Exhibit 4.8
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CUSTODY AGREEMENT
between
[Entity],
as Note Custodian
and
[Entity],
as Depositor
Dated
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Table of Contents
ARTICLE I
DEFINITIONS
ARTICLE II
CUSTODY ACCOUNTS AND CUSTODY RECEIPTS
Section 2.01. Creation of Custody Accounts................................3
Section 2.02. Custody Receipts............................................5
Section 2.03. Mutilated, Lost, Stolen or Destroyed Custody
Receipts...................................................6
Section 2.04. Registration and Transfer of Ownership; Persons
Treated as Owners..........................................7
Section 2.05. Deposits With Depositories.................................10
Section 2.06. Payment on Custody Receipts................................12
ARTICLE III
ADMINISTRATION AND CUSTODY ACCOUNTS
Section 3.01. Payments in Respect of the Underlying Securities...........13
Section 3.02. Redemptions; Notices; Consents to Amendments
to Issuance Agreements....................................14
Section 3.03. Statements to Owners.......................................15
Section 3.04. Defaults...................................................15
Section 3.05. Unclaimed Monies...........................................16
Section 3.06. Obligation of Owners With Respect to
Certain Taxes and Filings.................................17
Section 3.07. Transfers of Related Underlying Securities
by Note Custodian.........................................17
Section 3.08. Termination of Custody Accounts............................17
ARTICLE IV
THE NOTE CUSTODIAN
Section 4.01. Standard of Liability......................................17
Section 4.02. Resignation and Removal of the Note Custodian:
Appointment of Successor..................................19
Section 4.03. Charges and Expenses.......................................20
Section 4.04. Limitation of Liability....................................20
Section 4.05. Non-Petition...............................................21
ARTICLE V
MISCELLANEOUS
Section 5.01. Amendments, Etc............................................21
Section 5.02. Counterparts...............................................21
Section 5.03. Exclusive Benefit of Parties; Effective Date...............22
Section 5.04. Invalidity of Provisions...................................22
Section 5.05. Notices....................................................22
Section 5.06. Business Day...............................................23
Section 5.07. Term of Agreement..........................................23
Section 5.08. Governing Law..............................................23
Section 5.09. Headings...................................................23
CUSTODY AGREEMENT
PRELIMINARY STATEMENT
CUSTODY AGREEMENT dated [DATE], between [ENTITY], as custodian for the
Owners from time to time of Custody Receipts (the "Note Custodian"), and
[ENTITY], as depositor (the "Depositor"), for the benefit of the Owners from
time to time of Custody Receipts. (Capitalized terms used herein and not
otherwise defined shall have the meanings provided in Article I hereof.)
WHEREAS, the Note Custodian and the Depositor desire to enter into
this Custody Agreement to provide for the issuance of Custody Receipts, Series
[DESIGNATION] to be composed of Class [A] Custody Receipts and Class [A-IO]
Custody Receipts evidencing the Underlying Securities indicated on the related
Custody Receipts Register on the terms and conditions set forth herein and in
the Schedule of Terms; and
WHEREAS, the parties hereto desire to establish the terms and
conditions pursuant to which the Underlying Securities are to be deposited
with, and held in custody by, the Note Custodian, the terms and conditions for
the issuance, transfer and exchange of Custody Receipts and the terms for the
payment of certain fees and expenses associated with this Custody Agreement;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto do hereby agree, for the benefit of the Owners from time to time
of Custody Receipts, as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used herein and not defined in this Article I are
used with the definitions assigned thereto in Appendix A to the related
Schedule of Terms which is incorporated herein and made a part hereof.
"Authorized Denomination" means the Authorized Denomination set forth
in the related Schedule of Terms.
"Authorized Officer" means with respect to the Note Custodian, any
officer assigned to the Corporate Trust Office, including any managing
director, vice president, assistant vice president, assistant treasurer,
assistant secretary or any other officer of the Note Custodian customarily
performing functions similar to those performed by any of the above designated
officers and having direct responsibility for the administration of this
Agreement, and also, with respect to a particular matter, any other officer, to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
["Beneficial Owner" means, with respect to a Custody Receipt that is a
Book-Entry Custody Receipt, the person or entity who is the beneficial owner of
such Book-Entry Custody Receipt.]
["Book-Entry Custody Receipt" means any beneficial interest in the
Custody Receipts, ownership and transfers of which shall be made through book
entries by the Depository as described in Section 2.06(c) hereof.]
"Class A Distribution Amount" means, as to the Class A Custody
Receipts and any Payment Date, an amount equal to the sum of (i) the related
Scheduled Principal Amount and (ii) the Class A Custody Receipt Interest
Distribution.
"Custody Account" means the account established and maintained
pursuant to Section 2.01 of this Custody Agreement.
"Definitive Custody Receipts" has the meaning set forth in Section
2.06(c).
["Depository" means, with respect to the Custody Receipts which are
Book-Entry Custody Receipts or any Underlying Securities which are issued in
book-entry form, the securities depository with which the Related Underlying
Securities or the Book-Entry Custody Receipts are deposited, which depository
shall be registered under Section 17A of the Securities Exchange Act of 1934.]
["Depository Agreement" means, with respect to Book-Entry Custody
Receipts, the letter of representations relating to such Custody Receipts among
the Depositor, the Note Custodian and the Depository substantially in the form
attached to the related Schedule of Terms.]
["Depository Participant" means a broker, dealer, bank, other
financial institution or other person or entity for whom from time to time a
Depository effects book-entry transfers and pledges of Custody Receipts
deposited with such Depository.]
"Fee Letter" means the side letter between the Depositor and the Note
Custodian dated _____________ regarding the amounts payable to the Note
Custodian in respect of its fees and expenses under this Custody Agreement, as
amended from time to time by written agreement of the parties hereto.
"Issuance Agreement" means, with respect to the Custody Receipts, the
agreement pursuant to which the related Underlying Securities were issued and
which is specified in the related Schedule of Terms.
"Issuer" means, with respect to the Custody Receipts, the Issuer of
the related Underlying Securities, if any, specified in the related Schedule of
Terms.
"Mail" means mail by first-class postage to specified Owners of a
Series of Custody Receipts at their addresses set forth in the Related Custody
Receipts Register.
"Note Custodian's Principal Office" means the principal office of the
Note Custodian at which at any particular time its corporate trust business
shall be administered which office at the date of the execution of this
Agreement is located at or at any other time at such other address as the Note
Custodian may designate from time to time by notice to the Depositor.
"Notice of Transfer or Exchange" means the Notice of Transfer or
Exchange printed on a Custody Receipt.
"Payment Date" means, with respect to the Underlying Securities, any
Payment Date set forth in the related Schedule of Terms.
"Schedule of Terms" means, with respect to the Custody Receipts, the
Schedule of Terms, in the form set forth in Annex I hereto.
"Servicer" means the person or entity as specified in the related
Schedule of Terms.
"Transfer Limitations" means, with respect to the Custody Receipts,
the Transfer Limitations set forth in the related Schedule of Terms.
"Trustee" means the bank or trust company serving as trustee or
indenture trustee with respect to the Underlying Securities, as specified in
the related Schedule of Terms.
"Underlying Securities" means the Underlying Securities specified in
the related Schedule of Terms.
"Voting Rights" means, with respect to the Class [A] Custody Receipts
% and with respect to the Class [A-IO] Custody Receipt % and such Voting Rights
with respect to each Custody Receipt of a Class means the pro rata share of the
percentage allocated to the related Class of Custody Receipts based on the
Initial Custody Receipt Balance or the Initial Aggregate Class [A-IO] Custody
Receipt Notional Amount, as the case may be.
ARTICLE II
CUSTODY ACCOUNTS AND CUSTODY RECEIPTS
Section 2.01. Creation of Custody Accounts. The Note Custodian shall
establish and maintain a separate Custody Account in the corporate trust office
of the Note Custodian to be designated "[Name of Related Underlying Securities
(as specified in the related Schedule of Terms) --Custody Receipts Series []]
--Custody Account." The Note Custodian shall purchase the Underlying Securities
from the Depositor, without recourse, in return for the Custody Receipts. The
Note Custodian shall deposit into such Custody Account the related Underlying
Securities, and any monies received in connection therewith. The Custody
Account shall at all times be maintained as a custodial account for the benefit
of the related Owners, separated and segregated on the books of the Note
Custodian from all other accounts, funds and property in the possession of the
bank or trust company acting as Note Custodian, including any other Custody
Account. The Underlying Securities and any monies held in a Custody Account
shall not at any time be commingled on the books of the Note Custodian with any
other assets or property held by the Note Custodian. The Note Custodian shall
maintain separate records in connection with any monies which it may hold, in
such Custody Account or otherwise, in connection with the Underlying
Securities. To the extent practicable, the Note Custodian shall arrange for
distributions on the Underlying Securities to be made in immediately available
funds to the Note Custodian, by wire transfer or otherwise, pursuant to the
payment provisions of each Issuance Agreement. The Custody Account shall be
maintained at all times with an Eligible Institution. If the Note Custodian
ceases to be an Eligible Institution, the Custody Account shall be transferred
to an Eligible Institution within five Business Days.
It is the express intent of the parties hereto that the conveyance of
the Underlying Securities and any monies received in connection therewith to
the Note Custodian, by the Depositor be, and be construed as, an absolute sale
of the Underlying Securities and related property. It is, further, not the
intention of the parties that such conveyance be deemed a pledge of the
Underlying Securities and related property by the Depositor to the Note
Custodian to secure a debt or other obligation of the Depositor. However, in
the event that, notwithstanding the intent of the parties, the Underlying
Securities or any related property is held to be the property of the Depositor,
or if for any other reason this Agreement is held or deemed to create a
security interest in the Underlying Securities or any related property, then:
(1) this Agreement shall be deemed to be a security agreement; and
(2) the conveyance provided for hereunder shall be deemed to be a
grant by the Depositor to the Note Custodian, of a security
interest in all of the Depositor's right, title, and
interest, whether now owned or hereafter acquired, in and to
the Underlying Securities, any monies received in connection
therewith and any proceeds thereof.
The Depositor shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the property described above, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the
term of this Agreement. The Depositor shall file all filings necessary to
maintain the effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect such security
interest in such property. In connection herewith, the Note Custodian shall
have all of the rights and remedies of a secured party under the Uniform
Commercial Code as in force in the relevant jurisdiction.
Section 2.02 Custody Receipts. The Note Custodian shall issue the
Series [ ] Custody Receipts in Authorized Denominations as hereinafter
provided, composed of Class [A] Custody Receipts and Class [A-IO] Custody
Receipts evidencing a beneficial ownership interest in the related Underlying
Securities for such Custody Receipts (as set forth in such Custody Receipt and
in the Custody Receipt Register) on the terms and conditions set forth herein
and in the related Schedule of Terms. Class [A] Custody Receipts shall be
substantially in the form set forth in Exhibit 1 hereto, and shall be assigned
consecutive registration numbers. The Class [A-IO] Custody Receipts shall be
substantially in the form set forth in Exhibit 2 hereto, and shall be assigned
consecutive registration numbers. Each Custody Receipt shall be executed by the
Note Custodian by the manual signature of an Authorized Officer and no Custody
Receipt shall be entitled to any benefits under this Custody Agreement, or be
valid or obligatory for any purpose, unless so executed by the Note Custodian.
In case any Authorized Officer whose signature shall appear on any Custody
Receipt shall cease to be an Authorized Officer, such signature shall
nevertheless be valid and sufficient for all purposes as if such person had
remained in office. The Custody Receipts shall not evidence any financial
obligation of the Depositor or the Note Custodian except that the Note
Custodian shall be required, as provided in Section 3.01 hereof, to distribute
in the amount specified in the related Schedule of Terms all payments received
in respect of the related Underlying Securities deposited hereunder to the
Custody Receipts evidencing such Underlying Securities without making any
deduction whatsoever, other than as expressly provided in this Custody
Agreement.
Section 2.03 Delivery of Custody Receipts. The Note Custodian shall
deliver, at the direction of the Depositor, to the Owners thereof the initial
Custody Receipts of a Series, registered in the names and in the denominations
specified in writing by the Depositor at least three Business Days prior to
such delivery, upon receipt by the Note Custodian of the following:
(a) original executed counterparts of the related Schedule of
Terms;
(b) in the case of related Underlying Securities issued in
certificated form, the related Underlying Securities in the aggregate
outstanding principal amount specified in the related Schedule of
Terms, registered in the name of the Note Custodian (or its nominee or
its agent's nominee) or endorsed by the registered owner thereof for
transfer to the Note Custodian (or its nominee or its agent's nominee)
or in blank, and all documents necessary to effect the registration of
the related Underlying Securities (as specified in the related
Issuance Agreement) in the name of the Note Custodian;
(c) a list of the names, addresses and United States taxpayer
identification numbers (or, if a United States taxpayer identification
number is not appropriate, a copy of Form W-8 or such other
appropriate federal tax identification as the Note Custodian may
reasonably request) of the persons in whose names, and the
denominations in which, such Custody Receipts are to be registered;
and
(d) a copy of the related Issuance Agreement.
The Note Custodian may accept the form of the related Issuance Agreement
delivered to it by the Depositor as being a true and correct copy of such
Issuance Agreement and shall not be deemed to have knowledge of, and need not
give effect to, any amendment unless a copy of such amendment is delivered to
it.
The initial Custody Receipts of a Series to be executed and delivered
by the Note Custodian as provided in this Section 2.03 shall be delivered to or
upon the written order of the Depositor in The City of New York (or such other
city in the United States of America as may be specified by the Depositor and
agreed upon by the Note Custodian) at a location specified by the Depositor and
agreed upon by the Note Custodian. Such delivery shall be made on the date that
the related Underlying Securities are received by the Note Custodian as
provided in paragraph (b) of this Section 2.03. If the Depositor shall so
request reasonably in advance, the Note Custodian shall make such Custody
Receipts available to the Depositor or the person designated by the Depositor
for inspection on the Business Day preceding the date of any such delivery, at
a location in The City of New York (or such other city specified above)
specified by the Depositor and agreed upon by the Note Custodian. The Depositor
shall provide the Note Custodian, on (and in the numbers specified in) the Note
Custodian's reasonable request, Custody Receipt forms to facilitate issuance
and transfer of Custody Receipts and permit any temporary Custody Receipts
issued to be exchanged for permanent Custody Receipts.
Any temporary Custody Receipts that may be issued shall be
exchangeable for definitive Custody Receipts upon surrender of the temporary
Custody Receipts at the Note Custodian's Principal Office without charge to the
Owner and after any waiting period that may be applicable. Any tax or
governmental charge that may be imposed in connection with any such exchange
shall be borne by the Owner. Upon surrender for cancellation of any one or more
temporary Custody Receipts, the Note Custodian shall execute and deliver in
exchange therefor definitive Custody Receipts of like denominations. Until so
exchanged, the temporary Custody Receipts shall in all respects be entitled to
the same benefits under this Agreement as definitive Custody Receipts.
Section 2.04. Mutilated, Lost, Stolen or Destroyed Custody Receipts.
In the event a Custody Receipt is mutilated, lost, stolen or destroyed, the
Note Custodian shall cancel such Custody Receipt, if possible, and execute and
deliver in lieu thereof a new Custody Receipt of the same Series, Class and
denomination, provided that:
(a) in the case of any mutilated Custody Receipt, such mutilated
Custody Receipt shall be first surrendered to the Note Custodian; and
(b) in the case of any lost, stolen or destroyed Custody Receipt,
there shall first be delivered to the Note Custodian evidence of such
loss, theft or destruction satisfactory to the Note Custodian and the
Depositor, together with indemnity satisfactory to each of them, and
neither the Depositor nor the Note Custodian shall have received
written notice that such Custody Receipt has been acquired by a bona
fide purchaser for value.
All replacement Custody Receipts issued pursuant to this Section shall be
entitled to the full benefits hereunder, whether or not, in the case of clause
(b), any lost, stolen or destroyed Custody Receipt shall be found at any time.
The Note Custodian shall be entitled to customary compensation from the Owner
for its expenses, including any tax or governmental charge that may be payable
by it, in connection with any such replacement of Custody Receipts.
Section 2.05. Registration and Transfer of Ownership; Persons Treated
as Owners.
(a) The Note Custodian shall maintain a Custody Receipts Register
at the Note Custodian's Principal Office to provide for the
registration of the Custody Receipts and the registration of transfers
of such Custody Receipts entitled to be registered or transferred as
herein provided. A copy of the Custody Receipts Register for each
class of Custody Receipts shall be provided by the Note Custodian to
the Depositor (or its designee), to a designated representative of
Owners of Custody Receipts evidencing more than 25% of the Initial
Custody Receipt Balance or of the Initial Aggregate Class [A-IO]
Custody Receipt Notional Amount at the expense of and upon written
request by the Depositor or such Owners, as the case may be. The Note
Custodian shall maintain on the Custody Receipts Register, with
respect to each such Custody Receipt, (i) the name, address and,
unless not required to be maintained under applicable laws and
regulations, United States taxpayer identification number of the Owner
of such Custody Receipt, (ii) the registration number of such Custody
Receipt and (iii) the Custody Receipt Balance or the Custody Receipt
Notional Amount.
(b) The initial issuance of the Custody Receipts of a Series
shall be recorded on the Custody Receipts Register in such names as
the Depositor shall specify upon satisfaction of the conditions set
forth in Section 2.05(g) and as provided in Section 2.03 hereof.
Thereafter, registration of transfer of such Custody Receipts may be
made only on the Custody Receipts Register upon satisfaction of the
conditions set forth in Section 2.05(g). Upon surrender for
registration of transfer of any Custody Receipt to the Note Custodian
at the Note Custodian's Principal Office, with the Notice of Transfer
or Exchange for such Custody Receipt fully completed, the Note
Custodian shall (A) execute and deliver to the transferee or
transferees named in such Notice at the Note Custodian's Principal
Office a new Custody Receipt or Receipts of the same Series and Class
in Authorized Denominations, evidencing Initial Custody Receipt
Balance or Initial Aggregate Class[ A-IO] Custody Receipt Notional
Amount, as the case may be, or portion thereof of the surrendered
Custody Receipt so transferred, registered in the name or names of
such transferee or transferees and (B) execute and deliver to the
Owner of the surrendered Custody Receipt at the Note Custodian's
Principal Office a new Custody Receipt or Receipts of the same Series
and Class in Authorized Denominations evidencing the portion of
Initial Custody Receipt Balance or Initial Aggregate Class [A-IO]
Custody Receipt Notional Amount of the surrendered Custody Receipt not
so transferred. Each Custody Receipt issued upon such a registration
of transfer shall bear a registration number not assigned previously.
(c) A Custody Receipt or Receipts may be exchanged for a Custody
Receipt or Receipts of the same Series and Class evidencing in the
aggregate the same Initial Custody Receipt Balance or Initial
Aggregate Class [A-IO] Custody Receipt Notional Amount, but having
different denominations, upon surrender of such Custody Receipt or
Receipts to the Note Custodian at the Note Custodian's Principal
Office with the Notice of Transfer or Exchange for such Custody
Receipt fully completed. The Note Custodian shall execute and deliver
to the Owner of the exchanged Custody Receipt, at the Note Custodian's
Principal Office, a Custody Receipt or Receipts of the same Series and
Class, denominated in Authorized Denominations registered in the name
of such Owner and bearing registration numbers not assigned
previously.
(d) The Note Custodian may require payment by the Owner of a
Custody Receipt of a sum sufficient to cover any tax, governmental fee
or other governmental charge that may be imposed in connection with
any registration of a transfer or exchange of such Custody Receipt,
and may require that such taxes, fees or other charges be paid prior
to the issuance of a new Custody Receipt, and shall have no obligation
to issue such new Custody Receipt in the absence of such payment. The
Note Custodian may, but shall not be required to issue or register the
transfer of any Custody Receipt during any period when the related
Trustee would not be required to issue or register the transfer of any
related Underlying Security pursuant to the terms of the related
Issuance Agreement.
(e) The Note Custodian may treat the person in whose name a
Custody Receipt is registered as the absolute owner thereof, for all
purposes whatsoever, and shall not be bound or affected by any notice
to the contrary, other than an order of a court having jurisdiction in
the premises.
(f) Whenever any Custody Receipt shall be delivered to the Note
Custodian for registration of transfer, exchange or final payment,
upon such registration of transfer, exchange or payment, the Note
Custodian shall cancel such Custody Receipt, and shall maintain a
record of such cancellation, in accordance with its standard
procedures.
(g) If so specified in the related Schedule of Terms
[Any Applicable Transfer Restrictions].
[Section 2.06. Deposits With Depositories.
(a) Notwithstanding anything in this Custody Agreement to the
contrary, to the extent Underlying Securities are eligible for deposit
with a Depository, the Note Custodian may take delivery of the related
Underlying Securities by transfer of such Underlying Securities to its
account (or the account of its nominee or the nominee of its agent)
with such Depository and may maintain such Underlying Securities on
deposit with such Depository.
(b) In the event the Schedule of Terms provides that one or more
Classes of Custody Receipts will be Book-Entry Custody Receipts, then
such Class of Custody Receipts shall, upon original issuance, be
issued in the form of one or more typewritten certificates
representing such Class of Book-Entry Custody Receipts and shall be
delivered to the Depository by, or on behalf of, the Depositor. The
Book-Entry Custody Receipts shall initially be registered on the
Custody Receipts Register in the name of the Depository or its
nominee, and no Beneficial owner of a Book-Entry Custody Receipt will
receive a definitive certificate representing such Beneficial Owner's
interest in a Book-Entry Custody Receipt except as provided in
subsections (c) and (d) below. Unless and until definitive, fully
registered Custody Receipts ("Definitive Custody Receipts") have been
issued to Beneficial Owners of Custody Receipts pursuant to
subsections (c) and (d) below:
(i) the provisions of this Section 2.06(b) shall be in full
force and effect;
(ii) the Depositor and the Note Custodian may deal with the
Depository which is the registered holder of the Custody Receipts
for all purposes (including the making of distributions on the
Custody Receipts) as the authorized representative of the
Beneficial Owners of Custody Receipts;
(iii) to the extent that the provisions of this Section
2.06(b) conflict with any other provisions of this Custody
Agreement, the provisions of this Section 2.06(b) shall control;
(iv) the rights of Beneficial Owners of Custody Receipts
shall be exercised only through the Depository which is the
registered holder of the Custody Receipts and the Depository
Participants and shall be limited to those established by law and
agreement between such Beneficial Owners of Custody Receipts and
the Depository and/or the Depository Participants. Pursuant to
the Depository Agreement, unless and until Definitive Custody
Receipts are issued pursuant to subsection (c) below, the initial
Depository will make book-entry transfers among the Depository
Participants and receive and transmit distributions on the
Custody Receipts to such Depository Participants; and
(v) Whenever a notice, report or other communication to the
Beneficial Owners of Custody Receipts is required under this
Custody Agreement, unless and until Definitive Custody Receipts
shall have been issued to Beneficial Owners of Custody Receipts
pursuant to subsection (c) below, the Note Custodian shall give
all such notices and communications specified herein to be given
to Beneficial Owners of Custody Receipts to the Depository which
is the registered holder of the Custody Receipts.
(c) In the event that:
(i) (A) the Depositor advises the Note Custodian in writing
that the Depository which is the registered holder of the Custody
Receipts is no longer willing or able to discharge properly its
responsibilities as Depository, and (B) the Depositor is unable
to locate a qualified successor; or
(ii) the Depositor, at its option, advises the Note
Custodian in writing that it elects to terminate the book-entry
system through the Depository; or
(iii) after the occurrence of a default by the Servicer
under the Servicing Agreement or an Event of Default under the
Indenture, Beneficial Owners representing at least a majority of
the aggregate outstanding principal amount of the Custody
Receipts advise the Depository in writing that the continuation
of a book-entry system through the Depository is no longer in the
best interests of the Beneficial Owners;
the Note Custodian shall notify all Beneficial Owners, through the Depository
which is the registered holder of the Custody Receipts, of the occurrence of
any such event and of the availability of Definitive Custody Receipts to
Beneficial Owners of Custody Receipts requesting the same. Upon surrender to
the Note Custodian of the Custody Receipts by the Depository, accompanied by
registration instructions from the Depository which is the registered holder of
the Custody Receipts, the Note Custodian shall issue the Definitive Custody
Receipts which shall be issued in Authorized Denominations. Neither the
Depositor nor the Note Custodian shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in fully
relying on, such instructions. The Depositor shall arrange for, and will bear
the costs of, printing, issuance and delivery of any Definitive Custody
Receipts.
(d) Custody Receipts purchased by, or beneficial interests in
Book-Entry Custody Receipts transferred to, institutional accredited
investors will be evidenced by Definitive Custody Receipts, registered
in the name of the purchaser thereof or any nominee of such purchaser.
Definitive Custody Receipts will be issued to a Beneficial Owner (or
its nominee) at any time (subject to the rules and procedures of DTC)
upon the request to the Custodian by such Beneficial Owner that its
interest in a Book-Entry Custody Receipt be exchanged for a Definitive
Custody Receipt or Custody Receipts.]
Section 2.07. Payment on Custody Receipts. So long as the Note
Custodian is the registered holder of the Underlying Securities, the Note
Custodian shall, on each Payment Date, make the following payment to Holders of
Custody Receipts to the extent of Custody Receipt Available Funds for such
Payment Date in the following order of priority:
(i) to the Holders of Class [A] Custody Receipts and Class
[A-IO] Custody Receipts, the Class [A] Custody Receipt Interest
Distribution and the Class [A-IO] Custody Receipt Interest
Distribution, respectively (any shortfall being allocated between
each such Class of Custody Receipts based on the total amount
each such Class would otherwise have been entitled to);
(ii) to the Holders of the Class [A] Custody Receipts, any
Unpaid Principal Shortfall due and payable in respect of the
Class [A] Custody Receipts; and
(iii) to the Holders of the Class [A] Custody Receipts, an
amount up to the Scheduled Principal Amount until the Aggregate
Outstanding Principal Amount of the Class [A] Custody Receipts is
reduced to zero.
ARTICLE III
ADMINISTRATION AND CUSTODY ACCOUNTS
Section 3.01. Payments in Respect of the Underlying Securities.
(a) Unless otherwise provided in the Schedule of Terms, the Note
Custodian shall remit to the Owners of Class [A] Custody Receipts on
the Record Date preceding any Payment Date, other than the final
Payment Date, the [Class A] Distribution Amount with respect to such
Payment Date, on each Payment Date. The Note Custodian shall remit to
the Owners of Class [A-IO] Custody Receipts on the Record Date
preceding any Payment Date, other than the final Payment Date, the
Class [A-IO] Custody Receipt Interest Distribution with respect to
such Payment Date. The Class [A] Distribution Amount, the Class [A-IO]
Custody Receipt Interest Distribution shall be paid to Owners of
Custody Receipts of the related class pro rata based on the Initial
Custody Receipt Balance or Initial Aggregate Class [A-IO] Custody
Receipt Notional Amount of the Custody Receipts held by such Owners.
(b) The Note Custodian (or its agent) shall duly present (or
cause to be presented) each related Underlying Security for payment on
or prior to its final Payment Date in accordance with the provisions
of the related Underlying Security and the related Issuance Agreement.
Upon receipt of such payment, the Note Custodian shall, on the
Business Day following receipt of such payment, remit to the Owners of
Class [A] Custody Receipts and Class [A-IO] Custody Receipts, on the
date set by the related Issuance Agreement (initially, as set forth in
the related Schedule of Terms) as the date for determining the person
to whom such payment shall be paid, the final Class [A] Distribution
Amount, the final Class [A-IO] Custody Receipt Interest Distribution
Amount with respect such Payment Date for such Class of Custody
Receipts. The final Class [A] Distribution Amount, the final Class
[A-IO] Custody Receipt Interest Distribution shall be paid to Owners
of Custody Receipts of the related class pro rata based on the Initial
Custody Receipt Balance or Initial Aggregate Class [A-IO] Custody
Receipt Notional Amount of the Custody Receipts held by such Owners.
(c) Payments to an Owner pursuant to Sections 3.01(a) and 3.01(b)
shall be made by bank check payable in currency of the United States
of America sent by Mail to such Owner at the address shown on the
Custody Receipt Register or by such other method as may be requested
in writing by an Owner and consented to by the Note Custodian;
provided that payments with respect to Custody Receipts on deposit
with a Depository will be made in accordance with the procedures of
such Depository. Notwithstanding the preceding sentence, in the event
that the related Issuance Agreement requires (initially, as set forth
in the related Schedule of Terms) the presentment of the related
Underlying Securities as a condition to receipt of any payment
(including a redemption payment contemplated by Section 3.02 hereof)
then, likewise, any payment received by the Note Custodian upon such
presentment shall be remitted, in accordance with the terms of this
Custody Agreement, by the Note Custodian to the Owners of the Class
[A] Custody Receipts and the Owners of the Class [A-IO] Custody
Receipts evidencing such Underlying Securities upon presentation of
such Custody Receipt at the Note Custodian's Principal Office.
(d) Neither the Depositor nor the Note Custodian shall have any
obligation to advance its own funds to make any payment to any Owner.
Section 3.02. Redemptions; Notices; Consents to Amendments to Issuance
Agreements.
(a) Upon receipt of any notice of redemption of a related
Underlying Security, the Note Custodian shall promptly forward a copy
of such notice by Mail to the Owners of the Class [A] Custody Receipts
and the Owners of the Class [A-IO] Custody Receipts evidencing such
Underlying Security. Upon receipt of any such notice, the Note
Custodian (or its agent) shall present the Underlying Security so
called for redemption on or prior to the date of such redemption to
the related Trustee on behalf of such Owners for redemption in
accordance with the terms of such notice and, if applicable, the
related Issuance Agreement. The redemption price received by the Note
Custodian shall be paid to such Owners in accordance with the
provisions of Section 3.01 hereof.
(b) Upon receipt from a Trustee of any other notice with respect
to a related Underlying Security, the Note Custodian shall promptly
transmit a copy of such notice by Mail to the Owners of the Class [A]
Custody Receipts evidencing such Underlying Security and the Owners of
the Class [A-IO] Custody Receipts evidencing such Underlying Security.
For such purpose, the Note Custodian shall consider the date of the
receipt of any such notice as the record date for the purpose of
determining the Owners of record to whom such notices shall be
transmitted. In the event such notice requests or requires any vote,
action or consent by the holder of any related Underlying Security,
the Note Custodian shall no later than the Business Day following
receipt of such notice, Mail to the Owners of the Class [A] Custody
Receipts and Owners of Class [A-IO] Custody Receipts evidencing such
Underlying Security a letter of direction with respect to such vote,
action or consent, returnable to the Note Custodian, and subject to
Section 3.02(c), the Note Custodian shall vote such Underlying
Security in accordance with such letters of direction proportionately
based on the Voting Rights of the related Owners. The Note Custodian
shall not vote, take any action or consent except in accordance with
such letters of direction. Any record date established by such notice
for purposes specified in such notice shall be the record date for the
purpose of determining the Owners of record for such purposes. If no
record date is established by the Related Trustee, the date such
notice is received by the Note Custodian shall be the record date.
(c) Notwithstanding Section 3.02(b), without the consent of all
of the Owners of the Class [A-IO] Custody Receipts, neither the Note
Custodian nor the Owners of the Class [A] Custody Receipts shall vote
or consent to any amendments to the related Issuance Agreement or any
other actions which would reduce the amount of or change the timing of
or currency of any amounts to be paid to Owners of Class [A-IO]
Custody Receipts.
(d) The Note Custodian shall promptly transmit by hand or
telecopy to the Depositor a copy of any notice received from a Trustee
with respect to any Underlying Securities.
Section 3.03. Statements to Owners.
(a) With each distribution on the Custody Receipts the Note
Custodian shall prepare and forward by Mail (together with a copy of
any report relating to a Payment Date received by the Note Custodian
from the related Trustee pursuant to the related Issuance Agreement) a
statement to the Rating Agencies and each Owner of Custody Receipts of
such Series stating:
(ii) the Class [A] Distribution Amount, the Scheduled
Principal Amount and the Class [A] Custody Receipt Interest
Distribution distributable with respect to the related Payment
Date to the Owner of a Class [A] Custody Receipt of such Series
in the denomination of $[100,000];
(iii) the Class [A-IO] Custody Receipt Interest Distribution
distributable with respect to the related Payment Date to the
Owner of a Class [A-IO] Custody Receipt of such Series in the
notional amount of $[100,000];
(iv) the aggregate outstanding principal balance of the
related Underlying Securities evidenced by the Custody Receipts
after giving effect to the Scheduled Principal Amount distributed
thereon on the related Payment Date.
(b) The Note Custodian shall prepare and file all federal, state
and local tax and information returns and reports required to be filed
with respect to the custody arrangement created pursuant to the
Custody Agreement and, in connection with any such filing, shall
assume that such arrangement constitutes a device to facilitate the
creation of "stripped coupons" from the Underlying Securities within
the meaning of section 1286 of the Code. Consistent with the above
treatment, the Custodian shall, within a reasonable time after the end
of each calendar year, furnish to each Owner such information which is
necessary, or required by federal, state and local tax law, to enable
such Owners to prepare their tax returns and properly account for
their allocable share of income from the Underlying Securities.
Section 3.04. Defaults.
(a) The Note Custodian is not authorized hereunder to proceed
against any Servicer or any Trustee in the event of a default under
the related Issuance Agreement and has no power or obligation
hereunder to assert any of the rights and privileges of the related
Owners.
(b) In the event of any default in payment by an Issuer or
Trustee, as the case may be, or any Servicer default or similar event
with respect to an Issuer, a Trustee or a Servicer, as the case may
be, each Owner will have the right to direct the Note Custodian to
take specific actions on behalf of such Owner pursuant to Section
3.04(c) hereof. Such Owner will not be required to act in concert with
the Note Custodian (unless such Owner so directs) or other Owners. The
Note Custodian shall take such actions as reasonably directed by the
Owners in accordance with their respective Voting Rights. The parties
hereto understand and agree that the Owners of Custody Receipts are
the beneficial owners of the related Underlying Securities evidenced
thereby on the terms and conditions set forth herein and in the
related Schedule of Terms and that the Note Custodian shall hold
Underlying Securities as custodian for the Owners of Custody Receipts
evidencing such Underlying Securities.
(c) Notwithstanding anything in this Section 3.04 to the
contrary, the Note Custodian, shall have no obligation to undertake to
perform any ministerial acts unless it has received from the Owners
requesting such action indemnity satisfactory to it against all costs,
losses, liabilities and expenses (including legal fees and expenses)
and such requests have been confirmed in writing.
(d) The Note Custodian shall have no obligation to notify the
Depositor or any Owner of any default in payment by an Issuer or
Trustee, as the case may be, or any Servicer default or similar event
with respect to an Issuer, a Trustee or a Servicer, and shall not be
deemed to have knowledge thereof unless an Authorized Officer of the
Note Custodian has actual knowledge thereof or is informed thereof in
writing.
(e) In the event that the Note Custodian fails to distribute the
Class [A] Distribution Amount, the Class [A-IO] Custody Receipt
Interest Distribution within 3 days following receipt of the full
amount required to be distributed on the related Underlying
Securities, Owners of Custody Receipts evidencing more than 50% of
Voting Rights may terminate the Note Custodian as custodian hereunder.
The provisions of Section 4.02 hereof relating to appointment of a
successor custodian in the event of a removal of the Note Custodian by
the Owners of Custody Receipts shall apply in the event of a
termination of the Note Custodian pursuant to this Section 3.04(e).
Section 3.05. Unclaimed Monies. In the event any monies to be paid to
an Owner of a Custody Receipt in respect of the final payment thereof remains
unclaimed, the Note Custodian shall segregate and hold such monies in a
subaccount within the related Custody Account, without liability for interest
thereon, for the account of the Owner entitled thereto. Such monies shall not
be invested by the Note Custodian, but shall be held in trust for the benefit
of such Owner. All such monies that remain in any such subaccount on the date
that is two (2) years and eleven (11) months after the date on which such
monies were originally due, and as to which such Owner has not indicated an
interest as evidenced by a memorandum on file with the Note Custodian, shall be
disbursed to the Depositor and such Owner shall thereafter look only to the
Depositor for payment.
Section 3.06. Obligation of Owners With Respect to Certain Taxes and
Filings. If any tax or other governmental charge shall become payable by or on
behalf of the Note Custodian, including any tax or charge required to be
withheld from any payment to or by the Note Custodian under the provisions of
any applicable law or regulation, with respect to any Custody Receipt or any
related Underlying Security, such tax or charge shall be payable by the Owner
of such Custody Receipt (in the case of any tax or charge with respect to such
Custody Receipt) or by the Owners of the related Class [A] and Class [A-IO]
Custody Receipts in proportion to their respective share of the interest
payable on such related Underlying Security (in the case of any tax or charge
with respect to such related Underlying Security) and may, following written
notice from the Note Custodian to such Owner, be withheld by the Note
Custodian.
Section 3.07. Transfers of Related Underlying Securities by Note
Custodian. The Note Custodian shall hold the related Underlying Securities in
custody only and shall not assign, transfer, pledge, set off or otherwise
dispose of any Underlying Security or any interest therein except as
specifically provided hereunder or as required by an order of a court having
jurisdiction in the premises.
Section 3.08. Termination of Custody Accounts. The Note Custodian
shall maintain in the Custody Account each Underlying Security until payment of
all amounts in respect of such Underlying Security in full, on its expected
final payment date or earlier redemption. The Note Custodian hereby disclaims
any equitable or beneficial interest in the Underlying Securities. No
Underlying Security will be available to the Note Custodian for its own use or
profit, nor will any Underlying Security be deemed part of the general assets
of the Note Custodian or be reflected as an asset of the Note Custodian on any
balance sheet or similar document prepared by the Note Custodian in its
individual capacity. The Underlying Securities will not be subject to any
right, charge, security interest, lien or claim of any kind in favor of the
Note Custodian.
ARTICLE IV
THE NOTE CUSTODIAN
Section 4.01. Standard of Liability.
(a) The Note Custodian shall not be liable under this Custody
Agreement other than by reason of bad faith or gross negligence in the
performance of such duties as are specifically set forth in this
Custody Agreement. The Note Custodian shall not be liable for any
damages resulting from any distribution from a related Custody Account
to an Owner at the address of record of such Owner in the related
Custody Receipts Register. The Note Custodian shall not be liable for
any action taken or inaction by it in reliance upon the written
opinion of its legal counsel or the written advice of its accountants.
The Note Custodian may request and conclusively rely and shall be
fully protected in acting in reliance upon any written notice,
request, direction or other document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or
parties.
(b) The Depositor agrees to indemnify the Note Custodian and any
of its agents, officers, directors or employees for, and to hold them
harmless against any cost, loss, liability or expense, including legal
fees and expenses incurred without their own gross negligence or bad
faith, arising, directly or indirectly, out of, relating to, or in
connection with the acceptance, administration or performance of their
duties, or the duties of the Note Custodian, as well as the costs and
expenses of defending themselves against any action, suit, or other
proceeding involving any claim or liability arising directly or
indirectly, out of, relating to or in connection with the exercise or
performance of any of their powers or duties hereunder.
Notwithstanding any provisions of this Agreement to the contrary, the
obligations of the Depositor to indemnify the Note Custodian and its
agents, officers, directors and employees under this Section 4.01
shall survive the resignation or removal of the Note Custodian or the
termination of this Custody Agreement.
(c) The Note Custodian shall have no duties or responsibilities
other than those expressly set forth herein. No implied duties or
obligations shall be read into this Custody Agreement against the Note
Custodian. The Note Custodian shall be under no liability to any party
hereto, or to any Owner, by reason of any failure on the part of the
Depositor or any maker, guarantor, endorser or other signatory of any
document or instrument, including any Underlying Security, or any
other person to perform such person's obligations under any such
document or instrument. Except for amendments to this Custody
Agreement referred to below, and except for instructions, notices or
demands to the Note Custodian under this Custody Agreement, the Note
Custodian shall not be obligated to recognize any agreement between
the Depositor and any owner, or between any Owner and any other person
or entity, notwithstanding whether or not it has knowledge thereof.
(d) In the absence of gross negligence or bad faith on the part
of the Note Custodian, the Note Custodian may rely conclusively and
shall be fully protected in acting upon any order, notice, demand,
certificate, opinion of counsel (including counsel chosen by the Note
Custodian), statement, instrument, report or other paper or document
(not only as to its due execution and the validity and effectiveness
of its provisions, but also as to the truth, completeness and
acceptability of any information therein contained) which is believed
by the Note Custodian to be genuine and, without independent
investigation, to be correct and to be signed or presented by the
proper person or persons.
(e) The Note Custodian shall not be responsible for the
sufficiency or accuracy, the form or the execution, validity, value or
genuineness of any document or property received or held by it
hereunder, including without limitation any Underlying Securities, or
the authority of the Depositor in executing this Custody Agreement.
(f) ANY ACTION OR PROCEEDING ALLEGING ANY BREACH BY THE NOTE
CUSTODIAN OF ITS DUTIES UNDER THIS CUSTODY AGREEMENT SHALL BE
PROSECUTED ONLY IN A STATE OR FEDERAL COURT LOCATED IN THE STATE OF
NEW YORK, COUNTY OF NEW YORK. THE NOTE CUSTODIAN SHALL HAVE THE RIGHT
AT ANY TIME TO SEEK INSTRUCTIONS FROM ANY COURT OF COMPETENT
JURISDICTION.
(g) No provision of this Custody Agreement shall require the Note
Custodian to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder
or in the exercise of its rights and powers hereunder, and the Note
Custodian shall not be required to take any action which, in the Note
Custodian's sole and absolute judgment, could involve it in expense or
liability unless furnished with security and indemnity which the Note
Custodian deems, in its sole and absolute discretion, to be
satisfactory.
(h) The Note Custodian does not have any equitable or beneficial
interest in the Underlying Securities deposited with it hereunder but
is serving as custodian only and having only possession and legal
title thereof. The Note Custodian makes no representation as to the
validity, value, genuineness or collectibility of any Underlying
Security or other document or instrument held by or delivered to it.
The Note Custodian shall not be called upon to advise any Owner as to
the wisdom in selling or retaining or taking or refraining from taking
any action with respect to any Underlying Security or other property
deposited hereunder.
(i) The Note Custodian shall be deemed to have exercised
reasonable care in the custody and preservation of the Underlying
Securities in its possession if the Underlying Securities are accorded
treatment substantially equal to that which a prudent person accords
its own property, it being understood that, except as expressly
provided herein, the Note Custodian shall not have responsibility for
(i) ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relative to any
Underlying Security, whether or not the Note Custodian has or is
deemed to have knowledge of such matter, or (ii) taking any necessary
steps to preserve rights against any parties with respect to any
Underlying Securities.
Section 4.02. Resignation and Removal of the Note Custodian:
Appointment of Successor.
(a) The Note Custodian may resign with respect to all of its
duties hereunder at any time by written notice thereof delivered to
the Depositor and given by Mail to each Owner, such resignation to
take effect upon the appointment of a successor Note Custodian and its
acceptance of such appointment as hereinafter provided. Upon 30 days'
written notice to the Note Custodian, either the Depositor or the
Owners of Custody Receipts evidencing Voting Rights at least 66-2/3%
of the Voting Rights allocated to the Class [A] Custody Receipts and
to the Class [A-IO] Custody Receipts of a Series may remove the Note
Custodian, in which event the Depositor may appoint a successor Note
Custodian meeting the qualifications set forth in the next succeeding
paragraph. In the event of such removal or resignation, the Note
Custodian shall pay over to its successor Note Custodian any fees or
charges previously paid to the Note Custodian in respect of duties not
yet performed under this Custody Agreement which remain to be
performed by a successor Note Custodian. No resignation or removal of
the Note Custodian shall be effective until the appointment of a
successor Note Custodian and its acceptance of such appointment as
hereinafter provided.
(b) In case at any time the Note Custodian acting hereunder shall
resign or be removed, the Depositor shall, within 90 days after the
delivery of the notice of resignation, appoint a successor Note
Custodian. Any successor Note Custodian shall be (i) a bank or trust
company having its principal office in the United States of America
and having a combined capital and surplus of at least $[50,000,000]
and (ii) an Eligible Institution whose long-term unsecured debt or
bank deposits are rated at least Baa3 (or the equivalent) by [Rating
Agencies] and, if not rated by [Rating Agencies]. If no successor Note
Custodian has been appointed within such 90 days, the resigning Note
Custodian may petition any court of competent jurisdiction for the
appointment of a successor Note Custodian.
(c) In the event of removal or resignation of the Note Custodian,
the fees of a successor Note Custodian shall be borne by the Depositor
in accordance with the Fee Letter (except if the Note Custodian is
removed by the Owners [(other than the Credit Enhancer in which case
such fees shall be borne by the Depositor),] in which case the fees of
a successor Note Custodian are required to be borne by the owners
voting in favor of removing the Note Custodian). Any successor Note
Custodian shall execute and deliver to its predecessor and to the
Depositor an instrument in writing accepting its appointment
hereunder, and thereupon such successor Note Custodian, without any
further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes
shall be the Note Custodian under this Custody Agreement, and such
predecessor, upon payment of all sums due it and on the written
request of the Depositor shall execute and deliver an instrument
transferring to such successor all rights, obligations and powers of
such predecessor hereunder, and shall duly assign, transfer and
deliver all right, title and interest in the Custody Account and all
records relating thereto to such successor. Any successor Note
Custodian shall promptly give notice of its appointment to the related
Owners by Mail.
(d) Any corporation into or with which the Note Custodian may be
merged, consolidated or converted or any transferee of all or
substantially all of the Note Custodian's corporate trust business
shall be the successor of such Note Custodian without the execution or
filing of any document or any further act.
Section 4.03. Charges and Expenses. Except as expressly provided in
this Custody Agreement, no charges or expenses of the Note Custodian or any
other person shall be payable by or withheld from any Owner. The Depositor
shall be responsible for the fees and expenses of the Note Custodian as
provided in the Fee Letter.
Section 4.04. Limitation of Liability. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed and delivered
by [Entity], not individually or personally but solely as Note Custodian, in
the exercise of the powers and authority conferred and vested in it and (b)
under no circumstances shall [Entity] be personally liable for the payment of
any indebtedness or expenses of the Depositor or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Depositor under this Agreement.
Section 4.05. Non-Petition. None of the Note Custodian or any Owner of
Custody Receipts shall, prior to the date that is one year and one day after
the payment in full of all Custody Receipts, petition or otherwise invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Depositor under any Bankruptcy Law or appointing
a receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Depositor or any substantial part of the property of
either, or ordering the winding up or liquidation of the affairs of the
Depositor.
ARTICLE V
MISCELLANEOUS
Section 5.01. Amendments, Etc. Without notice to or consent of any
Owners, any provisions of this Custody Agreement may be amended (i) to cure any
formal defect, omission, inconsistency or ambiguity in this Custody Agreement,
(ii) to add to the covenants and agreements of the Note Custodian or the
Depositor or to surrender any right or power herein conferred upon the Note
Custodian or the Depositor, (iii) to effectuate the assignment of the Note
Custodian's rights and duties hereunder to a qualified successor as provided
herein, or (iv) to modify, alter, amend or supplement this Custody Agreement in
any other respect not inconsistent herewith which, in the opinion of counsel
acceptable to the Note Custodian, is not adverse to the Note Custodian or any
of the Owners. Except for amendments made pursuant to clause (i), (ii), (iii)
or (iv) above, no amendment affecting the Owners of Custody Receipts of any
class of any Series may be made to this Custody Agreement without the consent
of Owners of Custody Receipts of such class evidencing at least 66-2/3% of the
Voting Rights allocated to such class, provided that no amendment may be made
which would (i) reduce the Voting Rights or the amount or change timing or
currency of any payments to be made to the Owners of any Class of Custody
Receipts without the consent of each Owner affected thereby or (ii) modify any
of the provisions of this Section 5.01 except to provide that certain other
provisions of this Custody Agreement cannot be modified without the consent of
any Owner affected thereby. No amendment or waiver of any provision of this
Custody Agreement nor consent to any departure herefrom shall in any event be
effective unless the same shall be in writing and signed by the Note Custodian
and the Depositor, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given; provided,
however, that the Note Custodian shall have no duty to sign any amendment,
waiver or consent which affects its rights and powers under this Agreement. In
connection with any amendment pursuant to this Section, the Note Custodian
shall send to the Rating Agencies a copy of each proposed amendment prior to
its adoption and a copy of each executed amendment.
Section 5.02. Counterparts. This Custody Agreement may be executed in
any number of counterparts by the parties hereto on separate counterparts, each
of which, when so executed and delivered, shall be deemed an original, but all
such counterparts shall together constitute one and the same instrument. Copies
of this Custody Agreement shall be filed with the Note Custodian and shall be
open to inspection at reasonable times during business hours at the Note
Custodian's Principal Office by any owner upon prior written notice.
Section 5.03. Exclusive Benefit of Parties; Effective Date. This
Custody Agreement is for the exclusive benefit of the Note Custodian, the
Depositor and the Owners of the Custody Receipts from time to time, and their
respective successors hereunder, and shall not be deemed to give any legal or
equitable right, remedy or claim to any other person whatsoever. The Owners
shall be the beneficiaries of this Custody Agreement and, pursuant to the terms
of the Custody Receipts, shall acknowledge and accept all of the terms and
conditions and agree to be bound by all of the provisions hereof and of the
Custody Receipts by acceptance of delivery of the Custody Receipts without the
necessity of any written acknowledgement or signature. This Custody Agreement
shall become effective as to the Note Custodian upon execution of this Custody
Agreement.
Section 5.04. Invalidity of Provisions. In case any one or more of the
provisions contained in this Custody Agreement or in the Custody Receipts
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality and enforce ability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed thereby.
Section 5.05. Notices. Notices given owners shall be given by Mail and
shall be effective two Business Days following the date postmarked. All other
communications shall be mailed or delivered as follows:
(a) To the Depositor:
(b) To the Note Custodian:
or as to each party at such other address as shall be designated by such party
in a written notice to the other parties.
Any communication so addressed and mailed or delivered to the
Depositor or the Note Custodian shall be deemed to be given when received, and
any notice sent by telecopy shall be deemed to be given when receipt of such
transmission is acknowledged, and any communication delivered in person shall
be deemed to be given when receipted for or actually received by an authorized
officer of the recipient.
Section 5.06. Business Day. In any case where the date on which any
action is required to be taken hereunder shall not be a Business Day, then such
action shall be taken on the next succeeding Business Day with the same force
and effect as if made on the date that such action is otherwise required to be
taken hereunder.
Section 5.07. Term of Agreement. Whenever the Underlying Securities
have been paid in full on an expected final payment date or earlier redemption
and the Owners of the Class [A] and Class [A-IO] Custody Receipts of such
Series have received all the amounts to which they are entitled, this Agreement
shall terminate.
The bankruptcy, death or other incapacity of any or all Owners of
Class [A] or Class [A-IO] Custody Receipts shall not operate to terminate this
Custody Agreement, nor entitle any such Owner'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 custodial arrangement created by this Custody
Agreement, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of the Owners of the Class [A] or Class [A-IO] Custody
Receipts.
Section 5.08. Governing Law. THIS CUSTODY AGREEMENT AND THE CUSTODY
RECEIPTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
Section 5.09. Headings. The headings of articles and sections in this
Custody Agreement have been inserted and the table of contents has been
provided for convenience only and are not to be regarded as a part of this
Custody Agreement or to have any bearing upon the meaning or interpretation of
any provision contained herein.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Master Custody Agreement, all as of the day and year first above
mentioned.
[ENTITY]
as Depositor
By:
Name:
Title:
[ENTITY]
not in its individual capacity,
but solely as Note Custodian
By:
Name:
Title:
3
APPENDIX A
DEFINITIONS
The definitions contained herein are incorporated into and made a part
of the Custody Agreement.
Affiliate shall mean with respect to any Person, any other Person
directly or indirectly controlling, 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.
[Aggregate Notional Amount shall mean as of any date of determination
with respect to the Class [A-IO] Custody Receipts, the Initial Aggregate
Notional Amount of the Class [A-IO] Custody Receipts, less any payment of
principal paid to the Class A-2 Notes prior to such date of determination.]
Authorized Officer (i) in the case of the Issuer, shall mean the
_________________ , (ii) in the case of the Servicing Advisor or the
____________________ , shall mean any Vice President or more senior officer,
(iii) in the case of the Servicer, shall mean any officer assigned to the
Corporate Trust Office, including any managing director, vice president,
assistant vice president, assistant treasurer, assistant secretary or any other
officer of the Servicer customarily performing functions similar to those
performed by any of the above designated officers and having direct
responsibility for the administration of the Servicing Agreement, and also,
with respect to a particular matter, any other officer, to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject, (iv) in the case of any Prospective Owner or any transferor
or prospective transferee of Class C Notes, shall mean any Vice President or
more senior officer, and (v) in the case of the Indenture Trustee, shall mean a
trust officer or other officer in the Corporate Trust Department of the
Indenture Trustee customarily performing functions similar to those of a trust
officer.
Class [A] Custody Receipt shall mean each Class [A] Custody Receipt
issued pursuant to Article II of the Custody Agreement.
Class [A] Custody Receipt Interest Distribution shall mean with
respect to the Class [A] Custody Receipts on any Payment Date, the sum of (a)
the amount of interest accrued during the related Accrual Period at the Class
[A] Custody Receipt Interest Rate on the sum of (i) the Custody Receipt Balance
of the Class [A] Custody Receipts on the Business Day immediately prior to such
Payment Date and (ii) any previously accrued and unpaid interest at the Class
[A] Custody Receipt Interest Rate for prior Payment Dates, and (b) any
previously accrued and unpaid interest at the Class [A] Custody Receipt
Interest Rate for prior Payment Dates.
Class A Custody Receipt Interest Rate shall mean a rate equal to
_______ % per annum.
Class [A-IO] Custody Receipt shall mean each Class [A-IO] Custody
Receipt issued pursuant to Article II of the Custody Agreement.
Class [A-IO] Custody Receipt Interest Distribution shall mean with
respect to the Class [A-IO] Custody Receipts, the sum of (a) the amount of
interest accrued during the related Accrual Period at the Class [A-IO] Custody
Receipt Interest Rate on the sum of (i) the Aggregate Notional Amount of the
Class [A-IO] Custody Receipts on the Business Day immediately prior to such
Payment Date and (ii) any previously accrued and unpaid interest at the Class
[A-IO] Custody Receipt Interest Rate for prior Payment Dates, and (b) any
previously accrued and unpaid interest at the Class [A-IO] Custody Receipt
Interest Rate for prior Payment Dates.
Class A-IO Custody Receipt Interest Rate shall mean %.
[Credit Enhancement Policy means the policy issued by the Credit
Enhancer that guarantees Insured Payments on the Underlying Notes.]
[Credit Enhancer shall mean , a _______________ domiciled monoline
stock insurance company.]
Custody Receipt Available Funds shall mean for each Payment Date [
_______________________ ].
Custody Receipt Balance shall mean with respect to the Class [A]
Custody Receipts and any Payment Date, [ ].
Custody Receipt Rate shall mean either the Class [A] Custody Receipt
Interest Rate or the Class [A-IO] Custody Receipt Interest Rate, as. the case
may be.
Custody Receipt Registrar shall mean [Entity] and any successor
thereto under the Custody Agreement.
Custody Receipts shall mean the Class [A] Custody Receipts and the
Class [A-IO] Custody Receipts.
Eligible Institution shall mean (a) a depository institution
acceptable to the Credit Enhancer organized under the laws of the United States
of America or any one of the States thereof, the deposits of which depository
institution are insured, to the full extent permitted by applicable law, by the
FDIC, which is subject to supervision and examination by federal or state
authorities and whose long-term unsecured debt obligations are rated at least
["A" by Standard & Poor's and Duff & Xxxxxx and "A2" by Moody's, or if not
rated by Duff & Xxxxxx, rated at least "A" by Standard & Poor's and "A2" by
Moody's at the time of any deposit therein], or (b) a federal or state
chartered depository institution whose long-term unsecured debt obligations are
rated at least ["A" by Standard & Poor's and Duff & Xxxxxx and "A2" by Moody's,
or if not rated by Duff & Xxxxxx, rated at least "A" by Standard & Poor's and
"A2" by Moody's] subject to regulations regarding fiduciary funds on deposit
substantially similar to 12 C.F.R. Section 9.10(b).
Event of Default shall have the meaning specified in Section ______ of
the Indenture.
Initial Aggregate Class [A-IO] Custody Receipt Notional Amount shall
mean $ .
Initial Custody Receipt Balance shall mean $ .
Outstanding Notional Amount shall mean as of any date of determination
with respect to any Class [A-IO] Custody Receipt, the Initial Notional Amount
thereof less any reductions of the notional amount thereof prior to such date
of determination.
Owner means the registered owner of a Custody Receipt.
Rating Agencies shall mean _________ , __________ and _________ , and
their successors.
Record Date shall mean, with respect to a Payment Date, (i) the last
day of the immediately preceding calendar month or (ii) with respect to the
initial Payment Date, the Closing Date.
Servicer shall mean _____________________ , a ______________ banking
corporation, in its capacity as servicer under the Servicing Agreement,
together with its subservicers, successors and assigns as permitted thereunder.
Exhibit 1
[Insert Transfer Limitations Legend and, Depository Legend, if applicable]
No. [ ]
CLASS [A] Custody Receipt
SERIES 199 -A
RELATING TO THE NOTES, SERIES 199 -A
CLASS [A-1] AND CLASS [A-2]
Registered Owner:
Date of Original Issue:
Class [A] Custody Receipt Interest Rate:
Initial Custody Receipt Balance:
This Class [A] Custody Receipt, Series 199 -A ("Class [A] Custody
Receipt") evidences an undivided beneficial ownership interest (on the terms
and conditions set forth in the Custody Agreement and related Schedule of Terms
referred to below) by the Owner hereof in the following Underlying Securities
and the rights relating to this Class [A] Custody Receipt under the Custody
Agreement:
[Issuer and Name of Underlying Securities] [Indicate
aggregate original principal amount and aggregate outstanding
principal amount of Underlying Securities and the registered
certificate number or numbers of certificates representing
such Underlying Securities],
including the right to receive with respect to each Payment Date the Class [A]
Distribution Amount payable from the distributions made with respect to the
Underlying Securities. Concurrently with the issuance of this Class [A] Custody
Receipt, Class [A-IO] Custody Receipts, Series 199 -[A] (the "Class [A-IO]
Custody Receipts") are being issued which evidence, together with the Class [A]
Custody Receipts, a 100% undivided beneficial ownership interest in such
Underlying Securities, the right to receive the Class [A-IO] Custody Receipt
Interest Distribution also payable from the distributions made with respect to
such Underlying Securities and the rights relating to such Custody Receipt
under the Custody Agreement referred to below. The Owner of this Class [A]
Custody Receipt will have no interest in that portion of the distributions on
the Underlying Securities distributable to Owners of the Class [A-IO] Custody
Receipts.
The Underlying Securities are being held in a Custody Account by
[Entity], as custodian (together with any successor custodian, the "Note
Custodian"), pursuant to the terms of a Custody Agreement (the "Custody
Agreement") dated [DATE] between the Note Custodian and [Entity] (together with
any successor, the "Depositor") pursuant to which the Class [A] and Class
[A-IO] Custody Receipts have been executed, registered and delivered by the
Note Custodian.
THE TERMS AND CONDITIONS OF THE CUSTODY AGREEMENT AND THE RELATED
SCHEDULE OF TERMS ARE HEREBY INCORPORATED IN THIS CLASS [A] CUSTODY RECEIPT AS
IF FULLY SET FORTH HEREIN AND, EXCEPT AS OTHERWISE DEFINED HEREIN, TERMS USED
HEREIN SHALL HAVE THE MEANINGS ASCRIBED THERETO IN THE CUSTODY AGREEMENT OR THE
RELATED SCHEDULE OF TERMS. THE OWNER HEREOF ASSENTS TO ALL OF THE TERMS AND
CONDITIONS OF THE CUSTODY AGREEMENT AND THE RELATED SCHEDULE OF TERMS, COPIES
OF WHICH ARE AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE NOTE
CUSTODIAN.
The Custody Account will be maintained on the books of the Note
Custodian as a custodial account, separate and segregated, whose contents may
not be commingled with any other assets or property held by the Note Custodian.
The Owner of this Class [A] Custody Receipt may not withdraw the Underlying
Securities evidenced by this Class [A] Custody Receipt from the Custody
Account.
Pursuant to the Custody Agreement, the Note Custodian shall:
(a) on each Payment Date to the extent Custody Receipt
Available Funds are available therefor in the order of priority set
forth in the Custody Agreement, remit to the person who is the Owner
of this Class [A] Custody Receipt on the Record Date preceding any
Payment Date, other than the final Payment Date, the Class [A]
Distribution Amount with respect to such Payment Date for this Class
[A] Custody Receipt, on such Payment Date by the Custodian.
(b) duly present (or cause to be presented) each
Underlying Security for payment on or prior to its final Payment Date
in accordance with the provisions of the related Issuance Agreement.
Upon receipt of such payment, the Note Custodian shall on the same
Payment Date remit to the person who is the Owner of this Class [A]
Custody Receipt on the date set by the related Issuance Agreement as
the date for determining the person to whom such payment shall be
paid, the Class [A] Distribution Amount with respect to such Payment
Date for this Class [A] Custody Receipt.
Payments to the Owner of this Class [A] Custody Receipt of the Class
[A] Distribution Amount with respect to any Payment Date shall be made by bank
check payable in currency of the United States of America sent by mail to such
Owner at the address shown on the related Custody Receipt Register or by such
other method as may be requested by the Owner and consented to in writing by
the Note Custodian; provided that if this Class [A] Custody Receipt is on
deposit with a Depository, payments with respect to this Class [A] Custody
Receipt will be made in accordance with the procedures of such Depository.
Notwithstanding the preceding sentence, in the event that the related Issuance
Agreement requires the presentment of the Underlying Securities as a condition
to receipt of any payment (including a redemption payment) then, likewise, any
payment received by the Note Custodian upon such presentment shall be remitted
by the Note Custodian to the Owner of this Class [A] Custody Receipt upon
presentation of this Class [A] Custody Receipt at the Note Custodian's
Principal Office.
Neither the Depositor nor the Note Custodian shall have any obligation
to advance its own funds to make any payment to any Owner.
Upon receipt of any notice of redemption of an Underlying Security
evidenced by this Class [A] Custody Receipt, the Note Custodian shall promptly
forward such notice by Mail to the Owner of this Class [A] Custody Receipt. The
Note Custodian (or its agent) shall present the Underlying Security so called
for redemption on or prior to the date of such redemption to the related
Trustee for redemption in accordance with the terms of such notice and, if
applicable, the related Issuance Agreement.
Upon receipt from a Trustee of any other notice with respect to an
Underlying Security, the Note Custodian shall follow the procedures and take
such actions as are in accordance with the provisions of Section 3.01 of the
Custody Agreement.
Except as provided in the Custody Agreement, the Note Custodian has no
power or obligation to assert any of the rights and privileges of the Owners of
this Class A Custody Receipt with respect to the Underlying Securities.
The Note Custodian may resign pursuant to the Custody Agreement upon
appointment of a successor Note Custodian and its acceptance of such
appointment as provided in the Custody Agreement. Either the Depositor or the
Owners of Custody Receipts evidencing at least 66-2/3% of the Voting Rights
allocated to each Class of Custody Receipts may remove the Note Custodian in
respect of Custody Receipts and appoint a successor thereto pursuant to the
provisions of the Custody Agreement.
Except as otherwise provided in the Custody Agreement, no amendment
affecting the Owners of Custody Receipts of any Class may be made to the
Custody Agreement without the consent of the Owners of Custody Receipts of such
Class evidencing at least 66-2/3% of the Voting Rights allocated to the Class
of Custody Receipts affected thereby; provided that no amendment shall reduce
Voting Rights or the amount of or change the timing or currency of any payment
to be made to Owners of Custody Receipts without the consent of each Owner
affected thereby. In addition, the Note Custodian shall not consent to any
amendment of the related Issuance Agreement that would have the effect of
reducing the amount of or changing the timing or currency of payments to be
made to Owners of Class [A-IO] Custody Receipts without the consent of the
Owner of each Class [A-IO] Custody Receipt.
This Class [A] Custody Receipt is transferable by the Owner in person,
or by an attorney duly authorized in writing, at the Note Custodian's Principal
Office, upon (i) surrender and cancellation of this Class [A] Custody Receipt
and due execution of the Notice of Transfer or Exchange attached to this Class
[A] Custody Receipt, (ii) compliance by the transferee with the Transfer
Limitations (as defined in the Custody Agreement) and (iii) agreement on the
part of such transferee that it shall indemnify the Note Custodian, the Issuer,
the Trustee, the Servicer and the Depositor for any expenses or liability that
may result from such transfer. Upon any such registration of transfer, a new
Class [A] Custody Receipt or Custody Receipts in authorized denominations will
be issued to the transferee or transferees in exchange for this Class [A]
Custody Receipt.
THE CUSTODY AGREEMENT AND THIS CLASS A CUSTODY RECEIPT SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
The Note Custodian may treat the person in whose name this Class [A]
Custody Receipt is registered as the absolute owner hereof, for all purposes
whatsoever, and shall not be bound or affected by any notice to the contrary,
other than an order of a court having jurisdiction in the premises.
This Class [A] Custody Receipt shall not be valid for any purpose
unless executed by the Note Custodian by the manual signature of its authorized
officer or other authorized signatory.
IN WITNESS WHEREOF, the Note Custodian has caused this Class [A]
Custody Receipt to be executed by one of its duly authorized officers.
Date:
[ENTITY],
not in its individual
capacity, but solely
as Note Custodian
By________________________
NOTICE OF TRANSFER OR EXCHANGE
Please be advised, pursuant to the terms of the Custody Agreement (the
"Custody Agreement") between [ENTITY], as Note Custodian, and _________________
_______________, as Depositor, with respect, to the Custody Receipt on which
this Notice of Transfer or Exchange is printed, that the undersigned hereby
notifies you, as of the date received by you, of the following transactions,
and requests you to process the transaction(s) as required by the Custody
Agreement. This notice may also be used for exchanges of Custody Receipts in
which event the Transferee should be noted to be the same as the Transferor.
Capitalized terms used in this Notice but not defined herein have the meanings
given them in the Custody Agreement.
Name of Transferor:
Registration Number of Custody Receipt:
Initial Custody Receipt Balance:
Initial Custody Receipt Balance To Be Retained:
1. Name of Transferee:
Address of Such Transferee:
U.S. Taxpayer Identification Number of Such Transferee:
Initial Custody Receipt Balance
To Be Transferred to Such Transferee:
2. Name of Transferee:
Address of Such Transferee:
U.S. Taxpayer Identification Number of Such Transferee:
Initial Custody Receipt Balance
To Be Transferred to Such Transferee:
Dated:
By
Its
SIGNATURE GUARANTEED:
ASSIGNMENT
For value received, the undersigned hereby sells, assigns and
transfers this Custody Receipt to the person or persons indicated on the Notice
of Transfer or Exchange printed on this Custody Receipt. In the case of a
transfer to a third party, the undersigned hereby authorizes and instructs the
Note Custodian to immediately record the transferees listed on the Notice of
Transfer or Exchange as the Owner of such Custody Receipt.
Dated:
(Authorized Signature)
Notice: The signature of this
assignment must correspond with the
name of the registered owner as it
appears on the Custody Receipt in
every particular and must be
guaranteed by an officer of a
national or state commercial bank
or trust company or a member of a
registered national securities
exchange or the National
Association of Securities Dealers,
Inc.
SIGNATURE GUARANTEED:
Exhibit 2
[Insert Transfer Limitations Legend and, Depository Legend, if applicable]
No. [ ]
CLASS [A-IO] Custody Receipt
SERIES 199 -A
RELATING TO THE NOTES, SERIES 199 -A
CLASS [A-1] AND CLASS [A-2]
Registered Owner:
Date of Original Issue:
Initial Aggregate Class [A-IO] Custody
Receipt Notional Amount:
Class [A-IO] Interest Rate:
This Class [A-IO] Custody Receipt, Series 199 -A ("Class [A-IO]
Custody Receipt") evidences an undivided beneficial ownership interest (on the
terms and conditions set forth in the Custody Agreement and related Schedule of
Terms referred to below) by the Owner hereof in the following Underlying
Securities and the rights relating to this Class [A-IO] Custody Receipt under
the Custody Agreement:
[Issuer and Name of Underlying Securities] [Indicate
aggregate original principal amount and aggregate outstanding
principal amount of Underlying Securities and the registered
certificate number or numbers of certificates representing
such Underlying Securities],
including the right to receive with respect to each Payment Date the Class
[A-IO] Custody Receipt Interest Distribution Amount payable from the
distributions made with respect to the Underlying Securities.
The Class [A-IO] Custody Receipt has no principal balance and will
receive no payments of principal.
Concurrently with the issuance of this Class [A-IO] Custody Receipts,
Class [A] Custody Receipts, Series 199 -A (the "Class [A] Custody Receipts")
are being issued which evidence, together with the Class [A-IO] Custody
Receipts, a 100% undivided beneficial ownership interest in such Underlying
Securities, the right to receive with respect to each Payment Date the Class
[A] Distribution Amount. The Owner of this Class [A-IO] Custody Receipt will
have no interest in that portion of the distributions on such Underlying
Securities distributable to Owners of the Class [A] Custody Receipts.
The Underlying Securities are being held in a Custody Account by
[Entity], as custodian (together with any successor custodian, the "Note
Custodian"), pursuant to the terms of a Custody Agreement (the "Custody
Agreement") dated ______________________ between the Note Custodian and
[Entity] (together with any successor, the "Depositor") pursuant to which Class
[A] and Class [A-IO] Custody Receipts have been executed, registered and
delivered by the Note Custodian.
THE TERMS AND CONDITIONS OF THE CUSTODY AGREEMENT AND THE RELATED
SCHEDULE OF TERMS ARE HEREBY INCORPORATED IN THIS CLASS [A-IO] CUSTODY RECEIPT
AS IF FULLY SET FORTH HEREIN AND, EXCEPT AS OTHERWISE DEFINED HEREIN, TERMS
USED HEREIN SHALL HAVE THE MEANINGS ASCRIBED THERETO IN THE CUSTODY AGREEMENT
OR THE RELATED SCHEDULE OF TERMS. THE OWNER HEREOF ASSENTS TO ALL OF THE TERMS
AND CONDITIONS OF THE CUSTODY AGREEMENT AND THE RELATED SCHEDULE OF TERMS,
COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE
NOTE CUSTODIAN.
The Custody Account will be maintained on the books of the Note
Custodian as a custodial account, separate and segregated, whose contents may
not be commingled with any other assets or property held by the Note Custodian.
The Owner of this Class [A-IO] Custody Receipt may not withdraw the Underlying
Securities evidenced by this Class [A-IO] Custody Receipt from the Custody
Account.
Pursuant to the Custody Agreement, the Note Custodian shall:
(a) on each Payment Date to the extent Custody Receipt
Available Funds are available therefor in the order of priority set
forth in the Custody Agreement, remit to the person who is the Owner
of this Class [A-IO] Custody Receipt on the Record Date preceding any
Payment Date, other than the final Payment Date, the Class [A-IO]
Custody Receipt Interest Distribution with respect to such Payment
Date for this Class [A-IO] Custody Receipt, on such Payment Date by
the Custodian.
(b) duly present (or cause to be presented) each
Underlying Security for payment on or prior to its final Payment Date
in accordance with the provisions of the related Issuance Agreement.
Upon receipt of such payment, the Note Custodian shall on the same
Payment Date remit to the person who is the Owner of this Class [A-IO]
Custody Receipt on the date set by the related Issuance Agreement as
the date for determining the person to whom such payment shall be
paid, to the extent Custody Receipt Available Funds are available
therefor in the order of priority set forth in the Custody Agreement,
the Class [A-IO] Custody Receipt Interest Distribution with respect to
such Payment Date for this Class [A-IO] Custody Receipt.
Payments to the Owner of this Class [A-IO] Custody Receipt of the
Class [A-IO] Custody Receipt Interest Distribution with respect to any Payment
Date shall be made by bank check payable in currency of the United States of
America sent by mail to such Owner at the address shown on the related Custody
Receipt Register or by such other method as may be requested by the Owner and
consented to in writing by the Note Custodian; provided that if this Class
[A-IO] Custody Receipt is on deposit with a Depository, payments with respect
to this Class [A-IO] Custody Receipt will be made in accordance with the
procedures of such Depository. Notwithstanding the preceding sentence, in the
event that the related Issuance Agreement requires the presentment of the
Underlying Securities as a condition to receipt of any payment (including a
redemption payment) then, likewise, any payment received by the Note Custodian
upon such presentment shall be remitted by the Note Custodian to the Owner of
this Class [A-IO] Custody Receipt upon presentation of this Class [A-IO]
Custody Receipt at the Note Custodian's Principal Office.
Neither the Depositor nor the Note Custodian shall have any obligation
to advance its own funds to make any payment to any Owner.
Upon receipt of any notice of redemption of an Underlying Security,
the Note Custodian shall promptly forward such notice by Mail to the Owner of
this Class [A-IO] Custody Receipt. The Note Custodian (or its agent) shall
present the Underlying Security so called for redemption on or prior to the
date of such redemption to the related Trustee for redemption in accordance
with the terms of the related Issuance Agreement.
Upon receipt from a Trustee of any other notice with respect to an
Underlying Security, the Note Custodian shall follow the procedures and take
such actions as are in accordance with the provisions of Section 3.01 of the
Custody Agreement.
Except as provided in the Custody Agreement, the Note Custodian has no
power or obligation to assert any of the rights and privileges of the Owners of
this Class [A-IO] Custody Receipt with respect to the Underlying Securities.
The Note Custodian may resign pursuant to the Custody Agreement upon
appointment of a successor Note Custodian and its acceptance of such
appointment as provided in the Custody Agreement. Either the Depositor or the
Owners of Custody Receipts evidencing at least 66-2/3% of the Voting Rights
allocated to each Class of Custody Receipts of this Series may remove the Note
Custodian in respect of Custody Receipts and appoint a successor thereto
pursuant to the provisions of the Custody Agreement.
Except as otherwise provided in the Custody Agreement, no amendment
affecting the Owners of Custody Receipts of any Class may be made to the
Custody Agreement without the consent of the Owners of Custody Receipts of such
Class evidencing at least 66-2/3% of the Voting Rights allocated to the Class
of Custody Receipts affected thereby; provided that no amendment shall reduce
the Voting Rights or the amount of or change the timing or currency of any
payment to be made to Owners of Custody Receipts without the consent of each
Owner affected thereby. In addition, the Note Custodian shall not consent to
any amendment of the Issuance Agreement that would have the effect of reducing
the amount of or changing the timing or currency of payments to be made to
Owners of Class [A-IO] Custody Receipts without the consent of the Owner of
each Class [A-IO] Custody Receipt.
This Class [A-IO] Custody Receipt is transferable by the Owner in
person, or by an attorney duly authorized in writing, at the Note Custodian's
Principal Office, upon (i) surrender and cancellation of this Class [A-IO]
Custody Receipt and due execution of the Notice Of Transfer or Exchange
attached to this Class [A-IO] Custody Receipt, (ii) compliance by the
transferee with the Transfer Limitations (as defined in the Custody Agreement)
and (iii) agreement on the part of such transferee that it shall indemnify the
Note Custodian, the Issuer, the Trustee, the Servicer and the Depositor for any
expenses or liability that may result from such transfer. Upon any such
registration of transfer, a new Class [A-IO] Custody Receipt or Custody
Receipts in authorized denominations will be issued to the transferee or
transferees in exchange for this Class [A-IO] Custody Receipt.
THE CUSTODY AGREEMENT AND THIS CLASS A-IO CUSTODY RECEIPT SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
The Note Custodian may treat the person in whose name this Class
[A-IO] Custody Receipt is registered as the absolute owner hereof, for all
purposes whatsoever, and shall not be bound or affected by any notice to the
contrary, other than an order of a court having jurisdiction in the premises.
This Class [A-IO] Custody Receipt shall not be valid for any purpose
unless executed by the Note Custodian by the manual signature of its authorized
officer or other authorized signatory.
IN WITNESS WHEREOF, the Note Custodian has caused this Class [A-IO] Custody
Receipt to be executed by one of its duly authorized officers.
Date:
[ENTITY],
not in its individual
capacity, but solely
as Note Custodian
By
NOTICE OF TRANSFER OR EXCHANGE
Please be advised, pursuant to the terms of the Custody Agreement (the
"Custody Agreement") between [Entity], as custodian and Orinda Management
Company, as depositor, with respect, to the Custody Receipt on which this
Notice of Transfer or Exchange is printed, that the undersigned hereby notifies
you, as of the date received by you, of the following transactions, and
requests you to process the transaction(s) as required by the Custody
Agreement. This notice may also be used for exchanges of Custody Receipts in
which event the Transferee should be noted to be the same as the Transferor.
Capitalized terms used in this Notice but not defined herein have the meanings
given them in the Custody Agreement.
Name of Transferor:
Registration Number of Custody Receipt:
Initial Class A-IO Custody Receipt Notional Amount:
Initial Class A-IO Custody Receipt
Notional Amount To Be Retained:
1. Name of Transferee:
Address of Such Transferee:
U.S. Taxpayer Identification Number of Such Transferee:
Initial Class A-IO Custody Receipt Notional
Amount To Be Transferred to Such Transferee:
2. Name of Transferee:
Address of Such Transferee:
U.S. Taxpayer Identification Number of Such Transferee:
Initial Class A-IO Custody Receipt Notional
Amount To Be Transferred to Such Transferee:
Dated:
By
Its
SIGNATURE GUARANTEED:
ASSIGNMENT
For value received, the undersigned hereby sells, assigns and
transfers this Custody Receipt to the person or persons indicated on the Notice
of Transfer or Exchange printed on this Custody Receipt. In the case of a
transfer to a third party, the undersigned hereby authorizes and instructs the
Note Custodian to immediately record the transferees listed on the Notice of
Transfer or Exchange as the Owner of such Custody Receipt.
Dated:
(Authorized Signature)
Notice: The signature of this
assignment must correspond with the
name of the registered Owner as it
appears on the Custody Receipt in
every particular and must be
guaranteed by an officer of a
national or state commercial bank
or trust company or a member of a
registered national securities
exchange or the National
Association of Securities Dealers,
Inc.
SIGNATURE GUARANTEED:
Annex I
to Custody Agreement
SCHEDULE OF TERMS
[Date]
[ENTITY], as Note Custodian
[ADDRESS]
Re: Custody Agreement dated , between [ENTITY]
and [ENTITY], as Note Custodian; Series [ ] Custody Receipts
The following information is provided in connection with the issuance
of Custody Receipts evidencing the Underlying Securities described below, all
in accordance with the above-referenced Agreement, as amended from time to
time:
Authorized
Denomination:
Custody Account
Designation:
Date of Issuance of
Underlying Securities:
Depositor:
Payment Date:
Initial Trustee:
Issuance Agreement:
Issuer:
Record Date: (As defined in the Issuance
Agreement]
Requirement, if any, for Delivery on Payment Dates of Reports to the Trustee:
Servicer:
Transfer Limitations:
Underlying Securities: [Describe, including Series name, CUSIP No. and
aggregate original principal amount and aggregate
outstanding principal amount]
The Depositor hereby sells, transfers, assigns and otherwise conveys
to the Custodian for the benefit of the Owners of Custody Receipts, without
recourse and in exchange for the Custody Receipts, the Underlying Securities.
Capitalized terms used but not defined herein have the meanings provided in
Appendix A attached hereto and made a part hereof.
By
Authorized Officer
Accepted:
[ENTITY],
as Note Custodian
By
Title:
