Exhibit 4.2
BASE TRUST AGREEMENT
between
SYNTHETIC FIXED-INCOME SECURITIES, INC.
Trustor
and
THE BANK OF NEW YORK
Trustee
Dated as of February 28, 2006
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND ASSUMPTIONS.......................1
Section 1.1. Definitions.......................................1
Section 1.2. Rules of Construction............................14
ARTICLE II DECLARATION OF TRUSTS; ISSUANCE OF CERTIFICATES..14
Section 2.1. Creation and Declaration of Trusts; Assignment
of Underlying Securities.........................14
Section 2.2. Acceptance by Trustee............................15
Section 2.3. Repurchase or Substitution of Certain
Underlying Securities by the Underlying
Security Provider................................16
Section 2.4. Representations and Warranties of the Trustor
and Representations, Warranties and Covenants of
the Administrative Agent.........................17
Section 2.5. Breach of Representation, Warranty or Covenant...18
Section 2.6. Agreement to Authenticate and Deliver
Certificates.....................................19
Section 2.7. Statement of Intent..............................19
ARTICLE III ADMINISTRATION OF EACH TRUST.....................19
Section 3.1. Administration of each Trust.....................19
Section 3.2. Sub-Administration Agreements Between
Administrative Agent or Trustee and
Sub-Administrative Agents........................20
Section 3.3. Successor Sub-Administrative Agents..............21
Section 3.4. Liability of the Administrative Agent............21
Section 3.5. No Contractual Relationship Between Certain
Sub-Administrative Agents and Trustee or
Certificateholders...............................22
Section 3.6. Assumption or Termination of Sub-Administration
Agreements by Trustee............................22
Section 3.7. Collection of Certain Underlying Security
Payments.........................................22
Section 3.8. Collections by Sub-Administrative Agent..........23
Section 3.9. Certificate Account..............................23
Section 3.10. Investment of Funds in the Accounts..............24
Section 3.11. Maintenance of Credit Support....................25
Section 3.12. Realization Upon Defaulted Underlying Securities.25
Section 3.13. Retained Interest................................27
Section 3.14. Administrative Agent's Compensation and
Reimbursement....................................27
Section 3.15. Statement as to Compliance.......................27
Section 3.16. Independent Public Accountants' Administration
Report...........................................28
Section 3.17. Access to Certain Documentation..................28
Section 3.18. Duties of the Administrative Agent...............29
Section 3.19. Trustor to Furnish Names and Addresses of
Holders to Trustee...............................29
Section 3.20. Preservation of Information, Communications to
Holders..........................................29
Section 3.21. Reports by Trustee...............................29
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ARTICLE IV DISTRIBUTIONS AND REPORTS TO CERTIFICATEHOLDERS..29
Section 4.1. Distributions....................................29
Section 4.2. Reports to Certificateholders....................30
Section 4.3. Advances.........................................31
Section 4.4. Compliance with Withholding Requirements.........32
Section 4.5. Optional Exchange................................32
ARTICLE V THE CERTIFICATES.................................33
Section 5.1. The Certificates.................................33
Section 5.2. Execution, Authentication and Delivery...........38
Section 5.3. Temporary Certificates...........................38
Section 5.4. Registration; Registration of Transfer and
Exchange.........................................39
Section 5.5. Mutilated, Destroyed, Lost and Stolen
Certificates.....................................41
Section 5.6. Distribution of Interest; Interest Rights
Preserved........................................42
Section 5.7. Persons Deemed Owners............................43
Section 5.8. Cancellation.....................................43
Section 5.9. Global Securities................................43
Section 5.10. Notices to Depositary............................44
Section 5.11. Definitive Certificates..........................45
Section 5.12. Currency of Distributions in Respect of
Certificates.....................................45
Section 5.13. Conditions of Authentication and Delivery of
New Series.......................................46
Section 5.14. Appointment of Paying Agent......................47
Section 5.15. Authenticating Agent.............................48
Section 5.16. Events of Default................................49
Section 5.17. Control by Holders...............................49
Section 5.18. Waiver of Past Defaults..........................49
ARTICLE VI THE TRUSTOR AND THE ADMINISTRATIVE AGENT.........49
Section 6.1. Preparation and Filing of Exchange Act Reports;
Obligations of the Trustor and the
Administrative Agent.............................49
Section 6.2. Merger or Consolidation of the Trustor or the
Administrative Agent.............................53
Section 6.3. Limitation on Liability of the Trustor and the
Administrative Agent.............................54
Section 6.4. Limitation on Resignation of the Administrative
Agent............................................54
Section 6.5. Rights of the Trustor in Respect of the
Administrative Agent.............................54
Section 6.6. Trustor May Purchase Certificates................55
Section 6.7. The Administrative Agent and Other Parties.......55
Section 6.8. Preferential Collection of Claims Against
Trustor..........................................55
ARTICLE VII ADMINISTRATIVE AGENT TERMINATION EVENTS..........55
Section 7.1. Administrative Agent Termination Events..........55
Section 7.2. Trustee to Act; Appointment of Successor.........58
Section 7.3. Notification to Certificateholders...............58
Section 7.4. Waiver of Administrative Agent Termination
Events...........................................59
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ARTICLE VIII CONCERNING THE TRUSTEE...........................59
Section 8.1. Duties of Trustee; Notice of Defaults............59
Section 8.2. Certain Matters Affecting the Trustee............62
Section 8.3. Trustee Not Liable for Recitals in Certificates
or Underlying Securities.........................63
Section 8.4. Trustee May Own Certificates.....................63
Section 8.5. Trustee's Fees and Expenses; Indemnification;
Undertaking for Costs............................63
Section 8.6. Eligibility Requirements for Trustee.............64
Section 8.7. Resignation or Removal of the Trustee............65
Section 8.8. Successor Trustee................................65
Section 8.9. Merger or Consolidation of Trustee...............66
Section 8.10. Appointment of Co-Trustee or Separate Trustee....66
Section 8.11. Appointment of Office or Agency..................67
Section 8.12. Representations and Warranties of Trustee........67
Section 8.13. Trustee to Act Only in Accordance With This
Agreement or Pursuant to Instructions of
Certificateholders...............................68
Section 8.14. Accounting and Reports to Certificateholders,
Internal Revenue Service and Others..............68
Section 8.15. Signature on Returns.............................68
ARTICLE IX TERMINATION......................................68
Section 9.1. Termination upon Purchase or Liquidation of All
Underlying Securities............................68
ARTICLE X MISCELLANEOUS PROVISIONS.........................69
Section 10.1. Amendment........................................69
Section 10.2. Counterparts.....................................71
Section 10.3. Limitation on Rights of Certificateholders.......71
Section 10.4. Governing Law....................................72
Section 10.5. Notices..........................................72
Section 10.6. Severability of Provisions.......................72
Section 10.7. Notice to Rating Agency..........................72
Section 10.8. Grant of Security Interest.......................73
Section 10.9. Nonpetition Covenant.............................74
Section 10.10. No Recourse......................................74
Section 10.11. Article and Section References...................74
Section 10.12. Conflict with Trust Indenture Act................74
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE
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ACT OF 1939 AND AGREEMENT PROVISIONS*
Trust Indenture Act
Section Agreement Section
------------------- -----------------
310(a)(1) ..................... 8.6(a)
(a)(2) ..................... 8.6(a)
(a)(3) ..................... 8.10
(a)(4) ..................... 8.1(d)
(a)(5) ..................... 8.6(a)
(b) ..................... 8.6(b), 8.7
(c) ..................... Not Applicable
311(a) ..................... 6.8
(b) ..................... 6.8
312(a) ..................... 3.19, 3.20(a)
(b) ..................... 3.20(b)
(c) ..................... 3.20(c)
313(a) ..................... 3.21
(b) ..................... 3.21
(c) ..................... 3.21
(d) ..................... 3.21
314(a) ..................... 6.1(a), 6.1(b)
(b) ..................... 6.1(c), 6.1(d)
(c)(1) ..................... 6.1(f)
(c)(2) ..................... 6.1(f)
(c)(3) ..................... 6.1(f)
(d)(1) ..................... 6.1(e)
(d)(2) ..................... 6.1(e)
(d)(3) ..................... Not Applicable
(e) ..................... 6.1(f)
315(a) ..................... 8.1(c)
(b) ..................... 8.1(f)
(c) ..................... 8.1(a)
(d) ..................... 8.1(c)
(d)(1) ..................... 8.1(c)
(d)(2) ..................... 8.1(c)
(d)(3) ..................... 8.1(c)
(e) ..................... 8.5(c)
316(a)(1)(A) ..................... 5.17
316(a)(1)(B) ..................... 5.18
316(a)(2) ..................... Not Applicable
316(b) ..................... 5.6(f), 4.1
316(c) ..................... 5.7
317(a) ..................... 3.12
317(b) ..................... 5.14
318(a) ..................... 10.12
---------
* This reconciliation and tie shall not, for any purpose, be deemed to be
part of the within agreement.
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TRUST AGREEMENT, dated as of February 28, 2006 between SYNTHETIC
FIXED-INCOME SECURITIES, INC., a Delaware corporation, as Trustor, and THE
BANK OF NEW YORK, a New York banking corporation, as Trustee.
PRELIMINARY STATEMENT
The Trustor and the Trustee have duly authorized the execution and
delivery of this Trust Agreement to provide for one or more Series (and one or
more Classes within each such Series) of Trust Certificates, issuable from
time to time as provided in this Agreement. Each such Series (or each Class
within such Series) of Certificates will be issued only under a separate
Series Supplement to this Agreement duly executed and delivered by the
Trustor, the Administrative Agent, if any, specified in the applicable Series
Supplement, and the Trustee. All representations, covenants and agreements
made herein by each of the Trustor, the Administrative Agent, if any, and the
Trustee are for the benefit and security of the Certificateholders and, to the
extent provided in the applicable Series Supplement, for the benefit and
security of any Credit Support Provider. The Trustor is entering into this
Agreement, and the Trustee is accepting the trusts created hereby, for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
ARTICLE I
DEFINITIONS AND ASSUMPTIONS
Section 1.1. Definitions. Except as otherwise specified herein or in the
applicable Series Supplement or as the context may otherwise require, the
following terms have the respective meanings set forth below for all purposes
of this Agreement.
"Account": As defined in Section 3.10.
"Accounting Date": With respect to any Series, if applicable, as defined
in the related Series Supplement.
"Administrative Agent": With respect to any Series of Certificates, the
Person, if any, specified in the applicable Series Supplement for such Series
(which Person shall have agreed pursuant to such Series Supplement to assume
all the duties, obligations, responsibilities and liabilities of the
Administrative Agent as set forth in this Agreement and such Series Supplement
with respect to such Series), until a successor Person shall have become the
Administrative Agent pursuant to the applicable provisions of this Agreement
and such Series Supplement, and thereafter "Administrative Agent" shall mean
such successor Person.
"Accreted Amount": With respect to each Series, if applicable, as defined
in the related Series Supplement.
"Administrative Agent": With respect to each Series, if applicable, as
defined in the related Series Supplement.
"Administrative Agent Termination Event": As defined in Section 7.1.
"Administrative Fee": With respect to each Series, if applicable, as
defined in the related Series Supplement.
"Advance": As defined in Section 4.3.
"Affiliate": With respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control," when used with respect to any specified Person, means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agreement": With respect to any Series of Certificates, this Trust
Agreement and all amendments hereof and, unless the context otherwise
requires, the related Series Supplement.
"Authenticating Agent": As defined in Section 5.15.
"Authorized Newspaper": A newspaper in an official language of the
country of publication customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in such city or cities specified pursuant to Section 5.1
with respect to the Certificates of any Series. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting
the foregoing requirements and in each case on any Business Day in such city.
"Available Funds": Unless otherwise specified in the applicable Series
Supplement, for any Distribution Date in respect of a given Series or Class,
the sum of (i) all amounts actually received on or with respect to the
Underlying Securities (including Liquidation Proceeds and investment income on
amounts in the Accounts) with respect to such Series during the related
Collection Period, (ii) all amounts received pursuant to any Credit Support
Instruments with respect to such Series for such Distribution Date and (iii)
all other amounts, if any, specified by the applicable Series Supplement.
"Basic Documents": With respect to any Series, if applicable, as defined
in the related Series Supplement.
"Board of Directors": Either the Board of Directors of the Trustor or any
executive or committee of such Board duly authorized under applicable law to
act on behalf of such Board.
"Board Resolution": A copy of a resolution certified by the Secretary or
an Assistant Secretary of the Trustor to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification and delivery to the Trustee.
"Business Day": With respect to any Series (or Class within such Series)
of Certificates, as defined in the related Series Supplement.
"Calculation Agent": With respect to each Series, as defined in the
related Series Supplement.
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"Call Premium Percentage": With respect to any Series (or Class within
such Series), if applicable, as defined in the related Series Supplement.
"Certificate Account": As defined in Section 3.9.
"Certificate Owners": As defined in Section 5.9.
"Certificate Register" and "Certificate Registrar": As respectively
defined in Section 5.4.
"Certificateholder": Any Holder of a Certificate.
"Certificates": Any Trust Certificates authorized by, and authenticated
and delivered under, this Agreement.
"Class": With respect to any Series, any one of the classes of
Certificates of such Series, each consisting of Certificates having identical
terms.
"Closing Date": With respect to any Series, the day on which Certificates
of such Series are first executed, authenticated and delivered.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date for a Series
(or Class within such Series), the period specified in the related Series
Supplement.
"Commission": The Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after the
execution and delivery of this Agreement such Commission is not existing and
performing the duties now assigned to it, then the body then performing such
duties.
"Corporate Trust Office": The principal corporate trust office of the
Trustee located at the address set forth in the related Series Supplement or
such other addresses as the Trustee may designate from time to time by notice
to the Holders, the Administrative Agent, if any, and the Trustor, or the
principal corporate trust office of any successor Trustee (or such other
addresses as a successor Trustee may designate from time to time by notice to
the Holders, the Administrative Agent, if any, and the Trustor).
"Credit Support": With respect to any Series (or any Class within such
Series), a letter of credit, surety bond, swap agreement, put or call option
or other asset intended to support or ensure the timely or ultimate
distributions of amounts due in respect of all or certain of the Underlying
Securities for such Series or Class, which in each case is specified as such
in the related Series Supplement.
"Credit Support Instrument": The instrument or document pursuant to which
the Credit Support for a given Series (or any Class within such Series) is
provided, as specified in the applicable Series Supplement.
3
"Credit Support Provider": With respect to any Series (or any Class
within such Series), the Person, if any, that will provide any Credit Support
with respect to all or a portion of the Underlying Securities for such Series
or Class as specified in the applicable Series Supplement.
"Currency": Dollars or Foreign Currency.
"Cut-off Date": With respect to any Series, the date specified as such in
the related Series Supplement. For purposes of this Agreement, any Underlying
Security acquired by the Trustor after the applicable Cut-off Date but prior
to the applicable Closing Date and included in the related Trust as of such
Closing Date shall be deemed to have been Outstanding as of such Cut-off Date
and references to the principal balance of such Underlying Security as of such
Cut-off Date shall be deemed to be to the principal balance of such Underlying
Security as of the date on which it was acquired by the Trustor.
"Definitive Certificates": As defined in Section 5.9.
"Deleted Underlying Security": An Underlying Security replaced or to be
replaced by a Qualified Substitute Underlying Security.
"Depositary": With respect to the Certificates of any Series (or Class
within such Series) issuable in whole or in part in the form of one or more
Global Securities, the Person designated as Depositary by the Trustor pursuant
to Section 5.1 until a successor Depositary shall have become such pursuant to
the applicable provisions of this Agreement, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder, and if at any
time there is more than one such Person, "Depositary" as used with respect to
the Certificates of any such Series or Class shall mean the Depositary with
respect to the Certificates of that Series or Class.
"Depository Agreement": If applicable, the agreement pursuant to which
the Depositary will agree to act as Depositary with respect to any Series (or
Class within such Series) of Certificates in accordance with Section 5.9.
"Discount Certificate": Any Certificate that is issued with "original
issue discount" within the meaning of Section 1273(a) of the Code and any
other Certificate designated by the Trustor as issued with original issue
discount for United States federal income tax purposes.
"Distribution Date": With respect to any Series (or Class within such
Series) of Certificates, each date specified as a "Distribution Date" for such
Series (or Class) in the related Series Supplement.
"Dollar" or "$" or "USD": Such currency of the United States as at the
time of payment is legal tender for the payment of public and private debts.
"Eligible Account": Either (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the long
term unsecured debt obligations of which are rated by the Rating Agency the
higher of (x) at least the then current long-term rating of the Underlying
Securities or (y) in one of its two highest long-term rating categories
(unless otherwise specified in the Series Supplement) at the time any amounts
are held in deposit therein
4
or (ii) a trust account or accounts maintained as a segregated account or as
segregated accounts and held by a federal or state chartered depository
institution, national banking association or trust company in trust for the
benefit of the Certificateholders provided, however, that such depositary
institution, national banking association or trust company (or its parent) has
a long-term rating in one of the four highest categories by the Rating Agency.
"Event of Default": With respect to any Series (or Class within such
Series) of Certificates, as specified in the related Series Supplement.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exchange Rate Agent": With respect to any Series (or Class within such
Series) of Certificates, if applicable, the Trustor or its agent so specified
in the related Series Supplement.
"Executive Officer": With respect to any corporation, the Chief Executive
Officer, Chief Operating Officer, Chief Financial Officer, President, any Vice
President, the Secretary or the Treasurer of such corporation; with respect to
any partnership, any general partner thereof.
"Extraordinary Trust Expense": With respect to any Series, as specified
in the related Series Supplement.
"Final Scheduled Distribution Date": With respect to each Series, as
defined in the Series Supplement.
"Fixed Pass Through Rate": With respect to any Fixed Rate Certificate, as
defined in the related Series Supplement.
"Fixed Rate Certificate": A Certificate that provides for a payment of
interest at a Fixed Pass Through Rate.
"Floating Pass Through Rate": With respect to any Floating Rate
Certificate, as defined in the related Series Supplement.
"Floating Rate Certificate": A Certificate that provides for the payment
of interest at a Floating Pass Through Rate determined periodically by
reference to a formula specified pursuant to Section 5.1 and the related
Series Supplement.
"Foreign Currency": A currency issued by the government of any country
other than the United States or a composite currency the value of which is
determined by reference to the values of the currencies of any group of
countries.
"Global Security": A Certificate evidencing all or part of a Series (or
Class within such Series) of Certificates, issued to the Depositary for such
Series or Class in accordance with Section 5.9 and bearing the legend
prescribed therein.
"Guaranteed Investment Contract": With respect to any Series (or Class
within such Series), a guaranteed investment contract or surety bond provided
for in the related Series Supplement, sold as part of the Trust or to the
Trustee for the benefit of the Certificateholders for
5
such Series, providing for the investment of funds in a related Account or
related Accounts and insuring a minimum or a fixed rate of return on the
investment of such funds, which contract or surety bond shall be an obligation
of an insurance company or other entity whose rating at the time of purchase
of such guaranteed investment contract or surety bond is no lower than the
rating on the Underlying Securities and shall satisfy any other requirements
specified in such Series Supplement.
"Holder": The holder of a Certificate.
"Independent": When used with respect to any specified Person means that
the Person specifies he or she (1) is in fact independent of the Trustor and
the Administrative Agent, if any, and of any Affiliate of any of the foregoing
Persons, (2) does not have any direct or indirect financial interest in the
Trustor or the Administrative Agent, if any, or in any Affiliate of either of
the foregoing Persons which is material with respect to such Person and (3) is
not connected with the Trustor or the Administrative Agent, if any, as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
"Independent Certificate" means a certificate of an Independent Person,
as required by the TIA.
"Letter of Credit": With respect to any Series or Class within such
Series, the letter of credit, if any, providing for the payment of all or a
portion of amounts due in respect of such Series or Class, issued to the
Trustee for the benefit of the Holders of such Series or Class, issued by the
related Credit Support Provider, all as specified in the related Series
Supplement.
"Limited Guarantor": With respect to the Underlying Securities relating
to any Series (or Class within such Series), a Person specified in the related
Series Supplement as providing a guarantee or insurance policy or other credit
enhancement supporting the distributions in respect of such Series (or Class)
as and to the extent specified in such Series Supplement.
"Limited Guaranty": With respect to any Series or Class within such
Series, any guarantee of or insurance policy or other comparable form of
credit enhancement with respect to amounts required to be distributed in
respect of such Series or Class or payments under all or certain of the
Underlying Securities relating to such Series or Class, executed and delivered
by a Limited Guarantor in favor of the Trustee, for the benefit of the
Certificateholders, as specified in the related Series Supplement.
"Liquidation Proceeds": The amounts received by the Administrative Agent,
if any, or the Trustee in connection with (i) the liquidation of a defaulted
Underlying Security or collateral, if any, related thereto or (ii) the
repurchase, substitution or sale of an Underlying Security.
"Notional Amount": With respect to any Class of Certificates, if
applicable, the initial notional amount specified in the related Series
Supplement on which distributions of interest may be determined at the
applicable Pass Through Rate, as the same may be adjusted as specified in such
Series Supplement.
6
"Officer's Certificate": A certificate signed by any one (or, if
specified in this Agreement or any Series Supplement, more than one) Executive
Officer of the Trustor or Administrative Agent, as applicable, or, in the case
of the Trustee, a Responsible Officer.
"Opinion of Counsel": A written opinion of counsel, who may, except as
otherwise expressly provided in this Agreement, be counsel for the Trustor or
the Administrative Agent, if any, acceptable to the Trustee, except that any
opinion of counsel relating to the qualification of any account required to be
maintained pursuant to this Agreement as an Eligible Account must state that
it is an opinion of counsel who is in fact Independent of the Trustor and the
Administrative Agent, if any.
"Optional Exchange Date": With respect to any Series (or Class with such
Series), as defined, if applicable, in the related Series Supplement.
"Outstanding": With respect to Certificates of a specified Series (or
Class within such Series), as of any date of determination, all such
Certificates theretofore authenticated and delivered under this Agreement and
the related Series Supplement except:
(i) Certificates theretofore cancelled by the Certificate
Registrar or delivered to the Certificate Registrar for cancellation; and
(ii) Certificates in exchange for or in lieu of which other
Certificates have been authenticated and delivered pursuant to this
Agreement, unless proof satisfactory to the Trustee is presented that any
such Certificates are held by a bona fide purchaser in whose hands such
Certificates are valid obligations of the Trust;
provided, however, that in determining whether the Holders of the required
percentage of the aggregate Voting Rights of the Certificates have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Certificates beneficially owned by the Trustor, or any Affiliate
thereof, shall be disregarded and deemed not to be Outstanding, and the Voting
Rights to which its Holder would otherwise be entitled shall not be taken into
account in determining whether the requisite percentage of aggregate Voting
Rights necessary to effect any such consent or take any such action has been
obtained except that, in determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Certificates with respect to which the Trustor has
provided the Trustee an Officer's Certificate stating that such Certificates
are so owned shall be so disregarded. Certificates so owned that have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee by certifying to such effect in
an Officer's Certificate the pledgee's right so to act with respect to such
Certificates and that the pledgee is not, to the actual knowledge of the
Trustee without any duty of investigation, the Trustor, the Administrative
Agent, if any, or any Affiliate of any thereof so owned. The principal amount
or notional amount, as applicable, of a Discount Certificate that shall be
deemed to be Outstanding for the determination referred to in the foregoing
proviso shall be the Stated Amount or Certificate Notional Amount, as
applicable, with respect thereto as of the date of such determination, and the
principal amount or notional amount, as applicable, of a Certificate
denominated in a Foreign Currency that shall be deemed to be Outstanding for
7
purposes of the determination referred to in the foregoing provision shall be
the amount calculated pursuant to Section 5.12(c).
"Participant": A broker, dealer, bank, other financial institution or
other Person for whom from time to time a Depositary effects book-entry
transfers and pledges of securities deposited with the Depositary.
"Pass Through Rate": With respect to any Series (or Class within such
Series) of Certificates (except certain Discount Certificates and Certificates
entitled to nominal or no interest distributions) the annual rate at which
interest accrues on the Certificates of such Series (or Class), which may be a
fixed rate or a floating rate of interest, determined upon the basis and in
the manner specified in the related Series Supplement.
"Paying Agent": As defined in Section 5.14.
"Percentage Interest": With respect to a Certificate of any Series or
Class within a Series, the portion of such Series or Class evidenced by such
Certificate, expressed as a percentage, equal to the product of (x) a
fraction, the numerator of which is the initial Stated Amount or Notional
Amount, as applicable, represented by such Certificate and the denominator of
which is the aggregate initial Stated Amount or Notional Amount, as
applicable, of all the Certificates of such Series or Class and (y) 100.
"Permitted Investments": With respect to any Series, unless otherwise
specified in the related Series Supplement, any one or more of the following
obligations or securities, provided that the total return specified by the
terms of each such obligation or security is at least equal to the purchase
price thereof:
(i) direct obligations of, and obligations fully guaranteed by,
the United States, the Federal Home Loan Mortgage Corporation, the
Federal National Mortgage Association, the Federal Farm Credit System or
any agency or instrumentality of the United States the obligations of
which are backed by the full faith and credit of the United States of
America; provided that obligations of, or guaranteed by, the Federal Home
Loan Mortgage Corporation, the Federal National Mortgage Association or
the Federal Farm Credit System shall be Permitted Investments only if, at
the time of investment, it has the rating specified in such Series
Supplement for Permitted Investments;
(ii) demand and time deposits in, certificates of deposit of,
or banker's acceptances issued by any depository institution or trust
company (including the Trustee or any agent of the Trustee acting in
their respective commercial capacities) incorporated under the laws of
the United States or any State and subject to supervision and examination
by federal and/or state banking authorities so long as the commercial
paper and/or the short-term debt obligations of such depository
institution or trust company (or, in the case of a depository institution
which is the principal subsidiary of a holding company, the commercial
paper or other short-term debt obligations of such holding company) at
the time of such investment or contractual commitment providing for such
investment have the rating specified in such Series Supplement for
Permitted
8
Investments; provided, however, that such rating shall be no lower than
the rating on the Underlying Securities at the time of purchase of the
investments;
(iii) repurchase agreements with respect to (a) any security
described in clause (i) above or (b) any other security issued or
guaranteed by an agency or instrumentality of the United States, with an
entity having the credit rating specified in such Series Supplement for
Permitted Investments;
(iv) securities bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States or
any State that have the rating specified in such Series Supplement for
Permitted Investments at the time of such investment or contractual
commitment providing for such investment; provided, however, that such
rating shall be no lower than the rating on the Underlying Securities;
provided further that securities issued by any particular corporation
will not be Permitted Investments to the extent that investment therein
will cause the then outstanding principal amount of securities issued by
such corporation and held as part of the Trust for such Series to exceed
10% of the aggregate outstanding principal balances and amounts of all
the Underlying Securities and Permitted Investments held as part of the
Trust for such Series;
(v) commercial paper having at the time of such investment the
rating specified in the Series Supplement for Permitted Investments; and
(vi) a Guaranteed Investment Contract if and only if specified
in the related Series Supplement, provided that the Rating Agency
Condition is met.
"Person": Any individual, corporation, partnership, joint venture,
association, joint stock company, limited liability company, trust (including
any beneficiary thereof), unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Distribution": With respect to any Series (or Class within such
Series) of Certificates, the place or places where the principal of (and
premium, if any) and interest on the Certificates of such Series (or Class)
are distributable as specified pursuant to Section 5.1.
"Predecessor Certificate": With respect to any particular Certificate,
every previous Certificate evidencing all or a portion of the same interest as
that evidenced by such particular Certificate; and, for the purpose of this
definition, any Certificate authenticated and delivered under Section 5.5 in
lieu of a lost, destroyed or stolen Certificate shall be deemed to evidence
the same interest as the lost, destroyed or stolen Certificate.
"Proceeding": Any suit in equity, action at law or other judicial or
administrative proceeding.
"Purchase Price": With respect to any Underlying Security required to be
repurchased by the Underlying Security Provider pursuant to Section 2.3 and as
confirmed by an Officer's Certificate from the Administrative Agent, if any,
or the Trustor, as the case may be, to the Trustee, an amount equal to the sum
of (i) the greater of (x) 100% of the principal balance thereof as of the date
of such purchase or (y) if the Underlying Security was purchased at a
9
premium above face value, the price paid therefor, (ii) accrued and unpaid
interest thereon from the immediately preceding interest allocation date, or
if no interest has been paid to the Trust with respect thereto, from the
Cut-Off Date, in each case at a rate equal to the Fixed Pass Through Rate or
the then applicable Floating Pass Through Rate, as the case may be, as
specified in the applicable Series Supplement, on the principal balance of
such Underlying Security as of the close of business on the Business Day
immediately preceding the date of purchase or such other day as may be
specified in the applicable Series Supplement on which such purchase is to
occur, (iii) any unreimbursed Advances and any unpaid Administrative Fees
allocable to such Underlying Security, (iv) expenses reasonably incurred or to
be incurred by the Administrative Agent, if any, or the Trustee in respect of
the breach or defect giving rise to the purchase obligation, including any
expenses arising out of the enforcement of the purchase obligation and (v) any
realized losses previously incurred with respect to such Underlying Security
and allocated to Certificateholders on or before the date of purchase.
"Qualified Substitute Underlying Security": With respect to any Series,
as defined, if applicable, in the related Series Supplement.
"Rating Agency": With respect to any Series (or Class within such
Series), as defined in the related Series Supplement.
"Rating Agency Condition": With respect to any action or occurrence,
unless otherwise specified in the applicable Series Supplement, that each
Rating Agency shall have been given 10 days (or such shorter period acceptable
to each Rating Agency) prior notice thereof and that each Rating Agency shall
have notified the Trustor, the Trustee and the Administrative Agent, if any,
in writing that such action or occurrence will not result in a reduction or
withdrawal of the then current rating of any Certificate of the applicable
Series.
"Record Date": With respect to any Distribution Date for any Series (or
Class within such Series) of Certificates, the date specified in the related
Series Supplement.
"Required Interest": Unless otherwise specified in the related Series
Supplement, with respect to the Outstanding Certificates of any Series or any
Class thereof, the accrued and undistributed interest on the Stated Amount or
Notional Amount of such Outstanding Certificates computed at the applicable
Pass Through Rate.
"Required Percentage-Amendment": Unless otherwise specified in the
related Series Supplement, 66-2/3% of the aggregate Voting Rights of
Certificates of such Series (or of a designated Class or group of Classes
within such Series) (either voting as separate Classes or as a single Class)
applicable to such matter, all as specified in the applicable Series
Supplement.
"Required Percentage-Definitive Certificates": Unless otherwise specified
in the related Series Supplement, greater than 50% of the aggregate Voting
Rights of Certificates of such Series.
"Required Percentage-Direction of Trustee": Unless otherwise specified in
the related Series Supplement, greater than 50% of the aggregate Voting Rights
of Certificates of such Series.
10
"Required Percentage-Remedies": Unless otherwise specified in the related
Series Supplement, 66-2/3% of the aggregate Voting Rights of Certificates of
such Series.
"Required Percentage-Removal of Trustee": Unless otherwise specified in
the related Series Supplement, greater than 50% of the aggregate Voting Rights
of Certificates of such Series.
"Required Percentage-Waiver": Unless otherwise specified in the related
Series Supplement, 66-2/3% of the aggregate Voting Rights of Certificates of
such Series.
"Required Premium": If applicable, unless otherwise specified in the
related Series Supplement, with respect to the Certificates of any Series or
any Class thereof, an amount equal to the product, as determined on any
Distribution Date with respect to such Series or Class, of (i) the Required
Principal for such Series or Class and (ii) the Call Premium Percentage for
such Series or Class.
"Required Principal": As determined for any Distribution Date for a given
Series (or Class within such Series), unless otherwise specified in the
related Series Supplement, the amounts on deposit in the Certificate Account
allocable to principal payments on the Underlying Securities (including from
Credit Support, if any, and Advances, if any, but excluding amounts in respect
of principal payments to the extent that Advances with respect thereto were
distributed as Required Principal on a prior Distribution Date) and required
to be distributed in respect of Certificates of such Series (or Class) in
accordance with the terms of such Certificates and such related Series
Supplement.
"Required Rating": With respect to any Series (or Class within such
Series), the rating category (or categories) specified in the Series
Supplement that, as a condition to the issuance of such Series or Class, is
(or are) the lowest category (or categories) in which the Certificates of such
Series or Class may be categorized by the Rating Agency.
"Requisite Reserve Amount": As of any date with respect to any Series (or
Class within such Series) of Certificates, the amount, if any, required to be
maintained in the Reserve Account, if any, for such Series or Class as
specified in or determined pursuant to the related Series Supplement.
"Reserve Account": An Eligible Account, if any, created and maintained
pursuant to Section 3.11.
"Responsible Officer": With respect to the Trustee, any officer within
the Corporate Trust Office of the Trustee, including any Vice President,
Assistant Vice President, Assistant Treasurer, Assistant Secretary or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because
of such officer's knowledge of and familiarity with the particular subject.
"Retained Interest": If applicable, with respect to any Underlying
Security, an ownership interest in and a right to a portion of the payments
thereon by the obligor thereof, as specified in
11
the Underlying Securities Schedule to the related Series Supplement, held by
the Person so specified in such Underlying Securities Schedule.
"Scheduled Final Distribution Date": With respect to any Certificate, the
date on which all the unpaid principal of (and premium, if any, on) such
Certificate is scheduled, without giving effect to any prepayment, exchange or
early termination, to become due and payable as provided therein and in the
applicable Series Supplement.
"Series": A separate series of Certificates issued pursuant to this
Agreement and a related Series Supplement, which series may be divided into
two or more Classes, as provided in such Series Supplement.
"Series Supplement": An agreement supplemental to this Agreement that
authorizes the issuance of a particular Series (and each Class within such
Series) of Certificates.
"Specified Currency": As defined in the related Series Supplement.
"State": Any one of the 00 xxxxxx xx xxx Xxxxxx Xxxxxx or the District of
Columbia.
"Stated Amount": With respect to an Outstanding Certificate, as
determined at any time, the maximum amount that the Holder thereof is entitled
to receive as distributions allocable to principal payments on the Underlying
Securities. The Stated Amount, if any, of any Class within a given Series
(other than those Classes, if any, specified in the related Series
Supplement), as of any date of determination, shall be equal to the aggregate
initial Stated Amount thereof less the sum of (i) all amounts allocable to
prior distributions made to such Class in respect of principal of the
Underlying Securities and (ii) any reductions attributable to Certificates
surrendered in exchange for Underlying Securities, as and to the extent
provided in the applicable Series Supplement.
"Sub-Administration Account": As defined in Section 3.8.
"Sub-Administration Agreement": The written contract, if any, between the
Administrative Agent, if any, specified in the applicable Series Supplement,
or Trustee and a Sub-Administrative Agent and any successor Administrative
Agent or Trustee or Sub-Administrative Agent relating to the administration of
an Underlying Security or certain Underlying Securities as provided in Section
3.2.
"Sub-Administrative Agent": Any Person with which the Administrative
Agent, if any, specified in the applicable Series Supplement, or the Trustee
has entered into a Sub-Administration Agreement and which meets the
qualifications of a Sub-Administrative Agent pursuant to Section 3.2.
"Surety Bond": If so specified in the Series Supplement, with respect to
any Series (or Class within such Series) of Certificates, the surety bond
providing for the distribution under certain circumstances specified in such
Series Supplement of amounts to the Certificateholders of such Series (or
Class), which surety bond will be issued to the Trustee for the benefit of
such Certificateholders by the related Credit Support Provider, all as
specified in such Series Supplement.
12
"Treasury Regulations": Regulations, including proposed or temporary
regulations promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trustor": Synthetic Fixed-Income Securities, Inc., a Delaware
corporation, and, if a successor Person shall have become the Trustor pursuant
to any applicable provisions of this Agreement, "Trustor" shall mean such
successor Person.
"Trustor Order" or "Trustor Request": A written order or request,
respectively, signed in the name of the Trustor by any of its Chief Executive
Officer, Chief Financial Officer, Chief Operating Officer, President, a Vice
President, its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary and delivered to the Trustee.
"Underlying Security Provider": With respect to any Underlying Security
purchased pursuant to an Underlying Security Purchase Agreement, each entity
specified as such in the applicable Series Supplement or its successor in
interest.
"Underlying Security Purchase Agreement": With respect to certain Series
of Certificates, as designated in the applicable Series Supplement, the
purchase agreement providing for the purchase by the Trustor of one or more
Underlying Securities for such Series, substantially in the form acceptable to
the Trustor, provided, that if required by the applicable Series Supplement,
such agreement shall provide for the repurchase of such Underlying Securities
on the terms set forth in Section 2.3.
"Underlying Securities": With respect to any Series, the asset or assets
sold as part of the Trust for such Series or acquired (or, in the case of an
agreement, entered into) by the Trustee for the benefit of the Holders of such
Series and, if and to the extent provided in the applicable Series Supplement,
for the benefit of any Credit Support Provider, all as identified in the
Underlying Securities Schedule to the related Series Supplement. The
Underlying Securities for any such Series or the related Trust shall not
constitute Underlying Securities for any other Series or any other Trust.
"Underlying Securities Issuer": As defined in the related Series
Supplement.
"Underlying Securities Schedule": With respect to any Series, a listing
of the Underlying Securities for such Series as of the Closing Date,
including, with respect to each Underlying Security, the obligor and the
principal balance thereof, which shall be attached to such Series Supplement
as Schedule A.
"TIA": The Trust Indenture Act of 1939, as amended.
"Trust": With respect to any Series, the segregated asset or pool of
assets subject hereto, constituting the trust created hereby and by the
related Series Supplement and to be administered hereunder and thereunder,
consisting of those Underlying Securities and the Credit Support, if
applicable, and all sums distributed in respect thereof that are specified as
being part of the Trust for such Series in the related Series Supplement, all
for the benefit of the Certificateholders of such Series as of any particular
time.
13
"Trust Termination Event": With respect to any Series, as specified in
the related Series Supplement.
"Trustee": With respect to any Series, the Person so specified in the
applicable Series Supplement (which Person shall have agreed pursuant to such
Series Supplement to assume all the duties, obligations, responsibilities and
liabilities of the Trustee as set forth in this Agreement and such Series
Supplement with respect to the related Series of Certificates) for such Series
or any co-trustee appointed pursuant to Section 8.10, until a successor Person
shall have become the Trustee pursuant to the applicable provisions of this
Agreement and the applicable Series Supplement, and thereafter "Trustee" shall
mean such successor Person.
"Uniform Commercial Code": The Uniform Commercial Code as in effect in
the relevant jurisdiction.
"United States": The United States of America (including the States), its
territories, its possessions and other areas subject to its jurisdiction.
"Voting Rights": With respect to any Series (or Class within such Series)
of Certificates, the portion of the aggregate voting rights of the
Certificates of such Series or Class which shall be allocated to any
Certificate as specified in the applicable Series Supplement.
Section 1.2. Rules of Construction. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles as in effect in the United States from time to time;
(iii) "or" is not exclusive;
(iv) the words "herein," "hereof," "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision;
(v) "including" means including without limitation; and
(vi) words in the singular include the plural and words in the
plural include the singular.
ARTICLE II
DECLARATION OF TRUSTS; ISSUANCE OF CERTIFICATES
Section 2.1. Creation and Declaration of Trusts; Assignment of Underlying
Securities. (a) The Trustor, concurrently with the execution and delivery
hereof, does hereby agree to (i) sell, assign, convey and set-over to the
Trustee, on behalf and for the benefit of the Certificateholders of each given
Series of Certificates and without recourse, all the right, title and
14
interest of the Trustor, including any security interest therein for the
benefit of the Trustor, in, to and under the Underlying Securities
attributable to each such Series (except for the Underlying Securities
attributable to such Series which are not sold by the Trustor, as specified in
the Underlying Securities Schedule to the applicable Series Supplement), in
each case as identified on the applicable Underlying Securities Schedule, and
all other assets included or to be included in the respective Trust for the
benefit of the Certificateholders of each such Series or (ii) deliver to the
Trustee for deposit in the Certificate Account an amount, in immediately
available funds in a form acceptable to the Trustee, sufficient to acquire the
Underlying Securities attributable to such Series, in each case as identified
on the Underlying Security Schedule to the applicable Series Supplement, and
all other assets to be included in the respective Trust for the benefit of the
Certificateholders of each such Series. Each such sale will include all
interest, premium (if any) and principal received by or on behalf of the
Trustor of, on or with respect to any such Underlying Securities due after the
applicable Cut-off Date, and, unless otherwise specified in the Series
Supplement, will exclude (i) all interest, premium (if any) and principal of,
on or with respect to any such Underlying Securities due on or before the
applicable Cut-off Date and (ii) any Retained Interest in any such Underlying
Security.
(b) In connection with each sale referred to in the preceding
paragraph, the Trustor shall, not later than the applicable Closing Date, (i)
deposit the Underlying Securities for a given Series (except for the
Underlying Securities attributable to such Series which are to be acquired
from a Person other than the Trustor, as specified on the Underlying
Securities Schedule to the applicable Series Supplement) with the Trustee by
physical delivery of such Underlying Securities, duly endorsed, to the Trustee
or by causing such Underlying Securities to be registered by book entry in the
name of the Trustee and (ii) with respect to each such Underlying Security,
deliver or cause to be delivered to the Trustee all documents necessary to
transfer ownership of each such Underlying Security to the Trustee.
(c) Unless otherwise specified in the applicable Series Supplement,
the sale of such Underlying Securities by the Trustor for a given Series
accomplished hereby and by such Series Supplement is absolute and is intended
by the parties hereto as a sale and not a loan. The Trustor represents and
covenants that the Underlying Securities as of the respective Closing Dates
will be free and clear of any right, charge, security interest or lien or
claim in favor of the Trustor and, with respect to any sale of Underlying
Securities, that the Trustor will as of such respective Closing Date have the
right to sell the applicable Underlying Securities to the Trustee.
Section 2.2. Acceptance by Trustee. (a) With respect to each Series, the
Trustee will acknowledge receipt by it, or by a custodian on its behalf, of
the related Underlying Securities and the related documents referred to in
Section 2.1, now existing or hereafter acquired, and declares that it will
hold such Underlying Securities and documents and all other documents
delivered to it pursuant to this Agreement, and that it will hold all such
assets and such other assets (including Underlying Securities acquired from a
Person other than the Trustor) comprising the Trust for a given Series of
Certificates, in trust for the exclusive use and benefit of all present and
future Certificateholders of such Series and for the purposes and subject to
the terms and conditions set forth in this Agreement.
(b) The Trustee, or a custodian on its behalf, shall review all
documents received by it pursuant to Section 2.1 within 45 days after receipt
thereof. If in the process of
15
reviewing such documents the Trustee or such custodian discovers any document
or documents to be missing or defective, the Trustee shall promptly (but in
any event within 10 Business Days) so notify the Trustor and the
Administrative Agent, if any. In addition, upon the discovery by the Trustor,
the Administrative Agent, if any, or the Trustee of a breach of any of the
representations and warranties made by any Underlying Security Provider in the
related Underlying Security Purchase Agreement, if any, in respect of any
Underlying Security that materially and adversely affects the interests of the
Certificateholders, the party discovering such breach shall give prompt
written notice to the other parties hereto (but in any event within 10
Business Days).
Section 2.3. Repurchase or Substitution of Certain Underlying Securities
by the Underlying Security Provider. (a) If and to the extent provided for in
a Series Supplement relating to a given Series of Certificates, upon discovery
or receipt of notice pursuant to Section 2.2 that a document is missing or
defective, the Trustee shall immediately notify the Trustor, the
Administrative Agent, if any, and the Rating Agency that such document is
defective or missing and, unless the Trustor provides to the Trustee an
Officer's Certificate stating such missing or defective document will not have
a materially adverse effect on the related Trust, the Administrative Agent, if
any, or the Trustee shall immediately so notify the Underlying Security
Provider and require that the Underlying Security Provider deliver such
missing document or cure such defect within 60 days from the date on which
such Underlying Security Provider was first notified of such missing document
or defect, and if such Underlying Security Provider does not deliver such
missing document or cure such defect in all material respects during such
period, the Administrative Agent, if any, or the Trustee shall use its best
efforts to enforce the Underlying Security Provider's obligation, if any,
under the related Underlying Security Purchase Agreement to repurchase such
Underlying Security from the Trustee at the applicable Purchase Price within
90 days after the date on which the Underlying Security Provider was first
notified of such missing document or defect. The Purchase Price for the
repurchased Underlying Security shall be delivered to the Administrative
Agent, if any, or to the Trustee directly for deposit in the Certificate
Account and the Trustee, upon receipt either of certification by the
Administrative Agent, if any, of such deposit or of such deposit directly,
shall release to the Underlying Security Provider the related documents in its
possession and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as shall be necessary to vest in
the Underlying Security Provider any Underlying Security released pursuant
hereto, and the Trustee shall have no further obligations with regard to such
documents. The foregoing notwithstanding, if and to the extent the Series
Supplement provides, the Underlying Security Provider may, as an alternative
to repurchasing any such Underlying Security as provided above, if and to the
extent so provided in the Underlying Security Purchase Agreement, cause such
Underlying Security to be removed from the Trust (in which case it shall
become a Deleted Underlying Security) by agreeing to substitute one or more
Qualified Substitute Underlying Securities in the manner and subject to the
limitations set forth in Section 2.3(b) and the related Series Supplement. It
is understood and agreed that the obligation of the Underlying Security
Provider to repurchase or substitute for any Underlying Security as to which a
constituent document is missing or a defect in a constituent document exists
shall, if such defect is not cured or such missing document is not provided,
constitute (unless otherwise specified in the applicable Series Supplement)
the sole remedy respecting such omission or defect available to the
Certificateholders or the Trustee on behalf of the Certificateholders. It is
further understood and agreed that, unless otherwise provided in the related
Series Supplement, in no
16
event shall either the Trustor or the Administrative Agent, if any, be
obligated to repurchase or substitute for such an Underlying Security,
regardless of whether the Underlying Security Provider defaults on its
obligation to repurchase or substitute for such an Underlying Security.
(b) If and to the extent provided for in a Series Supplement
relating to a given Series of Certificates, with respect to any Deleted
Underlying Security for which the Trustor or the Underlying Security Provider
substitutes a Qualified Substitute Underlying Security or Assets, such
substitution shall be effected by the Trustor or Underlying Security Provider
delivering to the Trustee or a custodian on its behalf such Qualified
Substitute Underlying Security or Assets and such documents and agreements,
with all necessary endorsements thereon, as would be required under the terms
of Section 2.1, together with an Officer's Certificate of the Trustor or
relevant Underlying Security Provider certifying that each such Qualified
Substitute Underlying Security satisfies the definition thereof and the
requirements under this Section. The Trustee or such custodian shall
acknowledge receipt of such Qualified Substitute Underlying Security or Assets
and, within five Business Days thereafter, review such documents in the manner
specified in Section 2.2. The Trustor shall give or cause to be given written
notice to the Certificateholders of such Series and the Rating Agency that
such substitution has taken place and shall amend the Underlying Security
Schedule to reflect the removal of such Deleted Underlying Security from the
terms of this Agreement and the substitution of the Qualified Substitute
Underlying Security or Assets. Upon such substitution, such Qualified
Substitute Underlying Security or Assets shall be subject to the terms of this
Agreement in all respects, including those related to the representations and
warranties included in the Underlying Security Purchase Agreement as of the
date of substitution. The terms upon which such substitution may be effected
shall be specified in the applicable Series Supplement.
(c) Unless otherwise provided in the Series Supplement, no
substitution of Underlying Securities allowed by the Series Supplement shall
be effected unless the Trustee obtains, at the expense of the
Certificateholders, an Opinion of Counsel to the effect that the substitution
will not cause the Trust to be taxable as a corporation for federal income tax
purposes.
Section 2.4. Representations and Warranties of the Trustor and
Representations, Warranties and Covenants of the Administrative Agent. (a) The
Trustor hereby represents and warrants to the Trustee that as of the Closing
Date or as of such other date specifically provided herein or in the
applicable Series Supplement:
(i) the Trustor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(ii) with respect to each Series Supplement, to the Trustor's
knowledge, the information set forth in the Underlying Security Schedule
with respect to each Underlying Security is true and correct in all
material respects at the date or dates respecting which such information
is furnished;
(iii) the execution and delivery of this Agreement by the
Trustor and its performance of and compliance with the terms of this
Agreement will not violate the Trustor's articles of incorporation or
by-laws or constitute a default (or an event which,
17
with notice or lapse of time, or both, would constitute a default) under,
or result in the breach or acceleration of, any material contract,
agreement or other instrument to which the Trustor is a party or which
may be applicable to the Trustor or any of its assets;
(iv) the Trustor has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement and
has duly executed and delivered this Agreement. This Agreement, upon its
execution and delivery by the Trustor and assuming due authorization,
execution and delivery by the Trustee, will constitute a valid, legal and
binding obligation of the Trustor, enforceable against it in accordance
with the terms hereof, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium or other
laws relating to or affecting the rights of creditors generally, and by
general equity principles (regardless of whether such enforcement is
considered a proceeding in equity or at law);
(v) the Trustor is not in violation, and the execution and
delivery of this Agreement by the Trustor and its performance and
compliance with the terms of this Agreement will not constitute a
violation, of any order or decree of any court or any order or regulation
of any federal, state, municipal or governmental agency having
jurisdiction over the Trustor or its properties, which violation would
reasonably be expected to have a material and adverse effect on the
condition (financial or otherwise) or operations of the Trustor or its
properties or on the performance of its duties hereunder; and
(b) The Trustor shall make any additional representations and
warranties, if any, that may be specified in the applicable Series Supplement.
It is understood and agreed that the representations and warranties of
the Trustor set forth in this Sections 2.4(a) and 2.4(b) shall survive
delivery of the respective documents to the Trustee and shall inure to the
benefit of the Trustee on behalf of the Certificateholders notwithstanding any
restrictive or qualified endorsement or assignment. Upon discovery by any of
the Trustor, the Administrative Agent, if any, or the Trustee of a breach of
any of the foregoing representations and warranties which materially and
adversely affects the interests of the Certificateholders, the party
discovering such breach shall give prompt written notice thereof to the other
parties.
(c) The Administrative Agent, if any, shall make such
representations, warranties, if any, and covenants that may be specified in
the applicable Series Supplement.
Upon discovery by any of the Trustor, the Administrative Agent, if any,
or the Trustee of a breach of any of the foregoing representations, warranties
and covenants which materially and adversely affects the interests of the
Certificateholders, the party discovering such breach shall give prompt
written notice thereof to the other parties.
Section 2.5. Breach of Representation, Warranty or Covenant. (a) Within
30 days of the earlier of discovery by the Trustor or receipt of notice by the
Trustor of a breach of any representation or warranty of the Trustor set forth
in Section 2.4(a) that materially and adversely
18
affects the interests of the Certificateholders of a given Series of
Certificates, the Trustor shall cure such breach in all material
respects.
(b) With respect to an Administrative Agent appointed pursuant to
the applicable Series Supplement, within 30 days of the earlier of discovery
by such Administrative Agent or receipt of notice by such Administrative Agent
of a breach of any representation, warranty or covenant of such Administrative
Agent set forth in the applicable Series Supplement that materially and
adversely affects the interests of the Certificateholders, such Administrative
Agent shall cure such breach in all material respects.
Section 2.6. Agreement to Authenticate and Deliver Certificates. With
respect to each Series of Certificates and the related Trust, the Trustee
hereby agrees and acknowledges that it will, concurrently with the sale to and
receipt by it of the related Underlying Securities and delivery to it by the
Trustor of executed Certificates of such Series, cause to be authenticated and
delivered to or upon the order of the Trustor, in exchange for the Underlying
Securities and such other assets constituting the Trust for a given Series,
Certificates duly authenticated by or on behalf of the Trustee in authorized
denominations evidencing ownership of the entire Trust for such Series, all in
accordance with the terms and subject to the conditions of Sections 5.2 and
5.13.
Section 2.7. Statement of Intent. It is the intention of the parties
hereto that, for purposes of federal income taxes, state and local income and
franchise taxes and any other taxes imposed upon, measured by or based upon
gross or net income, the Trust shall be treated as a grantor trust, but
failing that, as a partnership and in no event, as a corporation or publicly
traded partnership taxable as a corporation. The terms of this Agreement shall
be interpreted to further this intention of the parties. The parties hereto
agree that, unless otherwise required by appropriate tax authorities, the
Trustee shall file or cause to be filed annual or other necessary returns,
reports and other forms consistent with such intended characterization. Each
Certificateholder and each beneficial owner of a Certificate by acceptance of
its Certificate (or its beneficial interest therein) agrees, unless otherwise
required by appropriate tax authorities, to file its own tax returns and
reports in a manner consistent with such characterization.
ARTICLE III
ADMINISTRATION OF EACH TRUST
Section 3.1. Administration of each Trust. (a) The Trustee (and, to the
extent required in the applicable Series Supplement, any Administrative Agent)
shall administer the Underlying Securities for each given Trust for the sole
benefit of the Certificateholders of the related Series. In engaging in such
activities, the Trustee (or the Administrative Agent, if applicable) shall,
subject to the provisions of Article VI hereof, follow or cause to be followed
collection procedures in accordance with the terms of this Agreement and the
applicable Series Supplement, the respective Underlying Securities and any
applicable Credit Support Instruments. With respect to each Trust, and subject
only to the above-described standards and the terms of this Agreement, the
related Series Supplement and the respective Underlying Securities and
applicable Credit Support Instruments, if any, the Trustee (or the
Administrative Agent, if applicable) shall have full power and authority,
acting alone or through Sub-Administrative
19
Agents as provided in Section 3.2, to do or cause to be done any and all
things in connection with such administration which it deems necessary to
comply with the terms of this Agreement and the applicable Series Supplement.
(b) Without limiting the generality of the terms of paragraph (a) of
this Section 3.1, with respect to any Series of Certificates, the
Administrative Agent, if any, specified in the applicable Series Supplement
shall be hereby authorized and empowered by the Trustor, when such
Administrative Agent believes it appropriate in its reasonable judgment and
when otherwise required by a Series Supplement, in its own name or in the name
of a Sub-Administrative Agent, (i) to instruct the Trustee to make
distributions or payments from the Certificate Account or any other Account
for such Series, as set forth herein or in the related Series Supplement, and
(ii) to the extent specified in the related Series Supplement, to execute and
deliver, on behalf of the Certificateholders of such Series and the Trustee or
any of them, and upon notice to the Trustee, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to any of the Underlying
Securities relating to such Series.
(c) The duties of the Trustee and the Administrative Agent, if any,
shall be performed in accordance with applicable local, state and federal law,
and the Trustee (or, if specified in the applicable Series Supplement, the
Administrative Agent) shall make any and all filings, reports, notices or
applications with, and seek any comments and authorizations from, the
Commission and any State securities authority on behalf of the Trust for each
Series. If the applicable Series Supplement appoints an Administrative Agent,
the Trustee, in its capacity as Trustee, shall execute, at the direction of
such Administrative Agent, any powers of attorney and other documents
necessary or appropriate to enable the Administrative Agent to carry out any
of its administrative duties hereunder; provided, however, that the Trustee,
in its capacity as Trustee, shall not be accountable for the actions of the
Administrative Agent or any Sub-Administrative Agents under such powers of
attorney.
Section 3.2. Sub-Administration Agreements Between Administrative Agent
or Trustee and Sub-Administrative Agents. (a) Unless otherwise provided in a
Series Supplement, an Administrative Agent specified in the applicable Series
Supplement and the Trustee may enter into Sub-Administration Agreements with
one or more Sub-Administrative Agents in order to delegate their
administrative obligations with respect to a related Series under this
Agreement to such Sub-Administrative Agents; provided, however, that (i) such
delegation shall not release either such Administrative Agent or the Trustee,
as applicable, from the duties, obligations, responsibilities or liabilities
arising under this Agreement; (ii) the Rating Agency Condition shall have been
satisfied with respect to the entering into of any such agreement and (iii)
such agreements are consistent with the terms of this Agreement and, with
respect to Certificates of any Series, the related Series Supplement. With
respect to any Series (or Class within such Series) of Certificates, each
Sub-Administration Agreement shall impose on the Sub-Administrative Agent
requirements conforming to the provisions set forth in Section 3.1 and provide
for administration of the related Trust and all or certain specified
Underlying Securities for such Series consistent with the terms of this
Agreement. Additional requirements relating to the scope and contents of any
Sub-Administration Agreement may be provided in the applicable Series
Supplement. Such Administrative Agent shall deliver to the Trustee and the
Trustor copies of all Sub-Administration Agreements which it enters into, and
any amendments or
20
modifications thereof, promptly upon the Administrative Agent's execution and
delivery of any such instruments.
(b) As part of its duties hereunder, an Administrative Agent
specified in the applicable Series Supplement shall enforce the obligations of
each Sub-Administrative Agent under any related Sub-Administration Agreement
which it enters into and of the Underlying Security Provider, if any, under
any Underlying Security Purchase Agreement, for the benefit of the Trustee and
the Certificateholders of a given Series. Such enforcement, including the
legal prosecution of claims, the termination of Sub-Administration Agreements
or Underlying Security Purchase Agreements, as appropriate, and the
institution of Proceedings and the pursuit of other appropriate remedies,
shall be in such form and carried out to such an extent and at such time as
the Administrative Agent, in its good faith business judgment, deems necessary
or advisable, subject in all cases to the provisions of Article VI hereof.
Section 3.3. Successor Sub-Administrative Agents. An Administrative Agent
specified in the applicable Series Supplement and the Trustee shall each be
entitled to terminate any Sub-Administration Agreement which it enters into
and the rights and obligations of any Sub-Administrative Agent under any
Sub-Administration Agreement in accordance with the terms and conditions of
any such Sub-Administration Agreement. In the event of a termination of any
Sub-Administration Agreement, the Administrative Agent or the Trustee, as
applicable, shall simultaneously reassume direct responsibility for all
obligations delegated in such Sub-Administration Agreement without any act or
deed on the part of the applicable Sub-Administrative Agent, the Trustee or
the Administrative Agent, and the Administrative Agent or the Trustee, as
applicable, either shall administer directly the related Underlying Securities
or shall enter into a Sub-Administration Agreement with a successor
Sub-Administrative Agent which so qualifies under Section 3.2.
Section 3.4. Liability of the Administrative Agent. Notwithstanding any
Sub-Administration Agreement or any of the provisions of this Agreement
relating to agreements or arrangements between an Administrative Agent, if
any, or the Trustee and a Sub-Administrative Agent or references to actions
taken through a Sub-Administrative Agent or otherwise, the Administrative
Agent, if any is specified in the applicable Series Supplement, or the
Trustee, as applicable, shall remain obligated and primarily liable to the
Trustee and the Certificateholders for the administering of the Trust and the
Underlying Securities for each related Series of Certificates to the extent
provided herein and in the related Series Supplement in accordance with the
provisions of Section 3.1 without diminution of such obligation or liability
by virtue of any such Sub-Administration Agreements or arrangements or by
virtue of indemnification from the Sub-Administrative Agent and to the same
extent and under the same terms and conditions as if the Administrative Agent
or the Trustee, as applicable, alone were administering the Underlying
Securities, and the Administrative Agent or the Trustee, as applicable, shall
not thereby be released from any duties or responsibilities set forth in this
Agreement or the related Series Supplement. The Administrative Agent and the
Trustee shall be entitled to enter into any agreement with a
Sub-Administrative Agent for indemnification of the Administrative Agent or
the Trustee by such Sub-Administrative Agent for any liability or obligation
sustained by the Administrative Agent or the Trustee in connection with any
act or failure to act by the Sub-Administrative Agent, and nothing contained
in this Agreement shall be deemed to limit or modify such indemnification.
21
Section 3.5. No Contractual Relationship Between Certain
Sub-Administrative Agents and Trustee or Certificateholders. Any
Sub-Administration Agreement between an Administrative Agent specified in the
applicable Series Supplement and a Sub-Administrative Agent that may be
entered into and any transactions or services relating to the Underlying
Securities pursuant to such an agreement shall be deemed to be between the
Sub-Administrative Agent and the Administrative Agent alone, and the Trustee
and Certificateholders shall not be deemed parties thereto and shall have no
claims, rights, obligations, duties or liabilities with respect to the
Sub-Administrative Agent except as set forth in Section 3.6. Except as set
forth in Section 3.6, the Administrative Agent shall be solely liable for all
fees owed by it to any Sub-Administrative Agent, irrespective of whether the
Administrative Agent's compensation pursuant to this Agreement is sufficient
to pay such fees; provided, however, that if so provided in the applicable
Series Supplement, a Sub-Administrative Agent shall be entitled to a Retained
Interest in certain Underlying Securities as and to the extent specified in
the Underlying Securities Schedule to such Series Supplement. Each such
Sub-Administrative Agent shall be reimbursed by the Administrative Agent for
expenditures made by such Sub-Administrative Agent to the same extent the
Administrative Agent would be reimbursed for such expenditures pursuant to the
terms of this Agreement.
Section 3.6. Assumption or Termination of Sub-Administration Agreements
by Trustee. Except as and to the extent otherwise provided in a Series
Supplement, in the event an Administrative Agent specified in the applicable
Series Supplement shall for any reason no longer be acting in such capacity
with respect to any Series, the Trustee or its designee shall thereupon assume
all the rights and obligations of the Administrative Agent under each
Sub-Administration Agreement that the Administrative Agent may have entered
into with respect to any Underlying Security or Assets related to such Series,
provided that the Trustee may elect to terminate any such Sub-Administration
Agreement in accordance with its terms. Except as otherwise provided in such a
Series Supplement, the Trustee, its designee or any successor Administrative
Agent shall be deemed to have assumed all the Administrative Agent's interest
therein and to have replaced the Administrative Agent as a party to each
Sub-Administration Agreement to the same extent as if each Sub-Administration
Agreement had been assigned to the assuming party; provided, however, that the
Administrative Agent shall not thereby be relieved of any liability or
obligations under any Sub-Administration Agreement and provided further, that
the Trustee shall in no event be obligated to make any Advances if it is
prohibited by law or regulation from doing so or from obligating itself to do
so. The Administrative Agent at its expense shall, upon request of the
Trustee, deliver to such assuming party all documents and records relating to
each Sub-Administration Agreement and the Underlying Securities then being
administered by it and an accounting of amounts collected and held by it and
otherwise use its best efforts to effect the orderly and efficient transfer of
the Sub-Administration Agreements to the assuming party.
Section 3.7. Collection of Certain Underlying Security Payments. With
respect to any Series or Class of Certificates, the Trustee (or the
Administrative Agent if specified in the related Series Supplement) shall make
reasonable efforts to collect all payments required to be made pursuant to the
terms of the Underlying Securities or any related Credit Support Instruments
in a manner consistent with the terms of this Agreement, the related Series
Supplement, such Underlying Securities and any related Credit Support
Instruments.
22
Section 3.8. Collections by Sub-Administrative Agent. Unless otherwise
provided in the applicable Series Supplement, in the event a
Sub-Administrative Agent is administering one or more Underlying Securities
pursuant to a Sub-Administration Agreement, the Sub-Administrative Agent shall
be required to immediately direct the Trustee to deposit into an Eligible
Account established by such Sub-Administrative Agent (a "Sub-Administration
Account") any amounts collected with respect thereto, and not later than the
Business Day after receipt thereof, all such amounts shall be deposited into
the related Certificate Account.
Section 3.9. Certificate Account. (a) For each Series of Certificates,
the Trustee shall establish and maintain one or more Eligible Accounts
(collectively, the "Certificate Account"), held in trust for the benefit of
the Certificateholders of such Series. The Trustee on behalf of such
Certificateholders shall possess all right, title and interest in all funds on
deposit from time to time in each Certificate Account and in all proceeds
thereof. With respect to each Series of Certificates, the Certificate Account
shall be under the sole dominion and control of the Trustee for the benefit of
the related Certificateholders. With respect to each Series of Certificates,
the Trustee shall deposit or the Administrative Agent, if any, specified in
the applicable Series Supplement shall direct the Trustee to deposit or cause
to be deposited in the Certificate Account no later than the Business Day
after receipt thereof all amounts collected with respect to the Underlying
Securities, any Credit Support and all Liquidation Proceeds related to such
Series including:
(i) all payments on account of principal of such Underlying
Securities;
(ii) all payments on account of interest on such Underlying
Securities;
(iii) all payments on account of premium (if any) on such
Underlying Securities;
(iv) any payments in respect of any such Credit Support;
(v) any Advances made as required pursuant to Section 4.3; and
(vi) any interest or investment income earned on funds
deposited in the related Accounts.
Unless otherwise specified in the applicable Series Supplement, it is
understood and agreed that payments in the nature of prepayment or redemption
penalties, late payment charges or assumption fees which may be received by
the Trustee or any Administrative Agent shall be deposited by the Trustee or
the Administrative Agent, as applicable, in the Certificate Account and shall
not be retained by the Trustee or the Administrative Agent for its own
account.
If, at any time, the Certificate Account for any Series ceases to be an
Eligible Account, the Trustee shall within 10 Business Days (or such longer
period, not to exceed 30 calendar days, as to which the Rating Agency
Condition is met) establish a new Certificate Account meeting the conditions
specified above and transfer any cash and any investments on deposit in the
Certificate Account to such new Certificate Account, and from the date such
new Certificate Account is established, it shall be the Certificate Account
for such Series.
23
(b) The Trustee shall give notice to the Administrative Agent, if
any, the Trustor and the Rating Agency of the location of each Eligible
Account constituting the Certificate Account and prior to any change thereof.
(c) The Administrative Agent, if any, shall instruct the Trustee as
to, or otherwise the Trustee shall determine, the appropriate application of
Available Funds with respect to any Distribution Date for which application is
to be made on any such Distribution Date in accordance with the terms of
Section 4.1 and the related Series Supplement.
Section 3.10. Investment of Funds in the Accounts. The Trustor (or, if so
specified in the applicable Series Supplement, the Administrative Agent), on
behalf of the Trust, may direct the Trustee to direct any depository
institution maintaining the Certificate Account or the Reserve Account, if
any, for the applicable Series and any other segregated Eligible Account the
contents of which are held for the benefit of Certificateholders of such
Series (each, an "Account") to invest the funds therein in one or more
Permitted Investments bearing interest or sold at a discount, which shall be
held to maturity unless payable on demand and which funds shall not be
reinvested upon the maturity or demand for payment of such Permitted
Investment. If the Trustor (or the Administrative Agent, if applicable) does
not provide any investment directions to the Trustee, funds held in any
Account will be invested in the Permitted Investments specified in clause (ii)
of the definition thereof. Investments of such funds shall be invested in
Permitted Investments that will mature so that such funds will be available
for distribution on the Distribution Date on which such amounts are to be
applied as distributions to Certificateholders. In the event amounts on
deposit in an Account are at any time invested in a Permitted Investment
payable on demand, the Trustee shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the
lesser of (1) all amounts then payable thereunder and (2) the amount
required to be withdrawn on such date; and
(y) demand same day payment of all amounts due thereunder upon a
determination by the Trustee that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter on
deposit in any Account.
It is the intent of the Trustee, any Administrative Agent, and the
Trustor that each Account shall be a securities account of the Trustee and not
an account of the Trustor or the Administrative Agent. Each Permitted
Investment that constitutes investment property shall be held by the Trustee
through a securities intermediary, which securities intermediary shall agree
with the Trustee that (A) such investment property at all times shall be
credited to a securities account of the Trustee, (B) all property credited to
such securities account shall be treated as a financial asset, (C) such
securities intermediary shall treat the Trustee as entitled to exercise the
rights that comprise each financial asset credited to such securities account,
(D) such securities intermediary shall comply with entitlement orders
originated by the Trustee without the further consent of any other person or
entity, (E) such securities intermediary shall not agree with any person or
entity other than the Trustee to comply with entitlement orders originated by
any person or entity other than the Trustee, (F) such securities account and
all property credited thereto shall not be subject to any lien, security
interest, right of set-off, or encumbrance in favor
24
of such securities intermediary or anyone claiming through such securities
intermediary (other than the Trustee), and (G) such agreement between such
securities intermediary and the Trustee shall be governed by the laws of the
State of New York. Each Permitted Investment that does not constitute
investment property shall be held by the Trustee in the State of New York.
Each term used in the preceding two sentences and defined in the New York
Uniform Commercial Code shall have the meaning set forth in the New York
Uniform Commercial Code.
Section 3.11. Maintenance of Credit Support. On the applicable Closing
Date, the Trustee or, if so specified in the applicable Series Supplement, the
Trustor or the Administrative Agent, shall, to the extent specified in the
applicable Series Supplement, establish and maintain, or enter into, as
applicable, in the name of the Trustee, either as a part of the related Trust
or outside it, for the benefit of the Certificateholders of the related
Series, the Credit Support specified in the applicable Series Supplement. To
the extent specified in the applicable Series Supplement, the Trustor or the
Administrative Agent, as the case may be, will make or cause to be made any
initial deposit to the Certificate Account or any Reserve Account for the
related Series as of the Closing Date. Unless the Series Supplement for a
given Series provides otherwise, if a Reserve Account exists for such Series,
collections with respect to the Underlying Securities for such Series not
distributed to the Certificateholders of such Series shall be deposited in the
Reserve Account. The Reserve Account, if any, will not be a part of or
otherwise includible in the Trust but will be held for the benefit of the
Credit Support Provider.
Amounts on deposit in the Reserve Account and amounts available pursuant
to any other Credit Support for such Series shall be applied by the Trustee to
make distributions of principal of and premium (if any) and interest on the
Certificates of such Series as required pursuant to Section 4.1 and the
applicable Series Supplement to the extent that funds are not otherwise
available for such purpose. If specified in such Series Supplement,
immediately after each Distribution Date, amounts on deposit in the Reserve
Account for such Series in excess of a specified amount shall be paid to the
Person so specified in such Series Supplement.
Section 3.12. Realization Upon Defaulted Underlying Securities. (a) If:
(i) default is made in the payment of any installment of
interest on any Underlying Security when the same becomes due and
payable, and such default continues unremedied for the period specified
in the indenture or other authorizing document for such Underlying
Security (or, if no such period is specified, three days) after receipt
by the Underlying Securities Issuer of notice thereof from the Trustee or
receipt by the Underlying Securities Issuer and the Trustee of notice
thereof from the Holders of Outstanding Certificates representing at
least 25% of the Voting Rights; or
(ii) default is made in the payment of the principal of or any
installment of the principal of any Underlying Security when the same
becomes due and payable, and such default continues unremedied for the
period specified in the indenture or other authorizing document for such
Underlying Security (or, if no such period is specified, three (3) days)
after receipt by the Underlying Securities Issuer of notice thereof from
the Trustee or receipt by the Underlying Securities Issuer and the
Trustee of notice thereof from the Holders of Outstanding Certificates
representing at least 25% of the Voting Rights;
25
and the Underlying Securities Issuer shall, upon demand of the Trustee, fail
to pay forthwith to the Trustee, for the benefit of the Holders, the whole
amount then due and payable on such Underlying Securities for principal and
interest, with interest upon the overdue principal, at the rate borne by the
Underlying Securities and in addition thereto such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee
and its agents and counsel, to the extent permitted by law (such event, an
"Issuer Payment Default"), then the Trustee, in its own name and as trustee of
an express trust, subject to provision being made for indemnification against
costs, expenses and liabilities in a form satisfactory to the Trustee, shall
institute a Proceeding for the collection of the sums so due and unpaid, and
shall prosecute such Proceeding to judgment or final decree or settlement, and
shall enforce the same against the Underlying Securities Issuer or other
obligor upon the Underlying Securities and collect in the manner provided by
law out of the property of the Underlying Securities Issuer or other obligor
upon the Underlying Securities wherever situated, the moneys adjudged or
decreed to be payable, unless otherwise directed by Holders of the Required
Percentage-Direction of the Trustee. In connection therewith, the Trustee
shall use its best reasonable efforts in accordance with such normal and
customary procedures it shall deem necessary or advisable, and shall have the
power and authority, acting alone, to do any and all things in connection
therewith and the administration of the Trust as it may deem necessary or
advisable.
(b) In the event that the Trustee receives money or other property
in respect of the Underlying Securities (other than a scheduled interest or
principal payment or the payment of any redemption premium on or with respect
to the earlier redemption of the Underlying Securities) as a result of a
payment default on the Underlying Securities or actual notice that such moneys
or other property will be paid to the Trustee, the Trustee shall promptly give
notice (as provided in Section 10.5 hereof) to the Depositary or, if the
Certificates are not then held by the Depositary, directly to the Holders of
the Certificates then outstanding and unpaid. Such notice shall state that,
not later than thirty (30) days after the receipt of such moneys or other
property, the Trustee shall allocate and distribute such moneys or other
property to the Holders of the Outstanding Certificates then unpaid, in
proportion to the Stated Amount or Accreted Amount, as applicable, of each
class of Outstanding Certificates, together with accrued interest to the date
of distribution, if applicable, and within each class pro rata by Stated
Amount. Property received, other than cash, shall be liquidated by the Trustee
in a commercially reasonable manner and the proceeds thereof, after deduction
of all reasonable costs of such liquidation, distributed in cash, only to the
extent necessary to avoid distribution of fractional securities.
(c) The Trustee (or, if and under the circumstances specified in the
applicable Series Supplement, the Administrative Agent), on behalf of the
Certificateholders, shall assert claims under each applicable Credit Support
Instrument, and shall take such reasonable steps, in addition to those
described in Section 3.12(a), as are necessary to receive payment or to permit
recovery thereunder with respect to any defaulted Underlying Securities,
subject in all cases to the provisions of Article VI hereof in the case of the
Administrative Agent and Article VIII hereof in the case of the Trustee.
(d) Unless otherwise provided in a Series Supplement, if the
Administrative Agent or the Trustee, as applicable, is unable to obtain full
recovery in respect of a defaulted Underlying Security and any related Credit
Support Instrument pursuant to Section 3.12(c), the
26
Administrative Agent or the Trustee, as applicable, shall follow or cause to
be followed such normal practices and procedures as it deems necessary or
advisable to realize upon such defaulted Underlying Security and such Credit
Support Instrument, subject in all cases to the provisions of Article VI
hereof in the case of the Administrative Agent and Article VIII hereof in the
case of the Trustee.
Section 3.13. Retained Interest. The Retained Interest, if any, in any
Underlying Security shall initially be held by the Person so specified in the
related Series Supplement as and to the extent specified in Schedule A
thereof. With respect to each Underlying Security, the Retained Interest shall
be deducted by the Trustee, at the written direction of the Administrative
Agent, if any, or the Trustor from applicable collections in respect of such
Underlying Security. Unless otherwise provided in the applicable Series
Supplement, collections in respect of Retained Interest shall not be deposited
in the Certificate Account for the applicable Series and shall not constitute
a part of the Trust for such Series, but shall instead be distributed to the
holder of such Retained Interest, provided that the Series Supplement for any
Series with respect to which there is a Retained Interest may provide that,
notwithstanding the terms contained herein, commingled amounts received in
respect of assets inclusive of Underlying Securities and Retained Interest may
initially be deposited in a separate and discrete Eligible Account established
by the Trustee at the direction of the Administrative Agent, if any, or the
Trustor and such Series Supplement may provide for additional terms relating
thereto. Unless otherwise provided in the applicable Series Supplement, after
deduction of all applicable fees as provided for in this Agreement, on each
Distribution Date the Trustee shall allocate on a pari passu basis any partial
recovery on an Underlying Security between (a) the Retained Interest, if any,
and (b) distributions to Certificateholders of the applicable Series.
Section 3.14. Administrative Agent's Compensation and Reimbursement. (a)
As compensation for its activities, the Administrative Agent, if any,
specified in the applicable Series Supplement shall be entitled to the
Administrative Fee, which shall be paid on the dates, in the amounts, under
the circumstances and in the manner specified in the applicable Series
Supplement.
(b) If, and only to the extent, provided in a Series Supplement, the
Administrative Agent, if any, shall be required to pay from its compensation
hereunder or otherwise all expenses incurred in connection with the Trust for
the related Series and its administration of the Underlying Securities for the
related Series, including payment of the fees and disbursements of the Trustee
(including the reasonable fees and expenses of its counsel and independent
accountants allocable to such Series), payment of expenses incurred in
connection with distributions and reports to Certificateholders of such
Series, payment of premiums on Credit Support Instruments related to such
Series and other expenses specified in such Series Supplement; provided,
however, that neither the Administrative Agent, if any, nor the Trustee will
be responsible for any federal, state, local or foreign income and franchise
taxes, if any, and any interest or penalties with respect thereto, assessed on
the Trust for such Series.
Section 3.15. Statement as to Compliance. An Administrative Agent
appointed pursuant to the applicable Series Supplement, if any, will deliver
to the Trustee, the Trustor and the Rating Agency not later than 90 days
following the end of each fiscal year of the Administrative Agent an Officer's
Certificate executed by two of its Executive Officers stating, as to each
signatory
27
thereof, that (i) a review of the activities of the Administrative Agent
during the preceding year and of performance under this Agreement has been
made under such officer's supervision and (ii) to the best of such officer's
knowledge, based on such review, the Administrative Agent has fulfilled all
its obligations under this Agreement throughout such year, or, if there has
been a default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof. Copies of
such statement received by the Trustee shall be provided by the Trustee to any
Certificateholder upon request at the Certificateholder's expense.
Section 3.16. Independent Public Accountants' Administration Report.
Unless otherwise specified in the Series Supplement, within four months from
the end of each 12-month period beginning with the period specified in the
Series Supplement for a given Series of Certificates, either the
Administrative Agent, if any, specified in the Series Supplement, or otherwise
the Trustee shall cause a firm of nationally recognized independent public
accountants (who may also render other services to the Administrative Agent,
if any, the Trustee or the Trustor) to furnish a report addressed to the
Trustee, the Trustor, the Rating Agency and each Credit Support Provider for
such Series, if any, to the effect that such firm has examined certain
documents and records relating to the administration of the Underlying
Securities and related Credit Support deposited in or held by the applicable
Trust during the preceding 12-month period (or, in the case of the first such
report, during the period from the Closing Date to the date specified in the
applicable Series Supplement), which report should enable the recipients
thereof to determine whether such administration was conducted in accordance
with the terms of this Agreement and the related Series Supplement. Such
report shall identify any exceptions found during the examination.
Such report will also indicate that the firm is independent of the
Administrative Agent, if any, and the Trustee within the meaning of the Code
of Professional Ethics of the American Institute of Certified Public
Accountants.
Copies of such statement received by the Trustee shall be provided by the
Trustee to any Certificateholder of such Series upon request without charge to
the requesting Certificateholder.
The firm of independent public accountants shall be entitled to
compensation in consideration for its duties hereunder in the manner specified
in the applicable Series Supplement.
Section 3.17. Access to Certain Documentation. The Trustee and the
Administrative Agent, if any, shall provide to any federal, state or local
regulatory authority that may exercise authority over any Certificateholder
access to the documentation regarding the Underlying Securities required by
applicable laws and regulations. Such access shall be afforded without charge,
but only upon reasonable request and during normal business hours at the
offices of the Trustee and Administrative Agent, if any, designated by each of
them. In addition, access to the documentation regarding the Underlying
Securities related to a given Series (or Class within such Series) will be
provided to any Certificateholder of such Series (or Class) upon reasonable
request during normal business hours at the offices of the Trustee and
Administrative Agent designated by each of them at the expense of the
Certificateholder requesting such access.
28
Section 3.18. Duties of the Administrative Agent. Notwithstanding any
other provision of this Agreement, with respect to any Series, the applicable
Series Supplement may provide that any Administrative Agent appointed pursuant
to such Series Supplement shall have no rights and no duties, obligations or
liabilities except as provided in such Series Supplement and herein.
Section 3.19. Trustor to Furnish Names and Addresses of Holders to
Trustee. The Trustor shall furnish or cause to be furnished to the Trustee not
more than five days before each Distribution Date, and at such other times as
the Trustee may request in writing, a list, in such form as the Trustee may
reasonably require, to the extent such information is in the possession or
control of the Trustor or any of its paying agents, of the Holders of
Certificates as of the close of business on the applicable record date of the
Underlying Securities; provided, however, that so long as the Trustee
maintains the Certificate Register, no such list shall be required to be
furnished.
Section 3.20. Preservation of Information, Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Certificates
contained in the most recent list furnished to the Trustee as provided in
Section 3.19 and the names and addresses of Holders of Certificates received
by the Trustee in its capacity as Certificate registrar. The Trustee may
destroy any list furnished to it as provided in such Section 3.19 upon receipt
of a new list so furnished.
(b) Holders shall have the right to communicate pursuant to TIA
Section 312(b) with other Holders with respect to their rights under this
Agreement or under the Certificates.
(c) The Trustor, the Trustee and the Certificate registrar shall
have the protection of TIA Section 312(c).
Section 3.21. Reports by Trustee. If required by TIA Section 313(a),
within 60 days after December 31 of each year, the Trustee shall mail to (i)
each Holder as required by TIA Section 313(c) and (ii) the Depositor, a brief
report dated as of such date that complies with TIA Section 313(a). The
Trustee also shall comply with TIA Section 313(b). A copy of any report
delivered pursuant to this Section 3.21 shall, at the time of its mailing to
Holders and the Depositor, be filed by the Trustee with the Commission and
each stock exchange, if any, on which the Certificates are listed. The
Depositor shall notify the Trustee if and when the Certificates are listed on
any stock exchange.
ARTICLE IV
DISTRIBUTIONS AND REPORTS TO CERTIFICATEHOLDERS
Section 4.1. Distributions. On each Distribution Date for a given Series
of Certificates, the Trustee shall apply funds in the Certificate Account for
such Series in the manner and priority set forth in the Series Supplement for
such Series. Notwithstanding any other provisions in this Agreement, the right
of the Holder of any Certificate to receive any such distributions in
29
the manner and priority set forth in the Series Supplement for such Series and
to institute suit for the enforcement of any such payment on or after the date
such payment is payable, shall not be impaired without the consent of such
Holder.
Section 4.2. Reports to Certificateholders. Unless otherwise specified in
the applicable Series Supplement, on the next Business Day following each such
Distribution Date the Trustee or the Administrative Agent, if any, as
specified in such Series Supplement, shall forward or cause to be forwarded to
the Trustor, each Certificateholder of such Series and such other Persons as
may be specified in such Series Supplement, a statement setting forth:
(i) the amount of the distribution on such Distribution Date to
Certificateholders of each Class of such Series allocable to principal of
and premium, if any, and interest on the Certificates of each such Class;
and the amount of aggregate unpaid interest accrued as of such
Distribution Date;
(ii) in the case of each Class of Floating Rate Certificates of
such Series, the respective Floating Pass Through Rate applicable to each
such Class on such Distribution Date, as calculated in accordance with
the method specified in such Certificates and the related Series
Supplement;
(iii) the amount of compensation received by any Administrative
Agent and such other customary information as the Trustee or
Administrative Agent, as applicable, deems necessary or desirable, or
that any such Certificateholder reasonably requests, to enable such
Certificateholders to prepare their tax returns;
(iv) if the Series Supplement provides for Advances, the
aggregate amount of Advances, if any, included in such distribution, and
the aggregate amount of unreimbursed Advances, if any, at the close of
business on such Distribution Date;
(v) the aggregate stated principal amount and, if applicable,
notional amount of the Underlying Securities related to such Series at
the close of business on such Distribution Date;
(vi) the aggregate Stated Amount (or Notional Amount, if
applicable) of each Class of such Series at the close of business on such
Distribution Date; and
(vii) as to any Series (or any Class within such Series) for
which Credit Support has been obtained, the amount or notional amount of
coverage of each element of Credit Support (and rating, if any, thereof)
included therein as of the close of business on such Distribution Date.
In the case of information furnished pursuant to subclauses (i) and (iii)
above, the amounts shall be expressed as a Dollar amount (or the equivalent
thereof in any other Specified Currency) per minimum denomination of
Certificates or for such other specified portion thereof. Within a reasonable
period of time after the end of each calendar year, the Trustee shall furnish
to each person who at any time during each such calendar year was a
Certificateholder a statement containing the information set forth in
subclauses (i) and (iii) above, aggregated for such calendar year or the
applicable portion thereof during which such person was a Certificateholder.
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Such obligation of the Trustee shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the
Trustee pursuant to any requirements of the Code and the Treasury Regulations
as are from time to time in effect.
Section 4.3. Advances. (a) Unless otherwise specified in the applicable
Series Supplement, an Administrative Agent appointed pursuant to the Series
Supplement shall have no obligation to make Advances (as defined below) with
respect to the Underlying Securities or in favor of the Holders of any Series
(or Class within such Series) of Certificates. However, as and to the extent
provided in the Series Supplement for a given Series, and subject to the terms
of paragraphs (b) and (c) of this Section 4.3, on or prior to each
Distribution Date, such Administrative Agent shall advance or cause to be
advanced in immediately available funds to the Trustee for deposit in the
Certificate Account for such Series an advance (each, an "Advance") in an
amount equal, unless otherwise specified in the related Series Supplement, to
the aggregate of distributions of principal, premium (if any) and interest due
on the Underlying Securities for such Series (or Class) during the related
Collection Period, to the extent remaining unpaid at the time of such Advance.
In satisfaction of its obligation to make such Advances, the Administrative
Agent shall make such Advances from either (i) its own funds or (ii) funds
with respect to the Underlying Securities for such Series or Class on deposit
in the Certificate Account for such Series, if any, that do not constitute
Available Funds with respect to such Distribution Date; provided, however,
that, to the extent the Administrative Agent shall have made Advances from
funds on deposit in the applicable Certificate Account, the Administrative
Agent shall immediately deposit funds equal to the aggregate amount of such
Advances into such Certificate Account on any subsequent Distribution Date to
the extent that amounts on deposit in such Certificate Account on such
Distribution Date are less than the amount of distributions required to be
made on such Distribution Date pursuant to Section 4.1 and the related Series
Supplement. The Administrative Agent may recover Advances from late
collections received by the Trustee on the applicable Underlying Securities,
proceeds from any applicable Credit Support, if any, and Liquidation Proceeds
with respect to the Underlying Securities for such Series or Class, as
specified in the related Series Supplement, as to which any such unreimbursed
Advance was made.
(b) Notwithstanding any provision herein to the contrary, no Advance
shall be required to be made hereunder if the Administrative Agent reasonably
believes that it will be unable to recover such Advance from related late
collections, Credit Support proceeds, if any, or Liquidation Proceeds with
respect to the applicable Underlying Securities. It is further understood and
agreed that the Administrative Agent shall not be obligated to make any
Advances in respect of reductions in the amount of collections on the
Underlying Securities due to bankruptcy proceedings with respect to the
Underlying Securities or the obligors thereof.
(c) Notwithstanding any provision herein to the contrary, unless
otherwise provided in the Series Supplement for a given Series, any Advances
made in respect of any Underlying Securities related to such Series (or Class
within such Series) that are subsequently deemed by the Administrative Agent
to be nonrecoverable from related late collections, Credit Support proceeds,
if any, or Liquidation Proceeds may be reimbursed to the Administrative Agent
through the application of amounts on deposit in the Certificate Account for
such Series allocable to any of such Underlying Securities prior to the
distributions of interest, premium (if any) and principal with respect to the
Certificates of such Series or Class.
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Section 4.4. Compliance with Withholding Requirements. If any withholding
tax is imposed on the payment (or allocations of income) to any
Certificateholder, such tax shall reduce the amount otherwise distributable to
such Holder. The Trustee is hereby authorized and directed to retain from
amounts otherwise distributable to any Holder sufficient funds for the payment
of any tax that is legally owed by the Trust (but such authorization shall not
prevent the Trustee from contesting any such tax in appropriate proceedings
and withholding payment of such tax, if permitted by law, pending the outcome
of such proceedings), or that the Trustee may otherwise determine it is
obligated to withhold under applicable law or regulation. The amount of any
withholding tax imposed with respect to any Holder shall be treated as cash
distributed to such Holder at the time it is withheld by the Trustee and
remitted to the appropriate taxing authority. If there is a possibility that
withholding tax is payable with respect to a distribution, the Trustee may in
its sole discretion withhold such amounts in accordance with this Section 4.4.
If any Holder wishes to apply for a refund of any such withholding tax, the
Trustee shall reasonably cooperate with such Holder in making such claim so
long as such Holder agrees to reimburse the Trustee for any out-of-pocket
expenses incurred. The Trustee shall use reasonable efforts to give notice to
each Holder of any such withholding requirement at least 10 days prior to the
date of the payment from which amounts are required to be withheld.
Section 4.5. Optional Exchange. (a) The terms and conditions, if any,
upon which Certificates of any Series (or Class within such Series) may be
exchanged for a pro rata portion of the Underlying Securities of the related
Trust will be specified in the related Series Supplement; provided that any
right of exchange shall be exercisable only to the extent that the Trustor
provides upon the Trustee's request an Opinion of Counsel that (i) such
exchange would not be inconsistent with the Trustor's and the Trust's
continued satisfaction of the applicable requirements for exemption under Rule
3a-7 (or other applicable rule or exemption) under the Investment Company Act
of 1940, as amended, and all applicable rules, regulations and interpretations
thereunder and (ii) such exchange would not cause the Trust to be taxable as a
corporation for federal income tax purposes. Such terms may relate to, but are
not limited to, the following:
(1) a requirement that the exchanging Holder tender to the
Trustee Certificates of each Class within such Series;
(2) a minimum Stated Amount or Notional Amount, as
applicable, with respect to Certificates being tendered for exchange
by a single Holder;
(3) a requirement that the Stated Amount or Notional
Amount, as applicable, of each Certificate tendered for exchange be
an integral multiple of an amount specified in such Series
Supplement;
(4) specified dates during which a Holder may effect such
an exchange (each, an "Optional Exchange Date");
(5) limitations on the right of an exchanging Holder to
receive any benefit upon exchange from any Credit Support or
Underlying Securities which are not debt securities; and
32
(6) adjustments to the value of the proceeds of any
exchange based upon required prepayment of future expense
allocations and if provided for in the applicable Series Supplement
the establishment of a reserve for any anticipated Extraordinary
Trust Expenses.
(b) Unless otherwise provided in the applicable Series Supplement,
no Certificate may be exchanged pursuant to the preceding paragraph unless the
Trustee has received at least 30 days but not more than 45 days prior to an
Optional Exchange Date in accordance with delivery instructions specified in
the applicable Series Supplement (i) such Certificate with the form entitled
"Option to Elect Exchange" on the reverse thereof duly completed, or (ii) a
telegram, telex, facsimile transmission or letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc.,
the Depositary (in accordance with its normal procedures) or a commercial bank
or trust company in the United States setting forth the name of the Holder of
such Certificate, the Stated Amount or Notional Amount of such Certificate to
be exchanged and the Certificate number or a description of the tenor and the
terms of such Certificate, a statement that the option to elect exchange is
being exercised thereby and an assurance that the Certificate to be exchanged
with the form entitled "Option to Elect Exchange" on the reverse of the
Certificate duly completed will be received by such Trustee not later than
five Business Days after the date of such telegram, telex, facsimile
transmission or letter, and such Certificate and form duly completed must be
received by such Trustee by such fifth Business Day. Any tender of a
Certificate by the Holder thereof for exchange shall be irrevocable. Unless
otherwise provided in the applicable Series Supplement, the exchange option
may be exercised pursuant to this Section by the Holder of a Certificate for
less than the Stated Amount or Notional Amount of such Certificate as long as
the Stated Amount or Notional Amount remaining Outstanding after such exchange
is an authorized denomination and all other exchange requirements set forth in
the related Series Supplement are satisfied. Upon such partial exchange, such
Certificate shall be cancelled and a new Certificate or Certificates for the
remaining Stated Amount or Notional Amount thereof shall be issued (which, in
the case of any Certificate, shall be in the name of the Holder of such
exchanged Certificate).
(c) Upon the completion of any such Optional Exchange, the Trustee
shall give prompt written notice thereof to the Rating Agency.
ARTICLE V
THE CERTIFICATES
Section 5.1. The Certificates. The Certificates of any Series (or Class
within such Series) will be issued in fully registered form as Certificates
and shall be substantially in the form of the exhibits with respect thereto
attached to the applicable Series Supplement. The aggregate Stated Amount or
Notional Amount of Certificates which may be authenticated and delivered under
this Agreement is unlimited.
The Certificates may be issued in one or more Series, each of which
Series may be issued in one or more Classes, with such further particular
designations added or incorporated in such title for the Certificates of any
particular Series or Class within such Series as the Board of
33
Directors may determine. Each Certificate shall bear upon its face the
designation so selected for the Series and Class to which it belongs. All
Certificates of the same Series and Class shall be identical in all respects
except for the denominations thereof. All Certificates of all Classes within
any one Series at any time Outstanding shall be identical except for
differences among the Certificates of the different Classes within such Series
specified in the applicable Series Supplement. Except as otherwise provided in
a Series Supplement, all Certificates of a particular Series (and all Classes
within such Series) issued under this Agreement shall be in all respects
equally and ratably entitled to the benefits hereof without preference,
priority or distinction on account of the actual time or times of
authentication and delivery, all in accordance with the terms and provisions
of this Agreement.
Each Series (and all Classes within such Series) of Certificates shall be
created by a Series Supplement authorized by the Board of Directors and
establishing the terms and provisions of such Series. The several Series may
differ as between Series and any Class may vary as between the other Classes
within any given Series in respect of any of the following matters:
(1) designation of such Series and Class;
(2) the dates on which or periods during which the
Certificates of such Series and Class may be issued;
(3) the number of Classes, the maximum Stated Amount or
Notional Amount of Certificates of each Class that may be issued and
any priorities or subordination among Classes of a Series with
respect to distributions from the Trust;
(4) for each Class of Certificates, the Pass Through Rate
and, in the case of each Class of Floating Rate Certificates, the
method for calculating such Pass Through Rate;
(5) the terms of the Letter of Credit, if any, or of the
Surety Bond, if any, or of any other Credit Support for the benefit
of the Certificateholders of such Series or Class or group of
Classes;
(6) the places, if any, in addition to or instead of the
Corporate Trust Office of the Trustee (in the case of Certificates),
where the principal of (and premium, if any) and interest on
Certificates of such Series and Class shall be distributable;
(7) the authorized denominations (if other than $100,000
and integral multiples of $1,000 in excess thereof) with respect to
such Series or Class;
(8) the Collection Periods, the Distribution Dates and the
Scheduled Final Distribution Dates for such Series and Class;
34
(9) the types of Underlying Securities that will be
included in the Trust for such Series and the manner and priorities
of allocating distributions with respect to collections of principal
(and premium, if any) and interest payments allocable to such
Underlying Securities among Holders of Certificates of different
Classes (including whether the Certificates of any such Class are to
be entitled to receive principal distributions with
disproportionate, nominal or no interest distributions, or interest
distributions with disproportionate, nominal or no principal
distributions, and, in each case, the applicable terms thereof);
(10) the amount, if any, to be deposited on the Closing
Date in the Certificate Account for such Series;
(11) the manner in which the Reserve Account, if any, is
to be funded, the amount, if any, to be deposited therein on the
Closing Date and the Requisite Reserve Amount, if any, for such
Series or Class;
(12) the terms of any Guaranteed Investment Contract sold
as part of the related Trust;
(13) the provisions, if any, for the optional exchange of
the Certificates of such Series by the Certificateholders of such
Series and the periods within which or the dates on which, and the
terms and conditions on which, such Certificates may be exchanged in
whole or in part for a pro rata portion of the Underlying Securities
related to such Series;
(14) whether the Certificates of such Series or Class are
to be issued as Discount Certificates and the amount of discount
with which such Certificates may be issued;
(15) whether the Certificates of such Series or Class are
to be issued in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary for such Global
Security or Securities and the terms and conditions, if any, upon
which interests in such Global Security or Securities may be
exchanged in whole or in part for the individual Certificates
represented thereby;
(16) if other than Dollars, the Currency in which
Certificates of such Series or Class shall be denominated or in
which distributions of the principal of (and premium, if any) and
interest on such Certificates may be made and any other terms
concerning such payment;
(17) if the principal of (and premium, if any) or interest
on Certificates of such Series or Class are to be distributable, at
the election of the Trustor or a Holder thereof, in a Currency other
than that in which such Certificates are denominated or
distributable without such election, the periods within which and
the terms and conditions upon which such election may be made and
the time and the manner of determining the exchange rate between the
Currency in which such Certificates are denominated or distributable
without such
35
election and the Currency in which such Certificates are to be
distributed if such election is made;
(18) any additional Administrative Agent Termination
Events or representations, warranties or covenants provided for with
respect to Certificates of such Series;
(19) provisions with respect to the terms for which the
definitions set forth in Article I permit or require further
specification in the related Series Supplement, including:
(a) "Accounting Date";
(b) "Accreted Amount";
(c) "Administrative Agent";
(d) "Administrative Fee";
(e) "Available Funds";
(f) "Basic Documents";
(g) "Calculation Agent";
(h) "Call Premium Percentage";
(i) "Closing Date";
(j) "Collection Period";
(k) "Corporate Trust Office";
(l) "Credit Support";
(m) "Credit Support Instrument";
(n) "Credit Support Provider";
(o) "Cut-off Date";
(p) "Depositary";
(q) "Depository Agreement";
(r) "Discount Certificates";
(s) "Distribution Date";
(t) "Event of Default";
(u) "Extraordinary Trust Expense";
(v) "Final Scheduled Distribution Date";
(w) "Fixed Pass Through Rate";
(x) "Floating Pass Through Rate";
(y) "Floating Rate Certificate";
(z) "Global Securities";
(aa) "Guaranteed Investment Contract";
(bb) "Letter of Credit";
(cc) "Limited Guarantor";
(dd) "Limited Guaranty";
(ee) "Notional Amount";
(ff) "Optional Exchange Date";
(gg) "Pass Through Rate";
(hh) "Permitted Investments";
(ii) "Place of Distribution";
(jj) "Purchase Price";
36
(kk) "Qualified Substitute Underlying Security";
(ll) "Rating Agency";
(mm) "Rating Agency Condition";
(nn) "Record Date";
(oo) "Required Interest";
(pp) "Required Premium";
(qq) "Required Principal";
(rr) "Required Percentage";
(ss) "Required Rating";
(tt) "Requisite Reserve Amount";
(uu) "Retained Interest";
(vv) "Scheduled Final Distribution Date";
(ww) "Specified Currency";
(xx) "Surety Bond";
(yy) "Underlying Security Provider";
(zz) "Underlying Security Purchase Agreement";
(aaa) "Underlying Securities";
(bbb) "Underlying Securities Issuer";
(ccc) "Underlying Securities Schedule";
(ddd) "Trust";
(eee) "Trustee";
(fff) "Trust Termination Event";
(ggg) "Voting Rights";
(20) rights and remedies provided to any Credit Support
Provider with respect to all or a portion of the Trust for such
Series or Class;
(21) any restrictions on the sale and transfer of the
Certificates, including restrictions arising out of the Employee
Retirement Income Security Act of 1974, as amended, or the Code and
Treasury Regulations; and
(22) any other provisions expressing or referring to the
terms and conditions upon which the Certificates of such Series or
Class are to be issued under this Agreement that do not prevent such
Certificates from receiving the Required Rating.
In the absence of any specification pursuant to this Section 5.1 with
respect to Certificates of any Series, the Certificates of such Series shall
be issuable only as Certificates in denominations of $25 and in integral
multiples thereof and shall be payable only in Dollars.
A different Trustee and an Administrative Agent may be appointed by the
Trustor for each Series of Certificates prior to the issuance of such Series
provided that the Rating Agency Condition is met. If the initial Trustee is to
be other than The Bank of New York, or there is to be an Administrative Agent,
then such Series Supplement shall provide for the appointment of such Trustee
or such Administrative Agent or both, as applicable, of such Series and shall
add or change any of the provisions of this Agreement as shall be necessary to
provide for or facilitate the administration of the trusts hereunder and of
the Underlying Securities; it being understood
37
that nothing contained herein or in such Series Supplement shall constitute
the Trustees for different Series as co-trustees for the same Series or the
administrative agents for different Series as co-administrative agents for the
same Series, and that each Trustee shall be a trustee of a trust or trusts
separate and apart from any trust or trusts hereunder of any other Trustee,
and that each Administrative Agent shall be an administrative agent of a Trust
separate and apart from any other Trust. Upon final appointment of any new
Trustee or Administrative Agent, the Trustee shall provide a notice of such
appointment to the Rating Agency not later than 15 days following such
appointment.
Section 5.2. Execution, Authentication and Delivery. (a) The Certificates
shall be executed by the Trustor by its President, its Treasurer, one of its
Vice Presidents, or one of its Finance Officers. The signature of any of these
officers may be manual or facsimile. Certificates bearing the manual or
facsimile signature of individuals who were at any time the proper officers of
the Trustor shall be binding, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Certificates or did not hold such offices at the date of such
Certificates.
(b) Each Certificate shall be dated as of the later of the date
specified in the related Series Supplement and the date of its authentication.
(c) No Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, unless there appears on
such Certificate a certificate of authentication substantially in one of the
forms provided for herein executed by the Trustee by the manual signature of
one of its authorized signatories, and such certificate upon any Certificate
shall be conclusive evidence, and the only evidence, that such Certificate has
been duly authenticated and delivered hereunder and is entitled to the
benefits of this Agreement.
Section 5.3. Temporary Certificates. Pending the preparation of
Definitive Certificates of any Series (or Class within such Series), the
Trustor may execute, and upon receipt of a Trustor Order, the Trustee shall
authenticate and deliver temporary Certificates which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the Definitive
Certificates in lieu of which they are issued, in registered form and with
such appropriate insertions, omissions, substitutions and other variations as
may be authorized by such Trustor Order. Any such temporary Certificate may be
in global form, representing all or a portion of the Outstanding Certificates
of such Series or Class. Every such temporary Certificate shall be executed by
the Trustor and shall be authenticated and delivered by the Trustee upon the
same conditions and in substantially the same manner, and with the same
effect, as the Definitive Certificate or Definitive Certificates in lieu of
which it is issued.
If temporary Certificates of any Series (or Class within such Series) are
issued, the Trustor will cause Definitive Certificates of such Series or Class
to be prepared without unreasonable delay and (a) after the preparation of
Definitive Certificates of such Series or Class, the temporary Certificates of
such Series or Class shall be exchangeable for Definitive Certificates of such
Series or Class upon surrender of the temporary Certificates of such Series or
Class at the office of the Trustee in a Place of Distribution for such Series
or Class, without charge to the Holder, except as provided in Section 5.4 in
connection with a transfer and (b)
38
upon surrender for cancellation of any one or more temporary Certificates of
any Series or Class within such Series the Trustor shall execute and the
Trustee shall authenticate and deliver in exchange therefor Definitive
Certificates with a like Stated Amount or Notional Amount, as applicable, of
the same Series (or Class within such Series) of authorized denominations and
of like tenor. Until so exchanged, temporary Certificates of any Series (or
Class within such Series) shall in all respects be entitled to the same
benefits under this Agreement as Definitive Certificates of such Series or
Class, except as otherwise specified in the applicable Series Supplement with
respect to the payment of interest on Global Securities in temporary form.
Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the individual Definitive Certificates
represented thereby pursuant to this Section 5.3 or Section 5.4, the temporary
Global Security shall be endorsed by the Trustee to reflect the reduction of
the aggregate Stated Amount or Notional Amount, as applicable, evidenced
thereby, whereupon the aggregate Stated Amount or Notional Amount, as
applicable, of such temporary Global Security shall be reduced for all
purposes by the amount so exchanged and endorsed.
Section 5.4. Registration; Registration of Transfer and Exchange. The
Trustee shall cause to be kept a register for each Series of Certificates (the
registers maintained in such office and in any other office or agency of the
Trustee in a Place of Distribution being herein sometimes collectively
referred to as the "Certificate Register") in which a transfer agent and
registrar (which may be the Trustee) (the "Certificate Registrar") shall
provide for the registration of Certificates and the registration of transfers
and exchanges of Certificates. The Trustee is hereby initially appointed
Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided; provided, however,
that the Trustee may appoint one or more co-Certificate Registrars. Upon any
resignation of any Certificate Registrar, the Trustor shall promptly appoint a
successor or, in the absence of such appointment, assume the duties of
Certificate Registrar.
If a Person other than the Trustee is appointed by the Trustor as
Certificate Registrar, the Trustor will give the Trustee prompt written notice
of the appointment of a Certificate Registrar and of the location, and any
change in the location, of the Certificate Register, and the Trustee shall
have the right to rely upon a certificate executed on behalf of the
Certificate Registrar by an Executive Officer thereof as to the names and
addresses of the Holders of the Certificates and the principal amounts and
numbers of such Certificates.
Upon surrender for registration of transfer of any Certificate of any
Series (or Class within such Series) at the office or agency of the Trustee,
if the requirements of Section 8-401(1) of the Uniform Commercial Code are met
to the Trustor's satisfaction, the Trustor shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of any authorized denominations, of
a like Series, Class and aggregate Stated Amount or Notional Amount, as
applicable.
Notwithstanding any other provision of this Section, unless and until it
is exchanged in whole or in part for the individual Certificates represented
thereby, a Global Security representing all or a portion of the Certificates
of a Series (or Class within such Series) may not be transferred except as a
whole by the Depositary for such Series or Class to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such
39
Depositary or by such Depositary or any such nominee to a successor Depositary
for such Series or Class or a nominee of such successor Depositary.
At the option of the Holder, Certificates of any Series (or Class within
such Series) (other than a Global Security, except as set forth below) may be
exchanged for other Certificates of the same Series or Class of any authorized
denomination or denominations of like tenor and aggregate Stated Amount or
Notional Amount, as applicable, upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee maintained for such purpose.
Whenever any Certificates are so surrendered for exchange, the Trustor
shall execute and the Trustee shall authenticate and deliver the Certificates
that the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Certificates of a Series (or Class
within such Series) notifies the Trustor that it is unwilling or unable to
continue as Depositary for the Certificates of such Series or Class or if at
any time the Depositary for the Certificates of such Series or Class shall no
longer be eligible under Section 5.9(b), the Trustor shall appoint a successor
Depositary with respect to the Certificates of such Series or Class. If a
successor Depositary for the Certificates of such Series or Class is not
appointed by the Trustor within 90 days after the Trustor receives such notice
or becomes aware of such ineligibility, the Trustor's election pursuant to
Section 5.1 shall no longer be effective with respect to the Certificates of
such Series or Class and the Trustor will execute, and the Trustee, upon
receipt of a Trustor Order for the authentication and delivery of individual
Certificates of such Series or Class, will authenticate and deliver individual
Certificates of such Series or Class in an aggregate Stated Amount or Notional
Amount, as applicable, equal to the aggregate Stated Amount or Notional
Amount, as applicable, of the Global Security or Securities representing
Certificates of such Series or Class in exchange for such Global Security or
Securities.
The Trustor may at any time and in its sole discretion determine that
individual Certificates of any Series (or Class within such Series) issued in
the form of one or more Global Securities shall no longer be represented by
such Global Security or Securities. In such event the Trustor shall execute,
and the Trustee, upon receipt of a Trustor Order for the authentication and
delivery of individual Certificates of such Series or Class, shall
authenticate and deliver, individual Certificates of such Series or Class in
an aggregate Stated Amount or Notional Amount, as applicable, equal to the
aggregate Stated Amount or Notional Amount, as applicable, of the Global
Security or Securities representing Certificates of such Series or Class in
exchange for such Global Security or Securities.
If specified by the Trustor pursuant to Section 5.1 with respect to a
Series (or Class within such Series) of Certificates, the Depositary for such
Series may surrender a Global Security for such Series or Class in exchange in
whole or in part for individual Certificates of such Series or Class on such
terms as are acceptable to the Trustor and such Depositary.
Thereupon, the Trustor shall execute, and the Trustee, upon receipt of a
Trustor Order, shall authenticate and deliver, without service charge,
40
(i) to each Person specified by such Depositary a new
individual Certificate or Certificates of the same Series or Class, of
any authorized denomination as requested by such Person in an aggregate
Stated Amount or Notional Amount, as applicable, equal to and in exchange
for such Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination
equal to the difference, if any, between the aggregate Stated Amount or
Notional Amount, as applicable, of the surrendered Global Security and
the aggregate Stated Amount or Notional Amount, as applicable, of
individual Certificates delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs,
the Trustor shall execute, and the Trustee, upon receipt of a Trustor Order,
will authenticate and deliver individual Certificates in registered form in
authorized denominations.
Upon the exchange of a Global Security for individual Certificates, such
Global Security shall be cancelled by the Trustee. Individual Certificates
issued in exchange for a Global Security pursuant to this Section 5.4 shall be
registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its
Participants, any indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Certificates to the Persons in whose
names such Certificates are so registered.
All Certificates issued upon any registration of transfer or exchange of
Certificates shall constitute complete and indefeasible evidence of ownership
in the Trust related to such Certificates and be entitled to the same benefits
under this Agreement as the Certificates surrendered upon such registration of
transfer or exchange.
Every Certificate presented or surrendered for registration of transfer
or exchange shall (if so required by the Trustor, the Trustee or the
Certificate Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Trustor, the Trustee and
the Certificate Registrar, duly executed, by the Holder thereof or his
attorney duly authorized in writing, with such signature guaranteed by a
brokerage firm or financial institution that is a member of a Securities
Approved Medallion Program such as Securities Transfer Agents Medallion
Program (STAMP), Stock Exchange Medallion Program (SEMP) or New York Stock
Exchange Inc. Medallion Signature Program (MSP).
No service charge shall be made to a Holder for any registration of
transfer or exchange of Certificates, but the Trustor may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Certificates, other than exchanges pursuant to Section 5.3 not involving any
transfer.
Section 5.5. Mutilated, Destroyed, Lost and Stolen Certificates. If (i)
any mutilated Certificate is surrendered to the Trustee at its Corporate Trust
Office (in the case of Certificates) or (ii) the Trustor and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of
any Certificate, and there is delivered to the Trustor and the Trustee such
security or indemnity as they may require to hold each of them and any Paying
Agent harmless, and neither the Trustor nor the Trustee receives notice that
such Certificate has been acquired by a bona fide
41
purchaser, then the Trustor shall execute and the Trustee, upon receipt of a
Trustor Order, shall authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Certificate a new Certificate of
the same Series and Class of like tenor, form, terms and principal amount,
bearing a number not contemporaneously Outstanding.
Upon the issuance of any new Certificate under this Section, the Trustor
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Certificate of any Series or Class issued pursuant to this
Section shall constitute complete and indefeasible evidence of ownership in
the Trust related to such Series, whether or not the destroyed, lost or stolen
Certificate shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Agreement equally and proportionately with any and
all other Certificates of that Series or Class duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Certificates.
Section 5.6. Distribution of Interest; Interest Rights Preserved. (a)
Interest on any Certificate that is payable and is punctually paid or duly
provided for on any Distribution Date shall be distributed to the Person in
whose name such Certificate (or one or more Predecessor Certificates) is
registered at the close of business on the related Record Date notwithstanding
the cancellation of such Certificate upon any transfer or exchange subsequent
to such related Record Date. The distribution of interest on Certificates
shall be made at the Corporate Trust Office (except as otherwise specified
pursuant to Section 5.1) or, at the option of the Trustee, by check mailed to
the address of the Person entitled thereto as such address shall appear in the
Certificate Register or, if provided pursuant to Section 5.1 and in accordance
with arrangements satisfactory to the Trustee, at the option of the Holder by
wire transfer to an account designated by the Holder.
(b) Subject to the foregoing provisions of this Section 5.6, each
Certificate delivered under this Agreement upon transfer of or in exchange for
or in lieu of any other Certificate shall carry the rights to interest accrued
and undistributed, and to accrue, that were carried by such other Certificate.
(c) All computations of interest due with respect to any Certificate
of any Series or Class within such Series shall be made as specified in the
Series Supplement applicable to that particular Series or Class of
Certificates.
(d) With respect to any computations or calculations to be made
under this Agreement, the applicable Series Supplement and the Certificates,
except as otherwise provided, (i) all percentages resulting from any
calculation of accrued interest will be rounded, if necessary, to the nearest
1/100,000 of 1% (.0000001), with five one-millionths of a percentage point
rounded upward, and (ii) all currency amounts will be rounded to the nearest
one-hundredth of a unit (with .005 of a unit being rounded upward).
42
(e) Notwithstanding any other provisions in this Agreement, the
right of the Holder of any Certificate to receive any of the payments
described above in this Section 5.6, and to institute suit for the enforcement
of any such payment on or after the date such payment is payable, shall not be
impaired without the consent of such Holder.
Section 5.7. Persons Deemed Owners. The Trustor, the Trustee and the
Administrative Agent, if any, and any agent of the Trustor, the Trustee or the
Administrative Agent, if any, may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions of principal of (and premium, if any) and (subject to
Section 5.6) interest, if any, on such Certificate and for all other purposes
whatsoever, whether or not such Certificate be overdue, and neither the
Trustor, the Trustee, the Administrative Agent, if any, nor any agent of the
Trustor, the Trustee nor the Administrative Agent, if any, shall be affected
by notice to the contrary. All distributions made to any Holder, or upon his
order, shall be valid, and, to the extent of the sum or sums paid, effectual
to satisfy and discharge the liability for moneys distributable upon such
Certificate.
None of the Trustor, the Trustee, the Administrative Agent, if any, or
any of their agents will have any responsibility or liability for any aspect
of the records relating to or distributions made on account of beneficial
ownership interests in a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
In connection with any notice or other communication to be provided to
Holders pursuant to this Agreement by the Trustee with respect to any consent
or other action to be taken by Holders, the Trustee shall establish a record
date for such consent or other action and in the case of Global Certificates,
give the Depositary notice of such record date not less than 15 calendar days
in advance of such record date to the extent possible. Such record date shall
be the later of thirty (30) days prior to the first solicitation of such
consent or other action or the date of the most recent list of Holders
furnished to the Trustee pursuant to Section 3.19 hereof.
Section 5.8. Cancellation. Unless otherwise specified pursuant to Section
5.1 for Certificates of any Series, all Certificates surrendered for payment,
redemption, transfer or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled
by it. No Certificates shall be authenticated in lieu of or in exchange for
any Certificates cancelled as provided in this Section, except as expressly
permitted by this Agreement.
Section 5.9. Global Securities. (a) If the Series Supplement pursuant to
Section 5.1 provides that a Series (or Class within such Series) of
Certificates shall be represented by one or more Global Securities, then the
Trustor shall execute and the Trustee shall authenticate and deliver one or
more Global Securities that (i) shall represent an aggregate initial Stated
Amount or Notional Amount, as applicable, equal to the aggregate initial
Stated Amount or Notional Amount, as applicable, of the Certificates of such
Series or Class to be represented by such one or more Global Securities, (ii)
shall be registered, in the name of the Depositary for such Global Security or
Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instruction and
(iv) shall bear a legend substantially to the following effect: "Unless and
until it is exchanged in whole or in part for the individual Certificates
represented hereby, this Global Security may not be transferred except as
43
a whole by the Depositary to a nominee of the Depositary or by a nominee of
the Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary."
No Holder of a Certificate of such Series or Class will receive a
Definitive Certificate representing such Holder's interest in such Certificate
or Certificates, except as provided in Section 5.11. Unless and until
definitive, fully registered Certificates (the "Definitive Certificates") have
been issued to Holders of such Series or Class pursuant to Section 5.11:
(i) the provisions of this Section 5.9 shall be in full force
and effect;
(ii) the Certificate Registrar and the Trustee shall be
entitled to deal with the Depositary for all purposes of this Agreement
(including the distribution of principal of, and premium, if any, and
interest on the Certificates and the giving of instructions or directions
hereunder) as the sole Holder of the Certificates of such Series or
Class, and shall have no obligation to the owners of beneficial interests
in such Series or Class (collectively, the "Certificate Owners");
(iii) to the extent that the provisions of this Section 5.9
conflict with any other provisions of this Agreement, the provisions of
this Section 5.9 shall control;
(iv) the rights of Certificate Owners of such Series or Class
shall be exercised only through the Depositary and shall be limited to
those established by law and agreements between such Certificate Owners
and the Depositary or its Participants; and
(v) whenever this Agreement requires or permits actions to be
taken based upon instructions or directions of Holders of Certificates of
such Series or Class evidencing a specified percentage of the aggregate
Voting Rights of such Series or Class, the Depositary shall be deemed to
represent such percentage only to the extent that it has received
instructions to such effect from Certificate Owners of such Series or
Class or Participants in such Depositary's system owning or representing,
respectively, such required percentage of the beneficial interest in the
Certificates of such Series or Class and has delivered such instructions
to the Trustee.
(b) Each Depositary designated pursuant to Section 5.1 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as such Depositary, be a clearing agency registered
under the Exchange Act and any other applicable statute or regulation.
Section 5.10. Notices to Depositary. Whenever a notice or other
communication to the Holders of a Series or Class within such Series
represented by one or more Global Securities is required under this Agreement,
unless and until Definitive Certificates for such Series or Class shall have
been issued to such Certificate Owners pursuant to Section 5.11, the Trustee
shall give all such notices and communications specified herein to be given to
Holders of the Certificates of such Series to the Depositary, and shall have
no obligation to the Certificate Owners.
44
Section 5.11. Definitive Certificates. If in respect of a Series (or
Class within such Series) represented by one or more Global Securities (i) the
Trustor advises the Trustee in writing that the Depositary is no longer
willing or able to properly discharge its responsibilities with respect to the
Certificates of such Series or Class and the Trustor is unable to locate a
qualified successor, (ii) the Trustor at its option advises the Trustee in
writing that it elects to terminate the book-entry system for such Series or
Class through the Depositary or (iii) after the occurrence of an
Administrative Agent Termination Event, Certificate Owners representing
beneficial interests aggregating at least a majority (or such other Required
Percentage-Definitive Certificates that may be specified in a Series
Supplement) of the Voting Rights of the Certificates of such Series or Class
advise the Depositary in writing that the continuation of a book-entry system
for such Series or Class through the Depositary is no longer in the best
interests of the Certificate Owners of such Series or Class, then the
Depositary shall notify all Certificate Owners or Participants in the
Depositary's system with respect to such Series or Class and the Trustee of
the occurrence of any such event and of the availability of Definitive
Certificates for such Series or Class to Certificate Owners of such Series or
Class requesting the same. Upon surrender to the Trustee of the Global
Securities of such Series or Class by the Depositary, accompanied by
registration instructions, the Trustor shall execute and the Trustee shall
authenticate the Definitive Certificates of such Series or Class in accordance
with the instructions of the Depositary. None of the Trustor, the Certificate
Registrar or the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying
on, such instructions. Upon the issuance of Definitive Certificates of such
Series or Class, the Trustee shall recognize the holders of the Definitive
Certificates of such Series or Class as Holders.
Section 5.12. Currency of Distributions in Respect of Certificates.
(a) Except as otherwise specified pursuant to Section 5.1 for
Certificates of any Series (or Class within such Series), distributions of the
principal of (and premium, if any) and interest on Certificates of such Series
or Class will be made in Dollars.
(b) For purposes of any provision of the Agreement where the Holders
of Outstanding Certificates may perform an act that requires that a specified
percentage of the aggregate Voting Rights of the Certificates of all Series
perform such act and for purposes of any decision or determination by the
Trustee of amounts due and not distributed for the principal of (and premium,
if any) and interest on the Certificates of all Series in respect of which
moneys are to be disbursed ratably, the principal of (and premium, if any) or
notional amount of, as applicable, and interest on the Outstanding
Certificates denominated in a Foreign Currency will be the amount in Dollars
based upon exchange rates, determined as specified pursuant to Section 5.1 for
Certificates of such Series, as of the date for determining whether the
Holders entitled to perform such act have performed it or as of the date of
such decision or determination by the Trustee, as the case may be.
(c) With respect to Certificates of any Series (or Class within such
Series), any decision or determination to be made regarding exchange rates
shall be made by an Exchange Rate Agent appointed by the Trustor; provided
that such Exchange Rate Agent shall accept such appointment in writing and the
terms of such appointment shall be acceptable to the Trustee and shall, in the
opinion of the Trustor at the time of such appointment, require such
45
Exchange Rate Agent to make such determination by a method consistent with the
method provided in the applicable Series Supplement for the making of such
decision or determination. All decisions and determinations of such Exchange
Rate Agent regarding exchange rates shall be in its sole discretion and shall,
in the absence of manifest error, be conclusive for all purposes and
irrevocably binding upon the Trustor, the Trustee and all Holders of the
Certificates of such Series or Class.
(d) If distributions in respect of a Certificate are required to be
made in a Specified Currency other than Dollars and such currency is
unavailable due to the imposition of exchange controls or other circumstance
beyond the control of the Trustee, the Administrative Agent, if any, and the
Trustor or is no longer used by the government of the country issuing such
Specified Currency or is no longer commonly used for the settlement of
transactions by public institutions of or within the international banking
community, then all distributions in respect of such Certificate shall be made
in Dollars until such Specified Currency is again so used in the manner
specified in the related Series Supplement.
Section 5.13. Conditions of Authentication and Delivery of New Series.
Certificates of a new Series may be issued at any time and from time to time
after the execution and delivery of this Agreement. The Trustor shall execute
and deliver Certificates of such Series to the Trustee and the Trustee shall
authenticate and deliver such Certificates upon a Trustor Order and upon
delivery by the Trustor to the Trustee of the following:
(1) Board Resolution. A Board Resolution (or action by a Person
authorized by Board Resolution) authorizing the execution,
authentication and delivery of the Certificates and specifying the
Series, the Classes within such Series and their respective Final
Scheduled Distribution Dates, priorities as to distributions of
principal, premium (if any) and interest, aggregate initial Stated
Amounts and Notional Amounts, if any, and Pass Through Rates of, if
any, each Class of such Series of Certificates to be authenticated
and delivered and the method of calculation thereof.
(2) Series Supplement. A Series Supplement consistent with the
applicable provisions of this Agreement, accompanied by a Board
Resolution (or action by a Person authorized by Board Resolution)
authorizing such Series Supplement (and, in the case of the first
Series to be authenticated and delivered hereunder, authorizing this
Agreement).
(3) Certificates of the Trustor.
(a) An Officer's Certificate of the Trustor, dated as of the
Closing Date, to the effect that the Trustor is not in breach
of this Agreement and that the issuance of the Certificates
applied for will not result in any breach of any of the terms,
conditions, or provisions of, or constitute a default under,
the Trustor's Certificate of Incorporation or bylaws, or any
indenture, mortgage, deed of transfer or other agreement or
instrument to which the
46
Trustor is a party or by which it or its property is bound or
any order of any court or administrative agency entered in any
Proceeding to which the Trustor is a party or by which it or
its property may be bound or to which it or its property may be
subject.
(b) An Officer's Certificate of the Trustor, dated as of the
Closing Date, to the effect that attached thereto are true and
correct copies of letters signed by the Rating Agency (or other
evidence satisfactory to the Trustee) and confirming that the
related Certificates have received the Required Rating.
(4) Requirements of Series Supplement. Such other funds, accounts,
documents, certificates, agreements, instruments or opinions as may
be required by the terms of the Series Supplement creating such
Series.
If all the Certificates of a Series are not to be originally issued at
the same time, then the documents required to be delivered pursuant to this
Section 5.13 must be delivered only once, prior to the authentication and
delivery of the first Certificate of such Series; provided, however, that any
subsequent Trustor Order to the Trustee to authenticate Certificates of such
Series upon original issuance shall constitute a representation and warranty
by the Trustor that, as of the date of such request, the statements made in
the Officer's Certificates delivered pursuant to this Section 5.13 shall be
true and correct as if made on such date.
Section 5.14. Appointment of Paying Agent. The Trustee may appoint one or
more paying agents (each, a "Paying Agent") with respect to the Certificates
of any Series. Any such Paying Agent shall be authorized to make distributions
to Certificateholders of such Series from the Certificate Account for such
Series pursuant to the provisions of the applicable Series Supplement and
shall report the amounts of such distributions to the Trustee. Any Paying
Agent shall have the revocable power to withdraw funds from such Certificate
Account for the purpose of making the distributions referred to above. The
Trustee may revoke such power and remove the Paying Agent if the Trustee
determines in its sole discretion that the Paying Agent shall have failed to
perform its obligations under this Agreement in any material respect. The
Paying Agent shall initially be the Trustee and any co-paying agent chosen by
the Trustor and acceptable to the Trustee, including, if and so long as any
Series or Class within such Series is listed on the Luxembourg Stock Exchange
and such exchange so requires, a co-paying agent in Luxembourg or another
European city. Any Paying Agent shall be permitted to resign as Paying Agent
upon 30 days' notice to the Trustee. In the event that the Trustee shall no
longer be the Paying Agent, the Trustee shall appoint a successor or
additional Paying Agent. The Trustee shall cause each successor to act as
Paying Agent to execute and deliver to the Trustee an instrument in which such
successor or additional Paying Agent shall agree with the Trustee that (i) it
will hold all sums, if any, held by it for distribution to the
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be distributed to such Certificateholders and
(ii) it will give the Trustee notice of any default by any obligor on the
applicable Series of Certificates or on the Underlying Securities. The Paying
Agent shall return all unclaimed funds to the Trustee and upon removal shall
also return all funds in its possession to the Trustee. The provisions of
Sections 8.1, 8.2, 8.3, 8.5 and 8.9 shall apply to the Trustee also in its
role as Paying Agent, for so long as the Trustee shall act as Paying Agent.
Any reference in this Agreement to the Paying Agent shall include any
co-paying agent unless the context requires otherwise. Notwithstanding
anything contained herein to the contrary, the appointment of a Paying Agent
pursuant to this Section 5.14 shall not release the Trustee from the duties,
47
obligations, responsibilities or liabilities arising under this Agreement
other than with respect to funds paid to such Paying Agent.
Section 5.15. Authenticating Agent. (a) The Trustee may appoint one or
more Authenticating Agents (each, an "Authenticating Agent") with respect to
the Certificates of any Series which shall be authorized to act on behalf of
the Trustee in authenticating such Certificates in connection with the
issuance, delivery and registration of transfer or exchange of such
Certificates. Whenever reference is made in this Agreement to the
authentication of Certificates by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication on
behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent must be acceptable to the Trustor and the
Administrative Agent, if any. Notwithstanding anything contained herein to the
contrary, the appointment of an Authenticating Agent pursuant to this Section
5.15 shall not release the Trustee from the duties, obligations,
responsibilities or liabilities arising under this Agreement.
(b) Any institution succeeding to the corporate agency business of
any Authenticating Agent shall continue to be an Authenticating Agent without
the execution or filing of any power or any further act on the part of the
Trustee or such Authenticating Agent. An Authenticating Agent may at any time
resign by giving notice of resignation to the Trustee and to the Trustor. The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving notice of termination to such Authenticating Agent and to the Trustor.
Upon receiving such a notice of resignation or upon such a termination, or in
case at any time an Authenticating Agent shall cease to be acceptable to the
Trustee or the Trustor, the Trustee promptly may appoint a successor
Authenticating Agent. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless acceptable to the Administrative Agent, if any, and the
Trustor. The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section. The
provisions of Section 8.1, 8.2 and 8.3 shall be applicable to any
Authenticating Agent.
(c) Pursuant to an appointment made under this Section, the
Certificates may have endorsed thereon, in lieu of the Trustee's certificate
of authentication, an alternate certificate of authentication in substantially
the following form:
This is one of the Certificates described in the Trust Agreement and the
related Series Supplement.
_________________________________________
as Authenticating Agent for the Trustee,
_________________________________________
By: Authorized Signatory
48
Section 5.16. Events of Default. If any Event of Default shall occur and
be continuing with respect to any class of Certificates, then, and in each and
every case, the Trustee shall exercise any rights in respect of the related
Underlying Securities as provided in the applicable Series Supplement.
Section 5.17. Control by Holders. The Holders of Outstanding Certificates
representing the Required Percentage-Direction of Trustee shall, subject to
provision being made for indemnification against costs, expenses and
liabilities in a form satisfactory to the Trustee, have the right to direct
the time, method and place of conducting any Proceeding for any remedy
available to the Trustee with respect to any Issuer Payment Default; provided,
however, that:
(i) such direction shall not be in conflict with any rule of
law or with this Agreement;
(ii) subject to Section 8.7, the Trustee need not take any
action that it determines might cause it to incur any liability or might
materially adversely affect the rights of any Holders not consenting to
such action.
Section 5.18. Waiver of Past Defaults. The Holders of Outstanding
Certificates representing the Required Percentage-Direction of Trustee may
waive any past default and its consequences except (i) an Issuer Payment
Default or other default in the payment of principal of or interest on any of
the Certificates or (ii) a default in respect of a covenant or provision
hereof which cannot be modified or amended without the consent of the Holder
of each Certificate. In the case of any such waiver, the Trustor, the Trustee
and the Holders shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereto.
ARTICLE VI
THE TRUSTOR AND THE ADMINISTRATIVE AGENT
Section 6.1. Preparation and Filing of Exchange Act Reports; Obligations
of the Trustor and the Administrative Agent. (a) The Administrative Agent, if
any, shall be liable in accordance herewith only to the extent of the
obligations specifically imposed by this Agreement and the related Series
Supplement. The Trustee shall:
(1) on behalf of the Trust, prepare for signature by the
Trustor and file with the Commission, following the execution
thereof by the Trustor, within the time period set forth below,
copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe), if any, which the Trustor on behalf of the Trust may be
required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act (collectively, "Reports") with respect to the
Trust. The names of such Reports and the dates on which they are
required to be filed with the Commission are as follows:
49
(ii) Form 8-K, in substantially the form previously provided by
the Trustor to the Trustee, within 15 calendar days after the Closing
Date, and within the time advised to the Trustee by the Trustor if the
filing of Form 8-K is necessary for any other reason;
(iii) Form 10-D, in substantially the form previously provided
by the Trustor to the Trustee, within 15 calendar days after each
Distribution Date; and
(iv) Form 10-K, in substantially the form previously provided
by the Trustor to the Trustee, within 90 calendar days after December 31
of each year;
(2) receive from the Trustor, within 15 days after the
Trustor is required to file the same with the Commission, such
additional information, documents and reports with respect to
compliance by the Trustor with the conditions and covenants of this
Agreement, if any, as may be required to be filed with the
Commission from time to time by such rules and regulations;
(3) receive from the Trustor and transmit by mail to all
Holders described in TIA Section 313(c), in the manner and to the
extent provided therein, such summaries of any information,
documents and reports required to be filed by the Trustor and
received pursuant to clauses (i) and (ii) of this Section 6.1(a), if
any, as may be required by rules and regulations prescribed from
time to time by the Commission.
(b) The Trustor shall deliver to the Trustee, not less often than
annually, an Officer's Certificate signed by an Executive Officer who is the
principal executive officer, principal financial officer or principal
accounting officer of the Trustor, dated as of the date set forth in the
Series Supplement for such year, stating that:
(1) a review of the activities of the Trustor during such
fiscal year and of performance under this Agreement has been made
under such Executive Officer's supervision; and
(2) to the best of such Executive Officer's knowledge,
based on such review, the Trustor has fulfilled all of its
obligations under this Agreement throughout such year, or, if there
has been a default in the fulfillment of any such obligation,
specifying each such default known to such Executive Officer and the
nature and status thereof. A copy of such certificate may be
obtained by any Holder by a request in writing to the Trustor
addressed to the Corporate Trust Office of the Trustee.
(c) If and only if the Series Supplement provides for the pledge of
the Underlying Securities to the Trustee (and not merely the transfer,
assignment, conveyance and sale, without recourse, thereof to the Trustee), on
the Closing Date, the Trustor shall furnish to the Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording and filing of this Agreement, any
agreements supplemental hereto and any other requisite documents, and with
respect to the execution and filing of any financing statements and
continuation statements as are necessary to perfect and
50
make effective the lien and security interest of this Agreement and reciting
the details of such action, or stating that, in the opinion of such counsel,
no such action is necessary to make such lien and security interest effective.
(d) If and only if the Series Supplement provides for the pledge of
the Underlying Securities to the Trustee (and not merely the transfer,
assignment, conveyance and sale, without recourse, thereof to the Trustee), at
least annually after the Closing Date, the Trustor shall furnish to the
Trustee an Opinion of Counsel either stating that, in the opinion of such
counsel, such action has been taken with respect to the recording, filing,
re-recording and refiling of this Agreement, any agreements supplemental
hereto and any other requisite documents and with respect to the execution and
filing of any financing statements and continuation statements as is necessary
to maintain the lien and security interest created by this Agreement and
reciting the details of such action or stating that in the opinion of such
counsel no such action is necessary to maintain the lien and security interest
created by this Agreement. Such Opinion of Counsel shall also describe the
recording, filing, re-recording and refiling of this Agreement, any agreements
supplemental hereto and any other requisite documents and the execution and
filing of any financing statements and continuation statements that will, in
the opinion of such counsel, be required to maintain the lien and security
interest of this Agreement until such date in the following calendar year.
(e) If and only if the Series Supplement provides for the pledge of
the Underlying Securities to the Trustee (and not merely the transfer,
assignment, conveyance and sale, without recourse, thereof to the Trustee),
(i) whenever any property or securities are to be released from
the lien of this Agreement, the Trustor shall furnish to the Trustee an
Officer's Certificate of the Trustor certifying or stating the opinion of
each Person signing such certificate as to the fair value (within 90 days
of such release) of the property or securities proposed to be released
and stating that in the opinion of such person the proposed release will
not impair the security under this Agreement in contravention of the
provisions hereof.
(ii) whenever the Trustor is required to furnish to the Trustee
an Officer's Certificate of the Trustor certifying or stating the opinion
of any signatory thereof as to the matters described in clause (i) above,
the Trustor shall also furnish to the Trustee an Independent Certificate
as to the same matters if the fair value of the property or securities
and of all other property or securities released from the lien of this
Agreement since the commencement of the then current calendar year, as
set forth in the certificates required by clause (i) above and this
clause (ii), equals 10% or more of the principal amount of the
Outstanding Certificates, but such certificate need not be furnished in
the case of any release of property or securities if the fair value
thereof as set forth in the related Officer's Certificate of the Trustor
is less than $25,000 or less than one percent of the then principal
amount of the Outstanding Certificates.
(iii) prior to the deposit with the Trustee of any securities
that are to be made the basis for the authentication and delivery of
Certificates, the withdrawal of cash constituting a part of the trust
estate or the release of any property or securities subject to the lien
of this Agreement, the Trustor shall furnish to the Trustee an Officer's
Certificate
51
of the Trustor certifying or stating the opinion of each person signing
such certificate as to the fair value (within 90 days of such deposit) to
the Trustor of the securities to be so deposited.
(iv) whenever the Trustor is required to furnish to the Trustee
an Officer's Certificate of the Trustor described in clause (iii) above,
the Trustor shall also deliver to the Trustee an Independent Certificate
as to the same matters, if the fair value to the Trustor of the
securities to be so deposited and of all other such securities made the
basis of any such withdrawal or release since the commencement of the
then current fiscal year of the Trustor, as set forth in the certificates
delivered pursuant to clause (iii) above and this clause (iv), is 10% or
more of the principal amount of the Outstanding Certificates, but such a
certificate need not be furnished with respect to any securities so
deposited, if the fair value thereof to the Trustor as set forth in the
related Officer's Certificate of the Trustor is less than $25,000 or less
than one percent of the principal amount of the Outstanding Certificates.
(v) subject to the payment of its fees and expenses hereunder,
the Trustee may, and when required by the provisions of this Agreement,
shall, execute instruments to release property from the lien of this
Agreement, or convey the Trustee's interest in the same, in a manner and
under circumstances that are consistent with the provisions of this
Agreement. No party relying upon an instrument executed by the Trustee in
connection therewith shall be bound to ascertain the Trustee's authority,
inquire into the satisfaction of any conditions precedent or see to the
application of any moneys.
(vi) the Trustee shall at such time as there are no Outstanding
Certificates and all sums due to the Trustee hereunder have been paid,
release any remaining portion of the trust estate that secured the
Certificates from the lien of this Agreement and release to the Trustor
or any other Person entitled thereto any funds then included in the trust
estate.
(f) Upon any application or request by the Trustor to the Trustee to
take any action under the provisions of this Agreement, which action is
subject to the satisfaction of a condition precedent (including any covenants
compliance with which constitutes a condition precedent), the Trustor shall
furnish to the Trustee: (i) an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with, (ii) an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any,
have been complied with and (iii) (if required by the TIA) an Independent
Certificate from a firm of certified public accountants meeting the applicable
requirements of the TIA, except that, in the case of any such application or
request as to which the furnishing of such documents is specifically required
by any provision of this Agreement, no additional certificate or opinion need
be furnished. Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(i) a statement that such signatory of such certificate or
opinion has read or has caused to be read such covenant or condition and
the definitions herein relating thereto;
52
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the judgment of each such signatory,
such signatory has made such examination or investigations as is
necessary to enable such signatory to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
Section 6.2. Merger or Consolidation of the Trustor or the Administrative
Agent. (a)Subject to the following paragraph, the Trustor will keep in full
effect its existence, rights and franchises as a corporation under the laws of
the jurisdiction of its incorporation, and the Administrative Agent, if any,
will keep in full effect its existence, rights and franchises under the laws
of the jurisdiction of its incorporation or association. The Trustor and the
Administrative Agent, if any, each will obtain and preserve its qualification
to do business as a foreign corporation or association in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Underlying
Securities and to perform its respective duties under this Agreement.
(b) The Trustor and an Administrative Agent, if any, may consolidate
or merge with or into any other Person, provided that:
(i) the Person (if other than the Trustor or Administrative
Agent, as applicable) formed by or surviving such consolidation or merger
shall expressly assume, by an agreement supplemental hereto executed and
delivered to the Trustee, in form satisfactory to the Trustee, the
performance or observance of every agreement and covenant of this
Agreement on the part of the Trustor or Administrative Agent, as
applicable, to be performed or observed, all as provided herein and in
the applicable Series Supplement or Supplements;
(ii) immediately after giving effect to such transaction, no
Administrative Agent Termination Event or event which with the passage of
time or notice or both would become an Administrative Agent Termination
Event shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction; and
(iv) the Trustor or Administrative Agent, as applicable, shall
have delivered to the Trustee an Officer's Certificate and an Opinion of
Counsel each stating that such consolidation or merger and such
supplemental agreement comply with this Article VI and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
53
Section 6.3. Limitation on Liability of the Trustor and the
Administrative Agent. (a) Unless otherwise expressly specified in this
Agreement or a Series Supplement, neither the Administrative Agent, if any,
nor the Trustor shall be under any obligation to expend or risk its own funds
or otherwise incur financial liability in the performance of its duties
hereunder or under a Series Supplement or in the exercise of any of its rights
or powers if reasonable grounds exist for believing that the repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(b) Neither the Trustor, an Administrative Agent, if any, nor any of
the directors, officers, employees or agents of the Trustor or such
Administrative Agent shall be under any liability to any Trust or the
Certificateholders of any Series for any action taken, or for refraining from
the taking of any action, in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect
the Trustor, any such Administrative Agent or any such person against any
breach of warranties, representations or covenants made herein, or against any
specific liability imposed on such Administrative Agent pursuant hereto, or
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in the performance of duties or by reason
of reckless disregard of obligations and duties hereunder.
Neither the Trustor nor an Administrative Agent, if any, shall be under
any obligation to appear in, prosecute or defend any legal action unless such
action is related to its respective duties under this Agreement and, in its
opinion, does not involve it in any expense or liability; provided, however,
that either of the Trustor or such Administrative Agent may in its discretion
undertake any such action which it may deem necessary or desirable with
respect to this Agreement and the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. The legal expenses and
costs of such action and any liability resulting (except any loss, liability
or expense incurred by reason of willful misfeasance, bad faith or negligence
in the performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder) shall be allocated as specified in the
applicable Series Supplement.
Section 6.4. Limitation on Resignation of the Administrative Agent. An
Administrative Agent appointed pursuant to the applicable Series Supplement
shall not resign from the obligations and duties hereby imposed on it except
(a) upon appointment by the Trustee of a successor administrative agent and
receipt by the Trustee of a letter from the Rating Agency that such a
resignation and appointment will satisfy the Rating Agency Condition or (b)
upon a determination that its duties hereunder are no longer permissible under
applicable law. Any such determination pursuant to clause (b) of the preceding
sentence permitting the resignation of the Administrative Agent shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee and
the Trustor. No resignation of an Administrative Agent shall become effective
until the Trustee or a successor administrative agent shall have assumed the
Administrative Agent's responsibilities, duties, liabilities (other than those
liabilities arising prior to the appointment of such successor) and
obligations under this Agreement.
Section 6.5. Rights of the Trustor in Respect of the Administrative
Agent. An Administrative Agent appointed pursuant to the applicable Series
Supplement shall afford the Trustor and the Trustee, upon reasonable notice,
during normal business hours, access to all
54
records maintained by the Administrative Agent in respect of its rights and
obligations hereunder and access to officers of the Administrative Agent
responsible for such obligations. Upon request, the Administrative Agent shall
furnish to the Trustor and the Trustee the Administrative Agent's most recent
financial statements and such other information relating to its capacity to
perform its obligations under this Agreement as the Administrative Agent
possesses. To the extent such information is not otherwise available to the
public, the Trustor and the Trustee shall not disseminate any information
obtained pursuant to the preceding two sentences without the Administrative
Agent's written consent, except as required pursuant to this Agreement to the
extent that it is appropriate to do so (i) in working with legal counsel,
auditors, taxing authorities or other governmental agencies or (ii) pursuant
to any law, rule, regulation, order, judgment, writ, injunction or decree of
any court or governmental authority having jurisdiction over the Trustor, the
Trustee or the Trust. The Trustor may, but is not obligated to, enforce the
obligations of the Administrative Agent under this Agreement and may, but is
not obligated to, perform, or cause a designee to perform, any defaulted
obligation of the Administrative Agent under this Agreement or exercise the
rights of the Administrative Agent under this Agreement; provided, however,
that the Administrative Agent shall not be relieved of any of its obligations
under this Agreement by virtue of such performance by the Trustor or its
designee. The Trustor shall not have any responsibility or liability for any
action or failure to act by the Administrative Agent and is not obligated to
supervise the performance of the Administrative Agent under this Agreement or
otherwise.
Section 6.6. Trustor May Purchase Certificates. The Trustor may at any
time purchase Certificates in the open market or otherwise. Certificates so
purchased by the Trustor may, at the discretion of the Trustor, be held or
resold. Certificates beneficially owned by the Trustor will be disregarded for
purposes of determining whether the required percentage of the aggregate
Voting Rights has given any request, demand, authorization, direction, notice,
consent or waiver hereunder.
Section 6.7. The Administrative Agent and Other Parties. The Person
serving as an Administrative Agent, if any, appointed pursuant to the
applicable Series Supplement may be the Trustor, the Trustee or an Affiliate
of either thereof, and may have normal business relationships with the
Trustor, the Trustee or any Affiliates thereof.
Section 6.8. Preferential Collection of Claims Against Trustor. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent required by TIA
Section 311(a).
ARTICLE VII
ADMINISTRATIVE AGENT TERMINATION EVENTS
Section 7.1. Administrative Agent Termination Events. (a) "Administrative
Agent Termination Event," wherever used herein with respect to any Series of
Certificates, means any one of the following events:
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(i) a failure by any Administrative Agent specified in the
applicable Series Supplement to remit to the Trustee, pursuant to the
terms of this Agreement, any funds in respect of collections on
Underlying Securities, Credit Support, if any, and Advances, if any,
collected by the Administrative Agent pursuant to the terms of this
Agreement that continues unremedied for a period of two days after the
date upon which written notice of such failure, requiring the same to be
remedied, shall have been given to the Administrative Agent by the
Trustor or the Trustee (in which case notice shall be provided by
telecopy), or to the Administrative Agent, the Trustor and the Trustee by
the Holders of Certificates of such Series representing at least 25% of
the aggregate Voting Rights; or
(ii) a failure on the part of any Administrative Agent
specified in the applicable Series Supplement to observe or perform in
any material respect any other of the covenants or agreements on the part
of the Administrative Agent contained in the Certificates of such Series
or in this Agreement which continues unremedied for a period of 10 days
after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Administrative Agent by
the Trustor or the Trustee, or to the Administrative Agent, the Trustor
and the Trustee by the Holders of Certificates of such Series
representing at least 25% of the aggregate Voting Rights; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in an involuntary case under any present or
future federal or state bankruptcy, insolvency or similar law or the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceeding, or for the winding up or liquidation of its affairs, shall
have been entered against the Administrative Agent, if any, specified in
the applicable Series Supplement and such decree or order shall have
remained in force undischarged or unstayed for a period of 30 days; or
(iv) any Administrative Agent specified in the applicable
Series Supplement shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to the Administrative Agent or of or relating to all or
substantially all its property; or
(v) any Administrative Agent specified in the applicable Series
Supplement shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for
the benefit of its creditors, or voluntarily suspend payment of its
obligations; or
(vi) if so specified in the related Series Supplement, any
failure of the Administrative Agent, if any, specified in the applicable
Series Supplement to make any Advances required to be made from its own
funds pursuant to Section 4.3 which continues unremedied until twelve
o'clock noon New York City time on the Business Day immediately following
the day on which such Advance was required to have been made; or
56
(vii) any additional Administrative Agent Termination Event
that may be specified with respect to such Series in the related Series
Supplement.
Each Series Supplement shall specify as to each of the foregoing clauses
requiring a vote of Holders of different Classes the circumstances and manner
in which the aggregate Voting Rights applicable to each such clause shall be
calculated.
(b) Unless otherwise provided in the applicable Series Supplement and
provided an Administrative Agent shall have been appointed pursuant to the
applicable Series Supplement, so long as an Administrative Agent Termination
Event with respect to the related Series of Certificates shall have occurred
and be continuing, the Trustor or the Trustee may, and at the written
direction of the Holders of Certificates evidencing not less than the
"Required Percentage-Administrative Agent Termination" of the aggregate Voting
Rights, the Trustee shall, by notice in writing to such Administrative Agent
(and to the Trustor if given by the Trustee or to the Trustee if given by the
Trustor) terminate all the rights and obligations of the Administrative Agent
specified in the applicable Series Supplement in its capacity as
Administrative Agent with respect to such Series under this Agreement, to the
extent permitted by law, and in and to the Underlying Securities relating to
such Series (other than any Retained Interest of the Administrative Agent, if
any) and the proceeds thereof. On or after the receipt by such Administrative
Agent of such written notice, all authority and power of the Administrative
Agent under this Agreement relating to such Series, whether with respect to
the Certificates (other than as a Holder of any Certificate) of such Series or
the Underlying Securities relating to such Series or otherwise, shall pass to
and be vested in the Trustee pursuant to and under this Section 7.1(b), and
without limitation, the Trustee is hereby authorized and empowered, as
attorney-in-fact or otherwise, to execute and deliver, on behalf of and at the
expense of the Administrative Agent, any and all documents and other
instruments and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of such Underlying
Securities and related documents, or otherwise. The Administrative Agent, if
any, specified in the applicable Series Supplement agrees promptly (and in any
event not later than ten Business Days subsequent to such notice) to provide
the Trustee with all documents and records requested by it to enable it to
assume the functions of the Administrative Agent under this Agreement relating
to such Series, and to cooperate with the Trustee in effecting the termination
of the Administrative Agent's responsibilities and rights under this Agreement
relating to such Series, including the transfer within one Business Day to the
Trustee for administration by it of all cash amounts and investments which
shall at the time be or should have been credited by the Administrative Agent
to the Certificate Account relating to such Series or thereafter be received
with respect to such Underlying Securities; provided, however, that the
Administrative Agent shall continue to be entitled to receive all amounts
accrued or owing to it under this Agreement on or prior to the date of such
termination, whether in respect of Advances or otherwise, and shall continue
to be entitled to the benefits of Section 6.3 notwithstanding any such
termination.
57
Section 7.2. Trustee to Act; Appointment of Successor. On and after the
time an Administrative Agent, if any, specified in the applicable Series
Supplement receives a notice of termination pursuant to Section 7.1, the
Trustee shall be the successor in all respects to the Administrative Agent in
its capacity as Administrative Agent under this Agreement or the applicable
Series Supplement and the transactions set forth or provided for herein and
shall be subject to all the responsibilities, duties and liabilities relating
thereto and arising thereafter placed on the Administrative Agent (except for
any representations or warranties of the Administrative Agent under this
Agreement and except as otherwise provided herein or in the applicable Series
Supplement) by the terms and provisions hereof including the Administrative
Agent's obligation, if any, to make Advances pursuant to Section 4.3;
provided, however, that if the Trustee is prohibited by law or regulation from
obligating itself to make Advances, then the Trustee shall not be obligated to
make such Advances pursuant to Section 4.3; and provided further, that any
failure to perform such duties or responsibilities caused by the
Administrative Agent's failure to provide information required by Section 7.1
shall not be considered a default by the Trustee as successor to the
Administrative Agent hereunder. As compensation therefor, the Trustee shall be
entitled to the amounts relating to the Underlying Securities of a given
Series to which such Administrative Agent would have been entitled if the
Administrative Agent had continued to act hereunder. Notwithstanding the
above, the Trustee may, if it shall be unwilling to so act, or shall, if it is
unable to so act or if the Holders of Certificates of such Series evidencing
not less than the Required Percentage-Administrative Agent Termination of the
aggregate Voting Rights, so request in writing to the Trustee, promptly
appoint, or petition a court of competent jurisdiction to appoint, an
Administrative Agent acceptable to the Rating Agency (such acceptance to be
evidenced by satisfaction of the Rating Agency Condition with respect to such
appointment) and having a net worth of not less than $15,000,000, as the
successor to such Administrative Agent under this Agreement with respect to
such Series in the assumption of all or any part of the responsibilities,
duties or liabilities of such Administrative Agent under this Agreement with
respect to such Series. The Trustee, the Trustor and any such successor
Administrative Agent may agree upon the compensation to be paid with respect
thereto; provided, however, that in no event shall such compensation be
greater than the compensation payable to the Administrative Agent under this
Agreement. No appointment of a successor Administrative Agent under this
Agreement shall be effective until the assumption by the successor
Administrative Agent of all the responsibilities, duties and liabilities
placed on the Administrative Agent hereunder and under the related Series
Supplement. Pending appointment of a successor Administrative Agent under this
Agreement, the Trustee shall act in such capacity as and to the extent
hereinabove provided.
Section 7.3. Notification to Certificateholders. (a) Upon any such
termination pursuant to Section 7.2 or appointment of a successor
Administrative Agent, the Trustee shall give prompt written notice thereof to
Certificateholders of the affected Series in the manner provided in Section
10.5.
(b) Within 60 days after the occurrence of any Administrative Agent
Termination Event or event which but for the lack of notice or passage of time
or both would constitute an Administrative Agent Termination Event with
respect to any Series, the Trustee shall transmit by mail to all
Certificateholders of such Series notice of each such Administrative Agent
Termination Event or event which but for lack of notice or passage of time or
both would constitute an Administrative Agent Termination Event which is known
to the Trustee, unless
58
such Administrative Agent Termination Event or event which but for lack of
notice or passage of time or both would constitute an Administrative Agent
Termination Event shall have been cured or waived.
Section 7.4. Waiver of Administrative Agent Termination Events. Unless
otherwise provided in the applicable Series Supplement, the Holders of
Certificates of the related Series evidencing not less than the Required
Percentage-Waiver of the aggregate Voting Rights may, on behalf of all
Certificateholders of such Series, (i) if so provided in the applicable Series
Supplement, waive compliance by the Trustor, the Trustee or the Administrative
Agent, if any, with certain restrictive provisions of this Agreement as set
forth in such Series Supplement prior to the time such compliance is required
and (ii) waive any Administrative Agent Termination Event or event which but
for lack of notice or passage of time or both would constitute an
Administrative Agent Termination Event with respect to such Series; provided,
however, that an Administrative Agent Termination Event or event which but for
lack of notice or passage of time or both would constitute an Administrative
Agent Termination Event with respect to such Series regarding the failure to
distribute, in accordance with the terms of this Agreement, amounts received
with respect to any Underlying Security or any such event with respect to such
Series in respect of a covenant or provision of this Agreement the
modification or amendment of which would require the consent of the Holders of
all outstanding Certificates of such Series, may be waived only by all the
Certificateholders of such Series. Upon any such waiver of an Administrative
Agent Termination Event or event which but for lack of notice or passage of
time or both would constitute an Administrative Agent Termination Event with
respect to such Series, such Administrative Agent Termination Event or event
which but for lack of notice or passage of time or both would constitute an
Administrative Agent Termination Event shall cease to exist and shall be
deemed to have been remedied for every purpose hereunder. No such waiver shall
extend to any subsequent or other Administrative Agent Termination Event or
event which but for lack of notice or passage of time or both would constitute
an Administrative Agent Termination Event or impair any right consequent
thereon except to the extent expressly so waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.1. Duties of Trustee; Notice of Defaults. (a) The Trustee,
prior to the occurrence of an Administrative Agent Termination Event or Event
of Default with respect to any Series and after the curing of all such
Administrative Agent Termination Events or Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement and the related Series Supplement.
During the period an Administrative Agent Termination Event or Event of
Default with respect to any Series shall have occurred and be continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and shall use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct
of such person's own affairs. Any permissive right of the Trustee enumerated
in this Agreement shall not be construed as a duty.
59
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform to the requirements of this Agreement. If any such
instrument is found not to conform to the requirements of this Agreement, the
Trustee shall take action as it deems appropriate to have the instrument
corrected, and if the instrument is not corrected to the Trustee's
satisfaction, the Trustee will provide notice thereof to the Trustor,
Administrative Agent, if any, and Certificateholders.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct; provided, however, that:
(i) prior to the occurrence of an Administrative Agent
Termination Event or Event of Default with respect to any Series, and
after the curing of all such Administrative Agent Termination Events or
Events of Default which may have occurred, the duties and obligations of
the Trustee shall be determined solely by the express provisions of this
Agreement, the Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this
Agreement against the Trustee and, in the absence of bad faith on the
part of the Trustee, the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee that conform
to the requirements of this Agreement;
(ii) the Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good faith
in accordance with the direction of Holders of the Required
Percentage-Direction of Trustee of the aggregate Voting Rights of a given
Series (or Class or group of Classes within such Series) relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Agreement;
(iv) the Trustee shall not be required to expend or risk its
own funds or otherwise incur financial liability in the performance of
any of its duties hereunder or in the exercise of any of its rights or
powers if there is reasonable ground for believing that the repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it, and none of the provisions contained in this
Agreement shall in any event require the Trustee to perform, or be
responsible for the manner of performance of, any obligations of an
Administrative Agent, if any, appointed pursuant to the applicable Series
Supplement, under this Agreement except during such time, if any, as the
Trustee shall be the successor to, and be vested with the rights, duties,
powers and
60
privileges of, such an Administrative Agent in accordance with and only
to the extent provided in this Agreement;
(v) except for actions expressly authorized by this Agreement,
the Trustee shall take no actions reasonably likely to impair the
interests of the Trust in any Underlying Security now existing or
hereafter acquired or to impair the value of any Underlying Security now
existing or hereafter acquired;
(vi) except as expressly provided in this Agreement, the
Trustee shall not engage in any activity other than those required or
authorized by the terms of this Agreement. In particular, after the
Closing Date the Trustee shall not purchase or otherwise acquire any
additional securities, modify or permit the modification of any Trust
Asset or otherwise vary the investment of the Certificateholders or incur
or modify any obligations, (i) except as expressly required or permitted
by the terms of this Agreement or (ii) unless the Trustee obtains, at the
expense of the Certificateholders, an Opinion of Counsel to the effect
that such acquisition, incurrence or modification will not cause the
Trust (unless otherwise indicated in a related Series Supplement) to be
taxable as a corporation for federal income tax purposes; and
(vii) in the event that the Paying Agent or the Certificate
Registrar shall fail to perform any obligation, duty or agreement in the
manner or on the day required to be performed by the Paying Agent or
Certificate Registrar, as the case may be, under this Agreement, the
Trustee shall be obligated promptly upon its knowledge thereof to perform
such obligation, duty or agreement in the manner so required.
(d) The Trustee shall have the legal power to exercise all of the
rights, powers and privileges of holders of the Underlying Securities in which
the Certificates evidence an interest. However, neither the Trustee (except as
specifically provided herein or in the TIA) nor the Trustor shall be under any
obligation whatsoever to appear in, prosecute or defend any action, suit or
other proceeding in respect of Underlying Securities or Certificates.
(e) Neither the Trustee nor the Trustor shall have any obligation on
or with respect to the Underlying Securities, except as provided in this
Article VIII with respect to the Trustee; and their respective obligations
with respect to Certificates shall be solely as set forth in this Agreement.
(f) If there is an event of default (as defined in the indenture or
other document pursuant to which the Underlying Securities were issued) with
respect to any Underlying Security and such default is known to the Trustee,
the Trustee shall promptly give notice to the Depositary or, if the
Certificates are Definitive Certificates, directly to Holders thereof as
provided in Section 10.5 hereof (and in the manner and to the extent provided
in TIA Section 313(c)) within 10 days after such event of default occurs. Such
notice shall set forth (i) the identity of the Underlying Securities, (ii) the
date and nature of such default, (iii) the face amount of the obligation to
which such default relates, (iv) the identifying numbers of the Series and
Class of Certificates, or any combination, as the case may be, evidencing the
obligations (or portions thereof) described above in clause (iii), and (v) any
other information which the Trustee may deem appropriate.
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(g) Holders of Certificates shall have no recourse against the
Trustor or the Trustee for payment defaults on the Underlying Securities.
Section 8.2. Certain Matters Affecting the Trustee. (a) Except as
otherwise provided in Section 8.1:
(i) the Trustee may request and rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(ii) the Trustee may consult with counsel and any written
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such written advice or
Opinion of Counsel;
(iii) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto, at the
request, order or direction of any of the Certificateholders, pursuant to
the provisions of this Agreement, unless such Certificateholders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or thereby;
provided, however, that nothing contained herein shall relieve the
Trustee of the obligations, upon the occurrence of an Administrative
Agent Termination Event or Event of Default (which has not been cured or
waived), to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their exercise
as a prudent man would exercise or use under the circumstances in the
conduct of such person's own affairs;
(iv) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v) prior to the occurrence of an Administrative Agent
Termination Event hereunder and after the curing of all Administrative
Agent Termination Events which may have occurred, the Trustee shall not
be bound to make any investigation into the facts of matters stated in
any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, approval, bond or other paper
or document believed by it to be genuine, unless requested in writing to
do so by Holders of the Required Percentage-Direction of Trustee of the
aggregate Voting Rights of the affected Series (or Class or Classes
within any such Series), as specified by the applicable Series
Supplement; provided, however, that if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of
the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement, the Trustee may require
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reasonable indemnity against such expense or liability as a condition to
taking any such action;
(vi) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian and shall not be liable for
such persons' actions if it has selected such persons with reasonable
care; and
(vii) the Trustee shall not be personally liable for any loss
resulting from the investment of funds held in any Certificate Account or
Reserve Account at the direction of an Administrative Agent or the
Trustor pursuant to Section 3.10.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates of any Series (or Class within such
Series), or the production thereof at the trial or other Proceeding relating
thereto, and any such suit, action or proceeding instituted by the Trustee
shall be brought in its name for the benefit of all the Holders of such
Certificates, subject to the provisions of this Agreement.
Section 8.3. Trustee Not Liable for Recitals in Certificates or
Underlying Securities. The Trustee assumes no responsibility for the
correctness of the recitals contained herein and in the Certificates or in any
document issued in connection with the sale of the Certificates (other than
the signature and authentication on the Certificates). Except as set forth in
Section 8.12, the Trustee makes no representations or warranties as to the
validity or sufficiency of this Agreement or of the Certificates of any Series
(other than the signature and authentication on the Certificates) or of any
Underlying Security or related document. The Trustee shall not be accountable
for the use or application by the Trustor or the Administrative Agent, if any,
of any of the Certificates or of the proceeds of such Certificates.
Section 8.4. Trustee May Own Certificates. The Trustee in its individual
capacity or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not Trustee.
Section 8.5. Trustee's Fees and Expenses; Indemnification; Undertaking
for Costs. (a) The Trustee shall be entitled to receive from the Trustor or an
affiliate of the Trustor as compensation for the Trustee's services hereunder,
trustee's fees pursuant to a separate agreement between the Trustee and the
Trustor, and shall be reimbursed for all reasonable expenses, disbursements
and advances incurred or made by the Trustee (including the reasonable
compensation, disbursements and expenses of its counsel and other persons not
regularly in its employ). The Trustor shall indemnify and hold harmless the
Trustee and its successors, assigns, agents and servants against any and all
loss, liability or reasonable expense (including attorney's fees) incurred by
it in connection with the administration of this trust and the performance of
its duties thereunder. The Trustee shall notify the Trustor promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Trustor shall not relieve the Trustor of its obligations hereunder. The
Trustor need not reimburse any expense or indemnify against any loss,
liability or expense incurred by the Trustee through the Trustee's own willful
misconduct,
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negligence or bad faith. The indemnities contained in this Section 8.5(a)
shall survive the resignation or termination of the Trustee or the termination
of this Agreement.
(b) Failure by the Trustor to pay, reimburse or indemnify the
Trustee shall not entitle the Trustee to any payment, reimbursement or
indemnification from the Trust, nor shall such failure release the Trustee
from the duties it is required to perform under this Agreement. Any unpaid,
unreimbursed or unindemnified amounts shall not be borne by the Trust and
shall not constitute a claim against the Trust, but shall be borne by the
Trustee in its individual capacity.
(c) All parties to this Agreement agree, and each Holder of any
Certificate by such Holder's acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any Proceeding for
the enforcement of any right or remedy under this Agreement, or in any
Proceeding against the Trustee for any action taken, suffered or omitted by it
as Trustee, the filing by any party litigant in such Proceeding of an
undertaking to pay the costs of such Proceeding and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such Proceeding, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 8.5(c) shall not apply to:
(i) any Proceeding instituted by the Trustee;
(ii) any Proceeding instituted by any Holder, or group of
Holders, in each case holding in the aggregate Outstanding Certificates
representing more than 10% of the Voting Rights; or
(iii) any Proceeding instituted by any Holder for the
enforcement of the payment of principal or interest on or after the
respective due dates expressed in such Certificate and in this Agreement
(or, in the case of redemption, on or after the redemption date).
Section 8.6. Eligibility Requirements for Trustee. (a) The Trustee shall
at all times satisfy the requirements of TIA Section 310(a). The Trustee
hereunder shall at all times be a corporation which is not an Affiliate of the
Trustor (but may have normal banking relationships with the Trustor or any
obligor with respect to the Underlying Securities with respect to such Series
of Certificates and their respective Affiliates) organized and doing business
under the laws of any State or the United States, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of
at least $50,000,000 and subject to supervision or examination by federal or
state authority. If such corporation or association publishes reports of
conditions at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such corporation or association
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of conditions so published. Such corporation or association
(or its parent) must be rated in one of the four highest rating categories by
the Rating Agency.
(b) The Trustee shall comply with Section 310(b); provided, however,
that there shall be excluded from the operation of TIA Section 310(b)(1), any
Series Supplement
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under which other securities are outstanding evidencing ownership interest in
obligations of the Underlying Securities Issuer if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met.
Section 8.7. Resignation or Removal of the Trustee. (a) The Trustee may,
with respect to any Series of Certificates, at any time resign and be
discharged from any trust hereby created by giving written notice thereof to
the Trustor, the Administrative Agent, if any, the Rating Agency and to all
Certificateholders of such Series. Upon receiving such notice of resignation,
the Trustor shall promptly appoint a successor trustee for such Series by
written instrument, in duplicate, which instrument shall be delivered to the
resigning Trustee and to the successor trustee. A copy of such instrument
shall be delivered to such Certificateholders and the Administrative Agent, if
any, by the Trustor. If no such successor trustee shall have been so appointed
and have accepted appointment within 30 days after the giving of such notice
of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee for such Series.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.6 and shall fail to resign after
written request therefor by the Trustor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then
the Trustor may remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, which instrument shall be delivered to the Trustee
so removed and to the successor trustee. A copy of such instrument shall be
delivered to the Certificateholders and the Administrative Agent, if any, by
the Trustor.
(c) The Holders of Certificates of any Series representing the
Required Percentage-Removal of Trustee of the aggregate Voting Rights may at
any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact and duly authorized, one complete set of which instruments
shall be delivered to the Trustor, one complete set to the Trustee so removed
and one complete set to the successor trustee so appointed. A copy of such
instrument shall be delivered to the Certificateholders and the Administrative
Agent, if any, by the Trustor.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor trustee as
provided in Section 8.8. Upon any such resignation or removal, the Trustee
shall be discharged from all of its obligations and duties in connection with
this Agreement.
Section 8.8. Successor Trustee. (a) Any successor trustee appointed as
provided in Section 8.7 shall execute, acknowledge and deliver to the Trustor
and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder (either with respect to a
given Series of Certificates or with respect to all Certificates issued under
this Agreement), with the like effect as if originally
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named as trustee herein. The predecessor trustee shall deliver to the
successor trustee all documents and statements held by it hereunder, and the
Trustor and the predecessor trustee shall execute and deliver such instruments
and do such other things as may reasonably be required for more fully and
certainly vesting and confirming in the successor trustee all such rights,
powers, duties and obligations. No successor trustee shall accept appointment
as provided in this Section unless at the time of such acceptance such
successor trustee shall be eligible under the provisions of Section 8.6.
(b) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Trustor shall transmit notice of the succession
of such trustee hereunder to all Holders of Certificates and to the Rating
Agency in the manner provided in Section 10.5.
Section 8.9. Merger or Consolidation of Trustee. Any corporation or
association into which the Trustee may be merged or converted or with which it
may be consolidated or any corporation or association resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation or association succeeding to the business of the Trustee,
shall be the successor of the Trustee hereunder, provided such corporation or
association shall be eligible under the provisions of Section 8.6, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 8.10. Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust for a given Series may at the time be located, the Trustor and the
Trustee acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee or co-trustees, jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of such Trust, and to vest in such
Person or Persons, in such capacity, such title to such Trust, or any part
thereof, and, subject to the other provisions of this Section 8.10, such
powers, duties, obligations, rights and trusts as the Trustor and the Trustee
may consider necessary or desirable. If the Trustor shall not have joined in
such appointment within 15 days after the receipt by it of a request so to do,
or in case an Administrative Agent Termination Event shall have occurred and
be continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.6
hereunder and no notice to Holders of Certificates of the appointment of
co-trustee or co-trustees or separate trustee or trustees shall be required
under Section 8.8 hereof. Notwithstanding anything contained herein to the
contrary, the appointment of a co-trustee pursuant to this Section 8.10 shall
not release the Trustee from the duties, obligations, responsibilities or
liabilities arising under this Agreement.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or
imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed by the
Trustee (whether as Trustee hereunder or as successor to an Administrative
Agent hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
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obligations (including the holding of title to such Trust or any portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article VIII. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 8.11. Appointment of Office or Agency. As specified in a Series
Supplement, the Trustee shall appoint an office or agency in the City of New
York where the Certificates may be surrendered for registration of transfer or
exchange, and presented for the final distribution with respect thereto, and
where notices and demands to or upon the Trustee in respect of the
Certificates of the related Series and this Agreement may be served.
Section 8.12. Representations and Warranties of Trustee. The Trustee
represents and warrants that:
(i) the Trustee is duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or
association;
(ii) neither the execution nor the delivery by the Trustee of
this Agreement, nor the consummation by it of the transactions
contemplated hereby nor compliance by it with any of the terms or
provisions hereof will violate its charter documents or by-laws.
(iii) the Trustee has full power, authority and right to
execute, deliver and perform its duties and obligations as set forth
herein and in each Series Supplement to which it is a party and has taken
all necessary action to authorize the execution, delivery and performance
by it of this Agreement; and
(iv) this Agreement has been duly executed and delivered by the
Trustee and constitutes the legal, valid and binding obligation of the
Trustee, enforceable in accordance with its terms, except as enforcement
may be limited by the applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of
67
creditors generally and general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law).
Section 8.13. Trustee to Act Only in Accordance With This Agreement or
Pursuant to Instructions of Certificateholders. The Trustee shall only take
such action or shall refrain from taking such action under this Agreement as
directed pursuant to a specific provision of this Agreement or, if required
hereunder, by all the Certificateholders, and the Trustee shall not otherwise
act in respect of the Trust; provided, however, that the Trustee shall not be
required to take any such action if it reasonably determines, or receives, at
the expense of the Certificateholders, an Opinion of Counsel (with copies
thereof delivered to the Certificateholders and the Trustor), that such action
(i) is inconsistent with the purpose of the Trust set forth in Section 2.7 or
contrary to the terms hereof.
Section 8.14. Accounting and Reports to Certificateholders, Internal
Revenue Service and Others. The Trustee shall (a) maintain the books of the
Trust on a calendar year basis on the accrual method of accounting, (b) after
the close of each calendar year, deliver to each Certificateholder, as may be
required by the Code and applicable Treasury Regulations or otherwise, such
information for such year as may be required to enable each Certificateholder
to prepare its federal income tax returns, (c) as specifically directed in
writing by the Trustor, file such tax returns relating to the Trust and make
such elections as may from time to time be required or appropriate under any
applicable state or federal statute or rule or regulation thereunder so as to
maintain the Trust's characterization as other than an association or publicly
traded partnership taxable as a corporation for federal income tax purposes,
(d) cause such tax returns to be signed in the manner required by law and (e)
collect or cause to be collected any withholding tax as described in and in
accordance with Subsection 4.4 with respect to income or distributions to
Certificateholders.
Section 8.15. Signature on Returns. Except as required by law, the
Trustee shall sign on behalf of the Trust any and all tax returns of the Trust
presented to it by the Trustor in final execution form.
ARTICLE IX
TERMINATION
Section 9.1. Termination upon Purchase or Liquidation of All Underlying
Securities. (a) The respective obligations and responsibilities under this
Agreement of the Trustor, the Administrative Agent, if any, and the Trustee
(other than the obligations of any such Administrative Agent to provide for
and the Trustee to make distributions to Holders of the Certificates of any
given Series as hereafter set forth) shall terminate upon the distribution to
such Holders of all amounts held in all the Accounts for such Series or by an
Administrative Agent, if any, and required to be paid to such Holders pursuant
to this Agreement on the Distribution Date coinciding with or following the
earlier to occur of (i) if and as provided in the Series Supplement for such
Series, the purchase by, and at the sole option of, the Administrative Agent,
if any, as provided in the Series Supplement for such Series, of all remaining
Underlying Securities for such Series in the Trust for such Series on any
Distribution Date, provided that such option may be exercised only if the
aggregate principal amount of such Underlying
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Securities at the time of any such purchase is less than 10% (or such other
percentage as may be specified in such Series Supplement) of the aggregate
principal amount of all Underlying Securities deposited in such Trust as of
the applicable Cut-off Date and (ii) the final payment on or other liquidation
(which may include redemption or other purchase thereof by the applicable
Underlying Securities Issuer) (or any Advance with respect thereto) of the
last Underlying Security remaining in the Trust for such Series or the
disposition of all property acquired upon foreclosure or liquidation of any
such Underlying Security; provided, however, that in no event shall the trust
created hereby continue beyond the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador
of the United States to the Court of St. Xxxxx, living on the date hereof.
(b) The Administrative Agent shall exercise its option to purchase
all the Underlying Securities remaining in the Trust pursuant to clause (i) of
Section 9.1(a) not later than 91 days prior to the anticipated date of
purchase of all such Underlying Securities, at a price as may be specified in
the applicable Series Supplement; provided, however, that such price shall not
be less than the then outstanding aggregate principal amount of such
Underlying Securities as determined on the date of purchase. The proceeds of
such purchase will be deposited into the Certificate Account and applied in
the same manner and priority that collections on Underlying Securities would
be applied as provided in the applicable Series Supplement.
(c) Written notice of any termination shall be provided as set forth
in Section 10.5.
(d) Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Scheduled Distribution Date, or the
Distribution Date coinciding with or next following the earlier to occur of
the occurrences specified in clauses (i) and (ii) of Section 9.1(a), with
respect to the applicable Series of Certificates, the Trustee shall distribute
to each Holder presenting and surrendering its Certificates (i) the amount
otherwise distributable on such Distribution Date in accordance with Section
4.1 in respect of the Certificates so presented and surrendered, if not in
connection with the purchase by an Administrative Agent or the Trustor of all
the Underlying Securities or (ii) as specified in the applicable Series
Supplement, if in connection with an Administrative Agent's purchase of all
the remaining Underlying Securities. Any funds not distributed on such
Distribution Date shall be set aside and held in trust for the benefit of
Certificateholders not presenting and surrendering their Certificates in the
aforesaid manner, and shall be disposed of in accordance with this Section 9.1
and Section 4.1 hereof. Immediately following the deposit of funds in trust
hereunder, the Trust for such Series shall terminate.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1. Amendment. (a) This Agreement may be amended from time to
time by the Trustor and the Trustee without notice to or the consent of any of
the Certificateholders for any of the following purposes: (i) to cure any
ambiguity or to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein; (ii) to add or
supplement any Credit Support for the benefit of any Certificateholders
(provided that if
69
any such addition affects any series or class of Certificateholders
differently that any other series or class of Certificateholders, then such
addition will not, as evidenced by an opinion of counsel, have a material
adverse effect on the interests of any affected series or class of
Certificateholders); (iii) to add to the covenants, restrictions or
obligations of the Trustor, the Administrative Agent, if any, or the Trustee
for the benefit of the Certificateholders; (iv) to add, change or eliminate
any other provisions with respect to matters or questions arising under this
Agreement, so long as (x) any such amendment described in (i) through (iv)
will not, as evidenced by an opinion of counsel, cause the Trust (unless
otherwise specified in a related Series Supplement) to be taxable as a
corporation for federal income tax purposes or result in a sale or exchange of
any Certificate for tax purposes and (y) the Trustee has received written
confirmation from each Rating Agency rating such Certificates that such
amendment will not cause such Rating Agency rating such Certificates to reduce
or withdraw the then current rating thereof; (v) to comply with any
requirements imposed by the Code or Treasury Regulations; (vi) to evidence and
provide for the acceptance of appointment hereunder of a Trustee other than
The Bank of New York, as Trustee for a Series of Certificates, and to add to
or change any of the provisions of this Agreement as shall be necessary to
provide for or facilitate the administration of the separate Trusts hereunder
by more than one Trustee, pursuant to the requirements of Section 5.1 hereof;
(vii) to evidence and provide for the acceptance of appointment hereunder by a
successor Trustee with respect to the Certificates of one or more Series or to
add or change any of the provisions of this Agreement as shall be necessary to
provide for or facilitate the administration of the trusts hereunder; or
(viii) to provide for the issuance of a new Series of Certificates pursuant to
a Series Supplement issued hereunder pursuant to Sections 5.1 and 5.13 hereof.
(b) Without limiting the generality of the foregoing, with respect
to any Series this Agreement may also be modified or amended from time to time
by the Trustor and the Trustee with the consent of the Holders of Certificates
representing the Required Percentage-Amendment of the aggregate Voting Rights
of those Certificates to which such modification or amendment relates for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the
rights of the Holders of Certificates; provided, however, that (i) no such
amendment shall reduce in any manner the amount of, or defer the timing of,
payments received on Underlying Securities which are required to be
distributed on any Certificate without the unanimous consent of the Holders of
such Certificates, and (ii) this Section 10.1(b) shall not be amended without
the unanimous consent of the Holders of all the Certificates of such Series;
and provided further that the Trustor shall furnish to the Trustee an Opinion
of Counsel (unless otherwise indicated in a related Series Supplement) stating
that, in the opinion of such counsel, any such amendment would not cause the
Trust to be taxed as a corporation for federal income tax purposes.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 10.1, Certificates
registered in the name of the Trustor, or any Affiliate thereof, shall be
entitled to Voting Rights with respect to matters affecting such Certificates;
and provided further that in the event the Rating Agency Condition is not
satisfied with respect to such modification or amendment, the Required
Percentage-Amendment shall be increased to require an aggregate percentage of
the aggregate Voting Rights in the amount specified in the applicable Series
Supplement.
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(c) Promptly after the execution of any such amendment or
modification, the Trustee shall furnish a copy of such amendment or
modification to each Certificateholder of the affected Series or Class and to
the Rating Agency. It shall not be necessary for the consent of
Certificate-holders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
Section 10.2. Counterparts. This Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to
be an original, and such counterparts shall constitute but one and the same
instrument.
Section 10.3. Limitation on Rights of Certificateholders. (a) The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the applicable Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of then.
(b) No Certificateholder of a given Series shall have any right to
vote (except as expressly provided for herein) or in any manner otherwise
control the operation and management of any Trust, or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Certificates, be construed so as to constitute the Certificateholders
from time to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision
hereof.
(c) No Certificateholder of a given Series shall have any right by
virtue of any provision of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless (i) such Holder previously shall have given to the Trustee a
written notice of breach and of the continuance thereof and unless also the
Holders of Certificates of such Series evidencing not less than the Required
Percentage-Remedies of the aggregate Voting Rights of such Series shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee,
for 15 days after its receipt of such notice, request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or
proceeding. It is understood and agreed that the Trustee shall not be
obligated to make any investigation of matters arising under this Agreement or
to institute, conduct or defend any litigation hereunder or in relation hereto
at the request, order or direction of any Certificateholders unless such
Certificateholders have offered to the Trustee the reasonable indemnity
referred to above. It is further understood and agreed, and expressly
covenanted by each Certificateholder of each Series with every other
Certificateholder of such Series and the Trustee, that no one or more Holders
of Certificates of such Series shall have any right in any manner whatever by
virtue of any provision of this Agreement to affect, disturb or prejudice the
rights of the Holders of any other of the Certificates of such Series, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this
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Agreement, except in the manner herein provided and for the equal, ratable and
common benefit of all Certificateholders of such Series. For the protection
and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 10.4. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely therein without reference to such
State's principles of conflicts of law to the extent that the application of
the laws of another jurisdiction would be required thereby, and the
obligations, rights and remedies of the parties hereunder shall be determined
in accordance with such laws.
Section 10.5. Notices. All directions, demands and notices hereunder
shall be in writing and shall be delivered as set forth in the applicable
Series Supplement. Any notice required to be provided to a Holder of a
Certificate shall be given by first class mail, postage prepaid, at the last
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given when mailed, whether or not the
Certificateholder receives such notice.
Section 10.6. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the Holders thereof.
Section 10.7. Notice to Rating Agency. The Trustee shall use its best
efforts promptly to provide notice to the Rating Agency with respect to each
of the following of which it has actual knowledge:
(i) any change or amendment to this Agreement;
(ii) the occurrence of any Administrative Agent Termination
Event;
(iii) the resignation or termination of an Administrative
Agent, if any, or the Trustee;
(iv) the appointment of a successor Trustee;
(v) the repurchase or substitution of Underlying Securities, if
any, pursuant to Section 2.3;
(vi) the final payment to Holders of the Certificates of any
Class;
(vii) any change in the location of the Certificate Account;
and
(viii) any event that would result in the inability of the
Trustee to make Advances.
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In addition, the Trustee shall promptly furnish to each Rating Agency copies
of each report to Certificateholders described in Section 4.2 and the
Administrative Agent, if any, or otherwise the Trustee shall promptly furnish
to each Rating Agency copies of the following:
(i) each annual statement as to compliance described in Section
3.15; and
(ii) each annual independent public accountants' servicing
report described in Section 3.16.
Any such notice pursuant to this Section shall be in writing and shall be
deemed to have been duly given if personally delivered or mailed by first
class mail, postage prepaid, or by express delivery service to each Rating
Agency at the address specified in the applicable Series Supplement.
Section 10.8. Grant of Security Interest. It is the express intent of the
parties hereto that each conveyance of any Underlying Securities by the
Trustor to the Trustee be, and be construed as, a sale of the Underlying
Securities by the Trustor and not a pledge of or grant of a security interest
in any Underlying Securities by the Trustor to secure a debt or other
obligation of the Trustor. However, in the event that, notwithstanding the
aforementioned intent of the parties, any Underlying Securities are held to be
property of the Trustor, then, (a) it is the express intent of the parties
that such conveyance be a pledge of or grant of a security interest in such
Underlying Securities by the Trustor to the Trustee to secure a debt or other
obligation of the Trustor and (b)(1) this Agreement shall also be a security
agreement within the meaning of Articles 8 and 9 of the Uniform Commercial
Code as in effect from time to time in the State of New York, or such other
State as may be specified in the related Series Supplement; (2) the conveyance
provided for in Section 2.1 hereof shall be a grant by the Trustor to the
Trustee of a security interest in all the Trustor's right, title and interest
in and to such Underlying Securities and all amounts payable to the holders of
such Underlying Securities in accordance with the terms thereof and all
proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, including all amounts from
time to time held or invested in the applicable Certificate Account, whether
in the form of cash, instruments, securities or other property; (3) the
obligations secured by such security agreement shall be all the Trustor's
obligations under this Agreement, including the obligation to provide to the
Certificateholders the benefits of this Agreement relating to such Underlying
Securities and the applicable Trust; and (4) notifications to persons holding
such property, and acknowledgements, receipts or confirmations from persons
holding such property, shall be deemed notifications to, or acknowledgements,
receipts or confirmations from, financial intermediaries, bailees or agents
(as applicable) of the Trustee for the purpose of perfecting such security
interest under applicable law. The Trustor shall direct the Trustee to the
extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the Underlying Securities, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such for so long as any of the Underlying Securities remain
outstanding. Without limiting the generality of the foregoing, the Trustee,
upon receipt of such direction, shall file, or shall cause to be filed, all
filings identified by the Trustor to be necessary to maintain the
effectiveness of any original filings identified by the Trustor to be
necessary under the Uniform Commercial Code as in effect
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in any jurisdiction to perfect the Trustee's security interest in or lien on
the Underlying Securities, including (x) continuation statements and (y) such
other statements as may be occasioned by (1) any change of name of the Trustor
or the Trustee, (2) any change of location of the place of business, the chief
executive office, or jurisdiction of organization of the Trustor or (3) any
transfer of any interest of the Trustor in any Underlying Security.
Section 10.9. Nonpetition Covenant. Notwithstanding any prior termination
of this Agreement, each of the Trustee (including any Co-Trustee) the
Administrative Agent, if any, (including any Sub-Administrative Agent,
Authenticating Agent, Calculation Agent, or Paying Agent) and the Trustor
agrees that it shall not, until the date which is one year and one day after
the earlier of a Trust Termination Event or the Final Scheduled Distribution
Date, acquiesce, petition or otherwise invoke or cause the Trust to invoke the
process of the United States of America, any State or other political
subdivision thereof or any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government for the
purpose of commencing or sustaining a case by or against the Trust under a
federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Trust or all or any part of the property or assets of
the Trust or ordering the winding up or liquidation of the affairs of the
Trust.
Section 10.10. No Recourse. Provided that there exists no default on the
Underlying Securities, neither the Trustee (including any Co-Trustee), the
Administrative Agent, if any (including any Sub-Administrative Agent,
Authenticating Agent, Calculation Agent, or Paying Agent) nor the Trustor
shall have any recourse to the Underlying Securities, except as specifically
provided in the related Series Supplement.
Section 10.11. Article and Section References. All article and section
references used in this Agreement, unless otherwise provided, are to articles
and sections in this Agreement.
Section 10.12. Conflict with Trust Indenture Act. (a) If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this Agreement by any of the provisions of the TIA,
such required provision shall control.
(b) The provisions of TIA Sections 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
herein unless expressly excluded by this Agreement) are a part of and govern
this Agreement, whether or not physically contained herein.
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IN WITNESS WHEREOF, the Trustor and the Trustee have caused their names
to be signed hereto by their respective officers thereunto duly authorized, in
each case as of the day and year first above written.
SYNTHETIC FIXED-INCOME SECURITIES,
INC., as Trustor
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Authorized Signatory
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Authorized Signatory
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