Exhibit 4.1
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TRUST AGREEMENT
TRUST AGREEMENT, between MS Structured Asset Corp. (the
"Depositor") and LaSalle Bank National Association (the "Trustee"), made as of
the date set forth in Schedule I attached hereto, which Schedule together with
Schedules II and III attached hereto, are made a part hereof. The terms of the
Standard Terms for Trust Agreements, dated March 5, 2003 (the "Standard Terms")
are, except to the extent otherwise expressly stated, hereby incorporated by
reference herein in their entirety with the same force and effect as though set
forth herein. Capitalized terms used herein and not defined shall have the
meanings defined in the Standard Terms. References to "herein", "hereunder",
"this Trust Agreement" and the like shall include the Schedule I attached hereto
and the Standard Terms so incorporated by reference.
WHEREAS, the Depositor and the Trustee desire to establish the
Trust identified in Schedule I attached hereto (the "Trust") for the primary
purposes of (i) holding the Underlying Securities, (ii) issuing the Warrants and
(iii) issuing the Units;
WHEREAS, the Depositor desires that the respective beneficial
interests in the Trust be divided into transferable fractional shares, such
shares to be represented by the Units;
WHEREAS, the Depositor desires to appoint the Trustee as
trustee of the Trust and the Trustee desires to accept such appointment;
WHEREAS, the Depositor shall transfer, convey and assign to
the Trust without recourse, and the Trust shall acquire, all of the Depositor's
right, title and interest in and under the Underlying Securities and other
property identified in Schedule II to the Trust Agreement (the "Trust
Property"); and
WHEREAS, the Trust agrees to acquire the Trust Property
specified herein in consideration for Units having an initial Unit Principal
Balance and an initial Notional Amount, as applicable, identified in Schedule I
attached hereto, subject to the terms and conditions specified in the Trust
Agreement;
NOW THEREFORE, the Depositor hereby appoints the Trustee as
trustee hereunder and hereby requests the Trustee to receive the Underlying
Securities from the Depositor and to issue in accordance with the instructions
of the Depositor Units having the terms specified in Schedule I attached hereto,
and the Trustee accepts such appointment and, for itself and its successors and
assigns, hereby declares that it shall hold all the estate, right, title and
interest in any property contributed to the trust account established hereunder
(except property to be applied to the payment or reimbursement of or by the
Trustee for any fees or expenses which under the terms hereof is to be so
applied) in trust for the benefit of all present and future Holders of the
fractional shares of beneficial interest issued hereunder, namely, the
Unitholders, and subject to the terms and provisions hereof.
IN WITNESS WHEREOF, each of the undersigned has executed this
instrument as of the date set forth in the Schedule I attached hereto.
LASALLE BANK NATIONAL ASSOCIATION
as Trustee on behalf of the Trust
identified in Schedule I hereto, and
not in its individual capacity
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
LASALLE BANK NATIONAL ASSOCIATION
as Warrant Agent
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
MS STRUCTURED ASSET CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Attachments: Schedules I, II and III
Schedule I
(Terms of Trust and Units)
Trust: SATURNS Trust No. 2004-6
Date of Trust Agreement: April 15, 2004
Trustee: LaSalle Bank National Association
Units: The Trust will issue two classes of
Units: the Class A Units and the
Class B Units.
Initial Unit Principal Balance
of the Class A Units: $80,000,000
Initial Notional Amortizing Balance
of the Class B Units: $3,564,000
Notional Amount: For the purposes hereof and
of the Standard Terms incorporated
herein, the Notional Amortizing
Balance of the Class B Units shall
be the Notional Amount of the Class
B Units.
Issue Price of Units: Class A Units: 100%
Class B Units: 100%
Number of Units: Class A Units:
3,200,000 (Unit Principal Balance of
$25 each)
Class B Units:
3,564 (Initial Notional Amortizing
Balance of $1,000 each)
Swap Agreement: Except as provided in this
paragraph, references to a Swap
Agreement, a Swap Counterparty and
related references in the Standard
Terms shall be inapplicable. For
purposes of Sections 2.02, 2.03,
3.02(b), 3.02(c), 3.02(f), 3.04,
3.05, 3.08, 4.02(b), 4.02(c), 7.02,
9.03(b), 9.05, 10.02(a)(x), 10.07,
10.12, 10.13, 11.01, and 12.01 of
the Standard Terms as incorporated
herein, use of the term Swap
Counterparty shall be deemed to be
use of the term Warrantholder, use
of the term Swap Agreement shall be
deemed to be use of the term
Warrants and use of the term Swap
Termination Payment shall be deemed
to be use of the term Warrant
Termination Payment. The list of
sections in this paragraph shall not
be construed as an exclusive list
and where the context so requires,
the preceding sentence may apply to
additional sections of the Standard
Terms.
Call Option / Call Rights: The Warrants. Each Warrant issued
hereunder represents a Call Option
and a Call Right to purchase $1,000
of Unit Principal Balance of the
Class A Units and the Initial
Notional Amortizing Balance of the
Class B Units corresponding to the
Applicable Class B Equivalent
Amount.
Applicable Class B Equivalent
Amount: With respect to each call,
redemption, exchange or other
transaction, or portion thereof, the
applicable Unit Principal Balance of
Class A Units (x) divided by the
Initial Unit Principal Balance of
the Class A Units and (y) multiplied
by the initial issued number of
Class B Units provided under "Number
of Units " above.
Callable Series: All Class A Units and Class B Units
issued hereby are subject to Call
Options and Call Rights granted in
favor of Warrantholders. All Class A
Units and the Class B Units are
subject to redemption in the event
of a redemption of the Underlying
Securities.
Any Unitholder who receives notice
that its Units are being called or
redeemed shall tender the applicable
Units to the Trustee in accordance
with such notice. Any Units subject
to call or redemption shall be
automatically canceled, and in the
case of a call, shall be
automatically re-issued to the
applicable Warrantholder without
further action by the applicable
Unitholder, Warrantholder, Trustee
or any other person or entity on the
date of redemption or the Call Date,
as applicable. Any failure to so
tender any Unit shall have no force
or effect.
Upon exercise of Warrants, the Call
Options and Call Rights represented
by such Warrants shall be
automatically canceled. The
certificate representing such
Warrants shall be deemed to
represent the corresponding Class A
Units and Class B Units called by
the exercise thereof. The Trustee
shall distribute the Trust Property
to the Warrantholder as specified in
Section 1.2 of Schedule III, and
upon such distribution such Class A
Units and Class B Units shall be
canceled.
First Regular Call Date: As defined in Schedule III.
Minimum Denomination: Class A Units:
$25 and $25 increments in excess
thereof. Each $25 of Unit Principal
Balance is a Unit.
Class B Units:
$1,000 Initial Notional Amortizing
Balance and $0.01 (one cent) Initial
Notional Amortizing Balance in
excess thereof.
The Minimum Denominations shall not
prevent transfers of fractional
Units if such fractional Units arise
due to exercises of the Warrants,
redemptions of the Underlying
Securities or otherwise by operation
of this Trust Agreement.
Cut-off Date: Closing Date
Closing Date: April 15, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇ ▇▇▇▇▇▇ dollars
Business Day: New York, New York and Chicago,
Illinois
Interest Rate and Class B Payments: The right of the Class A Units to
accrued interest is pari passu with
the right of the Class B Units to
accrued Class B Payments from
accrued interest on the Underlying
Securities.
Class A Units:
The interest rate on the Class A
Units is 6.00% per annum on the
basis of a 360 day year consisting
of twelve 30 day months. During a
period of deferral with respect to
the Underlying Securities, interest
will continue to accrue on the Unit
Principal Balance of the Class A
Units at 6.00% per annum and
interest will accrue on any deferred
interest at 6.00% per annum.
Class B Payments:
On August 15, 2004, $24.7848
($88,333.33 / 3,564 Class B Units)
will be paid on each Class B Unit
and thereafter $37.1773 ($132,500.00
/ 3,564 Class B Units) will be paid
on each Class B Unit on each
Distribution Date thereafter, in
each case from interest received on
the Underlying Securities; provided
however, if there is a period of
deferral commenced in accordance
with the Underlying Securities,
payments on the Class B Units will
be deferred. During a period of
deferral, Class B Payments will
continue to accrue at the above
specified rate on each Class B Unit
and interest will accrue on any
deferred Class B Payment at a rate
of 6.345% per annum on the basis of
a 360 day year consisting of twelve
30 day months.
Notice of Interest Deferral: The Trustee shall provide written
notice to ▇▇▇▇▇'▇ within 15 days
after the Trustee has notice that
the Underlying Security Issuer has
elected to defer interest on the
Underlying Securities.
Interest Reset Period: Not Applicable
Rating: Class A Units:
A1 by ▇▇▇▇▇'▇
A- by S&P
Class B Units:
A1 by ▇▇▇▇▇'▇
A- by S&P
Rating Agencies: ▇▇▇▇▇'▇ and S&P
Scheduled Final Distribution Date: February 15, 2034. The Units will
have the same final maturity as the
Underlying Securities.
Prepayment, Redemption and Call: The Trust Property is subject to
redemption in accordance with the
terms of the Underlying Securities
and as described in Schedule II. Any
such redemption will cause a
redemption of a corresponding
portion of the Class A Units and the
Class B Units.
The Class A Units and the Class B
Units are subject to call in
accordance with the Warrant Terms.
If the Warrants are partially
exercised or if there is a partial
redemption of the Underlying
Securities, the Trustee will
randomly select Class A Units to be
redeemed in full from the proceeds
of such partial redemption or called
in full from the proceeds of such
partial exercise.
If the Warrants are partially
exercised and if and to the extent
that there is no Alternative
Exercise or if there is a partial
redemption of the Underlying
Securities, the Trustee will also
randomly select Class B Units for
call or redemption in an amount
equal to an Initial Notional
Amortizing Balance of Class B Units
corresponding to the Applicable
Class B Equivalent Amount.
Additional Distribution: Class A Units:
If a Warrantholder exercises
Warrants in connection with a tender
offer for settlement prior to the
First Regular Call Date, each Class
A Unit called in connection with
such exercise shall receive, in
addition to principal and accrued
interest, $1.50 per Class A Unit
from the proceeds of the Warrant
exercise.
Class B Payments:
If a Warrantholder exercises
Warrants, then the Class B Units
designated to be called in
connection with such exercise shall
receive the corresponding portion of
the Class B Present Value Amount,
adjusted for accrued Class B
Payments on the Class B Units
otherwise paid.
If the Underlying Security Issuer
redeems Underlying Securities and
the previous paragraph does not
apply, then the Class B Units
designated for a redemption in
connection with such redemption of
Underlying Securities shall receive
the amount with respect to the Class
B Present Value Amount allocated for
distribution in accordance with the
applicable provisions of the
Distribution Priorities below, paid
as of the date of such redemption as
an additional distribution.
Class B Present Value Amount: With respect to a date, an amount
equal to the present value of the
Future Class B Unit Payments for
such date in respect of the
Applicable Class B Equivalent
Amount, discounted at a rate of
6.345% per annum on the basis of a
360 day year consisting of twelve 30
day months.
Future Class B Unit Payments: With respect to any date, the Class
B Payments on the Applicable Class B
Equivalent Amount, other than Class
B Payments paid prior to such date,
that would have been payable in the
amount and at the times otherwise
specified hereunder through and
including the Scheduled Final
Distribution Date without regard to
any call, redemption or other early
termination of the Class B Units.
Warrant Terms: The Warrants represent a Call Option
and Call Rights for the Units
pursuant to Section 5.13 of the
Standard Terms. Schedule III
provides additional Warrant Terms.
Call Date: Specified in Schedule III
Call Price: Specified in Schedule III
Warrant Agent: LaSalle Bank National Association
Warrantholder: A holder of Warrants.
Distribution Dates: Each February 15 and August
15, or the next succeeding Business
Day if such day is not a Business
Day, commencing August 15, 2004, and
any other date upon which funds are
available (including without
limitation funds available due to a
Trust Wind-Up Event) for
distribution in accordance with the
terms hereof.
If any payment with respect to the
Underlying Securities held by the
Trust is not received by the Trustee
by 12 noon (New York City time) on a
Distribution Date, the corresponding
distribution on the Units will not
occur until the next Business Day
that the Trust is in receipt of
proceeds of such payment prior to 12
noon, with no adjustment to the
amount distributed or the Record
Date.
Interest Deferment: Interest on the Units will be
deferred if distributions with
respect to the Underlying Securities
are deferred. The Underlying
Security Issuer may defer interest
or commence an extension period for
up to 10 consecutive semi-annual
payment dates on the Underlying
Securities. No extension period or
period of deferral may extend beyond
the stated maturity of the
Underlying Securities.
Distribution Priorities: Ordinary Distribution Date Priority:
On any Distribution Date as to which
only payments of interest on the
Underlying Securities have been
received, or to the extent such
Distribution Date occurs due to
receipt of payments of interest on
the Underlying Securities, the
Trustee shall apply amounts
available:
FIRST, to the payment of any accrued
and unpaid interest on the Class A
Units and any accrued and unpaid
Class B Payments pro rata in
proportion to the outstanding amount
of accrued and unpaid interest and
unpaid payments on each, and
SECOND, to the payment of any
accrued and unpaid Expense
Administrator's Fee.
Exercise of Warrants Priority:
On any Distribution Date occurring
in connection with an exercise of
the Warrants, or to the extent such
Distribution Date occurs due to the
exercise of Warrants, whether in
whole or in part, whether or not
such exercise results in a Trust
Wind-Up Event, the Trustee shall
apply amounts available in
connection with such exercise
(corresponding to the amounts
allocable to the aggregate
Corresponding Underlying Security
Amount related to such exercise):
FIRST, to the payment of any accrued
and unpaid interest on the Class A
Units and any accrued and unpaid
Class B Payments being called pro
rata in proportion to the
outstanding amount of accrued and
unpaid interest and unpaid payments
on each,
SECOND, to the payment of the
outstanding principal on the Class A
Units being called,
THIRD, to the payment of $1.50 on
each Class A Unit called as an
Additional Distribution, if the
related Call Date occurs prior to
the First Regular Call Date and
occurs in connection with a tender
offer for the Underlying Securities,
FOURTH, to the payment of the Class
B Present Value Amount with respect
to each Class B Unit called,
adjusted for any accrued Class B
Payments paid under Clause FIRST, as
an Additional Distribution on the
Class B Units called,
FIFTH, to the payment of any accrued
and unpaid Expense Administrator's
Fee, including the Expense
Administrator Make-Whole Amount, if
any, and
SIXTH, to the exercising
Warrantholders, to the extent such
Warrantholders specified or were
deemed to specify that their
exercise was in connection with a
redemption of or a tender offer for
the Underlying Securities.
If any exercise of Warrants would
result in the Trust not having
sufficient funds to pay each of
items FIRST through FIFTH in full,
notwithstanding any other provision
in this Trust Agreement (including
the Additional Warrants Terms on
Schedule III) or the Warrants, such
exercise will be rescinded pursuant
to Section 1.1(h) or Section 1.1(i)
of Schedule III.
Redemptions Priority:
On any Distribution Date occurring
in connection with a redemption of
the Underlying Securities, to the
extent such Distribution Date occurs
due to a redemption of the
Underlying Securities and only to
the extent such Distribution Date
does not relate to an exercise of
Warrants, whether or not such
redemption results in a Trust
Wind-Up Event, the Trustee shall
apply amounts available in
connection with such redemption
(excluding the amounts allocable to
the aggregate Corresponding
Underlying Security Amount related
to any exercise of Warrants provided
for above):
FIRST, to the payment of any accrued
and unpaid interest on the Class A
Units and any accrued and unpaid
Class B Payments being redeemed pro
rata in proportion to the
outstanding amount of accrued and
unpaid interest and unpaid payments
on each,
SECOND, to the payment of the
outstanding principal on the Class A
Units being redeemed,
THIRD, any remaining amounts, if
any, to the payment of the Class B
Present Value Amount with respect to
Class B Units redeemed, adjusted for
any accrued Class B Payments paid
under Clause FIRST, as an Additional
Distribution on the Class B Units
redeemed,
FOURTH, any remaining amounts, if
any, to the payment of any accrued
and unpaid Expense Administrator's
Fee, and
FIFTH, any remaining amounts, if
any, to the Warrantholders, as
payment of any Warrant Termination
Payment.
Any amortization or other payment by
the Underlying Security Issuer on
the Underlying Securities shall be
treated as a redemption if not
otherwise addressed herein.
Other Trust Wind-Up Events Priority:
On any Distribution Date occurring
in connection with a Trust Wind-Up
Event due to an event or events
other than an exercise of Warrants
or a redemption of Underlying
Securities (or to the extent
thereof), the Trustee shall apply
amounts available (excluding the
amounts allocable to the aggregate
Corresponding Underlying Security
Amount related to any exercise of
Warrants provided for above or the
amounts distributable in connection
with a redemption as provided for
above):
FIRST, to the payment of the claims
of the Class A Units and the Class B
Units pro rata in proportion to the
relative claim amounts of each, and
for this purpose the Class A Units
will have a claim equal to their
Unit Principal Balance plus accrued
and unpaid interest, if any and the
Class B Units will have a claim
equal to the Class B Present Value
Amount determined as of the date of
termination, in full satisfaction of
the claims of the Class A Units and
the Class B Units,
SECOND, to the payment of any
accrued and unpaid Expense
Administrator's Fee, and
THIRD, any remaining amounts are
paid to the Warrantholders, as
payment of any Warrant Termination
Payment.
Record Date: The Record Date for each
Distribution Date shall be the third
Business Day prior to such
Distribution Date, without
adjustment for any change in the
Distribution Date due to the receipt
of funds for distribution after 12
noon, except that in respect of the
final Distribution Date, when
distributions will be made against
presentation of the Units.
Form: Global security; except Units
re-issued in connection with an
exercise of Warrants.
Depositary: DTC
Trustee Fees and Expenses: As compensation for and in payment
of trust expenses related to its
services hereunder other than
Extraordinary Trust Expenses, the
Trustee will receive Trustee Fees on
each Distribution Date in the amount
equal to $2,000. The Trustee Fee
shall cease to accrue after
termination of the Trust. The
"Trigger Amount" with respect to
Extraordinary Trust Expenses for the
Trust is $25,000 and the Maximum
Reimbursable Amount is $100,000. The
Trustee Fee will be paid by the
Expense Administrator. Expenses will
be reimbursed by the Expense
Administrator in accordance with the
Expense Administration Agreement.
Expense Administrator: The Trustee will act as Expense
Administrator on behalf of the Trust
pursuant to an Expense
Administration Agreement, dated as
of the date of the Trust Agreement
(the "Expense Administration
Agreement"), between the Trustee as
Expense Administrator (the "Expense
Administrator") and the Trust.
The Expense Administrator will
receive a fee equal to $5,500
payable on each Distribution Date.
The Expense Administrator Make-Whole
Amount, if any, shall also be
considered part of the Expense
Administrator's fee hereunder and
under the Expense Administration
Agreement. The Amounts specified in
this paragraph are also referred to
as the "Expense Administrator's
Fee".
If a period of deferral occurs, the
Expense Administrator will be
entitled to any excess accrued
interest on the Underlying
Securities over the accrual interest
on the Class A Units and accrued
Class B Payments (including accrued
interest on deferred on Class B
Payments).
The Expense Administrator will be
responsible for paying the Trustee
Fee and reimbursing certain other
expenses of the Trust in accordance
with the Expense Administration
Agreement.
Expense Administrator
Make-Whole Amount: Except to the extent such exercise
is in connection with a redemption,
if any exercise of Warrants,
together with any other Warrants
exercised on the same Call Date, is
an exercise of less than all
Warrants remaining unexercised, the
applicable Call Price shall include
an amount equal to the present value
of a stream of payments equal to
$5,500 payable on each scheduled
Distribution Date discounted at a
rate of 5.0% per annum on the basis
of a 360 day year consisting of
twelve 30 day months from but
excluding the date of such exercise
until and including the Scheduled
Final Distribution Date, assuming
for this purpose that the Trust is
not terminated prior to the
Scheduled Final Distribution Date,
multiplied by the Unit Principal
Balance of applicable Class A Units
to be called and divided by the
Initial Unit Principal Balance of
the Class A Units.
Listing: The Depositor has applied to list
the Class A Units on the New York
Stock Exchange.
ERISA Restrictions: With respect to the Class A Units,
no ERISA restrictions apply. With
respect to the Class B Units, the No
Plan Restriction applies.
QIB Restriction: Applicable to the Class B Units
only.
Termination: If a Trust Wind-Up Event occurs, any
Underlying Securities held by the
Trust will be liquidated (by
delivery to the Underlying Security
Issuer in the event of a redemption,
pursuant to the Warrant Terms in the
event of an exercise of the Warrants
or otherwise by sale thereof).
Warrant Termination Payment: Any amounts available for payment
pursuant to the Distribution
Priorities above as a Warrant
Termination Payment.
Tender Offers: The Trust will not participate in
any tender offer for the Underlying
Securities and the Trustee will not
accept any instructions to the
contrary from the Unitholders,
except in connection with an
exercise by a Warrantholder of
Warrants. Any Warrantholder may
exercise Warrants in connection with
any tender offer for the Underlying
Securities and the Trustee may
participate in the tender offer on
behalf of an exercising
Warrantholder.
Depositor Optional Exchange: Depositor Optional Exchange applies
to this Series of Units.
Section 5.12(c)(ii) of the Standard
Terms shall be incorporated herein
by replacing 5.12 (c)(ii) with the
following: "(ii) such exchange is to
be effected on any Distribution Date
or any date that is 90 days before
or after a Distribution Date (or the
succeeding Business Day if such date
is not a Business Day) with 45 days'
notice".
Pursuant to 5.12(c)(iii), a
corresponding portion of the
Warrants must consent to such an
exchange. The Depositor may satisfy
the consent requirement of the
preceding sentence by tendering a
corresponding portion of Warrants or
by delivering consents from a
corresponding portion of Warrants
(including Warrants it owns) or any
combination thereof. Pursuant to
5.12(c)(iii), the Expense
Administrator must consent to such
an exchange.
Section 5.12(c)(iv) of the Standard
Terms shall be incorporated herein
by adding the following to Section
5.12(c): "(iv) the Depositor
determines that more than 100
holders of the Class A Units, and
only if no ERISA restrictions apply
to the Class B ▇▇▇▇▇, ▇▇▇ holders of
the Class B Units independent of the
Trust and each other will remain
after such exchange; unless the
Depositor determines that such an
exchange is otherwise consistent
with the restrictions under ERISA
and Section 4975 of the Internal
Revenue Code of 1986."
Optional Exchange
Under Warrants: A Call Notice under Schedule III
shall also constitute a notice of
and a demand to exchange each of the
Units acquired pursuant to the
related exercise for a corresponding
portion of Trust Property pursuant
to Section 5.12(d) of the Standard
Terms. Such notice and demand may
only be revoked or rescinded to the
extent that the related exercise is
revoked or rescinded and the
settlement of the Optional Exchange
shall be the Exercise Date.
Trust Property distributable to a
Warrantholder who has acquired Units
by exercise in connection with a
tender offer or redemption as
addressed in Section 1.1(i) of
Schedule III, shall be the Trust
Property specified in Section 1.1(i)
of Schedule III payable in the
manner specified in the Distribution
Priority.
Terms of Retained Interest: Notwithstanding any other provision
herein or in the Standard Terms, the
Depositor retains the right to
receive any and all interest that
accrues on the Underlying Securities
prior to the Closing Date. The
Depositor will receive such accrued
interest on the first Distribution
Date (or redemption date or Call
Date if earlier) for the Units and
such amount shall be paid from the
interest payment made with respect
to the Underlying Securities on the
first Distribution Date.
The amount of the Retained Interest
is $773,666.67.
If a deferral period on the
Underlying Securities occurs before
the retained interest is scheduled
to be paid, the Depositor shall be
entitled to interest on the
otherwise payable Retained Interest
at the rate of 6.345% per annum on
the basis of a 360 day year
consisting of twelve 30 day months
as part of the Retained Interest.
If an Underlying Security Default
occurs on or prior to the first
Distribution Date and the Depositor
does not receive such Retained
Interest amount in connection with
such Distribution Date, the
Depositor will have a claim for such
Retained Interest, and will share
pro rata with holders of the Units
to the extent of such claim in the
proceeds from the recovery on the
Underlying Securities.
Sale of Underlying Securities: In connection with any sale of the
Underlying Securities by the Selling
Agent pursuant to the terms hereof,
if a Warrantholder is not an
affiliate of the Selling Agent, the
Selling Agent will extend a right of
first refusal to each such
Warrantholder to purchase the
Underlying Securities at the highest
bid received by the Selling Agent.
If more than one Warrantholder
exercises such right of first
refusal, Underlying Securities will
be sold to each exercising
Warrantholder in proportion to the
number of Warrants held by such
Warrantholder; provided, that if
only one Warrantholder exercises
such right of first refusal, such
Warrantholder shall be entitled to
purchase any or all of the
Underlying Securities to be sold by
the Selling Agent.
Selling Agent: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated.
Rating Agency Condition: The definition of Rating Agencies
Condition in the Standard Terms
shall not apply and the following
shall apply instead:
"Rating Agency Condition": With
respect to any specified action or
determination, means receipt of (i)
written confirmation by ▇▇▇▇▇'▇ (if
the Units are rated by ▇▇▇▇▇'▇, for
so long as the Units are outstanding
and rated by ▇▇▇▇▇'▇) and (ii)
written confirmation by S&P (if the
Units are rated by S&P, for so long
as the Units are outstanding and
rated by S&P), that such specified
action or determination will not
result in the reduction or
withdrawal of their then-current
ratings on the Units. Such
confirmation may relate either to a
specified transaction or may be a
confirmation with respect to any
future transactions which comply
with generally applicable conditions
published by the applicable rating
agency.
Voting: With respect to any voting or other
rights of any Unitholder or Class of
Units based on the Unit Principal
Balance or denomination of the
applicable Units, each Class B
Unitholder shall be treated as
holding Units with a Unit Principal
Balance or denomination equal to the
Class B Present Value Amount of the
Class B Units held by such Class B
Unitholder as of the applicable
Record Date or date of
determination.
Unit Principal Balance: Except with respect to the "Voting"
provision above, when the Unit
Principal Balance is used with
respect to the Class B Units, it
shall be deemed to mean "Initial
Notional Amortizing Balance".
Amendments: Notwithstanding anything to the
contrary in the Standard Terms,
amendments to the Warrants and to
Schedule III hereof shall be
governed by Section 7.02 of the
Standard Terms. For the avoidance of
doubt, the terms of the Warrant and
Schedule III may not be amended
without consent of all
Warrantholders.
Additional Terms: Section 12.10 of the Standard Terms
shall apply as modified below to
include the Warrantholders:
"Prior to the date that is one year
and one day after all distributions
in respect of the Units have been
made, none of the Trustee, the
Trust, the Depositor or the
Warrantholders shall take any
action, institute any proceeding,
join in any action or proceeding or
otherwise cause any action or
proceeding against any of the others
under the United States Bankruptcy
Code or any other liquidations,
insolvency, bankruptcy, moratorium,
reorganization or similar law
("Insolvency Law") applicable to any
of them, now or hereafter in effect,
or which would be reasonably likely
to cause any of the others to be
subject to, or seek the protection
of, any such Insolvency Law."
Compliance Certificate: The Trustee will provide to the
Depositor an appropriate compliance
certificate in connection with the
annual report of the Depositor
and/or the Trust and, upon the
reasonable request of the Depositor,
at other times, with respect to the
Trustee's compliance with its duties
and obligations under this Trust
Agreement. A form of such
certification is attached as Annex
A.
Distribution Reports: The Trustee shall file each
distribution report on Form 8-K
within 15 days of the related
Distribution Date. Each such
distribution report or Form 8-K
shall contain text substantially
similar to the following:
The underlying security issuer or
guarantor, as applicable, is subject
to the informational requirements of
the Exchange Act. The underlying
security issuer or guarantor, as
applicable, currently files reports,
proxy statements and other
information with the SEC. Those
periodic reports, current reports
and other reports and other
information can be inspected and
copied at the public reference
facilities maintained by the SEC at
▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇. Copies of
those materials can be obtained by
making a written request to the SEC,
Public Reference Section, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇, at prescribed rates. The SEC
also maintains a website on the
internet at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇ at
which users can view and download
copies of reports, proxy,
information statements and other
information filed electronically. In
addition, those reports and other
information may also be obtained
from the underlying security issuer
by making a request to the
underlying security issuer.
Fiscal Year: The fiscal year of the Trust shall
be the calendar year and end each
December 31.
ANNEX A TO SCHEDULE I
LASALLE BANK NATIONAL ASSOCIATION
ABS ANNUAL REPORT BACKUP CERTIFICATION
In connection with the preparation and delivery of the annual
report on Form 10-K of MS Structured Asset Corp. for the fiscal year ending
December 31, and the certifications given on behalf of SATURNS Trust No. 2004-6
with respect thereto, the undersigned hereby certifies that he is a duly elected
[ ] of LaSalle Bank National Association and further certifies in his capacity
as such as follows:
1. LaSalle Bank National Association has prepared all distribution reports with
respect to each distribution date for SATURNS Trust No. 2004-6 and has filed a
copy of such reports on Form 8-K during the fiscal year as described on Exhibit
A hereto.
2. I have reviewed all reports on Form 8-K containing distribution reports filed
in respect of periods included in the fiscal year covered by the annual report
of MS Structured Asset Corp. on behalf of SATURNS Trust 2004-6;
3. I am familiar with the operations of LaSalle Bank National Association with
respect to the SATURNS program and SATURNS Trust 2004-6 and the requirement
imposed by the trust agreement;
4. Based on my knowledge, the information in the distribution reports, taken as
a whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by the annual report;
5. Based on my knowledge, the information required to be provided under each
trust agreement, for inclusion in these reports, is included in these reports;
6. Based on my knowledge, and except as disclosed in the reports, the trustee
has fulfilled its obligations, including any servicing obligations, under the
trust agreement.
7. Based on my knowledge, and except as disclosed in the reports, there are no
material legal proceedings with respect to any trust, involving the trust or
LaSalle Bank National Association as trustee.
By:
---------------------------------
Name:
Title:
Date:
EXHIBIT A TO ANNEX A TO SCHEDULE I
-------------------------------------------------------------------------------------------------------------------
SATURNS Trust Closing Collateral Payment Dates Form 8-K Filing Dates (Not
No.: Date Trust Agreement Filings in
connection with Closing
Date)
For FY [ ]
-------------------------------------------------------------------------------------------------------------------
2004-6 4/15/04 ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital I February 15 and August 15
-------------------------------------------------------------------------------------------------------------------
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Schedule II
(Terms of Trust Property)
Underlying Securities: ▇▇▇▇▇▇▇ Sachs Capital I 6.345% trust
preferred capital securities due
February 15, 2034.
Underlying Guarantor
Debentures: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, Inc. 6.345%
Junior Subordinated Debentures due
February 15, 2034. If the Underlying
Security Guarantor causes the
Underlying Securities to be
exchanged for the Junior
Subordinated Debenture Underlying
Security, such Junior Subordinated
Debenture shall be deemed to be the
Underlying Security and such
exchange shall not be treated as a
redemption of the Underlying
Securities.
Underlying Security Issuer: ▇▇▇▇▇▇▇ Sachs Capital I
Underlying Security Guarantor: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, Inc.
Principal Amount: $80,000,000
Underlying Security Rate: 6.345%. Interest payments on the
underlying securities may be
deferred for up to 10 consecutive
semi-annual payment dates at the
option of the Underlying Security
Guarantor.
Credit Ratings: A1 by ▇▇▇▇▇'▇
A- by S&P
Listing: None
Underlying Security
Issuance Agreement: An amended and restated trust
agreement dated as of February 6,
2004, as supplemented and amended
from time to time, between the
Underlying Security Guarantor and
the Underlying Security Trustee.
Form: Global
Currency of
Denomination: United States dollars
Acquisition Price by Trust: $80,781,000
Underlying Security
Payment Date: Each February 15 and August 15
Original Issue Date: The Underlying Securities were
originally issued on or about
February 6, 2004 under the
Securities Act of 1933 in a
principal amount of $2,750,000,000.
Maturity Date: February 15, 2034
Sinking Fund Terms: Not Applicable
Redemption Terms: As described in the Underlying
Securities Issuance Agreement, the
Underlying Securities are
redeemable, as a whole at any time,
or in part from time to time, at the
option of the Underlying Security
Issuer. Upon a "tax event" or
"investment company event", the
Underlying Security Issuer may
redeem the Underlying Securities for
a redemption price equal to the
principal amount plus accrued
interest, if any.
CUSIP No.:/ISIN No. ▇▇▇▇▇▇▇▇▇
Underlying Security Trustee: The Bank of New York
Schedule III
ADDITIONAL WARRANT TERMS
ARTICLE I
EXERCISE OF WARRANTS
Section 1.1 Principal Terms.
----------------
(a) Call Price.
-----------
The Call Price per Warrant is the sum of (i)(a) $1,000 (corresponding
to 40 $25.00 Class A Units) or (b) if such exercise is in connection with a
tender offer for Underlying Securities held by the Trust for settlement prior to
the First Regular Call Date, $1,060 ($26.50 per Class A Unit), (ii) the
applicable Class B Present Value Amount (which will be adjusted for any accrued
Class B Payments on the Class B Units payable under (iii)), (iii) accrued and
unpaid interest on the applicable Class A Units and accrued and unpaid Class B
Payments on the applicable Class B Units being called and (iv) the applicable
Expense Administrator Make-Whole Amount. For the avoidance of doubt, such
amounts shall include accruals on deferred amounts.
(b) Call Dates.
-----------
A Warrantholder may designate as a Call Date (i) any Business Day from
and including 9:00 a.m. New York time on the First Regular Call Date, to and
including 4:00 p.m. New York time on the Expiration Date and (ii) any Business
Day prior to the First Regular Call Date as a Call Date, but only if notice of
redemption or tender offer has been delivered by the Underlying Security Issuer
with regard to the Underlying Securities held by the Trust.
Except as otherwise provided in this paragraph, a Warrantholder shall
give notice of its intention to exercise Warrants and related designation of a
Call Date on not less than 15 or more than 60-calendar days' notice. If the
Underlying Security Issuer has given notice of redemption with respect to the
Underlying Securities or if a tender offer is outstanding for the Underlying
Securities, a Warrantholder may give notice of its intention to exercise
Warrants and related designation of a Call Date with two Business Days notice
prior to the Call Date but no later than 4:00 p.m. New York City time on the
second Business Day immediately preceding the then-scheduled settlement of the
tender offer or redemption.
(c) Expiration Date. The Scheduled Final Distribution Date.
(d) First Regular Call Date. April 15, 2009.
(e) Corresponding Underlying Security Amount. The product of (x) the
applicable number of Warrants, (y) $1,000 and (z) the Security Factor.
(f) Security Factor. The aggregate principal amount of Underlying
Securities initially held by the Trust divided by the Initial Unit Principal
Balance of the Class A Units.
(g) Call Notice.
Each exercising Warrantholder shall deliver a notice in the form of
Exhibit B to the Trustee and the Warrant Agent, including the certification of
solvency specified therein, prior to the Call Date. Each such Call Notice must
specify exercise of either (i) all Warrants the notifying Warrantholder owns or
(ii) at least 250 Warrants.
A Call Notice also constitutes a notice of exchange of the Class A
Units and the Class B Units to be obtained by a Warrantholder as a result of
such exercise for Trust Property pursuant to Section 5.12(d) of the Standard
Terms.
(h) Automatic Rescission of Exercise.
Delivery of a Call Notice does not give rise to an obligation on the
part of the Warrantholder to pay the Call Price. With respect to each Warrant
exercised, if by 4 p.m. New York time on the Business Day prior to the Call Date
the applicable Warrantholder has not paid the applicable Call Price for a
Warrant to the Warrant Agent, except to the extent the Call Notice relates to a
tender offer or redemption of Underlying Securities addressed in Section 1.1(i)
below, then the exercise of the applicable Warrant shall be automatically
rescinded, the applicable Warrant shall be reinstated, no Call Date with respect
thereto shall be deemed to have occurred and no Call Notice deemed given, and
the applicable Warrantholder shall be entitled to exercise such reinstated
Warrants in the future.
(i) Tender Offer and Redemption.
Each Warrantholder shall specify in its Call Notice if its exercise is
in connection with a redemption or tender offer if the specified Call Date will
occur on or after the First Regular Call Date. Any Warrantholder giving a Call
Notice with respect to a Call Date prior to the First Regular Call Date shall be
deemed to specify that it is exercising its Warrants in connection with a tender
offer or redemption.
A Warrantholder specifying or deemed to specify that it is exercising
its Warrants in connection with a tender offer for or a redemption of the
Underlying Securities shall be deemed to instruct the Trustee to tender the
applicable Corresponding Underlying Security Amount in connection with such
redemption or tender offer.
To the extent Underlying Securities corresponding to such a deemed
instruction to tender are not accepted by the tender offeror or Underlying
Security Issuer and paid for in accordance with the terms of the tender offer or
redemption, a corresponding number of Warrants shall be reinstated, with
exercise thereof rescinded, no Call Date with respect thereto shall be deemed to
have occurred and no Call Notice deemed given, with the number of such
reinstated Warrants to be allocated among the Warrantholders specifying or
deemed to specify exercise in connection with such tender offer or redemption in
proportion to the number of Warrants initially so exercised by each, and each
such Warrantholder shall be entitled to exercise such reinstated Warrants in the
future. The Warrant Agent shall determine such allocation by notice to the
applicable Warrantholders.
A Warrantholder specifying or deemed to specify that it is exercising
its Warrants in connection with a tender offer for or a redemption of the
Underlying Securities, to the extent such exercise is not rescinded, shall be
entitled to Trust Property in an amount equal to the proceeds of the tender
offer or redemption allocable to the applicable Corresponding Underlying
Security Amount in excess of the aggregate Call Price for the applicable number
of Warrants.
If the Warrant Agent receives a Call Notice or Call Notices with
respect to Warrants with an aggregate Corresponding Underlying Security Amount
that is less than the aggregate principal amount of Underlying Securities held
by the Trust subject to redemption, the Warrant Agent shall determine by notice
to the applicable Warrantholders which Warrants are to be terminated in
connection with such redemption by allocating the termination of Warrants pro
rata among remaining Warrantholders (including exercising Warrantholders holding
unexercised Warrants) in proportion to their holdings of unexercised Warrants.
Warrants so terminated shall be entitled to the applicable Warrant Termination
Payment.
If the Warrant Agent receives no Call Notices with respect to a
redemption of Underlying Securities, a number of Warrants equal to the aggregate
principal amount of Underlying Securities held by the Trust that are redeemed
divided by the product of (x) the Security Factor and (y) $1,000, shall be
terminated. The Warrant Agent shall determine by notice to the applicable
Warrantholders which Warrants are to be terminated by allocating such
termination among Warrantholders in proportion to the number of Warrants held by
each. Warrants so terminated shall be entitled to the applicable Warrant
Termination Payment.
Whenever the Warrant Agent is obligated to allocate the termination of
Warrants pro rata, and this allocation would result in some Warrants being
partially terminated, the Warrant Agent shall randomly re-allocate terminations
to the extent necessary to ensure that only whole Warrants are terminated or
such that only one Warrant is partially terminated.
(j) Payment of Call Price.
Except with respect to Warrants exercised or deemed exercised in
connection with a redemption of or tender offer for the Underlying Securities,
each exercising Warrantholder shall deposit the applicable Call Price for all
Warrants exercised by it with the Warrant Agent no later than the Business Day
prior to settlement of exercise.
The Warrant Agent shall notify the Trustee immediately upon its receipt
of payment of the applicable Call Price. The Warrant Agent shall transfer the
amount of any paid Call Price to the Trustee in immediately available funds, for
deposit in the Unit Account and application pursuant to the other terms of this
Trust Agreement no later than 4 p.m. New York time on the Business Day preceding
the Call Date and, pending such transfer, shall hold such amount for the benefit
of the Warrantholder in a segregated trust account.
(k) Appointment of Warrant Agent.
The Depositor hereby appoints the Warrant Agent as agent to (i) receive
for the benefit of the Warrantholders pending payment to the Trust in connection
with exercise of the Warrants from time to time, the Call Price amounts paid to
the Warrant Agent, (ii) receive for the benefit of the Warrantholders, in
connection with exercise of the Warrants from time to time, the Units deemed
tendered to the Trust pursuant to Section 1.2, and the Trust Property received
pursuant to the related Optional Exchange pending delivery thereof to the
relevant Warrantholders and (iii) otherwise act on behalf of and for the benefit
of the Trust, the Unitholders and the Warrantholders for purposes of this
Agreement, and the Warrant Agent accepts such appointment for itself and its
successors and assigns, subject to the terms and provisions hereof.
(l) Alternative Exercise.
Notwithstanding any other provision of this Trust Agreement, in
connection with any exercise of Warrants, if the Warrantholder beneficially owns
Class B Units on the date of such exercise, the portion of the Warrant exercise
equal to an amount corresponding to the amount of the Class B Units the
Warrantholder beneficially owns shall be designated as an "Alternative
Exercise". With respect to any portion of an exercise required to be designated
as an Alternative Exercise, the Warrantholder shall reduce the Call Price by the
corresponding value of Class B Units it beneficially owns and such Class B Units
shall be exchanged for Trust Property in connection with such Alternative
Exercise. No Class B Units will be deemed reissued to the Warrantholder or
called in connection with such Alternative Exercise.
As with an exercise that is not an Alternative Exercise, the "Callable
Series" provisions shall automatically cancel and re-issue Class A Units to the
Warrantholder, the notice of exercise shall constitute a notice of exchange of
the acquired Class A Units together with the applicable beneficially owned Class
B Units subject to such Alternative Exercise for Trust Property under the
"Optional Exchange Under Warrants" provisions, and any such notice of exchange
may only be revoked or rescinded to the extent the exercise as to Class A Units
is revoked or rescinded as specified in the "Optional Exchange Under Warrants"
provisions.
All other provisions of this Trust Agreement shall be appropriately
construed to give effect to the purposes of this subsection.
Section 1.2 Delivery of Units. As soon as practicable after each
surrender of Warrants in whole or in part on the Call Date and upon satisfaction
of all other requirements described in the Warrants and in Section 1.1 hereof,
the Warrant Agent shall instruct the Trustee to confirm that the transfer
specified under the "Callable Series" provisions of Schedule I has occurred and
to cause a distribution of Trust Property to the Warrantholder as an Optional
Exchange taking into account Section 1.1(i) above, if applicable. A surrender of
the Warrants shall be deemed to be a simultaneous surrender of the Class A Units
and Class B Units acquired in exchange therefor.
If such exercise is in part only, the Warrant Agent shall instruct the
Trustee to authenticate new Warrants of like tenor, representing the outstanding
Warrants of the Warrantholder and the Warrant Agent shall deliver such Warrants
to the Warrantholder.
In each case, the Trustee shall act in accordance with such
instructions.
Section 1.3 Cancellation and Destruction of Warrants. All Warrants
surrendered to the Warrant Agent for the purpose of exercise (in whole or in
part) pursuant to Section 1.1 and actually exercised, or for the purpose of
transfer or exchange pursuant to Article III, shall be cancelled by the Warrant
Agent, and no Warrant (other than that reflecting any such transfer or exchange)
shall be issued in lieu thereof. The Warrant Agent shall destroy all cancelled
Warrants.
Section 1.4 No Rights as Holder of Units Conferred by Warrants. Each
Warrantholder agrees that the Warrants do not represent an ownership interest in
the Trust or its assets and that none of them shall treat the Warrants as an
ownership interest in the Trust for any purpose.
ARTICLE II
RESTRICTIONS ON TRANSFER
Section 2.1 Restrictive Legends. Each Warrant (including each Warrant
issued upon the transfer of any Warrant) shall be issued with a legend in
substantially the form contained in Exhibit A hereto.
Section 2.2 Notice of Proposed Transfer. Prior to any transfer of any
Warrant or portion thereof, the Warrantholder will give 5 Business Days (or such
lesser period acceptable to the Warrant Agent) prior written notice to the
Warrant Agent and the Depositor of such Warrantholder's intention to effect such
transfer.
ARTICLE III
REGISTRATION AND TRANSFER OF WARRANTS, ETC.
Section 3.1 Warrant Register; Ownership of Warrants. The Warrant Agent
will keep a register in which the Warrant Agent will provide for the
registration of Warrants and the registration of transfers of Warrants
representing numbers of Warrants. The Trustee and the Warrant Agent may treat
the Person in whose name any Warrant is registered on such register as the owner
thereof for all purposes, and the Trustee and the Warrant Agent shall not be
affected by any notice to the contrary. The Warrant Agent shall make such
adjustments to its records and the register as shall be necessary to reflect
terminations and exercise of Warrants.
Section 3.2 Transfer and Exchange of Warrants. (a) No Warrant may be
offered, resold, assigned or otherwise transferred (including by pledge or
hypothecation) at any time except in accordance with this Section 3.2.
(1) Any purchaser or transferee of the Warrants shall represent that it
is (A) a "qualified institutional buyer" as defined in Rule 144A under the
Securities Act that (1) is not a broker-dealer that owns and invests on a
discretionary basis less than $25 million in securities of issuers that are not
affiliated persons of the dealer and (2) is not a plan referred to in paragraph
(a)(1)(i)(D) or (a)(1)(i)(E) of Rule 144A or a trust fund referred to in
paragraph (a)(1)(i)(F) of Rule 144A that holds the assets of such a plan, if
investment decisions with respect to the plan are made by the beneficiaries of
the plan, (B) aware that the sale or transfer of the Warrants to it may be made
to it in reliance on the exemption from registration provided by Rule 144A under
the Securities Act and (C) acquiring the Warrants for its own account or for one
or more accounts, each of which is a qualified institutional buyer, and as to
each of which the purchaser or transferee exercises sole investment discretion,
and in each case in accordance with any applicable securities laws of any state
of the United States and other jurisdictions.
(2) Warrants may not be purchased, held by or transferred to any Person
unless that Person is not a Plan, is not a governmental or other plan subject to
restrictions substantially similar to Title I of ERISA or Section 4975 of the
Code, and is not acquiring the Warrants with the assets of any such Plan or
other plan. Each Person who acquires any Warrant, and each fiduciary which
causes any such Person to acquire any Warrant, in its individual as well as its
fiduciary capacity, will be deemed by such purchase, holding or acquisition, on
each date on which the Warrant is held by such person, to have represented that
it is not a Plan or any governmental or other plan subject to requirements
substantially similar to Title I of ERISA or Section 4975 of the Code and is not
using the assets of any such Plan to purchase those Warrants. Each Person that
acquires a Warrant, and each fiduciary who causes a person to acquire a Warrant,
in its individual as well as its fiduciary capacity, agrees to indemnify and
hold harmless the Depositor, the Trustee, the Warrant Agent, MS&Co., each
Distribution Participant and their respective affiliates from any cost, damages,
loss or expense, incurred by them as a result of the representations contained
in this Section 3.2(a)(2) not being true.
(b) Upon surrender of any Warrant for registration of transfer or for
exchange to the Warrant Agent, the Warrant Agent shall (subject to compliance
with Section 3.2(a)) promptly execute and deliver, and cause the Trustee, on
behalf of the Trust, to execute and deliver, in exchange therefor, a new Warrant
of like tenor and evidencing a like number of Warrants, in the name of such
Warrantholder or as such Warrantholder (upon payment by such Warrantholder of
any applicable transfer taxes or government charges) may direct; provided that
as a condition precedent for transferring the Warrants, the prospective
transferee shall deliver to the Trustee and the Depositor an executed copy of
the Transfer Letter in the form of Exhibit C hereto.
(c) Any purported transfer of the Warrants (or any interest therein) in
violation of Section 3.2(a)(1) or Section 3.2(a)(2) hereof shall be void ab
initio and the purported transferee in such transfer shall not be recognized by
any Person as a holder of such Warrants for any purpose. The Depositor and the
Trustee shall each have the power to sell the Warrants (or any interest therein)
of a purported Warrantholder (or owner of any interest therein) who acquired its
interest in violation of Section 3.2(a)(1) or Section 3.2(a)(2) or who continues
to hold Warrants in violation of Section 3.2(a)(2).
Section 3.3 Replacement of Warrants. Upon receipt of evidence
reasonably satisfactory to the Warrant Agent of the loss, theft, destruction or
mutilation of any Warrant and, in the case of any such loss, theft or
destruction of any Warrant, upon delivery of an indemnity bond in such
reasonable amount as the Warrant Agent may determine, or, in the case of any
such mutilation, upon the surrender of such Warrant for cancellation to the
Warrant Agent, the Warrant Agent shall execute and deliver, and cause the
Trustee, on behalf of the Trust, to execute and deliver, in lieu thereof, a new
Warrant of like tenor bearing a number not contemporaneously outstanding.
Section 3.4 Execution and Delivery of Warrants by Trustee;
Authentication.
The Trustee agrees and acknowledges that it will, concurrently with the
receipt by it of the Underlying Securities and the execution, authentication and
delivery of Units, cause to be executed, authenticated and delivered to or upon
the order of the Depositor, Warrants duly executed and authenticated by or on
behalf of the Trustee.
The Trustee, on behalf of the Trust, hereby agrees (subject to
compliance with Article II) to execute and deliver such new Warrants issued in
accordance with Section 1.2 or this Article III as the Warrant Agent shall
request in accordance herewith.
Upon surrender for registration of transfer of any Warrant at the
office or agency of the Trustee, if the requirements of Section 8-401 of the
Uniform Commercial Code are met to the Trustee's satisfaction, and subject to
the transfer restrictions set forth in this Schedule III, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Warrants. All transfers of Warrants are subject to
the approval of the Trustee and the Trustee shall not register any transfer of
Warrants if such transfer would violate any provision of the Trust Agreement.
Section 3.5 Federal Income Tax Matters. Each Warrantholder agrees to
treat each Warrant as a call option for federal income tax purposes.
ARTICLE IV
WARRANT AGENT
Section 4.1 Limitation on Liability. The Warrant Agent shall be
protected and shall incur no liability for or in respect of any action taken,
suffered or omitted by it in connection with its administration of the Warrants
in reliance upon any instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate,
statement or other paper or document in good faith believed by it to be genuine
and to be signed, executed and, where necessary, verified and acknowledged, by
the proper Person or Persons. The Warrant Agent and any director, officer,
employee or agent of the Warrant Agent shall be indemnified by the Depositor to
the same extent that the Trustee is indemnified by the Depositor pursuant to
Section 10.05(b) of the Standard Terms.
Section 4.2 Duties of Warrant Agent. The Warrant Agent undertakes only
the specific duties and obligations imposed hereunder upon the following terms
and conditions, by all of which the Depositor, the Trust, the Trustee and each
Warrantholder shall be bound:
(a) The Warrant Agent may consult with legal counsel (who may be legal
counsel for the Depositor), and the opinion of such counsel shall be full and
complete authorization and protection to the Warrant Agent as to any action
taken or omitted by it in good faith and in accordance with such opinion,
provided the Warrant Agent shall have exercised reasonable care in the selection
by it of such counsel.
(b) Whenever in the performance of its duties hereunder, the Warrant
Agent shall deem it necessary or desirable that any fact or matter be proved or
established by the Depositor or the Trustee prior to taking or suffering any
action hereunder, such fact or matter may be deemed to be conclusively proved
and established by a Depositor Order or a certificate signed by a Responsible
Officer of the Trustee and delivered to the Warrant Agent; and such certificate
shall be full authorization to the Warrant Agent for any action taken or
suffered in good faith by it hereunder in reliance upon such certificate.
(c) The Warrant Agent shall be liable hereunder only for its own
negligence, willful misconduct or bad faith.
(d) The Warrant Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained herein or be required to verify the
same, but all such statements and recitals are and shall be deemed to have been
made by the Trust and the Depositor only.
(e) The Warrant Agent shall not have any responsibility in respect of
and makes no representation as to the validity of the Warrants or the execution
and delivery thereof (except the due execution hereof by the Warrant Agent); nor
shall it be responsible for any breach by the Trust of any covenant or condition
contained in the Warrants; nor shall it by any act thereunder be deemed to make
any representation or warranty as to the Units to be purchased thereunder.
(f) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the Chief Executive Officer, Chief Financial Officer,
Chief Operating Officer, President, a Vice President, a Senior Vice President, a
Managing Director, its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary of the Depositor, and any Responsible Officer of the
Trustee, and to apply to such officers for advice or instructions in connection
with its duties, and it shall not be liable for any action taken or suffered to
be taken by it in good faith in accordance with instructions of any such
officer.
(g) The Warrant Agent and any shareholder, director, officer or
employee of the Warrant Agent may buy, sell or deal in any of the Warrants or
other securities of the Trust or otherwise act as fully and freely as though it
were not Warrant Agent hereunder, so long as such persons do so in full
compliance with all applicable laws. Nothing herein shall preclude the Warrant
Agent from acting in any other capacity for the Trust, the Depositor or for any
other legal entity.
(h) The Warrant Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents.
(i) The Warrant Agent shall act solely as the agent of the Trust, the
Unitholders and the Warrantholders hereunder as respectively set forth herein.
The Warrant Agent shall not be liable except for the failure to perform such
duties as are specifically set forth herein, and no implied covenants or
obligations shall be read into the Warrants against the Warrant Agent, whose
duties shall be determined solely by the express provisions thereof. The Warrant
Agent shall not be deemed to be a fiduciary.
(j) The Warrant Agent shall not be responsible for any failure on the
part of the Trustee to comply with any of its covenants and obligations
contained herein.
(k) The Warrant Agent shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of its duties
hereunder and shall not be under any obligation or duty to institute, appear in
or defend any action, suit or legal proceeding in respect hereof, in each case
unless first indemnified to its satisfaction, but this provision shall not
affect the power of the Warrant Agent to take such action as the Warrant Agent
may consider proper, whether with or without such indemnity. The Warrant Agent
shall promptly notify the Depositor and the Trustee in writing of any claim made
or action, suit or proceeding instituted against it arising out of or in
connection with the Warrants.
(l) The Trustee will perform, execute, acknowledge and deliver or cause
to be performed, executed, acknowledged and delivered all such further acts,
instruments and assurances as may be required by the Warrant Agent in order to
enable it to carry out or perform its duties hereunder.
Section 4.3 Change of Warrant Agent. The Warrant Agent may resign and
be discharged from its duties hereunder upon thirty (30) days' notice in writing
mailed to the Depositor and the Trustee by registered or certified mail, and to
the Warrantholders by first-class mail at the expense of the Depositor; provided
that no such resignation or discharge shall become effective until a successor
Warrant Agent shall have been appointed hereunder. The Depositor may remove the
Warrant Agent or any successor Warrant Agent upon thirty (30) days' notice in
writing, mailed to the Warrant Agent or successor Warrant Agent, as the case may
be, and to the Warrantholders by first-class mail; provided further that no such
removal shall become effective until a successor Warrant Agent shall have been
appointed hereunder. If the Warrant Agent shall resign or be removed or shall
otherwise become incapable of acting, the Depositor shall promptly appoint a
successor to the Warrant Agent, which may be designated as an interim Warrant
Agent. If an interim Warrant Agent is designated, the Depositor shall then
appoint a permanent successor to the Warrant Agent, which may be the interim
Warrant Agent. If the Depositor shall fail to make such appointment of a
permanent successor within a period of thirty (30) days after such removal or
within sixty (60) days after notification in writing of such resignation or
incapacity by the resigning or incapacitated Warrant Agent or by the
Warrantholder, then the Warrant Agent or registered Warrantholder may apply to
any court of competent jurisdiction for the appointment of such a successor.
Any successor to the Warrant Agent appointed hereunder must be rated in
one of the four highest rating categories by the Rating Agencies. Any entity
which may be merged or consolidated with or which shall otherwise succeed to
substantially all of the trust or agency business of the Warrant Agent shall be
deemed to be the successor Warrant Agent without any further action.
Section 4.4 Warrant Agent Transfer Fee. The Warrant Agent will assess a
fee of $50.00 upon the issue of any new Warrant, such fee to be assessed upon
the new Warrantholder.
EXHIBIT A TO SCHEDULE III
FORM OF WARRANT CERTIFICATE
STRUCTURED ASSET TRUST UNIT REPACKAGINGS ("SATURNS")
SERIES 2004-6
WARRANTS
EACH PURCHASER OR OTHER TRANSFEREE OF THIS WARRANT OR ANY
INTEREST HEREIN OF THIS WARRANT, BY ITS ACCEPTANCE HEREOF, IS DEEMED TO
REPRESENT AND WARRANT FOR THE BENEFIT OF THE TRUSTEE AND THE DEPOSITOR OF THE
TRUST, AND EACH DISTRIBUTION PARTICIPANT AS DEFINED IN THE TRUST AGREEMENT THAT
SUCH PURCHASER OR OTHER TRANSFEREE IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT AND OF THE TYPE SET FORTH IN THE
WARRANT TRANSFER LETTER.
THE HOLDER, AND EACH FIDUCIARY WHICH CAUSES ANY PERSON TO
ACQUIRE ANY WARRANT, IN ITS INDIVIDUAL AS WELL AS ITS FIDUCIARY CAPACITY, WILL
BE DEEMED BY SUCH PURCHASE, HOLDING OR ACQUISITION, ON EACH DATE ON WHICH THE
WARRANT IS HELD BY SUCH PERSON, TO HAVE REPRESENTED THAT IT IS NOT A (I)
"EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA")) SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF TITLE I OF ERISA, (II) "PLAN" DESCRIBED IN SECTION
4975(E)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") SUBJECT
TO SECTION 4975 OF THE CODE, (III) ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN
ASSETS BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY OR OTHERWISE OR (IV)
GOVERNMENTAL OR OTHER PLAN SUBJECT TO REQUIREMENTS SUBSTANTIALLY SIMILAR TO
TITLE I OF ERISA OR SECTION 4975 OF THE INTERNAL REVENUE CODE.
EACH PERSON THAT ACQUIRES A WARRANT, AND EACH FIDUCIARY WHO
CAUSES A PERSON TO ACQUIRE A WARRANT, IN ITS INDIVIDUAL AS WELL AS ITS FIDUCIARY
CAPACITY, AGREES TO INDEMNIFY AND HOLD HARMLESS THE DEPOSITOR, THE WARRANT
AGENT, THE TRUSTEE, MS&CO. AND THEIR RESPECTIVE AFFILIATES FROM ANY COST,
DAMAGES, LOSS OR EXPENSE, INCURRED BY THEM AS A RESULT OF THE REPRESENTATIONS
MADE BY SUCH PERSON OR FIDUCIARY IN THIS PARAGRAPH NOT BEING TRUE.
THIS WARRANT MAY BE SUBJECT TO ADDITIONAL RESTRICTIONS ON
TRANSFER AS PROVIDED IN THE TRUST AGREEMENT FOR THE TRUST TO WHICH THIS WARRANT
RELATES.
ANY PURPORTED TRANSFER OF THIS WARRANT CERTIFICATE (OR ANY
INTEREST HEREIN) IN VIOLATION OF SECTION 3.2(A)(1) OR SECTION 3.2(A)(2) OF
SCHEDULE III TO THE TRUST AGREEMENT SHALL BE VOID AB INITIO AND THE PURPORTED
TRANSFEREE IN SUCH TRANSFER SHALL NOT BE RECOGNIZED BY ANY PERSON AS A HOLDER OF
SUCH WARRANTS FOR ANY PURPOSE. THE DEPOSITOR AND THE TRUSTEE SHALL EACH HAVE THE
POWER TO SELL THE WARRANTS (OR ANY INTEREST HEREIN) OF A PURPORTED WARRANTHOLDER
(OR OWNER OF ANY INTEREST HEREIN) WHO ACQUIRED ITS INTEREST IN VIOLATION OF
SECTION 3.2(A)(1) OR SECTION 3.2(A)(2) OF SCHEDULE III TO THE TRUST AGREEMENT OR
WHO CONTINUES TO HOLD WARRANTS IN VIOLATION OF SECTION 3.2(A)(2) OF SCHEDULE III
OF THE TRUST AGREEMENT.
THIS WARRANT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Warrant No. 1 CUSIP No. ▇▇▇▇▇▇▇▇▇
REGISTERED INITIAL NUMBER: 80,000
AGGREGATE INITIAL NUMBER
OF ALL WARRANTS: 80,000
STRUCTURED ASSET TRUST UNIT REPACKAGINGS ("SATURNS")
SERIES 2004-6
WARRANTS
This certifies that [ ] is the registered owner
of Warrants in the number specified above.
The Trust Property will be held in trust by the Trustee
identified in the Trust Agreement (the "Trust"). The Trust has been created
pursuant to a Trust Agreement, dated as of April 15, 2004 (the "Trust
Agreement"), between LaSalle Bank National Association, as Trustee of the Trust
(the "Trustee"), and MS Structured Asset Corp.
To the extent not defined herein, all capitalized terms shall
have the meanings assigned to such terms in the Trust Agreement and the Terms
Schedule attached thereto. This Warrant is one of the Warrants described in the
Trust Agreement and is issued under and subject to the terms, provisions and
conditions of the Trust Agreement. By acceptance of this Warrant, the
Warrantholder assents to and becomes bound by the Trust Agreement.
Each Warrant issued by the Trust represents a Call Option and
Call Right to purchase $1,000 Unit Principal Balance of Class A Units and the
Applicable Class B Equivalent Amount. Exercises on this Certificate will be made
in accordance with a written notice to the Warrant Agent specified in the Trust
Agreement.
This Certificate does not purport to summarize the Trust
Agreement and reference is hereby made to the Trust Agreement for information
with respect to the rights, benefits, obligations and duties evidenced thereby.
A copy of the Trust Agreement may be examined during normal business hours at
the Corporate Trust Office of the Trustee, located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and at such other places, if any, designated
by the Trustee, by any Warrantholder upon request.
Reference is hereby made to the further terms of this
Certificate set forth on the reverse hereof, which further terms shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Trustee, by manual signature, this
Certificate shall not entitle the Warrantholder hereof to any benefit under the
Trust Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust, and
not in its individual capacity, has caused this Certificate to be duly executed.
SATURNS TRUST NO. 2004-6
BY: LASALLE BANK NATIONAL
ASSOCIATION,
as Trustee
By:
------------------------------
Authorized Signatory
DATED:
[SEAL]
Trustee's Certificate of
Authentication:
This is one of the Warrants referred
to in the within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
----------------------------
Authorized Signatory
STRUCTURED ASSET TRUST UNIT REPACKAGINGS ("SATURNS")
SERIES 2004-6
The Trust Agreement permits the amendment thereof, in certain
circumstances, without the consent of the Warrantholders of any of the
Certificates.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Warrant Register upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in Chicago, Illinois,
accompanied by a written instrument of transfer and, if applicable, a transfer
letter in form and substance satisfactory to the Trustee duly completed and
executed by the Warrantholder hereof or such Warrantholder's attorney duly
authorized in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate interest in the Trust will be issued
to the designated transferee.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates representing different numbers of Warrants which evidence the same
aggregate Warrants, as requested by the Warrantholder surrendering the same. No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
governmental charges payable in connection therewith.
The Depositor, the Trustee and any agent of the Depositor or
the Trustee may treat the person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Trustee, or
any such agent shall be affected by any notice to the contrary.
Notwithstanding anything contained in the Trust Agreement to
the contrary the Trust Agreement has been accepted by LaSalle Bank National
Association not in its individual capacity but solely as Trustee and in no event
shall LaSalle Bank National Association have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Depositor thereunder or in any of the certificates, notices or agreements
delivered pursuant thereto, as to all of which recourse shall be had solely to
the assets of the Depositor, and under no circumstances shall LaSalle Bank
National Association be personally liable for the payment of any indebtedness or
expenses of the Trust. The Warrants do not represent interests in or obligations
of the Trustee and the Trustee shall not be responsible or accountable for any
tax, accounting or other treatment proposed to be applied to the Warrants or any
interest therein except as expressly provided in the Trust Agreement.
ASSIGNMENT FOR SATURNS SERIES 2004-6
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
---------------------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code, of
assignee)
----------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
----------------------------------------------------------------------------
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
*/
-------------------------------
---------------
*/ NOTICE: The signature to this assignment must correspond with the
name as it appears upon the face of the within Certificate in every particular,
without alteration, enlargement or any change whatever.
EXHIBIT B TO SCHEDULE III
FORM OF EXCERCISE NOTICE AND CERTIFICATION OF SOLVENCY
[DATE]
LaSalle Bank National Association
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
MS Structured Asset Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Structured Asset Trust Unit Repackagings ("SATURNS"), Series 2004-6
-------------------------------------------------------------------
Ladies and Gentlemen:
We hereby give notice of our intent to acquire __________ Unit
Principal Balance of Class A Units and the Applicable Class B Equivalent Amount
of Class B Units for settlement on _________ (the "Call Date"). [We hereby
direct the Trustee and the Warrant Agent to treat this exercise [up to]
__________ Unit Principal Balance of Class A Units and an Applicable Class B
Equivalent Amount of Class B Units as an exercise in connection with a
[redemption][tender offer] up to the maximum amount allocable to us in
connection with this exercise.]
[We beneficially own _____________ Class B Units that we intend to
exchange pursuant to an Alternative Exercise. We designate [all][a portion of
our exercise in an amount of __________ Class B Units] to be an Alternative
Exercise. We will transfer such Class B Units to you or at your direction.]
We certify that our assets exceed our liabilities, that we are able to
meet our obligations as they come due, and that we are not subject to any
bankruptcy or insolvency proceeding.
[WARRANTHOLDER]
By:
----------------------------
Name:
Title:
EXHIBIT C TO SCHEDULE III
FORM OF WARRANT TRANSFER LETTER
[DATE]
LaSalle Bank National Association
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
MS Structured Asset Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Structured Asset Trust Unit Repackagings ("SATURNS"), Series 2004-6
-------------------------------------------------------------------
Ladies and Gentlemen:
In connection with its proposed purchase of Warrants (the "Warrants")
which represent the right to call $______________ aggregate Unit Principal
Balance of SATURNS 2004-6 ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital I Capital Security Backed Class
A Units and the Applicable Class B Equivalent Amount of SATURNS 2004-6 ▇▇▇▇▇▇▇
Sachs Capital I Capital Security Backed Class B Units, the undersigned
transferee (the "Transferee") confirms that:
1. The Transferee understands that substantial risks are involved in an
investment in the Warrants. The Transferee represents that in making its
investment decision to acquire the Warrants, the Transferee has not relied on
representations, warranties, opinions, projections, financial or other
information or analysis, if any, supplied to it by any person, including MS&Co.,
MS Structured Asset Corp., as depositor (the "Depositor"), or LaSalle Bank
National Association, as trustee (the "Trustee"), or any of your or their
affiliates, except as expressly contained in written information, if any. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Warrants, and the Transferee is able to bear the substantial economic risks of
such an investment. The Transferee has relied upon its own tax, legal and
financial advisors in connection with its decision to purchase the Warrants.
2. Such Transferee (A) is a "qualified institutional buyer" (as defined
in Rule 144A of the Securities Act) that (1) is not a broker-dealer that owns
and invests on a discretionary basis less than $25 million in securities of
issuers that are not affiliated persons of the dealer and (2) is not a plan
referred to in paragraph (a)(1)(i)(D) or (a)(1)(i)(E) of Rule 144A or a trust
fund referred to in paragraph (a)(1)(i)(F) of Rule 144A that holds the assets of
such a plan, if investment decisions with respect to the plan are made by the
beneficiaries of the plan, (B) is aware that the sale or transfer of the
Warrants to it may be made to it in reliance on the exemption from registration
provided by Rule 144A under the Securities Act and (C) is acquiring the Warrants
for its own account or for one or more accounts, each of which is a qualified
institutional buyer, and as to each of which the Transferee exercises sole
investment discretion, and in each case in accordance with any applicable
securities laws of any state of the United States and other jurisdictions.
3. The Transferee understands that the Warrants have not been and will
not be registered under the 1933 Act or under the securities or blue sky laws of
any state, and that (i) if it decides to resell, pledge or otherwise transfer
any Security, such resale, pledge or other transfer must comply with the
provisions of the Trust Agreement relating to the Warrants and (ii) it will, and
each subsequent holder will be required to, notify any purchaser of any Warrant
from it of the resale restrictions in the Trust Agreement.
4. The Transferee understands that each of the Warrants will bear a
legend substantially to the following effect, unless otherwise agreed by the
Depositor and the Trustee:
EACH PURCHASER OR OTHER TRANSFEREE OF THIS WARRANT OR ANY INTEREST
HEREIN OF THIS WARRANT, BY ITS ACCEPTANCE HEREOF, IS DEEMED TO REPRESENT AND
WARRANT FOR THE BENEFIT OF THE TRUSTEE AND THE DEPOSITOR OF THE TRUST, AND EACH
DISTRIBUTION PARTICIPANT AS DEFINED IN THE TRUST AGREEMENT THAT SUCH PURCHASER
OR OTHER TRANSFEREE IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT.
THE HOLDER, AND EACH FIDUCIARY WHICH CAUSES ANY PERSON TO ACQUIRE
ANY WARRANT, IN ITS INDIVIDUAL AS WELL AS ITS FIDUCIARY CAPACITY, WILL BE DEEMED
BY SUCH PURCHASE, HOLDING OR ACQUISITION, ON EACH DATE ON WHICH THE WARRANT IS
HELD BY SUCH PERSON, TO HAVE REPRESENTED THAT IT IS NOT A (I) "EMPLOYEE BENEFIT
PLAN" (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA")) SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF TITLE I OF ERISA, (II) "PLAN" DESCRIBED IN SECTION 4975(E)(1) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") SUBJECT TO SECTION
4975 OF THE CODE, (III) ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY
REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY OR OTHERWISE OR (IV) GOVERNMENTAL
OR OTHER PLAN SUBJECT TO REQUIREMENTS SUBSTANTIALLY SIMILAR TO TITLE I OF ERISA
OR SECTION 4975 OF THE INTERNAL REVENUE CODE.
EACH PERSON THAT ACQUIRES A WARRANT, AND EACH FIDUCIARY WHO CAUSES A
PERSON TO ACQUIRE A WARRANT, IN ITS INDIVIDUAL AS WELL AS ITS FIDUCIARY
CAPACITY, AGREES TO INDEMNIFY AND HOLD HARMLESS THE DEPOSITOR, THE TRUSTEE, THE
WARRANT AGENT, MS&CO. AND THEIR RESPECTIVE AFFILIATES FROM ANY COST, DAMAGES,
LOSS OR EXPENSE, INCURRED BY THEM AS A RESULT OF THE REPRESENTATIONS MADE BY
SUCH PERSON OR FIDUCIARY IN THIS PARAGRAPH NOT BEING TRUE.
THIS WARRANT MAY BE SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER
AS PROVIDED IN THE TRUST AGREEMENT FOR THE TRUST TO WHICH THIS WARRANT RELATES.
ANY PURPORTED TRANSFER OF THIS WARRANT CERTIFICATE (OR ANY INTEREST
HEREIN) IN VIOLATION OF SECTION 3.2(A)(1) OR SECTION 3.2(A)(2) OF SCHEDULE III
TO THE TRUST AGREEMENT SHALL BE VOID AB INITIO AND THE PURPORTED TRANSFEREE IN
SUCH TRANSFER SHALL NOT BE RECOGNIZED BY ANY PERSON AS A HOLDER OF SUCH WARRANTS
FOR ANY PURPOSE. THE DEPOSITOR AND THE TRUSTEE SHALL EACH HAVE THE POWER TO SELL
THE WARRANTS (OR ANY INTEREST HEREIN) OF A PURPORTED WARRANTHOLDER (OR OWNER OF
ANY INTEREST HEREIN) WHO ACQUIRED ITS INTEREST IN VIOLATION OF SECTION 3.2(A)(1)
OR SECTION 3.2(A)(2) OF SCHEDULE III TO THE TRUST AGREEMENT OR WHO CONTINUES TO
HOLD WARRANTS IN VIOLATION OF SECTION 3.2(A)(2) OF SCHEDULE III OF THE TRUST
AGREEMENT.
THIS WARRANT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
5. The Transferee and each fiduciary which causes the Transferee to
acquire any Warrant, in its individual as well as its fiduciary capacity,
represents and agrees that the Transferee is NOT a Plan, is NOT a governmental
or other plan subject to restrictions substantially similar to Title I of ERISA
or Section 4975 of the Code, and is NOT acquiring the Warrants with the assets
of any such Plan or other plan. The Transferee and each such fiduciary
understands that the representations made in this section 5 will be deemed made
on each day from the date hereof through and including the date on which the
Transferee disposes of the Warrants. The Transferee and each fiduciary who
causes the Transferee to acquire a Warrant, in its individual as well as its
fiduciary capacity, agrees to indemnify and hold harmless the Depositor, the
Trustee, the Warrant Agent, MS&Co., each Distribution Participant and their
respective affiliates from any cost, damages, loss or expense, incurred by them
as a result of the representations made in this paragraph not being true.
6. The Transferee understands that no subsequent transfer of the
Warrants is permitted unless such transfer is to a transferee who will own,
after giving effect to such transfer and any other simultaneous transfers, at
least 250 Warrants and the Transferee causes the proposed transferee to provide
to the Depositor and the Trustee such documentation as may be required pursuant
to Section 3.2 of the Warrant Agent Agreement, including, if required, a letter
substantially in the form hereof, or such other written statement as the
Depositor shall reasonably prescribe.
7. The Transferee is a Person who is either:
A. (1) a citizen or resident of the United States, (2) a corporation,
partnership or other entity organized in or under the laws of the United States
or any political subdivision thereof, or (3) an estate the income of which is
includible in gross income for federal income tax purposes regardless of source,
or (4) a trust if a court within the United States is able to exercise primary
supervision of the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust, or
B. a Person not described in (A), whose ownership of such Warrant is
effectively connected with such Person's conduct of a trade or business within
the United States within the meaning of the Internal Revenue Code of 1986, as
amended (the "Code"), and its ownership of any interest in such Warrant will not
result in any withholding obligation with respect to any payments with respect
to the Warrants by any Person (other than withholding, if any, under Section
1446 of the Code), or
C. a Person not described in (A) or (B) above, who is not a Person: (1)
that owns, directly or indirectly, 10% or more of the total combined voting
power of all classes of stock in the Underlying Securities Issuer (as defined in
Schedule II to the Trust Agreement) entitled to vote, (2) that is a controlled
foreign corporation related to the Underlying Securities Issuer within the
meaning of Section 864(d)(4) of the Code, or (3) that is a bank extending credit
pursuant to a loan agreement entered into in the ordinary course of its trade or
business.
8. The Transferee agrees that (i) if it is a Person described in clause
(A) above, it will furnish to the Depositor and the Trustee a properly executed
IRS Form W-9, and (ii) if it is a Person described in clause (B) above, it will
furnish to the Depositor and the Trustee a properly executed IRS Form W-8ECI,
and (iii) if it is a Person described in clause (C) above, it will furnish to
the Depositor and the Trustee a properly executed IRS Form W-8BEN (or, if the
Transferee is treated as a partnership for federal income tax purposes, a
properly executed IRS Form W-8IMY with appropriate certification for all
partners or members attached). The Transferee also agrees that it will provide a
new IRS form upon the expiration or obsolescence of any previously delivered
form, and that it will provide such other certifications, representations or
Opinions of Counsel as may be requested by the Depositor and the Trustee.
9. The Transferee understands that any acquisition of Warrants (or any
interest therein) in violation of Section 3.2(a)(1) (addressed in paragraph 2
hereof) or Section 3.2(a)(2) (addressed in paragraph 5 hereof) of Schedule III
to the Trust Agreement shall be void ab initio and the purported transferee in
such transfer shall not be recognized by any Person as a holder of such Warrants
for any purpose. The Transferee understands that the Depositor and the Trustee
shall each have the power to sell the Warrants (or any interest therein) of a
purported Warrantholder (or owner of any interest therein) who acquired its
interest in violation of Section 3.2(a)(1) or Section 3.2(a)(2) of Schedule III
to the Trust Agreement or who continues to hold Warrants in violation of Section
3.2(a)(2) of Schedule III to the Trust Agreement.
You and the Trustee are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
----------------------------
Name:
Title:
Registered Name:
-------------------
Address:
-------------------
-------------------
Payment Instructions:
-------------------