allocated to Certificateholders on or before the date
of purchase. Notwithstanding the foregoing, if the Term Asset was
a zero coupon bond, a discount security, or an interest-only
security, the Purchase Price shall be as defined in the Series
Supplement.
"Qualified Substitute Term Asset": With respect to any
Series and any Term Asset, as defined in the Series Supplement.
"Rating Agency": With respect to any Series (or Class
within such Series), as defined in the related Series Supplement.
"Rating Agency Condition": With respect to any action
or occurrence, unless otherwise specified in the applicable
Series Supplement, that each Rating Agency shall have been given
10 days (or such shorter period acceptable to each Rating Agency)
prior notice thereof and that each Rating Agency shall have
notified the Depositor, 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.
"Record Date": With respect to any Distribution Date
for any Series (or Class within such Series) of Certificates, the
date specified in the related Series Supplement.
"Required Interest": Unless otherwise specified in the
related Series Supplement, with respect to the Outstanding
Certificates of any Series or any Class thereof, the accrued and
undistributed interest on the Certificate Principal Balance or
Notional Amount of such Outstanding Certificates computed at the
applicable Pass Through Rate.
"Required Percentage--Amendment": Unless otherwise
specified in the related Series Supplement, 66-2/3% of the
aggregate Voting Rights of Certificates of such Series (or of a
designated Class or group of Classes within such Series) (either
voting as separate Classes or as a single Class) applicable to
such matter, all as specified in the applicable Series
Supplement.
"Required Percentage--Definitive Certificates": Unless
otherwise specified in the related Series Supplement, greater
than 50% of the aggregate Voting Rights of Certificates of such
Series.
"Required Percentage--Direction of Trustee": Unless
otherwise specified in the related Series Supplement, greater
than 50% of the aggregate Voting Rights of Certificates of such
Series.
"Required Percentage--Remedies": Unless otherwise
specified in the related Series Supplement, 66-2/3% of the
aggregate Voting Rights of Certificates of such Series.
"Required Percentage--Removal of Trustee": Unless
otherwise specified in the related Series Supplement, greater
than 50% of the aggregate Voting Rights of Certificates of such
Series.
"Required Principal": As determined for any
Distribution Date for a given Series (or Class within such
Series), unless otherwise specified in the related Series
Supplement, the amounts on deposit in the Certificate Account
allocable to principal payments on the Term Assets and required
to be distributed in respect of Certificates of such Series (or
Class) in accordance with the terms of such Certificates and such
related Series Supplement.
9
"Required Rating": With respect to any Series (or
Class within such Series), the rating category (or categories)
specified in the Series Supplement that, as a condition to the
issuance of such Series or Class or the subsequent sale of such
securities in an offering registered under the Securities Act, is
(or are) the lowest category (or categories) in which the
Certificates of such Series or Class may be categorized by the
Rating Agency.
"Requisite Reserve Amount": As of any date with
respect to any Series (or Class within such Series) of
Certificates, the amount, if any, required to be maintained in
the Reserve Account, if any, for such Series or Class as
specified in or determined pursuant to the related Series
Supplement.
"Reserve Account": An Eligible Account, if any, created
and maintained for the purposes described in Section 3.5.
"Responsible Officer": With respect to the Trustee,
any officer within the Corporate Trust Office of the Trustee,
including any Vice President, Assistant Vice President, Assistant
Treasurer, Assistant Secretary or any other officer of the
Trustee, as have been assigned to the administration of the
Trust.
"Retained Interest": If applicable, with respect to
any Term Asset, an ownership interest in and a right to a portion
of the payments thereon by the obligor thereof, as specified in
the Term Assets Schedule to the related Series Supplement, held
by the Person so specified in such Term Assets Schedule.
"Rule 144A" means Rule 144A under the Securities Act.
"Section 3a-7" means Rule 3a-7 under the Investment
Company Act.
"Securities Act" means the Securities Act of 1933, as
amended.
"Scheduled Final Distribution Date": With respect to
any Certificate, the date on which all the unpaid principal of
(and premium, if any, on) such Certificate is scheduled, without
giving effect to any prepayment, exchange or early termination,
to become due and payable as provided therein and in the
applicable Series Supplement.
"Series": A separate series of Certificates issued
pursuant to this Agreement and a related Series Supplement, which
series may be divided into two or more Classes, as provided in
such Series Supplement.
"Series Supplement": An agreement supplemental to this
Agreement that authorizes the issuance of a particular Series
(and each Class within such Series) of Certificates.
"Specified Currency": As defined in the related Series
Supplement.
"State": Any one of the 00 xxxxxx xx xxx Xxxxxx Xxxxxx
or the District of Columbia.
"Surety Bond": If so specified in the Series
Supplement, with respect to any Series (or Class within such
Series) of Certificates, the surety bond providing for the
distribution under certain circumstances specified in such Series
Supplement of amounts to the Certificateholders of such Series
(or Class), which surety bond will be issued to the Trustee for
the benefit of such Certificateholders by the related Credit
Support Provider, all as specified in such Series Supplement.
"Term Assets": With respect to any Series, the asset
or assets Granted as part of the Trust for such Series or
acquired (or, in the case of an agreement, entered into) by the
Trustee for the benefit of the Holders of such Series and, if and
to the extent provided in the applicable Series Supplement, for
the benefit of any Credit Support Provider, all as identified in
the Term Assets Schedule to the related Series Supplement. The
Term Assets for any such Series or the related Trust shall not
constitute Term Assets for any other Series or any other Trust.
"Term Asset Issuer": As defined in the related Series
Supplement.
10
"Term Assets Schedule": With respect to any Series, a
listing of the Term Assets for such Series as of the Closing
Date, including, with respect to each Term Asset, the obligor and
the principal balance thereof, which shall be attached to such
Series Supplement as Schedule A.
"TIA": The Trust Indenture Act of 1939, as amended.
"Trust": With respect to any Series, the segregated
asset or pool of assets subject hereto, constituting the trust
created hereby and by the related Series Supplement and to be
administered hereunder and thereunder, consisting of those Term
Assets 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 Asset Instrument": Any instrument or agreement
evidencing a Term Asset or a Credit Support Instrument.
"Trustee": With respect to any Series, the Person so
specified in the applicable Series Supplement (which Person shall
have agreed pursuant to such Series Supplement to assume all the
duties, obligations, responsibilities and liabilities of the
Trustee as set forth in this Agreement and such Series Supplement
with respect to the related Series of Certificates) for such
Series or any co-trustee appointed pursuant to Section 7.10,
until a successor Person shall have become the Trustee pursuant
to the applicable provisions of this Agreement and the applicable
Series Supplement, and thereafter "Trustee" shall mean such
successor Person.
"Trust Termination Event": With respect to any Series,
as specified in the related Series Supplement.
"UCC" means the Uniform Commercial Code as in effect
in the State of New York, as amended from time to time.
"United States": The United States of America
(including the States), its territories, its possessions and
other areas subject to its jurisdiction.
"Voting Rights": With respect to any Series (or Class
within such Series) of Certificates, the portion of the aggregate
voting rights of the Certificates of such Series or Class which
shall be allocated to any Certificate as specified in the
applicable Series Supplement.
Section 1.2. Rules of Construction. Unless the context
otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning to it in accordance with generally accepted
accounting principles as in effect in the United States
from time to time;
(iii) "or" is not exclusive;
(iv) the words "herein", "hereof", "hereunder" and
other words of similar import refer to this Agreement as a
whole and not to any particular Article, Section or other
subdivision;
(v) "including" means including without limitation; and
(vi) words in the singular include the plural and words
in the plural include the singular.
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ARTICLE II
Declaration of Trusts; Issuance of Certificates
Section 2.1. Creation and Declaration of Trusts;
Assignment of Term Assets. (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
Depositor, including any security interest therein for the
benefit of the Depositor, in, to and under the Term Assets
attributable to each such Series (except for the Term Assets
attributable to such Series which are not Granted by the
Depositor, as specified in the Term Assets Schedule to the
applicable Series Supplement), now existing or hereafter
acquired, in each case as identified on the applicable Term
Assets Schedule, and all other assets included or to be included
in the respective Trust for the benefit of the Certificateholders
of each such Series. Each such Grant will include all interest,
premium (if any) and principal received by or on behalf of the
Depositor of, on or with respect to any such Term Assets due
after the applicable Cut-off Date, and, unless otherwise
specified in the Series Supplement, will exclude (i) all
interest, premium (if any) and principal of, on or with respect
to any such Term Assets due on or before the applicable Cut-off
Date and (ii) any Retained Interest in any such Term Asset.
(b) In connection with each Grant referred to in the
preceding paragraph, the Depositor shall, not later than the
applicable Closing Date, (i) deposit the Term Assets for a given
Series with the Trustee by Delivery of such Term Assets.
(c) Unless otherwise specified in the applicable
Series Supplement, the Grant of such Term Assets by the Depositor
for a given Series accomplished hereby and by such Series
Supplement is absolute and is intended by the parties hereto as a
sale.
Section 2.2. Acceptance by Trustee. (a) With respect
to each Series, the Trustee will acknowledge receipt by it, or by
a custodian on its behalf, of the related Term Assets and the
related documents referred to in Section 2.1, now existing or
hereafter acquired, and declares that it will hold such Term
Assets and documents and all other documents delivered to it
pursuant to this Agreement, and that it will hold all such assets
and such other assets comprising the Trust for a given Series of
Certificates, in trust for the exclusive use and benefit of all
present and future Certificateholders of such Series and for the
purposes and subject to the terms and conditions set forth in
this Agreement.
(b) The Trustee, or a custodian on its behalf, shall
review all documents received by it pursuant to Section 2.1
within 45 days after receipt thereof. If in the process of
reviewing such documents the Trustee or such custodian discovers
any document or documents to be missing or defective, the Trustee
shall promptly (but in any event within 10 Business Days) so
notify the Depositor.
Section 2.3. Repurchase or Substitution of Certain
Term Assets . (a) Except to the extent provided for in a Series
Supplement relating to a given Series of Certificates, upon
discovery or receipt of notice pursuant to Section 2.2 that a
Trust Asset Instrument is missing or defective, the Trustee shall
immediately notify the Depositor and the Rating Agency that such
document is defective or missing and, unless the Depositor
provides to the Trustee an Officer's Certificate stating such
missing or defective document will not have a materially adverse
effect on the related Trust, the Depositor shall cure such defect
within 60 days from the date on which it was first notified of
such missing document or defect, and if the Depositor does not
deliver such missing document or cure such defect in all material
respects during such period, the Depositor shall repurchase such
Term Asset from the Trustee at the applicable Purchase Price
within 75 days after the date on which it was first notified of
such missing document or defect. The Purchase Price for the
repurchased asset underlying the defective or missing Trust Asset
Instrument shall be delivered to the Trustee directly for deposit
in the Certificate Account and the Trustee, upon receipt of such
deposit, shall release to the Depositor the related documents in
its possession and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall
be necessary to vest in the Depositor any such asset released
pursuant hereto, and the Trustee shall have no further
obligations with regard to such documents.
12
Any such repurchase price will be distributed to
Certificateholders of the related Series or Class as described in
the related Series Supplement. The foregoing notwithstanding, if
and to the extent the Series Supplement provides, the Depositor
may, as an alternative to repurchasing any such Term Asset as
provided above, cause such Term Asset to be removed from the
Trust (in which case it shall become a Deleted Term Asset) by
agreeing to substitute, within the time period set forth above,
one or more Qualified Substitute Term Assets in the manner and
subject to the limitations set forth in Section 2.3(b) and the
related Series Supplement. It is understood and agreed that the
obligation of the Depositor to repurchase or substitute for any
Term Asset as to which a constituent document is missing or a
defect in a constituent document exists shall, if such defect is
not cured or such missing document is not provided, constitute
(unless otherwise specified in the applicable Series Supplement)
the sole remedy respecting such omission or defect available to
the Certificateholders or the Trustee on behalf of the
Certificateholders.
(b) If and to the extent provided for in a Series
Supplement relating to a given Series of Certificates, with
respect to any Deleted Term Asset for which the Depositor
substitutes a Qualified Substitute Term Asset or Assets, such
substitution shall be effected by the Depositor delivering to the
Trustee or a custodian on its behalf such Qualified Substitute
Term Asset or Assets and such documents and agreements, with all
necessary endorsements thereon, as would be required under the
terms of Section 2.1, together with an Officer's Certificate of
the Depositor certifying that each such Qualified Substitute Term
Asset satisfies the definition thereof and the requirements under
this Section. The Trustee or such custodian shall acknowledge
receipt of such Qualified Substitute Term Asset or Assets and,
within five Business Days thereafter, review such documents in
the manner specified in Section 2.2. The Depositor shall give or
cause to be given written notice to the Certificateholders of
such Series and the Rating Agency that such substitution has
taken place and shall amend the Term Asset Schedule to reflect
the removal of such Deleted Term Asset from the terms of this
Agreement and the substitution of the Qualified Substitute Term
Asset or Assets. Upon such substitution, such Qualified
Substitute Term Asset or Assets shall be subject to the terms of
this Agreement in all respects, including those related to the
representations and warranties as of the date of substitution.
Any further terms upon which such substitution may be effected
shall be specified in the applicable Series Supplement.
Section 2.4. Representations and Warranties of the
Depositor . The Depositor hereby represents and warrants to the
Trustee that as of the Closing Date or as of such other date
specifically provided herein or in the applicable Series
Supplement:
(a) the Depositor is a corporation duly organized,
validly existing and in good standing under the laws
of the State of Delaware;
(b) with respect to each Series Supplement, to the
Depositor's knowledge, the information set forth in the
Term Asset Schedule with respect to each Term Asset is true
and correct in all material respects at the date or dates
respecting which such information is furnished;
(c) the execution and delivery of this Agreement by
the Depositor and its performance of and compliance with
the terms of this Agreement will not violate the
Depositor's certificate of incorporation or by-laws or
constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under,
or result in the breach or acceleration of, any material
contract, agreement or other instrument to which the
Depositor is a party or which may be applicable to the
Depositor or any of its assets;
(d) the Depositor has the full power and authority to
enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery
and performance of this Agreement and has duly executed and
delivered this Agreement. This Agreement, upon its
execution and delivery by the Depositor and assuming due
authorization, execution and delivery by the Trustee, will
constitute a valid, legal and binding obligation of the
Depositor, enforceable against it in accordance with the
terms hereof, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws relating to or affecting the
rights of creditors generally, and by
13
general equity principles (regardless of whether such
enforcement is considered a proceeding in equity or
at law);
(e) the Term Assets are owned by the Depositor free
and clear of any right, charge, security interest or lien
or claim and the Depositor has the right to Grant the
applicable Term Assets to the Trustee;
(f) the Depositor is not in violation, and the
execution and delivery of this Agreement by the Depositor
and its performance and compliance with the terms of this
Agreement will not constitute a violation, of any order or
decree of any court or any order or regulation of any
Federal, State, municipal or governmental agency having
jurisdiction over the Depositor or its properties, which
violation would reasonably be expected to have a material
and adverse effect on the condition (financial or otherwise)
or operations of the Depositor or its properties or on the
performance of its duties hereunder; and
(vii) any additional representations and warranties,
if any, that may be specified in the applicable Series
Supplement.
It is understood and agreed that the representations
and warranties of the Depositor set forth in this Section 2.4
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 which materially and adversely
affects the interests of the Certificateholders, the party
discovering such breach shall give prompt written notice thereof
to the other parties.
Section 2.5. Breach of Representation, Warranty or
Covenant. Within 90 days of the earlier of discovery by the
Depositor or receipt of notice by the Depositor of a breach of
any representation or warranty of the Depositor set forth in
Section 2.4 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;
provided that, a breach by the Depositor of its representation
and warranty in Section 2.4(e) shall be cured by a repurchase or
substitution of such Term Asset in the manner prescribed by
Section 2.3 of this Agreement.
Section 2.6. Agreement to Execute, 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 Term Assets, cause the Certificates of such series to
be executed, authenticated and delivered to, and upon Depositor
Order, in authorized denominations evidencing ownership of the
entire Trust for such Series, all in accordance with the terms
and subject to the conditions of Sections 5.2 and 5.13.
Section 2.7. Statement of Intent. It is the intention
of the parties hereto that, for purposes of federal income taxes,
state and local income and franchise taxes and any other taxes
imposed upon, measured by or based upon gross or net income, the
Trust shall be treated as a grantor trust, but failing that, as a
partnership. The terms of this Agreement shall be interpreted to
further this intention of the parties. The parties hereto agree
that, unless otherwise required by appropriate tax authorities,
the Trust shall file or cause to be filed annual or other
necessary returns, reports and other forms consistent with such
intended characterization. Each Certificateholder and each
beneficial owner of a Certificate by acceptance of its
Certificate (or its beneficial interest therein) agrees, unless
otherwise required by appropriate tax authorities, to file its
own tax returns and reports in a manner consistent with such
characterization.
ARTICLE III
Administration of each Trust
Section 3.1. Administration of each Trust. (a) The
Trustee shall administer the Term Assets for each given Trust for
the benefit of the Certificateholders of the related Series. In
engaging in such activities, the Trustee shall, subject to the
provisions of Article VI hereof, follow or cause to be followed
collection procedures in accordance with the terms of this
Agreement and the applicable Series Supplement, the respective
Term Assets and
14
any applicable Credit Support Instruments. With respect to each
Trust, and subject only to the above-described standards and the
terms of this Agreement, the related Series Supplement and the
respective Term Assets and applicable Credit Support Instruments,
if any, the Trustee shall have full power and authority, acting
alone or through its agent, to do or cause to be done any and all
things in connection with such administration which it deems
necessary to comply with the terms of this Agreement and the
applicable Series Supplement.
(b) The parties acknowledge that the Trustee, as the
holder of the Term Assets, has the right to vote and give
consents and waivers in respect of the Term Assets and enforce
the other rights, if any, of a holder of the Term Assets, except
as otherwise limited by this Agreement. In the event that the
Trustee receives a request from the Term Assets Trustee, the Term
Asset Issuer or, if applicable, the Depositary with respect to
the Term Assets, for the Trustee's consent to any amendment,
modification or waiver of the Term Assets, the Indenture or any
other document thereunder, or relating thereto, or receives any
other solicitation for any action with respect to the Term
Assets, the Trustee shall within two Business Days mail a notice
of such proposed amendment, modification, waiver or solicitation
to each Certificateholder of record as of the date of such
request. The Trustee shall request instructions from the
Certificateholders as to what action to take in response to such
request and shall be protected in taking no action if no
direction is received. Except as otherwise provided herein, the
Trustee shall consent or vote, or refrain from consenting or
voting, in the same proportion (based on the Voting Rights of the
Certificates) as the Certificates of the Trust were actually
voted or not voted by the Holders thereof as of the date
determined by the Trustee prior to the date such vote or consent
is required; provided, however, that, notwithstanding anything to
the contrary in this Agreement, the Trustee shall at no time vote
in favor of or consent to any matter (i) that would alter the
timing or amount of any payment on the Term Assets (including,
without limitation, any demand to accelerate the Term Assets) or
(ii) that would result in the exchange or substitution of any
Term Asset pursuant to a plan for the refunding or refinancing of
such Term Asset, except in each case with the unanimous consent
of the Certificateholders and subject to the requirement that
such vote would not materially increase the likelihood that the
Trust will fail to qualify as a grantor trust for federal income
tax purposes, such determination to be based solely on an Opinion
of Counsel. The Trustee shall have no liability for any failure
to act or to refrain from acting resulting from the
Certificateholders' late return of, or failure to return,
directions requested by the Trustee from the Certificateholders.
(c) Except as is otherwise provided in the Series
Supplement, the Trustee shall act as the sole Authenticating
Agent, Paying Agent, and Certificate Registrar.
(d) The duties of the Trustee shall be performed in
accordance with applicable local, State and Federal law, and the
Trustee shall cooperate with Depositor the in making 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 to
the extent it is provided with appropriate information, materials
and responses by the Depositor.
(e) The Trustee shall provide the Depositor as soon as
practicable copies of each notice, report or other communication
relating to the Term Assets and Term Assets Issuer received by it
in its capacity as holder of the Term Assets or in its capacity
as Trustee. In addition, the Trustee shall furnish to the
Depositor copies of all pleadings, complaints and other documents
relating to any Proceeding involving the Trust or the
Certificates.
Section 3.2. Collection of Certain Term Asset
Payments. With respect to any Series or Class of Certificates
until such time as the Term Assets in question are distributed to
Certificateholders pursuant to an In-Kind Distribution, the
Trustee shall make reasonable efforts to collect all payments
required to be made pursuant to the terms of the Term Assets or
any related Credit Support Instruments in a manner consistent
with the terms of this Agreement, such Term Assets and any
related Trust Asset Instruments, including making demand on Term
Asset Issuer or the Credit Support Provider for payment pursuant
to such Trust Asset Instrument. The Trustee shall have no
obligation to institute any Proceedings with respect to any
default under any Trust Asset Instrument except as provided in
the Series Supplement.
Section 3.3. 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
15
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, except as otherwise specified in the
Series Supplement, the Trustee shall deposit or cause to be
deposited in the Certificate Account no later than the Business
Day on which amounts collected with respect to the Term Assets
are received, any Credit Support and all Liquidation Proceeds
related to such Series including:
(i) all payments on account of principal of such
Term Assets;
(ii) all payments on account of interest on such
Term Assets;
(iii) all payments on account of premium (if any)
on such Term Assets;
(iv) any payments in respect of any such Credit
Support;
(v) any interest or investment income earned on
funds deposited in the related Accounts; and
(vi) any Purchase Price of such Term Assets.
Unless otherwise specified in the applicable Series
Supplement, it is understood and agreed that payments in the
nature of prepayment or redemption penalties, late payment
charges or assumption fees which may be received by the Trustee
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
10 Business Days (or such longer period, not to exceed 30
calendar days, as to which the Rating Agency Condition is met)
establish a new Certificate Account meeting the conditions
specified above and transfer any cash and any investments on
deposit in the Certificate Account to such new Certificate
Account, and from the date such new Certificate Account is
established, it shall be the Certificate Account for such Series.
(b) If requested by the Rating Agency, if any, the
Trustee shall give notice to the Depositor and the Rating Agency,
if any, of the location of each Eligible Account constituting the
Certificate Account and prior to any change thereof.
(c) The Trustee shall determine the appropriate
application of Available Funds with respect to any Distribution
Date for which application is to be made on any such Distribution
Date in accordance with the terms of Section 4.1 and the related
Series Supplement.
Section 3.4. Investment of Funds in the Accounts. The
Depositor, on behalf of the Trust, may direct the Trustee to
direct any depository institution maintaining the Certificate
Account or the Reserve Account, if any, for the applicable Series
and any other segregated Eligible Account the contents of which
are held for the benefit of Certificateholders of such Series
(each, an "Account") to invest the funds therein in one or more
Permitted Investments bearing interest or sold at a discount,
which shall be held to maturity unless payable on demand and
which funds shall not be reinvested upon the maturity or demand
for payment of such Permitted Investment. If the Depositor does
not provide any investment directions to the Trustee, funds held
in any Account will be invested in the Permitted Investments
specified in clause (ii) of the definition thereof. Investments
of such funds shall be invested in Permitted Investments that
will mature so that such funds will be available for distribution
on the Distribution Date on which such amounts are to be applied
as distributions to Certificateholders. In the event amounts on
deposit in an Account are at any time invested in a Permitted
Investment payable on demand, the Trustee shall:
(x) consistent with any notice required to be
given thereunder, demand that payment thereon be made on
the last day such Permitted Investment may otherwise mature
hereunder in an amount
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equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on
such date; and
(y) demand same day payment of all amounts due
thereunder upon a determination by the Trustee that such
Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in any
Account.
Section 3.5. Maintenance of Credit Support. If
specified in the applicable Series Supplement, on the applicable
Closing Date, the Trustee 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, a Reserve Account either as a part of
the related Trust or outside it, for the benefit of a Credit
Support Provider, as specified in the applicable Series
Supplement. To the extent specified in the applicable Series
Supplement, the Depositor will make or cause to be made any
initial deposit to the Certificate Account or any Reserve Account
for the related Series as of the Closing Date. Unless the Series
Supplement for a given Series provides otherwise, if a Reserve
Account exists for such Series, collections with respect to the
Term Assets for such Series not distributed to the
Certificateholders of such Series shall be deposited in the
Reserve Account.
Amounts on deposit in the Reserve Account and amounts
available pursuant to any Credit Support for such Series shall be
applied by the Trustee to make distributions of principal of and
premium (if any) and interest on the Certificates of such Series
as required pursuant to Section 4.1 and the applicable Series
Supplement to the extent that funds are not otherwise available
for such purpose. If specified in such Series Supplement,
immediately after each Distribution Date, amounts on deposit in
the Reserve Account for such Series in excess of a specified
amount shall be paid to the Person so specified in such Series
Supplement.
Section 3.6. In-Kind Distribution Events. (a) If:
(i) default is made in the payment of any installment
of interest on any Term Asset when the same becomes due and
payable, and such default continues unremedied beyond the
period specified in the indenture or other authorizing
document for such Term Asset (or, if no such period is
specified, three days);
(ii) default is made in the payment of the principal
of or any installment of the principal of any Term Asset
when the same becomes due and payable, and such default
continues unremedied for the period specified in the
indenture or other authorizing document for such Term Asset
(or, if no such period is specified, three days);
(iii) there is an acceleration of the maturity of the
Term Assets following a default (other than that described
in clauses (i) and (ii) above) in the indenture or other
authorizing document for such Term Asset and the Trustee
receives notice of such acceleration, notwithstanding any
subsequent recission or annulment of such acceleration;
then, as soon as practicable, the Trustee shall institute an
In-Kind Distribution of the Term Assets in question to the
Holders of Outstanding Certificates in the manner described by
the Series Supplement, subject to any conditions contained in a
Credit Support Instrument relating to such Term Assets as further
specified in the related Series Supplement. In connection
therewith, the Trustee shall use its best reasonable efforts in
accordance with such normal and customary procedures it shall
deem necessary or advisable, and shall have the power and
authority, acting alone, to do any and all things in connection
therewith and the administration of the Trust as it may deem
necessary or advisable.
(b) To the extent necessary to avoid an In-Kind
Distribution of Term Assets in unauthorized denominations, the
Trustee shall liquidate in a commercially reasonable manner such
Term Assets as are not distributable in authorized denominations.
After deduction of all reasonable costs of such liquidation, the
proceeds from such liquidation shall be distributed to
Certificateholders based on their respective rights to Term
Assets in unauthorized denominations.
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(c) In the event that the Trustee receives money or
other property in respect of Term Assets after an In-Kind
Distribution has occurred on such Term Assets, the Trustee shall
promptly give notice (as provided in Section 9.5 hereof) to the
Depository and shall distribute such moneys or other property to
the Holders of the Outstanding Certificates as allocable to the
Term Assets to which each such Holder received in the In-Kind
Distribution. Property received (other than cash) in such
circumstance shall be liquidated by the Trustee in a commercially
reasonable manner and the proceeds thereof, after deduction of
all reasonable costs of such liquidation, distributed in cash,
only to the extent necessary to avoid distribution of fractional
interests in such property on the same basis as the In-Kind
Distribution.
Section 3.7. Retained Interest. The Retained Interest,
if any, in any Term Asset shall initially be held by the Person so
specified in the related Series Supplement as and to the extent
specified in Schedule A thereof. With respect to each Term Asset,
the Retained Interest shall be deducted by the Trustee, at the
written direction of the Depositor from applicable collections in
respect of such Term Asset. Unless otherwise provided in the
applicable Series Supplement, collections in respect of Retained
Interest shall not be deposited in the Certificate Account for
the applicable Series and shall not constitute a part of the
Trust for such Series, but shall instead be distributed to the
holder of such Retained Interest, provided that the Series
Supplement for any Series with respect to which there is a
Retained Interest may provide that, notwithstanding the terms
contained herein, commingled amounts received in respect of
assets inclusive of Term Assets and Retained Interest may
initially be deposited in a separate and discrete Eligible
Account established by the Trustee at the direction of the
Depositor and such Series Supplement may provide for additional
terms relating thereto. Unless otherwise provided in the
applicable Series Supplement, after deduction of all applicable
fees as provided for in this Agreement, on each Distribution Date
the Trustee shall allocate on a pari passu basis any partial
recovery on a Term Asset between (a) the Retained Interest, if
any, and (b) distributions to Certificateholders of the
applicable Series.
Section 3.8. [Intentionally omitted]
Section 3.9. Access to Certain Documentation. The
Trustee shall provide to any Federal, State or local regulatory
authority that may assert authority over any Certificateholder
access to the documentation regarding the Term Assets required by
applicable laws and regulations. Such access shall be afforded
without charge, but only upon reasonable request and during
normal business hours at the offices of the Trustee designated by
each of them. In addition, access to the documentation regarding
the Term Assets related to a given Series (or Class within such
Series) will be provided to any Certificateholder of such Series
(or Class) upon reasonable request during normal business hours
at the offices of the Trustee designated by each of them at the
expense of the Certificateholder requesting such access.
Section 3.10. Depositor to Furnish Names and Addresses
of Holders to Trustee. The Depositor shall furnish or cause to be
furnished to the Trustee not more than five days before each
Distribution Date, and at such other times as the Trustee may
request in writing, a list, in such form as the Trustee may
reasonably require, to the extent such information is in the
possession or control of the Depositor or any of its paying
agents, of the Holders of Certificates as of the close of
business on the applicable record date of the Term Assets;
provided, however, that so long as the Trustee maintains the
Certificate Register, no such list shall be required to be
furnished.
Section 3.11. Preservation of Information, Communications
to Holders.
(a) The Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of the
Holders of Certificates contained in the most recent list
furnished to the Trustee as provided in Section 3.11 and the
names and addresses of Holders of Certificates received by the
Trustee in its capacity as Certificate registrar. The Trustee may
destroy any list furnished to it as provided in such Section 3.11
upon receipt of a new list so furnished.
(b) Holders shall have the right to communicate
pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Agreement or under the Certificates.
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(c) Irrespective of whether the TIA shall apply to
this Agreement, the Depositor, the Trustee, the Paying Agent and
the Certificate Registrar shall have the protections provided
pursuant to TIA Section 312(c).
Section 3.12. Reports by Trustee. If required by TIA
Section 313(a), within 60 days after December 31 of each year,
the Trustee shall mail to (i) each Holder as required by TIA
Section 313(c) and (ii) the Depositor, a brief report dated as of
such date that complies with TIA Section 313(a). The Trustee also
shall comply with TIA Section 313(b). A copy of any report
delivered pursuant to this Section 3.12 shall, at the time of its
mailing to Holders and the Depositor, be filed by the Trustee
with the Commission and each stock exchange, if any, on which the
Certificates are listed. The Depositor shall notify the Trustee
if and when the Certificates are listed on any stock exchange.
ARTICLE IV
Distributions and Reports to Certificateholders
Section 4.1. Distributions. On each Distribution Date
for a given Series of Certificates, the Trustee shall apply
Available Funds in the Certificate Account for such Series in the
manner and priority set forth in the Series Supplement for such
Series. Notwithstanding any other provisions in this Agreement,
the right of the Holder of any Certificate to receive any such
distributions in the manner and priority set forth in the Series
Supplement for such Series and to institute suit for the
enforcement of any such payment on or after the date such payment
is payable, shall not be impaired without the consent of such
Holder.
Section 4.2. Reports to Certificateholders. Unless
otherwise specified in the applicable Series Supplement, on the
next Business Day following each such Distribution Date the
Trustee, as specified in such Series Supplement, shall forward or
cause to be forwarded to the Depositor, each Certificateholder of
such Series and such other Persons as may be specified in such
Series Supplement, a statement setting forth:
(i) the amount of the distribution on such
Distribution Date to Certificateholders of each Class of
such Series allocable to principal, and interest, if
applicable, on the Certificates of each such Class; and the
amount of aggregate unpaid interest accrued or accreted, if
applicable, as of such Distribution Date;
(ii) any information reasonably requested by a
Certificateholder to enable such Certificateholders to
prepare their tax returns, provided that such information
is reasonably attainable in the requested form, and the
amount of compensation received by the Trustee for the
period;
(iii) the aggregate stated principal amount or, if
applicable, notional amount of the Term Assets related to
such Series, the current rating assigned by the Rating
Agency thereon and the current interest rate or rates
thereon at the close of business on such Distribution Date;
(iv) the aggregate Certificate Principal Balance (or
Notional Amount, if applicable) of each Class of such
Series at the close of business on such Distribution Date,
separately identifying any reduction in such aggregate
Certificate Principal Balance or aggregate Notional Amount
due to the allocation of any Realized Losses or otherwise;
and
(v) as to any Series (or any Class within such Series)
for which Credit Support has been obtained, the amount or
notional amount of coverage of each element of Credit
Support (and rating, if any, thereof) included therein as
of the close of business on such Distribution Date.
In the case of information furnished pursuant to
subclauses (i) and (iii) above, the amounts shall be expressed as
a Dollar amount (or the equivalent thereof in any other Specified
Currency) per minimum denomination of Certificates or for such
other specified portion thereof. Within a reasonable period of
time after the end of each calendar year, the Trustee shall
furnish to each person who at any time during each such calendar
year was a Certificateholder a statement containing the
information set forth in subclauses (i) and (iii) above,
aggregated for such calendar year or the applicable portion
thereof during which such person was a Certificateholder. Such
19
obligation of the Trustee shall be deemed to have been satisfied
to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code
as are from time to time in effect.
Section 4.3. Compliance with Withholding Requirements.
If any withholding tax is imposed on the payment (or allocations
of income) to any Certificateholder, such tax shall reduce the
amount otherwise distributable to such Holder. The Trustee is
hereby authorized and directed to retain from amounts otherwise
distributable to any Holder sufficient funds for the payment of
any tax that is legally owed by the Trust (but such authorization
shall not prevent the Trustee from contesting any such tax in
appropriate proceedings and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings), or
that the Trustee may otherwise determine it is obligated to
withhold under applicable law or regulation. The amount of any
withholding tax imposed with respect to any Holder shall be
treated as cash distributed to such Holder at the time it is
withheld by the Trustee and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is
payable with respect to a distribution, the Trustee may in its
sole discretion withhold such amounts in accordance with this
Section 4.3. If any Holder wishes to apply for a refund of any
such withholding tax, the Trustee shall reasonably cooperate with
such Holder in making such claim so long as such Holder agrees to
reimburse the Trustee for any out-of-pocket expenses incurred.
The Trustee shall use reasonable efforts to give notice to each
Holder of any such withholding requirement at least 10 days prior
to the date of the payment from which amounts are required to be
withheld.
Section 4.4. No Charge for Reports to
Certificateholders. The Trustee shall deliver all notices or
reports required to be delivered to or by the Trustee or the
Depositor to the Certificateholders without charge to such
Certificateholders.
ARTICLE V
The Certificates
Section 5.1. The Certificates. The Certificates of any
Series (or Class within such Series) will be issued in
fully-registered form as Certificates and shall be substantially
in the form of the exhibits with respect thereto attached to the
applicable Series Supplement. The aggregate Certificate Principal
Balance or Notional Amount of Certificates that may be
authenticated and delivered under this Agreement is unlimited.
The Certificates may be issued in one or more Series,
each of which Series may be issued in one or more Classes, with such
further particular designations added or incorporated in such
title for the Certificates of any particular Series or Class
within such Series as the Board of Directors (or a Person
authorized by a Board Resolution) may determine. Each Certificate
shall bear upon its face the designation so selected for the
Series and Class to which it belongs. All Certificates of the
same Series and Class shall be identical in all respects except
for the denominations thereof. All Certificates of all Classes
within any one Series at any time Outstanding shall be identical
except for differences among the Certificates of the different
Classes within such Series specified in the applicable Series
Supplement. Except as otherwise provided in a Series Supplement,
all Certificates of a particular Series (and all Classes within
such Series) issued under this Agreement shall be in all respects
equally and ratably entitled to the benefits hereof without
preference, priority or distinction on account of the actual time
or times of authentication and delivery, all in accordance with
the terms and provisions of this Agreement.
Each Series (and all Classes within such Series) of
Certificates shall be created by a Series Supplement authorized
by the Board of Directors (or a Person authorized by a Board
Resolution) and establishing the terms and provisions of such
Series. The several Series may differ as between Series and any
Class may vary as between the other Classes within any given
Series in respect of any of the following matters:
(1) designation of such Series and Class;
20
(2) the dates on which or periods during
which the Certificates of such Series and Class
may be issued;
(3) the number of Classes, the maximum
Certificate Principal Balance or Notional Amount of
Certificates of each Class that may be issued and any
priorities or subordination among Classes of a Series with
respect to distributions from the Trust;
(4) if applicable, for each Class of Certificates
with a specified interest rate, such rate or the method for
calculating such rate;
(5) the terms of the Letter of Credit, if any, or
of the Surety Bond, if any, or of any other Credit Support
for the benefit of the Certificateholders of such Series or
Class or group of Classes;
(6) the places, if any, in addition to or instead
of the Corporate Trust Office of the Trustee (in the case
of Certificates), where the principal of (and premium, if
any) and interest on Certificates of such Series and Class
shall be distributable;
(7) the Collection Periods, the Distribution Dates
and the Scheduled Final Distribution Dates for such Series
and Class;
(8) the types of Term Assets that will be
included in the Trust for such Series and the manner and
priorities of allocating distributions with respect to
collections of principal (and premium, if any) and interest
payments allocable to such Term Assets among Holders of
Certificates of different Classes (including whether the
Certificates of any such Class are to be entitled to
receive principal distributions with disproportionate,
nominal or no interest distributions, or interest
distributions with disproportionate, nominal or no
principal distributions, and, in each case, the applicable
terms thereof);
(9) the amount, if any, to be deposited on the
Closing Date in the Certificate Account for such Series;
(10) the manner in which the Reserve Account, if
any, is to be funded, the amount, if any, to be deposited
therein on the Closing Date and the Requisite Reserve
Amount, if any, for such Series or Class;
(11) whether the Certificates of such Series or
Class are to be issued as discount certificates and the
amount of discount with which such Certificates may be
issued;
(12) whether the Certificates of such Series or Class
are to be issued in whole or in part in the form of one or
more Global Securities and, in such case, the Depositary for
such Global Security or Securities and the terms and
conditions, if any, upon which interests in such Global
Security or Securities may be exchanged in whole or in part
for the individual Certificates represented thereby;
(13) if other than Dollars, the Currency in which
Certificates of such Series or Class shall be denominated
or in which distributions of the principal of (and premium,
if any) and interest on such Certificates may be made and
any other terms concerning such payment;
(14) if the principal of (and premium, if any) or
interest on Certificates of such Series or Class are to be
distributable, at the election of the Depositor or a Holder
thereof, in a Currency other than that in which such
Certificates are denominated or distributable without such
election, the periods within which and the terms and
conditions upon which such election may be made and the
time and the manner of determining the exchange rate
between the Currency in which such Certificates are
denominated or distributable without such election and the
Currency in which such Certificates are to be distributed
if such election is made;
21
(15) any additional representations, warranties or
covenants provided for with respect to Certificates of such
Series;
(16) provisions with respect to the terms for
which the definitions set forth in Article I permit or
require further specification in the related Series
Supplement, including:
(a) "Available Funds";
(b) "Basic Documents";
(c) "Calculation Agent";
(d) "Closing Date";
(e) "Collection Period";
(f) "Corporate Trust Office";
(g) "Credit Support";
(h) "Credit Support Instrument";
(i) "Credit Support Provider";
(j) "Cut-off Date";
(k) "Depositary";
(l) "Depository Agreement";
(m) "Distribution Date";
(n) "Global Securities";
(o) "Grant";
(p) "Letter of Credit";
(q) "Limited Guarantor";
(r) "Limited Guaranty";
(s) "Notional Amount";
(t) "Permitted Investments";
(u) "Place of Distribution";
(v) "Purchase Price";
(w) "Rating Agency";
(x) "Rating Agency Condition";
22
(y) "Record Date";
(z) "Required Percentage";
(aa) "Requisite Reserve Amount";
(ab) "Retained Interest";
(ac) "Scheduled Final Distribution Date";
(ad) "Specified Currency";
(ae) "Surety Bond";
(af) "Term Assets";
(ae) "Term Asset Issuer";
(ag) "Term Assets Schedule";
(ah) "Trust";
(ai) "Trustee";
(aj) "Trust Termination Event";
(ak) "Voting Rights";
(22) rights and remedies provided to any Credit
Support Provider with respect to all or a portion of the
Trust for such Series or Class;
(23) any restrictions on the sale and transfer of
the Certificates, including restrictions arising out of the
Securities Act, the Investment Company Act, the Employee
Retirement Income Security Act of 1974, as amended, or the
Code; and
(24) any other provisions expressing or referring
to the terms and conditions upon which the Certificates of
such Series or Class are to be issued under this Agreement
that do not prevent such Certificates from receiving the
Required Rating.
A different Trustee may be appointed by the Depositor for
each Series of Certificates prior to the issuance of such Series
provided that the Rating Agency Condition is met. If the initial
Trustee is to be other than The Bank of New York, then such
Series Supplement shall provide for the appointment of such
Trustee, as applicable, of such Series and shall add or change
any of the provisions of this Agreement as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder and of the Term Assets; it being understood that
nothing contained herein or in such Series Supplement shall
constitute the Trustees for different Series as co-trustees for
the same Series and that each Trustee shall be a trustee of a
trust or trusts separate and apart from any trust or trusts
hereunder of any other Trustee. Upon final appointment of any new
Trustee, the Trustee shall provide a notice of such appointment
to the Rating Agency not later than 15 days following such
appointment.
Section 5.2. Execution, Authentication and Delivery.
(a) The Certificates shall be executed by the Trustee by its
authorized signatory. The signature may be manual or facsimile.
Certificates bearing the manual or facsimile signature of
individuals who were at any time the authorized signatory of the
Trustee shall be binding, notwithstanding that such individuals
or any of them have ceased to be an authorized signatory prior to
the authentication and delivery of such Certificates or did not
hold such offices at the date of such Certificates.
23
(b) Each Certificate shall be dated as of the later of
the date specified in the related Series Supplement and the date
of its authentication.
(c) No Certificate shall be entitled to any benefit
under this Agreement or be valid or obligatory for any purpose,
unless there appears on such Certificate a certificate of
authentication substantially in one of the forms provided for
herein executed by the Trustee by the manual signature of one of
its authorized signatories, and such certificate upon any
Certificate shall be conclusive evidence, and the only evidence,
that such Certificate has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Agreement.
Section 5.3. Temporary Certificates. Pending the
preparation of Definitive Certificates of any Series (or Class
within such Series), the Trustee may execute, authenticate and
deliver upon receipt of a Depositor Order, temporary Certificates
which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially
of the tenor of the Definitive Certificates in lieu of which they
are issued, in registered form and with such appropriate
insertions, omissions, substitutions and other variations as may
be authorized by such 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, authenticated and
delivered by the Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the
Definitive Certificate or Definitive Certificates in lieu of
which it is issued.
If temporary Certificates of any Series (or Class
within such Series) are issued, the Depositor will cause
Definitive Certificates of such Series or Class to be prepared
without unreasonable delay and (a) after the preparation of
Definitive Certificates of such Series or Class, the temporary
Certificates of such Series or Class shall be exchangeable for
Definitive Certificates of such Series or Class upon surrender of
the temporary Certificates of such Series or Class at the office
of the Trustee in a Place of Distribution for such Series or
Class, without charge to the Holder, except as provided in
Section 5.4 in connection with a transfer and (b) upon surrender
for cancellation of any one or more temporary Certificates of any
Series or Class within such Series the Trustee shall execute,
authenticate and deliver in exchange therefor Definitive
Certificates with a like Certificate Principal Balance or
Notional Amount, as applicable, of the same Series (or Class
within such Series) of authorized denominations and of like
tenor. Until so exchanged, temporary Certificates of any Series
(or Class within such Series) shall in all respects be entitled
to the same benefits under this Agreement as Definitive
Certificates of such Series or Class, except as otherwise
specified in the applicable Series Supplement with respect to the
payment of interest on Global Securities in temporary form.
Upon any exchange of a portion of a temporary Global
Security for a definitive Global Security or for the individual
Definitive Certificates represented thereby pursuant to this
Section 5.3 or Section 5.4, the temporary Global Security shall
be endorsed by the Trustee to reflect the reduction of the
aggregate Certificate Principal Balance or Notional Amount, as
applicable, evidenced thereby, whereupon the aggregate
Certificate Principal Balance or Notional Amount, as applicable,
of such temporary Global Security shall be reduced for all
purposes by the amount so exchanged and endorsed.
Section 5.4. Registration; Registration of Transfer
and Exchange. The Trustee shall cause to be kept a register for
each Series of Certificates (the registers maintained in such
office and in any other office or agency of the Trustee in a
Place of Distribution being herein sometimes collectively
referred to as the "Certificate Register") in which the Trustee,
as registrar and transfer agent (the "Certificate Registrar"),
shall provide for the registration of Certificates and the
registration of transfers and exchanges of Certificates. The
Trustee is hereby initially appointed Certificate Registrar for
the purpose of registering Certificates and transfers and
exchanges of Certificates as herein provided; provided, however,
that the Trustee may appoint one or more co-Certificate
Registrars. Upon any resignation of any Certificate Registrar,
the 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
24
a certificate executed on behalf of the Certificate Registrar by
an Executive Officer thereof as to the names and addresses of the
Holders of the Certificates and the principal amounts and numbers
of such Certificates.
Upon surrender for registration of transfer of any
Certificate of any Series (or Class within such Series) at the
office or agency of the Trustee, if the requirements of Section
8- 401(1) of the UCC are met to the Depositor's satisfaction and
upon satisfaction of any transfer restrictions set forth in the
related Series Supplement, the Trustee shall execute,
authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of any
authorized denominations, of a like Series, Class and aggregate
Certificate Principal Balance or Notional Amount, as applicable.
Notwithstanding any other provision of this Section,
unless and until it is exchanged in whole or in part for the
individual Certificates represented thereby, a Global Security
representing all or a portion of the Certificates of a Series (or
Class within such Series) may not be transferred except as a
whole by the Depositary for such Series or Class to a nominee of
such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary for such
Series or Class or a nominee of such successor Depositary.
At the option of the Holder, Certificates of any
Series (or Class within such Series) (other than a Global
Security, except as set forth below) may be exchanged for other
Certificates of the same Series or Class of any authorized
denomination or denominations of like tenor and aggregate
Certificate Principal Balance or Notional Amount, as applicable,
upon surrender of the Certificates to be exchanged at the office
or agency of the Trustee maintained for such purpose.
Whenever any Certificates are so surrendered for
exchange, the Trustee shall execute, authenticate and deliver the
Certificates that the Holder making the exchange is entitled to
receive.
If at any time the Depositary for the Certificates of a
Series (or Class within such Series) notifies the Depositor that
it is unwilling or unable to continue as Depositary for the
Certificates of such Series or Class or if at any time the
Depositary for the Certificates of such Series or Class shall no
longer be eligible under Section 5.9(b), the Depositor shall
appoint a successor Depositary with respect to the Certificates
of such Series or Class. If a successor Depositary for the
Certificates of such Series or Class is not appointed by the
Depositor within 90 days after the Depositor receives such notice
or becomes aware of such ineligibility, the Depositor's election
pursuant to Section 5.1 shall no longer be effective with respect
to the Certificates of such Series or Class and the Depositor
will execute, and the Trustee, upon receipt of a Depositor Order
for the authentication and delivery of individual Certificates of
such Series or Class, will authenticate and deliver individual
Certificates of such Series or Class in an aggregate Certificate
Principal Balance or Notional Amount, as applicable, equal to the
aggregate Certificate Principal Balance or Notional Amount, as
applicable, of the Global Security or Securities representing
Certificates of such Series or Class in exchange for such Global
Security or Securities.
The Depositor may at any time and in its sole
discretion determine that individual Certificates of any Series
(or Class within such Series) issued in the form of one or more
Securities shall no longer be represented by such Global Security
or Securities. In such event, upon receipt of a Depositor Order
for the authentication and delivery of individual Certificates of
such Series or Class, the Trustee shall execute, authenticate and
deliver individual Certificates of such Series or Class in an
aggregate Certificate Principal Balance or Notional Amount, as
applicable, equal to the aggregate Certificate Principal Balance
or Notional Amount, as applicable, of the Global Security or
Securities representing Certificates of such Series or Class in
exchange for such Global Security or Securities.
If specified by the Depositor pursuant to Section 5.1
with respect to a Series (or Class within such Series) of
Certificates, the Depositary for such Series may surrender a
Global Security for such Series or Class in exchange in whole or
in part for individual Certificates of such Series or Class on
such terms as are acceptable to the Depositor and such
Depositary. Thereupon, upon receipt of a Depositor Order, the
Trustee shall execute, authenticate and deliver, without service
charge,
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(i) to each Person specified by such Depositary a new
individual Certificate or Certificates of the same Series
or Class, of any authorized denomination as requested by
such Person in an aggregate Certificate Principal Balance
or Notional Amount, as applicable, equal to and in exchange
for such Person's beneficial interest in the Global
Security; and
(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the
aggregate Certificate Principal Balance or Notional Amount,
as applicable, of the surrendered Global Security and the
aggregate Certificate Principal Balance or Notional Amount,
as applicable, of individual Certificates delivered to
Holders thereof.
In any exchange provided for in any of the preceding
three paragraphs, upon receipt of a Depositor Order, the Trustee
will execute, authenticate and deliver individual Certificates in
registered form in authorized denominations.
Upon the exchange of a Global Security for individual
Certificates, such Global Security shall be canceled by the
Trustee. Individual Certificates issued in exchange for a Global
Security pursuant to this Section 5.4 shall be registered in such
names and in such authorized denominations as the Depositary for
such Global Security, pursuant to instructions from its
Participants, any indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Certificates
to the Persons in whose names such Certificates are so
registered.
All Certificates issued upon any registration of
transfer or exchange of Certificates shall constitute complete
and indefeasible evidence of ownership in the Trust related to
such Certificates and be entitled to the same benefits under this
Agreement as the Certificates surrendered upon such registration
of transfer or exchange.
Every Certificate presented or surrendered for
registration of transfer or exchange shall (if so required by the
Depositor, the Trustee or the Certificate Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Depositor, the Trustee and the
Certificate Registrar, duly executed, by the Holder thereof or
his attorney duly authorized in writing, with such signature
guaranteed by a brokerage firm or financial institution that is a
member of a Securities Approved Medallion Program such as
Securities Transfer Agents Medallion Program (STAMP), Stock
Exchange Medallion Program (SEMP) or New York Stock Exchange Inc.
Medallion Signature Program (MSP).
No service charge shall be made to a Holder for any
registration of transfer or exchange of Certificates, but the
Depositor may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of
Certificates, other than exchanges pursuant to Section 5.3 not
involving any transfer.
Section 5.5. Mutilated, Destroyed, Lost and Stolen
Certificates. If (i) any mutilated Certificate is surrendered to
the Trustee at its Corporate Trust Office (in the case of
Certificates) 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 Trustee
shall execute, authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate
a new Certificate of the same Series and Class of like tenor,
form, terms and principal amount, bearing a number not
contemporaneously Outstanding.
Upon the issuance of any new Certificate under this
Section, the 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
26
Agreement equally and proportionately with any and all other
Certificates of that Series or Class duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Certificates.
Section 5.6. Distributions on Certificates; Rights
Preserved. (a) All Interest Collections on any Distribution Date
shall be distributed in the manner prescribed in the applicable
Series Supplement to the Person in whose name such Certificate
(or one or more Predecessor Certificates) is registered at the
close of business on the related Record Date notwithstanding the
cancellation of such Certificate upon any transfer or exchange
subsequent to such related Record Date. Distributions on
Certificates, other than a final distribution, shall be made at
the Corporate Trust Office (except as otherwise specified in the
Series Supplement pursuant to Section 5.1) or, at the option of
the Trustee, by check mailed to the address of the Person
entitled thereto as such address shall appear in the Certificate
Register or, if provided pursuant to Section 5.1 and in
accordance with arrangements satisfactory to the Trustee, at the
option of the Holder by wire transfer to an account designated by
the Holder.
(b) Subject to the foregoing provisions of this
Section 5.6, each Certificate delivered under this Agreement upon
transfer of or in exchange for or in lieu of any other
Certificate shall carry the rights to interest accrued and
undistributed, and to accrue, that were carried by such other
Certificate.
(c) All computations of interest due with respect to
any Certificate of any Series or Class within such Series shall
be made as specified in the Series Supplement applicable to that
particular Series or Class of Certificates.
(d) With respect to any computations or calculations
to be made under this Agreement, the applicable Series Supplement
and the Certificates, except as otherwise provided, (i) all
percentages resulting from any calculation of accrued interest
will be rounded, if necessary, to the nearest 1/100,000 of 1%
(.0000001), with five one-millionths of a percentage point
rounded upward, and (ii) all currency amounts will be rounded to
the nearest one-hundredth of a unit (with .005 of a unit being
rounded upward).
(e) Notwithstanding any other provisions in this Agreement,
the right of the Holder of any Certificate to receive any of the
payments described above in this Section 5.6, and to institute
suit for the enforcement of any such payment on or after the date
such payment is payable, shall not be impaired without the
consent of such Holder.
Section 5.7. Persons Deemed Owners. The Depositor and
the Trustee and any agent of the Depositor or the Trustee may
treat the Person in whose name any Certificate is registered as
the owner of such Certificate for the purpose of receiving
distributions of principal of (and premium, if any) and (subject
to Section 5.6) interest, if any, on such Certificate and for all
other purposes whatsoever, whether or not such Certificate be
overdue, and neither the Depositor, the Trustee, nor any agent of
the Depositor or the Trustee shall be affected by notice to the
contrary. All distributions made to any Holder, or upon his
order, shall be valid, and, to the extent of the sum or sums
paid, effectual to satisfy and discharge the liability for moneys
distributable upon such Certificate.
None of the 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.
In connection with any notice or other communication
to be provided to Holders pursuant to this Agreement by the
Trustee with respect to any consent or other action to be taken
by Holders, the Trustee shall establish a record date for such
consent or other action and in the case of Global Certificates,
give the Depository notice of such record date not less than 15
calendar days in advance of such record date to the extent
possible. Such record date shall be the later of thirty (30) days
prior to the first solicitation of such consent or other action
or the date of the most recent list of Holders furnished to the
Trustee pursuant to Section 3.11 hereof.
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Section 5.8. Cancellation. Unless otherwise specified
pursuant to Section 5.1 for Certificates of any Series, all
Certificates surrendered for payment, redemption, transfer or
exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly
canceled by it. No Certificates shall be authenticated in lieu of
or in exchange for any Certificates canceled as provided in this
Section, except as expressly permitted by this Agreement.
Section 5.9. Global Securities. (a) If the Series
Supplement pursuant to Section 5.1 provides that a Series (or
Class within such Series) of Certificates shall be represented by
one or more Global Securities, then the Trustee shall execute,
authenticate and deliver one or more Global Securities that (i)
shall represent the aggregate initial Certificate Principal
Balance or Notional Amount, as applicable, of the Certificates of
such Series or Class to be represented by such one or more Global
Securities, (ii) shall be registered, in the name of the
Depositary for such Global Security or Securities or the nominee
of such Depositary, (iii) shall be delivered by the Trustee to
such Depositary or pursuant to such Depositary's instruction and
(iv) shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for the
individual Certificates represented hereby, this Global Security
may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary or by
the Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary."
No Holder of a Certificate of such Series or Class
will receive a Definitive Certificate representing such Holder's
interest in such Certificate or Certificates, except as provided
in Section 5.11. Unless and until definitive, fully registered
Certificates (the "Definitive Certificates") have been issued to
Holders of such Series or Class pursuant to Section 5.11:
(i) the provisions of this Section 5.9 shall be in
full force and effect;
(ii) the Certificate Registrar and the Trustee shall
be entitled to deal with the Depositary for all purposes of
this Agreement (including the distribution of principal of,
and premium, if any, and interest on the Certificates and
the giving of instructions or directions hereunder) as the
sole Holder of the Certificates of such Series or Class,
and shall have no obligation to the owners of beneficial
interests in such Series or Class (collectively, the
"Certificate Owners");
(iii) to the extent that the provisions of this Section
5.9 conflict with any other provisions of this Agreement, the
provisions of this Section 5.9 shall control;
(iv) the rights of Certificate Owners of such Series
or Class shall be exercised only through the Depositary and
shall be limited to those established by law and agreements
between such Certificate Owners and the Depositary or its
Participants; and
(v) whenever this Agreement requires or permits
actions to be taken based upon instructions or directions
of Holders of Certificates of such Series or Class
evidencing a specified percentage of the aggregate Voting
Rights of such Series or Class, the Depositary shall be
deemed to represent such percentage only to the extent that
it has received instructions to such effect from
Certificate Owners of such Series or Class or Participants
in such Depositary's system owning or representing,
respectively, such required percentage of the beneficial
interest in the Certificates of such Series or Class and
has delivered such instructions to the Trustee.
(b) Each Depositary designated pursuant to Section 5.1
for a Global Security in registered form must, at the time of its
designation and at all times while it serves as such Depositary,
be a clearing agency registered under the Exchange Act and any
other applicable statute or regulation.
Section 5.10. Notices to Depositary. Whenever a notice
or other communication to the Holders of a Series or Class within
such Series represented by one or more Global Securities is
required under this Agreement, unless and until Definitive
Certificates for such Series or Class shall have been issued to
such Certificate Owners pursuant to Section 5.11, the Trustee
shall give all such notices and communications specified
28
herein to be given to Holders of the Certificates of such Series
to the Depositary, and shall have no obligation to the
Certificate Owners.
Section 5.11. Definitive Certificates. If in respect
of a Series (or Class within such Series) represented by one or
more Global Securities (i) the Depositor advises the Trustee in
writing that the Depositary is no longer willing or able to
properly discharge its responsibilities with respect to the
Certificates of such Series or Class and the Depositor is unable
to locate a qualified successor or (ii) the Depositor at its
option advises the Trustee in writing that it elects to terminate
the book-entry system for such Series or Class through the
Depositary, Certificate Owners representing beneficial interests
aggregating at least a majority (or such other Required
Percentage--Definitive Certificates that may be specified in a
Series Supplement) of the Voting Rights of the Certificates of
such Series or Class advise the Depositary in writing that the
continuation of a book-entry system for such Series or Class
through the Depositary is no longer in the best interests of the
Certificate Owners of such Series or Class, then the Depositary
shall notify all Certificate Owners or Participants in the
Depositary's system with respect to such Series or Class and the
Trustee of the occurrence of any such event and of the
availability of Definitive Certificates for such Series or Class
to Certificate Owners of such Series or Class requesting the
same. Upon surrender to the Trustee of the Global Securities of
such Series or Class by the Depositary, accompanied by
registration instructions, the Trustee shall execute,
authenticate the Definitive Certificates of such Series or Class
in accordance with the instructions of the Depositary. None of
the Depositor, the Certificate Registrar or the Trustee shall be
liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates of
such Series or Class, the Trustee shall recognize the holders of
the Definitive Certificates of such Series or Class as Holders.
Section 5.12. Currency of Distributions in Respect of
Certificates.
(a) Except as otherwise specified pursuant to Section
5.1 for Certificates of any Series (or Class within such Series),
distributions of the principal of (and premium, if any) and
interest on Certificates of such Series or Class will be made in
Dollars.
(b) For purposes of any provision of the Agreement where
the Holders of Outstanding Certificates may perform an act that
requires that a specified percentage of the aggregate Voting
Rights of the Certificates perform such act and for purposes of
determining the amount of a distribution payable to
Certificateholders, the principal of or notional amount of, as
applicable, the Outstanding Certificates denominated in a Foreign
Currency will be the amount in Dollars based upon exchange rates,
determined as specified pursuant to Section 5.1 for Certificates
of such Series, as of the date for determining whether the
Holders entitled to perform such act have performed it or as of
the date of such distribution, as the case may be.
(c) With respect to Certificates of any Series (or
Class within such Series), any decision or determination to be
made regarding exchange rates shall be made by an Exchange Rate
Agent appointed by the Depositor; provided that such Exchange
Rate Agent shall accept such appointment in writing and the terms
of such appointment shall be acceptable to the Trustee and shall,
in the opinion of the Depositor at the time of such appointment,
require such Exchange Rate Agent to make such determination by a
method consistent with the method provided in the applicable
Series Supplement for the making of such decision or
determination. All decisions and determinations of such Exchange
Rate Agent regarding exchange rates shall be in its sole
discretion and shall, in the absence of manifest error, be
conclusive for all purposes and irrevocably binding upon the
Depositor, the Trustee and all Holders of the Certificates of
such Series or Class.
(d) If distributions in respect of a Certificate are
required to be made in a Specified Currency other than Dollars
and such currency is unavailable due to the imposition of
exchange controls or other circumstance beyond the control of the
Trustee 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.
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Section 5.13. Conditions of Authentication and
Delivery of New Series. Certificates of a new Series may be
issued at any time and from time to time after the execution and
delivery of this Agreement. The Trustee shall execute,
authenticate and deliver such Certificates upon a Depositor Order
and upon delivery by the Depositor to the Trustee of the
following:
(1) Board Resolution. A Board Resolution (or action by
a Person authorized by Board Resolution) authorizing the
execution, authentication and delivery of the Certificates
and specifying the Series, the Classes within such Series
and their respective Scheduled Final Distribution Dates,
priorities as to distributions of principal, premium (if
any) and interest, aggregate initial Certificate Principal
Balances and Notional Amounts, if any, and Pass Through
Rates of, if any, each Class of such Series of Certificates
to be authenticated and delivered and the method of
calculation thereof.
(2) Series Supplement. A Series Supplement consistent
with the applicable provisions of this Agreement,
accompanied by a Board Resolution (or action by a Person
authorized by Board Resolution) authorizing such Series
Supplement (and, in the case of the first Series to be
authenticated and delivered hereunder, authorizing this
Agreement).
(3) Certificates of the Depositor.
(a) An Officer's Certificate of the Depositor,
dated as of the Closing Date, to the effect that the
Depositor is not in breach of this Agreement and that the
issuance of the Certificates applied for will not result in
any breach of any of the terms, conditions, or provisions
of, or constitute a default under, the Depositor's
Certificate of Incorporation or bylaws, or any indenture,
mortgage, deed of transfer or other agreement or instrument
to which the Depositor is a party or by which it or its
property is bound or any order of any court or
administrative agency entered in any Proceeding to which
the Depositor is a party or by which it or its property may
be bound or to which it or its property may be subject.
(b) An Officer's Certificate of the Depositor, dated
as of the Closing Date, to the effect that attached thereto
are true and correct copies of letters signed by the Rating
Agency (or other evidence satisfactory to the Trustee) and
confirming that the related Certificates have received the
Required Rating.
(4) Requirements of Series Supplement. Such other
funds, accounts, documents, certificates, agreements,
instruments or opinions as may be required by the terms of
the Series Supplement creating such Series.
If all the Certificates of a Series are not to be
originally issued at the same time, then the documents required
to be delivered pursuant to this Section 5.13 must be delivered
only once, prior to the authentication and delivery of the first
Certificate of such Series; provided, however, that any
subsequent Depositor Order to the Trustee to authenticate
Certificates of such Series upon original issuance shall
constitute a representation and warranty by the Depositor that,
as of the date of such request, the statements made in the
Officer's Certificates delivered pursuant to this Section 5.13
shall be true and correct as if made on such date.
Section 5.14. Appointment of Paying Agent. The Trustee
may appoint one or more paying agents (each, a "Paying Agent")
with respect to the Certificates of any Series. Any such Paying
Agent shall be authorized to make distributions to
Certificateholders of such Series from the Certificate Account
for such Series pursuant to the provisions of the applicable
Series Supplement and shall report the amounts of such
distributions to the Trustee. Any Paying Agent shall have the
revocable power to withdraw funds from such Certificate Account
for the purpose of making the distributions referred to above.
The Trustee may revoke such power and remove the Paying Agent if
the Trustee determines in its sole discretion that the Paying
Agent shall have failed to perform its obligations under this
Agreement in any material respect. The Paying Agent shall
initially be the Trustee and any co-paying agent chosen by the
Depositor and acceptable to the Trustee, including, if and so
long as any Series or Class within such Series is listed on the
Luxembourg Stock Exchange and such exchange so requires, a
co-paying agent in Luxembourg or another European city. Any
Paying Agent shall be permitted to resign as Paying Agent upon 30
days' notice to the Trustee. In the event that the Trustee shall
no longer be the Paying Agent, the Trustee
30
shall appoint a successor or additional Paying Agent. The Trustee
shall cause each successor to act as Paying Agent to execute and
deliver to the Trustee an instrument in which such successor or
additional Paying Agent shall agree with the Trustee that (i) it
will hold all sums, if any, held by it for distribution to the
Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be
distributed to such Certificateholders and (ii) it will give the
Trustee notice of any default by any obligor on the applicable
Series of Certificates or on the Term Assets. The Paying Agent
shall return all unclaimed funds to the Trustee and upon removal
shall also return all funds in its possession to the Trustee. The
provisions of Sections 7.1, 7.2, 7.3, 7.5 and 7.9 shall apply to
the Trustee also in its role as Paying Agent, for so long as the
Trustee shall act as Paying Agent. Any reference in this
Agreement to the Paying Agent shall include any co-paying agent
unless the context requires otherwise. Notwithstanding anything
contained herein to the contrary, the appointment of a Paying
Agent pursuant to this Section 5.14 shall not release the Trustee
from the duties, obligations, responsibilities or liabilities
arising under this Agreement other than with respect to funds
paid to such Paying Agent.
Section 5.15. Authenticating Agent. (a) The Trustee
may appoint one or more Authenticating Agents (each, an
"Authenticating Agent") with respect to the Certificates of any
Series which shall be authorized to act on behalf of the Trustee
in authenticating such Certificates in connection with the
issuance, delivery and registration of transfer or exchange of
such Certificates. Whenever reference is made in this Agreement
to the authentication of Certificates by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed
on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent must be acceptable to the Depositor.
Notwithstanding anything contained herein to the contrary, the
appointment of an Authenticating Agent pursuant to this Section
5.15 shall not release the Trustee from the duties, obligations,
responsibilities or liabilities arising under this Agreement.
(b) Any institution succeeding to the corporate agency
business of any Authenticating Agent shall continue to be an
Authenticating Agent without the execution or filing of any power
or any further act on the part of the Trustee or such
Authenticating Agent. An Authenticating Agent may at any time
resign by giving notice of resignation to the Trustee and to the
Depositor. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving notice of termination to such
Authenticating Agent and to the Depositor. Upon receiving such a
notice of resignation or upon such a termination, or in case at
any time an Authenticating Agent shall cease to be acceptable to
the Trustee or the Depositor, the Trustee promptly may appoint a
successor Authenticating Agent. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed unless acceptable to the 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 7.1, 7.2, 7.3, 7.5 and 7.9 shall be applicable to any
Authenticating Agent.
(c) Pursuant to an appointment made under this Section,
the Certificates may have endorsed thereon, in lieu of the Trustee's
certificate of authentication, an alternate certificate of
authentication in substantially the following form:
This is one of the Certificates described in the Trust
Agreement and the related Series Supplement.
______________________________
as Authenticating Agent
for the Trustee,
By____________________________
Authorized Signatory
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Section 5.16. Optional Exchange. (a) In connection
with any Series, the Depositor may exchange any Certificates or
all Certificates within a Class or a Series for a newly created
Class or Classes of Certificates evidencing interests in the
related Trust, having such terms as are provided in a Depositor
Request; provided that (i) in no case shall the aggregate
distributions payable on such newly created Class or Classes of
Certificates exceed the aggregate distributions payable on the
Certificates exchanged by the Depositor for the newly created
Class of Certificates; (ii) in no case shall the issuance of such
newly created Certificates adversely affect the rights or
interests of Holders of Certificates not so exchanged; (iii) the
Rating Agency Condition, if any, is satisfied; (iv) such exchange
would not, as evidenced by an opinion of Counsel, (a) be
inconsistent with the Trust's continued satisfaction of the
applicable requirements for exemption under Rule 3a-7 (or other
applicable rule or exemption) under the Investment Company Act
and (b) cause the Trust to fail to be characterized as a grantor
trust under federal income tax purposes.
(b) Upon completion of any such exchange, new
Certificates in a form mutually agreed upon by the Depositor and
the Trustee shall be executed, authenticated and delivered in
accordance with Sections 5.1, 5.2 and 5.3 mutatis mutandis.
ARTICLE VI
The Depositor
Section 6.1. Preparation and Filing of Exchange Act
Reports; Obligations of the Depositor. (a) The Depositor shall:
(i) on behalf of the Trust, prepare, sign and file
with the Commission, 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, "Exchange Act
Reports") with respect to the Trust. The names of such
Reports and the dates on which they are required to be
filed with the Commission are as follows:
(A) Form 8-K, within the time requirement
prescribed by the Exchange Act if the filing of Form
8-K is necessary;
(B) Form 10-K, within the time requirement
prescribed by the Exchange Act; and
(C) such other reports as may be required
pursuant to Section 13 or 15(d) of the Exchange Act.
(ii) deliver to the Trustee within 15 days after the
Depositor is required to file the same with the Commission,
such additional information, documents and reports with
respect to compliance by the Depositor with the conditions
and covenants of this Agreement, if any, as may be required
to be filed with the Commission from time to time by such
rules and regulations; and
(iii) deliver to the Trustee, which shall then
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 (i) and (ii) of this Section 6.1(a), if any, as
may be required by rules and regulations prescribed from
time to time by the Commission.
(b) The Depositor shall deliver to the Trustee, not
less often than annually, an Officer's Certificate signed by an
Executive Officer who is the principal executive officer,
principal financial officer or principal accounting officer of
the Depositor, dated as of the date set forth in the Series
Supplement for such year, stating that:
32
(i) a review of the activities of the Depositor during
such fiscal year and of performance under this Agreement
has been made under such Executive Officer's supervision;
and
(ii) to the best of such Executive Officer's
knowledge, based on such review, the Depositor has
fulfilled all of its obligations under this Agreement
throughout such year, or, if there has been a default in
the fulfillment of any such obligation, specifying each
such default known to such Executive Officer and the nature
and status thereof. A copy of such certificate may be
obtained by any Holder by a request in writing to the
Depositor addressed to the Corporate Trust Office of the
Trustee.
(c) Upon any application or request by the Depositor
to the Trustee to take any action under the provisions of this
Agreement, which action is subject to the satisfaction of a
condition precedent (including any covenants compliance with
which constitutes a condition precedent), the Depositor shall
furnish to the Trustee: (i) an Officer's Certificate stating that
all conditions precedent, if any, provided for in this Agreement
relating to the proposed action have been complied with, (ii) an
Opinion of Counsel stating that in the opinion of such counsel
all such conditions precedent, if any, have been complied with
and (iii) (if required by the TIA) an Independent Certificate
from a firm of certified public accountants meeting the
applicable requirements of the TIA, except that, in the case of
any such application or request as to which the furnishing of
such documents is specifically required by any provision of this
Agreement, no additional certificate or opinion need be
furnished. Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this
Agreement shall include:
(i) a statement that such signatory of such
certificate or opinion has read or has caused to be read
such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are
based;
(iii) a statement that, in the judgment of each such
signatory, such signatory has made such examination or
investigations as is necessary to enable such signatory to
express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each
such signatory, such condition or covenant has been
complied with.
Section 6.2. Merger or Consolidation of the Depositor
. (a) Subject to the following paragraph, the Depositor will keep
in full effect its existence, rights and franchises as a
corporation under the laws of the jurisdiction of its
incorporation and will obtain and preserve its qualification to
do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Certificates
or any of the Term Assets and to perform its respective duties
under this Agreement.
(b) The Depositor may consolidate or merge with or
into any other Person, provided that:
(i) the Person (if other than the Depositor) formed by
or surviving such consolidation or merger shall expressly
assume, by an agreement supplemental hereto executed and
delivered to the Trustee, in form satisfactory to the
Trustee, the performance or observance of every agreement
and covenant of this Agreement on the part of the
Depositor, as applicable, to be performed or observed, all
as provided herein and in the applicable Series Supplement
or Supplements; and
(ii) the Depositor shall have delivered to the Trustee
an Officer's Certificate and an Opinion of Counsel each
stating that such consolidation or merger and such
supplemental agreement comply with this Article VI and that
all conditions precedent herein provided for relating to
such transaction have been complied with.
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Section 6.3. Limitation on Liability of the Depositor.
(a) Unless otherwise expressly specified in this Agreement or a
Series Supplement, 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 powers if reasonable grounds exist for believing that the
repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(b) Neither the Depositor, nor any of the directors,
officers, employees or agents of the Depositor shall be under any
liability to any Trust or the Certificateholders of any Series
for any action taken, or for refraining from the taking of any
action, in good faith pursuant to this Agreement, or for errors
in judgment; provided, however, that this provision shall not
protect the Depositor or any such person against any breach of
warranties, representations or covenants made herein, or against
any specific liability imposed pursuant hereto, 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 obligations and
duties hereunder.
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 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 Agreement and the rights and
duties of the parties hereto and the interests of the
Certificateholders hereunder. The legal expenses and costs of
such action and any liability resulting (except any loss,
liability or expense incurred by reason of willful misfeasance,
bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and
duties hereunder) shall be allocated as specified in the
applicable Series Supplement.
Section 6.4. Depositor May Purchase Certificates.
The Depositor may at any time purchase Certificates in the open
market or otherwise. Certificates so purchased by the Depositor
may, at the discretion of the Depositor, be held or resold.
Certificates beneficially owned by the Depositor will be
disregarded for purposes of determining whether the required
percentage of the aggregate Voting Rights has given any request,
demand, authorization, direction, notice, consent or waiver
hereunder.
Section 6.5. Preferential Collection of Claims Against
Depositor. Irrespective of whether the TIA shall apply to those
Agreement, the Trustee shall comply with TIA Section 311(a),
excluding any creditor relationship listed in TIA Section 311(b).
A trustee who has resigned or been removed shall be subject to
TIA Section 311(a) to the extent required by TIA Section 311(a).
ARTICLE VII
Concerning the Trustee
Section 7.1. Duties of Trustee; Notice of Defaults.
(a) The Trustee prior to the occurrence of a default under a
Trust Asset Instrument and after the curing of all such defaults,
undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement and the related Series
Supplement. During the period in which such a default is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Agreement, and shall use the same
degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of such
person's own affairs. Any permissive right of the Trustee
enumerated in this Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee which are specifically
required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they conform
to the requirements of this Agreement. If any such instrument is
found not to conform to the requirements of this Agreement, the
Trustee shall take action as it deems appropriate to have the
instrument corrected, and if the instrument is not corrected to
the Trustee's satisfaction, the Trustee will provide notice
thereof to the Depositor and Certificateholders.
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(c) No provision of this Agreement shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act or its own misconduct;
provided, however, that:
(i) prior to the occurrence of a default under a Trust
Asset Instrument, and after the curing of all such
defaults, the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Agreement, the Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement
against the Trustee and, in the absence of bad faith on the
part of the Trustee, the Trustee may conclusively rely, as
to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or
opinions furnished to the Trustee or upon any directions or
information supplied by the Depositor that conform to the
requirements of this Agreement;
(ii) the Trustee shall not be personally liable for an
error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be
taken by it in good faith in accordance with the direction
of Holders of the Required Percentage--Direction of Trustee
of the aggregate Voting Rights of a given Series (or Class
or group of Classes within such Series) relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Agreement;
(iv) the Trustee shall not be required to expend or
risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers if there is
reasonable ground for believing that the repayment of such
funds or adequate indemnity against such risk or liability
is not reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require the
Trustee to perform;
(v) except for actions expressly authorized by this
Agreement, the Trustee shall take no actions reasonably
likely to impair the interests of the Trust in any Term
Asset now existing or hereafter acquired or to impair the
value of any Term Asset now existing or hereafter acquired;
(vi) except as expressly provided in this Agreement,
the Trustee shall not engage in any activity other than
those required or authorized by the terms of this
Agreement. In particular, after the Closing Date the
Trustee shall not purchase or otherwise acquire any
additional securities, modify or permit the modification of
any Trust Asset Instrument or otherwise vary the investment
of the Certificateholders or incur or modify any
obligations, (a) except as expressly required or permitted
by the terms of this Agreement or (b) unless the Trustee
obtains, at the expense of the Certificateholders, an
Opinion of Counsel to the effect that such acquisition,
incurrence or modification will not cause the Trust (unless
otherwise indicated in a related Series Supplement) to fail
to be classified as a grantor trust for federal income tax
purposes; and
(vii) in the event that the Paying Agent or the
Certificate Registrar shall fail to perform any obligation,
duty or agreement in the manner or on the day required to
be performed by the Paying Agent or Certificate Registrar,
as the case may be, under this Agreement, the Trustee shall
be obligated promptly upon its knowledge thereof to perform
such obligation, duty or agreement in the manner so
required.
(d) The Trustee shall have the legal power to exercise
all of the rights, powers and privileges of holders of the Term
Assets in which the Certificates evidence an interest. However,
neither the Trustee (except as specifically provided herein or in
the TIA) nor the Depositor shall be under any obligation
whatsoever to appear in, prosecute or defend any action, suit or
other proceeding in respect of Term Assets or Certificates.
35
(e) Neither the Trustee nor the Depositor shall have
any obligation on or with respect to the Term Assets, except as
provided in this Article VIII with respect to the Trustee; and
their respective obligations with respect to Certificates shall
be solely as set forth in this Agreement.
(f) If there is an event of default (as defined in the
indenture or other document pursuant to which the Term Assets
were issued) with respect to any Term Asset and such default is
known to the Trustee, the Trustee shall promptly give notice to
the Depositor or, if the Certificates are Definitive
Certificates, directly to Holders thereof as provided in Section
9.5 hereof (and in the manner and to the extent provided in TIA
Section 313(c)) within 90 days after such event of default
occurs. Such notice shall set forth (i) the identity of the Term
Assets, (ii) the date and nature of such default, (iii) the face
amount of the obligation to which such default relates, (iv) the
identifying numbers of the Series and Class of Certificates, or
any combination, as the case may be, evidencing the obligations
(or portions thereof) described above in clause (iii), and (v)
any other information which the Trustee may deem appropriate.
Except in the case of a default in payment of principal or
interest (including payments pursuant to a redemption of any
Certificate), the Trustee may withhold the notice to Holders if
and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests
of the Holders.
(g) Holders of Certificates shall have no recourse
against the Depositor or the Trustee for payment defaults on the
Term Assets.
Section 7.2. Certain Matters Affecting the Trustee. (a)
Except as otherwise provided in Section 7.1:
(i) the Trustee may request and rely upon and shall be
protected in acting or refraining from acting upon any
resolution, Officer's Certificate, certificate of auditors
or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, appraisal, bond or
other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper
party or parties;
(ii) the Trustee may consult with counsel and any
written advice or Opinion of Counsel shall be full and
complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good
faith and in accordance with such written advice or Opinion
of Counsel;
(iii) the Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this
Agreement or to institute, conduct or defend any litigation
hereunder or in relation hereto, at the request, order or
direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or
thereby; provided, however, that nothing contained herein,
shall relieve the Trustee of the obligations upon the
occurrence of a default under a Trust Asset Instrument
(that has not been cured or waived) to exercise such of the
rights and powers vested in it by this Agreement, and to
use the same degree of care and skill in their exercise as
a prudent man would exercise or use under the circumstances
in the conduct of such person's own affairs;
(iv) the Trustee shall not be personally liable for
any action taken, suffered or omitted by it in good faith
and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Agreement;
(v) prior to the occurrence of any default under a
Trust Asset Instrument and after the curing of such
defaults, the Trustee shall not be bound to make any
investigation into the facts of matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, appraisal,
approval, bond or other paper or document believed by it to
be genuine, unless requested in writing to do so by Holders
of the Required Percentage--Direction of Trustee of the
aggregate Voting Rights of the affected Series (or Class or
Classes within any such Series), as specified by the
applicable Series Supplement; provided, however, that if
the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of the
36
Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the
Trustee may require reasonable indemnity against such
expense or liability as a condition to taking any such
action;
(vi) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys or a
custodian and shall not be liable for such persons' actions
if it has selected such persons with reasonable care; and
(vii) the Trustee shall not be personally liable for
any loss resulting from the investment of funds held in any
Certificate Account or Reserve Account at the direction of
the Depositor pursuant to Section 3.4.
(b) All rights of action under this Agreement or under
any of the Certificates, enforceable by the Trustee, may be
enforced by it without the possession of any of the Certificates
of any Series (or Class within such Series), or the production
thereof at the trial or other Proceeding relating thereto, and
any such suit, action or proceeding instituted by the Trustee
shall be brought in its name for the benefit of all the Holders
of such Certificates, subject to the provisions of this
Agreement.
Section 7.3. Trustee Not Liable for Recitals in
Certificates or Term Assets. The Trustee assumes no
responsibility for the correctness of the recitals contained
herein and in the Certificates or in any document issued in
connection with the sale of the Certificates (other than the
signature and authentication on the Certificates). Except as set
forth in Section 7.12, the Trustee makes no representations or
warranties as to the validity or sufficiency of this Agreement or
of the Certificates of any Series (other than the signature and
authentication on the Certificates) or of any Term Asset 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.
Section 7.4. Trustee May Own Certificates. The Trustee
in its individual capacity or any other capacity may become the
owner or pledgee of Certificates with the same rights it would
have if it were not Trustee.
Section 7.5. Trustee's Fees and Expenses;
Indemnification; Undertaking for Costs. (a) The Trustee shall be
entitled to receive from the Depositor or an affiliate of the
Depositor as compensation for the Trustee's services hereunder,
trustee's fees pursuant to a separate agreement between the
Trustee and the Depositor, and shall be reimbursed for all
reasonable expenses, disbursements and advances incurred or made
by the Trustee (including the reasonable compensation,
disbursements and expenses of its counsel and other persons not
regularly in its employ). The Depositor shall indemnify and hold
harmless the Trustee and its successors, assigns, agents and
servants against any and all loss, liability or reasonable
expense (including attorney's fees) incurred by it in connection
with the administration of this trust and the performance of its
duties thereunder; the disclosure by the Depositor with respect
to the Term Assets except where such information is based on
erroneous information from the Trustee; any registration
statement of the Certificates of any Series under the Securities
Act; registration of the arrangement created by this Agreement
under the Investment Company Act; any failure by the Depositor to
file Exchange Reports on behalf of the Trust as may be required;
and any defect in the rights of the Trust to the Term Assets
arising under a breach of warranty by the Depositor made pursuant
to Section 2.4 hereof. The Trustee shall notify the Depositor
promptly of any claim for which it may seek indemnity. Failure by
the Trustee to so notify the Depositor shall not relieve the
Depositor of its obligations hereunder. The Depositor need not
reimburse any expense or indemnify against any loss, liability or
expense incurred by the Trustee through the Trustee's own willful
misconduct, negligence or bad faith. In the absence of actual
knowledge of a Responsible Officer that a tax filing signed by
the Trustee on behalf of the Trust pursuant to Section 7.14 is
incorrect, the execution of such a filing shall not be deemed to
be willful misconduct, negligent or in bad faith. The indemnities
contained in this Section 7.5(a) shall survive the resignation or
termination of the Trustee or the termination of this Agreement.
(b) Failure by the Depositor to pay, reimburse or
indemnify the Trustee shall not entitle the Trustee to any
payment, reimbursement or indemnification from the Trust, nor
shall such failure release the Trustee from the duties it is
required to perform under this Agreement. Any unpaid,
unreimbursed or unindemnified
37
amounts shall not be borne by the Trust and shall not constitute
a claim against the Trust, but shall be borne by the Trustee in
its individual capacity.
(c) All parties to this Agreement agree, and each
Holder of any Certificate by such Holder's acceptance thereof
shall be deemed to have agreed, that any court may in its
discretion require, in any Proceeding for the enforcement of any
right or remedy under this Agreement, or in any Proceeding
against the Trustee for any action taken, suffered or omitted by
it as Trustee, the filing by any party litigant in such
Proceeding of an undertaking to pay the costs of such Proceeding
and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party
litigant in such Proceeding, having due regard to the merits and
good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 7.5(c) shall not apply to:
(i) any Proceeding instituted by the Trustee;
(ii) any Proceeding instituted by any Holder, or group
of Holders, in each case holding in the aggregate
Outstanding Certificates representing more than 10% of the
Voting Rights; or
(iii) any Proceeding instituted by any Holder for the
enforcement of the payment of principal or interest on or
after the respective due dates expressed in such
Certificate and in this Agreement (or, in the case of
redemption, on or after the redemption date).
Section 7.6. Eligibility Requirements for Trustee. (a)
The Trustee shall at all times satisfy the requirements of TIA
Section 310(a) and Section (a)(4)(i) of Rule 3a-7. The Trustee
hereunder shall at all times be a corporation which is not an
Affiliate of the Depositor (but may have normal banking
relationships with the Depositor or any obligor with respect to
the Term Assets with respect to such Series of Certificates and
their respective Affiliates) organized and doing business under
the laws of any State or the United States, authorized under such
laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State authority. If such
corporation or association publishes reports of conditions at
least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such
corporation or association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
conditions so published. Such corporation or association must be
rated in one of the four highest rating categories by the Rating
Agency.
(b) The Trustee shall comply with Section 310(b);
provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1), any Series Supplement under
which other securities are outstanding evidencing ownership
interest in obligations of the Term Asset Issuer if the
requirements for such exclusion set forth in TIA Section
310(b)(1) are met.
Section 7.7. Resignation or Removal of the Trustee.
(a) The Trustee may, with respect to any Series of Certificates,
at any time resign and be discharged from any trust hereby
created by giving written notice thereof to the Depositor, the
Rating Agency and to all Certificateholders of such Series. Upon
receiving such notice of resignation, the Depositor shall
promptly appoint a successor trustee for such Series by written
instrument, in duplicate, which instrument shall be delivered to
the resigning Trustee and to the successor trustee. A copy of
such instrument shall be delivered to such Certificateholders by
the Depositor. If no such successor trustee shall have been so
appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment
of a successor trustee for such Series.
(b) If at any time the Trustee shall cease to be
eligible in accordance with the provisions of Section 7.6 and
shall fail to resign after written request therefor by the
Depositor, or if at any time the Trustee shall become incapable
of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or
any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Depositor may remove the
Trustee and
38
appoint a successor trustee by written instrument, in
duplicate, which instrument shall be delivered to the Trustee so
removed and to the successor trustee. A copy of such instrument
shall be delivered to the Certificateholders by the Depositor.
(c) The Holders of Certificates of any Series
representing the Required Percentage--Removal of Trustee of the
aggregate Voting Rights may at any time remove the Trustee and
appoint a successor trustee by written instrument or instruments,
in triplicate, signed by such Holders or their attorneys-in-fact
and duly authorized, one complete set of which instruments shall
be delivered to the Depositor, one complete set to the Trustee so
removed and one complete set to the successor trustee so
appointed. A copy of such instrument shall be delivered to the
Certificateholders by the Depositor.
(d) Any resignation or removal of the Trustee and
appointment of a successor trustee pursuant to any of the
provisions of this Section shall not become effective until
acceptance of appointment by the successor trustee as provided in
Section 7.8.
Section 7.8. Successor Trustee. (a) Any successor
trustee appointed as provided in Section 7.7 shall execute,
acknowledge and deliver to the Depositor and to its predecessor
trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor
hereunder (either with respect to a given Series of Certificates
or with respect to all Certificates issued under this Agreement),
with the like effect as if originally named as trustee herein.
The predecessor trustee shall deliver to the successor trustee
all documents and statements held by it hereunder, and the
Depositor and the predecessor trustee shall execute and deliver
such instruments and do such other things as may reasonably be
required for more fully and certainly vesting and confirming in
the successor trustee all such rights, powers, duties and
obligations. No successor trustee shall accept appointment as
provided in this Section unless at the time of such acceptance
such successor trustee shall be eligible under the provisions of
Section 7.6.
(b) Upon acceptance of appointment by a successor
trustee as provided in this Section, the Depositor shall transmit
notice of the succession of such trustee hereunder to all Holders
of Certificates and to the Rating Agency in the manner provided
in Section 7.7.
Section 7.9. Merger or Consolidation of Trustee. Any
corporation or association into which the Trustee may be merged
or converted or with which it may be consolidated or any
corporation or association resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any
corporation or association succeeding to the trust business of
the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation or association shall be eligible under
the provisions of Section 7.6, without the execution or filing of
any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
Section 7.10. Appointment of Co-Trustee or Separate
Trustee. (a) Notwithstanding any other provisions hereof, at any
time, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Trust for a given Series
may at the time be located, the Depositor and the Trustee acting
jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the
Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any
part of such Trust, and to vest in such Person or Persons, in
such capacity, such title to such Trust, or any part thereof,
and, subject to the other provisions of this Section 7.10, such
powers, duties, obligations, rights and trusts as the Depositor
and the Trustee may consider necessary or desirable. If the
Depositor shall not have joined in such appointment within 15
days after the receipt by it of a request so to do, the Trustee
alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under
Section 7.6 hereunder and no notice to Holders of Certificates of
the appointment of co-trustee or co-trustees or separate trustee
or trustees shall be required under Section 7.8 hereof.
Notwithstanding anything contained herein to the contrary, the
appointment of a co-trustee pursuant to this Section
39
7.10 shall not release the Trustee from the duties, obligations,
responsibilities or liabilities arising under this Agreement.
(b) In the case of any appointment of a co-trustee or
separate trustee pursuant to this Section 8.10, all rights,
powers, duties and obligations conferred or imposed upon the
Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be
performed by the Trustee, the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of
title to such Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate
trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the
Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to
each of them. Every instrument appointing any separate trustee or
co-trustee shall refer to this Agreement and the conditions of
this Article VII. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the
estates or property specified in its instrument of appointment,
either jointly with the Trustee or separately, as may be provided
therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall
be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any
time, constitute the Trustee, its agent or attorney-in-fact, with
full power and authority, to the extent not prohibited by law, to
do any lawful act under or in respect of this Agreement on its
behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all
its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Trustee, to the extent permitted by
law, without the appointment of a new or successor trustee.
Section 7.11. Appointment of Office or Agency. As
specified in a Series Supplement, the Trustee shall appoint an
office or agency in the City of New York where the Certificates
may be surrendered for registration of transfer or exchange, and
presented for the final distribution with respect thereto, and
where notices and demands to or upon the Trustee in respect of
the Certificates of the related Series and this Agreement may be
served.
Section 7.12. Representations and Warranties of Trustee.
The Trustee represents and warrants that:
(i) the Trustee is duly organized, validly existing
and in good standing under the laws of its jurisdiction of
incorporation or association;
(ii) neither the execution nor the delivery by the
Trustee of this Agreement, nor the consummation by it of
the transactions contemplated hereby nor compliance by it
with any of the terms or provisions hereof will violate its
charter documents or by-laws.
(iii) the Trustee has full power, authority and right
to execute, deliver and perform its duties and obligations
as set forth herein and in each Series Supplement to which
it is a party and has taken all necessary action to
authorize the execution, delivery and performance by it of
this Agreement; and
(iv) this Agreement has been duly executed and
delivered by the Trustee and, assuming that this Agreement
has been duly executed and delivered by the Depositor and
is in compliance with all applicable law other than laws
applicable only to the Trustee as a banking institution,
constitutes the legal, valid and binding obligation of the
Trustee, enforceable in accordance with its terms, except
as enforcement may be limited by the applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or
at law).
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Section 7.13. Trustee to Act Only in Accordance With This
Agreement or Pursuant to Instructions of Certificateholders. The
Trustee shall only take such action or shall refrain from taking
such action under this Agreement as directed pursuant to a
specific provision of this Agreement or, if required hereunder,
by all the Certificateholders, and the Trustee shall not
otherwise act in respect of the Trust; provided, however, that
the Trustee shall not be required to take any such action if it
reasonably determines, or receives, at the expense of the
Certificateholders, an Opinion of Counsel (with copies thereof
delivered to the Certificateholders and the Depositor), that such
action (i) is inconsistent with the purpose of the Trust set
forth in Section 2.7 or contrary to the terms hereof.
Section 7.14. Accounting and Reports to
Certificateholders, Internal Revenue Service and Others. The
Trustee shall (a) maintain the books of the Trust on a calendar
year basis on the cash method of accounting, (b) after the close
of each calendar year, deliver to each Certificateholder, as may
be required by the Code and applicable Treasury Regulations or
otherwise, such information for such year as may be required to
enable each Certificateholder to prepare its federal income tax
returns, (c) cause independent public accountants to prepare such
tax returns relating to the Trust, execute and file such returns
and make such elections, as may from time to time be directed by
the Depositor, under any New York State, New York City or federal
statute or rule or regulation thereunder so as to maintain the
Trust's characterization as other than an association taxable as
a corporation for federal income tax purposes, (d) cause such tax
returns to be signed on behalf of the Trust in the manner
required by law and (e) collect or cause to be collected any
withholding tax as described in and in accordance with Subsection
4.3 with respect to income or distributions to
Certificateholders.
ARTICLE VIII
Termination
Section 8.1. Termination upon Purchase or Liquidation
of All Term Assets. (a) The respective obligations and
responsibilities under this 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) shall terminate (subject to surviving
rights of indemnity) 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 Agreement on the
Distribution Date coinciding with or following the earlier to
occur of (i) if and as provided in the Series Supplement for such
Series, the purchase by, and at the sole option of the Depositor,
as provided in the Series Supplement for such Series, of all
remaining Term Assets for such Series in the Trust for such
Series on any Distribution Date, provided that such option may be
exercised only if the aggregate principal amount of such Term
Assets at the time of any such purchase is less than 10% (or such
other percentage as may be specified in such Series Supplement)
of the aggregate principal amount of all Term Assets deposited in
such Trust as of the applicable Cut-off Date and (ii) the final
payment on or other liquidation (which may include redemption or
other purchase thereof by the applicable Term Asset Issuer) of
the last Term Asset remaining in the Trust for such Series or the
disposition of all property acquired upon foreclosure or
liquidation of any such Term Asset; provided, however, that in no
event shall the trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of St. Xxxxx, living on the date
hereof.
(b) The Depositor shall exercise its option to
purchase all the Term Assets remaining in the Trust pursuant to
clause (i) of Section 8.1(a) not later than 91 days prior to the
anticipated date of purchase of all such Term Assets, at a price
as may be specified in the applicable Series Supplement;
provided, however, that such price shall not be less than the
then outstanding aggregate principal amount of such Term Assets
as determined on the date of purchase. The proceeds of such
purchase will be deposited into the Certificate Account and
applied in the same manner and priority that collections on Term
Assets would be applied as provided in the applicable Series
Supplement.
(c) Written notice of any termination shall be
provided as set forth in Section 9.5.
(d) Upon presentation and surrender of the
Certificates by the Certificateholders on the Scheduled Final
Distribution Date, or the Distribution Date coinciding with or
next following the earlier to occur of the
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occurrences specified in clauses (i) and (ii) of Section 8.1(a),
with respect to the applicable Series of Certificates, the
Trustee shall distribute to each Holder presenting and
surrendering its Certificates the amount otherwise distributable
on such Distribution Date in accordance with Section 4.1 in
respect of the Certificates so presented and surrendered, if not
in connection with the purchase by the Depositor of all the Term
Assets. Any funds not distributed on such Distribution Date shall
be set aside and held in trust for the benefit of
Certificateholders not presenting and surrendering their
Certificates in the aforesaid manner, and shall be disposed of in
accordance with this Section 8.1 and Section 4.1 hereof.
Immediately following the deposit of funds in trust hereunder,
the Trust for such Series shall terminate.
ARTICLE IX
Miscellaneous Provisions
Section 9.1. Amendment. (a) This Agreement may be amended
from time to time by the Depositor and the Trustee without notice
to or the consent of any of the Certificateholders for any of the
following purposes: (i) to cure any ambiguity or to correct or
supplement any provision herein which may be defective or
inconsistent with any other provision herein; (ii) to add or
supplement any Credit Support for the benefit of any
Certificateholders; (iii) to add to the covenants, restrictions
or obligations of the Depositor or the Trustee for the benefit of
the Certificateholders; (iv) to add, change or eliminate any
other provisions with respect to matters or questions arising
under this Agreement; (v) to comply with any requirements imposed
by the Code; (vi) to evidence and provide for the acceptance of
appointment hereunder of a Trustee other than The Bank of New
York, as Trustee for a Series of Certificates, and to add to or
change any of the provisions of this Agreement as shall be
necessary to provide for or facilitate the administration of the
separate Trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 5.1 hereof; (vii) to evidence and
provide for the acceptance of appointment hereunder by a
successor Trustee with respect to the Certificates of one or more
Series or to add or change any of the provisions of this
Agreement as shall be necessary to provide for or facilitate the
administration of the trusts hereunder; or (viii) to provide for
the issuance of new Certificates issued pursuant to Section 5.16
hereof; so long as (x) any such amendment described in (i)
through (viii), but not (vi), will not, as evidenced by an
Opinion of Counsel, cause the Trust (unless otherwise specified
in a related Series Supplement) to fail to be characterized as a
grantor trust for federal income tax purposes or result in a sale
or exchange of any Certificate for federal income tax purposes,
(y) the Trustee has received written confirmation from each
Rating Agency rating such Certificates that such amendment will
not cause such Rating Agency rating such Certificates to reduce
or withdraw the then current rating thereof and (z) the Trustee
has received an Officer's Certificate from the Depositor that
such amendment will not have a material adverse effect on any
Class of Certificateholders.
(b) Without limiting the generality of the foregoing,
with respect to any Series, this Agreement may also be modified
or amended from time to time by the Depositor and the Trustee
with the consent of the Holders of Certificates representing the
Required Percentage--Amendment of the aggregate Voting Rights of
each Class voting as a Class, of those Certificates to which such
modification or amendment relates for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the
rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or
alter the timing of, payments received on Term Assets which are
required to be distributed on any Certificate without the
unanimous consent of the Holders of such Certificates, (ii)
adversely affect in any material respect the interests of the
Holders of any Series (or Class within such Series) of
Certificates in a manner other than as described in (i), without
the consent of the Holders of Certificates of such Series or
Class evidencing not less than the Required Percentage--Amendment
of the aggregate Voting Rights of such Series or Class or (iii)
reduce the percentage of aggregate Voting Rights required by
(ii), as described in (ii), without the consent of the Holders of
all Certificates of such Series or Class then Outstanding; and
provided further that the Depositor shall furnish to the Trustee
an Opinion of Counsel (unless otherwise indicated in a related
Series Supplement) stating that, in the opinion of such counsel,
any such amendment would not cause the Trust to fail to be
characterized as a grantor trust for federal income tax purposes
or result in a sale or exchange of any Certificate for federal
income tax purposes. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents
pursuant to this Section 9.1, Certificates registered in the name
of the Depositor, or any Affiliate thereof, shall be entitled to
Voting Rights with respect to matters affecting such Certificates.
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Notwithstanding any other provision of this Agreement, this
Section 9.1(b) shall not be amended without the unanimous consent
of the Holders of all such Certificates.
(c) Promptly after the execution of any such amendment
or modification, the Trustee shall furnish a copy of such
amendment or modification to each Certificateholder of the
affected Series or Class and to the Rating Agency. It shall not
be necessary for the consent of Certificate-holders under this
Section to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Section 9.2. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such
counterparts shall constitute but one and the same instrument.
Section 9.3. Limitation on Rights of
Certificateholders. (a) The death or incapacity of any
Certificateholder shall not operate to terminate this Agreement
or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any
action or proceeding in any court for a partition or winding up
of the applicable Trust, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of then.
(b) No Certificateholder of a given Series shall have
any right to vote (except as expressly provided for herein) or in
any manner otherwise control the operation and management of any
Trust, or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any
liability to any third person by reason of any action taken by
the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder of a given Series shall have any
right by virtue of any provision of this Agreement to institute
any suit, action or proceeding in equity or at law upon or under
or with respect to this Agreement, unless (i) such Holder
previously shall have given to the Trustee a written notice of
breach and of the continuance thereof and unless also the Holders
of Certificates of such Series evidencing not less than the
Required Percentage--Remedies of the aggregate Voting Rights of
such Series shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and
the Trustee, for 15 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding. It is
understood and agreed that the Trustee shall not be obligated to
make any investigation of matters arising under this Agreement or
to institute, conduct or defend any litigation hereunder or in
relation hereto at the request, order or direction of any
Certificateholders unless such Certificateholders have offered to
the Trustee the reasonable indemnity referred to above. It is
further understood and agreed, and expressly covenanted by each
Certificateholder of each Series with every other
Certificateholder of such Series and the Trustee, that no one or
more Holders of Certificates of such Series shall have any right
in any manner whatever by virtue of any provision of this
Agreement to affect, disturb or prejudice the rights of the
Holders of any other of the Certificates of such Series, or to
obtain or seek to obtain priority over or preference to any other
such Holder, or to enforce any right under this Agreement, except
in the manner herein provided and for the equal, ratable and
common benefit of all Certificateholders of such Series. For the
protection and enforcement of the provisions of this Section,
each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in
equity.
Section 9.4. Governing Law. This Agreement shall be governed
by and construed in accordance with the law of the State of New
York without reference to such State's principles of conflicts of
law.
Section 9.5. Notices. All directions, demands and
notices hereunder shall be in writing and shall be delivered as
set forth in the applicable Series Supplement. Any notice
required to be provided to a Holder of a Certificate shall be
given by first class mail, postage prepaid, at the last address
of such Holder as shown in the
43
Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to
have been duly given when mailed, whether or not the
Certificateholder receives such notice.
Section 9.6. Severability of Provisions. If any one or
more of the covenants, agreements, provisions or terms of this
Agreement shall be for any reason whatsoever held invalid, then
to the extent permitted by law such covenants, agreements,
provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the
other provisions of this Agreement or of the Certificates or the
rights of the Holders thereof.
Section 9.7. Notice to Rating Agency. The Trustee
shall use its best efforts promptly to provide notice to each
Rating Agency, with a copy to the Depositor, with respect to each
of the following of which any of its Responsible Officers has
actual knowledge:
(i) any change or amendment to this Agreement;
(ii) the resignation or termination of the Trustee;
(iii) the repurchase or substitution of Term Assets,
if any, pursuant to Section 2.3;
(iv) the final payment to Holders of the Certificates
of any Class; and
(v) any change in the location of the Certificate
Account.
In addition, the Trustee shall promptly furnish to each Rating
Agency copies of each report to Certificateholders described in
Section 4.2 and the Trustee shall promptly furnish to each Rating
Agency copies of the following:
(i) each annual statement as to compliance described
in Section 3.8; and
(ii) each annual independent public accountants'
servicing report described in Section 3.9.
Any such notice pursuant to this Section shall be in writing and
shall be deemed to have been duly given if personally delivered
or mailed by first class mail, postage prepaid, or by express
delivery service to each Rating Agency at the address specified
in the applicable Series Supplement.
Section 9.8. Grant of Security Interest. It is the express
intent of the parties hereto that each conveyance of any Term
Assets by the Depositor to the Trustee be, and be construed as, a
sale of the Term Assets by the Depositor and not a pledge of any
Term Assets by the Depositor to secure a debt or other obligation
of the Depositor. However, in the event that, notwithstanding the
aforementioned intent of the parties, any Term Assets are held to
be property of the Depositor, then, (a) it is the express intent
of the parties that such conveyance be deemed a pledge of such
Term Assets by the Depositor to the Trustee to secure a debt or
other obligation of the Depositor and (b)(1) this Agreement shall
also be deemed to be a security agreement within the meaning of
Articles 8 and 9 of the 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 2.1 hereof shall be deemed to be a grant by the Depositor
to the Trustee of a security interest in all the Depositor's
right, title and interest in and to such Term Assets and all
amounts payable to the holders of such Term Assets in accordance
with the terms thereof and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash,
instruments, securities or other property, including all amounts
from time to time held or invested in the applicable Certificate
Account, whether in the form of cash, instruments, securities or
other property; (3) the obligations secured by such security
agreement shall be deemed to be all the Depositor's obligations
under this Agreement, including the obligation to provide to the
Certificateholders the benefits of this Agreement relating to
such Term Assets and the applicable Trust; and (4) notifications
to persons holding such property, and acknowledgments, receipts
or confirmations from persons holding such property, shall be
deemed notifications to, or acknowledgments, 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
44
Term Assets and all other property described in clause (2) of the
preceding sentence, for the purpose of securing to the Trustee
the performance by the Depositor of the obligations described in
clause (3) of the preceding sentence. Notwithstanding the
foregoing, the parties hereto intend the Grant pursuant to
Section 2.1 to be a true, absolute and unconditional sale of the
Term Assets and assets constituting the applicable Trust by the
Depositor to the Trustee. The Depositor shall direct the Trustee
to the extent consistent with this Agreement, take such actions
as may be necessary to ensure that, if this Agreement were deemed
to create a security interest in the Term Assets, such security
interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as
such for so long as any of the Term Assets remain outstanding.
Without limiting the generality of the foregoing, the Trustee,
upon receipt of such direction, shall file, or shall cause to be
filed, all filings identified by the Depositor to be necessary to
maintain the effectiveness of any original filings identified by
the Depositor to be necessary under the UCC as in effect in any
jurisdiction to perfect the Trustee's security interest in or
lien on the Term Assets, including (x) continuation statements
and (y) such other statements as may be occasioned by (1) any
change of name of the Depositor or the Trustee, (2) any change of
location of the place of business or the chief executive office
of the Depositor or (3) any transfer of any interest of the
Depositor in any Term Asset.
Section 9.9. Nonpetition Covenant. Notwithstanding any
prior termination of this Agreement, each of the Trustee
(including any Co-Trustee), any agent (including the
Authenticating Agent, the Calculation Agent and the Paying Agent)
and the Depositor agrees that it shall not, until the date which
is one year and one day after the earlier of a Trust Termination
Event or the Scheduled Final Distribution Date, as defined in the
related Series Supplement, 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 9.10. No Recourse. Provided that there exists
no default on the Term Assets, neither the Trustee (including any
Co-Trustee), any agent (including the Authenticating Agent, the
Calculation Agent and the Paying Agent) nor the Depositor shall
have any recourse to the Term Assets, except as specifically
provided in the related Series Supplement.
Section 9.11. Article and Section References. All article
and section references used in this Agreement, unless otherwise
provided, are to articles and sections in this Agreement.
Section 9.12. Conflict with Trust Indenture Act.
(a) If any provision hereof limits, qualifies or
conflicts with another provision hereof that is required to be
included in this Agreement by any of the provisions of the TIA,
such required provision shall control.
(b) The provisions of the TIA Sections 310 through 317
that impose duties on any Person (including the provisions
automatically deemed included herein unless expressly excluded by
this Agreement) are a part of and govern this Agreement, whether
or not physically contained herein.
(c) Except as expressly provided in this Agreement,
all provisions specifically referencing the TIA shall be
inapplicable until such time as this Agreement is qualified under
the TIA.
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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.
PRUDENTIAL SECURITIES STRUCTURED ASSETS,
INC., a Delaware corporation, as Depositor
By: /s/ Xxxxxxxx X'Xxxxx
--------------------------------
Name: Xxxxxxxx X'Xxxxx
Title: Senior Vice President
THE BANK OF NEW YORK,
a New York banking corporation, as Trustee
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: Assistant Treasurer
46
