Exhibit 4.1
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Core Investment Grade Bond Trust I
Trust Agreement
Among
Core Bond Products LLC,
as Depositor,
The Bank of New York,
as Trustee and Securities Intermediary,
and
Banc of America Securities LLC,
as Administrative Agent
Dated as of November o, 2002
Pass-Through Certificates, Series 2002-1
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS; CONSTRUCTION.....................................................................1
Section 1.01. Definitions............................................................................1
Section 1.02. Rules of Construction..................................................................9
Section 1.03. Article and Section References........................................................10
ARTICLE II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES...............................................10
Section 2.01. Creation and Declaration of Trust; Assignment of Underlying Notes.....................10
Section 2.02. Entry into Agency Agreement...........................................................10
Section 2.03. Acceptance by Trustee.................................................................10
Section 2.04. Agreement to Execute, Authenticate and Deliver Certificates...........................11
ARTICLE III TRUST POWERS; ADMINISTRATION OF THE TRUST PROPERTY...........................................11
Section 3.01. Trust Property........................................................................11
Section 3.02. Administration of the Trust...........................................................11
Section 3.03. Collection of Certain Underlying Note Payments........................................12
Section 3.04. Sale..................................................................................12
Section 3.05. Certificate Account...................................................................12
Section 3.06. Investment of Funds in the Accounts...................................................15
Section 3.07. Access to Certain Documentation.......................................................16
Section 3.08. Removal of Underlying Notes Upon a Removal Event......................................16
Section 3.09. Sale Procedures Following a Removal Event.............................................17
Section 3.10. Removal of Underlying Notes Upon Final Judgment.......................................18
Section 3.11. Administrative Agent Provisions.......................................................18
ARTICLE IV DISTRIBUTIONS AND REPORTS TO CERTIFICATEHOLDERS..............................................20
Section 4.01. Distributions.........................................................................20
Section 4.02. Reports to Certificateholders; Notices................................................22
Section 4.03. Compliance with Tax Reporting and Withholding Requirements............................23
Section 4.04. Preservation of Information, Communications to Certificateholders.....................23
Section 4.05. Exchange Act Reports..................................................................24
ARTICLE V THE CERTIFICATES.............................................................................24
Section 5.01. The Certificates......................................................................24
Section 5.02. Execution, Authentication and Delivery................................................24
Section 5.03. Registration; Registration of Transfer and Exchange...................................25
Section 5.04. Mutilated, Destroyed, Lost and Stolen Certificates....................................26
Section 5.05. Distributions in Respect of Certificates..............................................27
Section 5.06. Persons Deemed Owners.................................................................27
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Section 5.07. Cancellation..........................................................................28
Section 5.08. Currency of Distributions in Respect of Certificates..................................28
Section 5.09. Appointment of Paying Agent...........................................................28
Section 5.10. Authenticating Agent..................................................................29
Section 5.11. Issuance Matters......................................................................30
ARTICLE VI THE DEPOSITOR................................................................................31
Section 6.01. Representations and Warranties of the Depositor.......................................31
Section 6.02. Breach of Representation or Warranty..................................................32
Section 6.03. Liability of the Depositor............................................................33
Section 6.04. Limitation on Liability of the Depositor..............................................33
Section 6.05. Depositor May Purchase Certificates...................................................33
Section 6.06. Preparation and Filing of Exchange Act Reports; Obligations of the Depositor..........33
Section 6.07. Preferential Collection of Claims Against Depositor...................................34
ARTICLE VII RIGHTS OF CERTIFICATEHOLDERS.................................................................34
Section 7.01. Voting Rights with Respect to Underlying Notes........................................34
Section 7.02. Direction of Remedies.................................................................35
Section 7.03. Meetings of Certificateholders........................................................36
Section 7.04. Assignment............................................................................36
ARTICLE VIII CONCERNING THE TRUSTEE.......................................................................36
Section 8.01. Duties of Trustee.....................................................................36
Section 8.02. Certain Matters Affecting the Trustee.................................................37
Section 8.03. Limitation on Liability of Trustee....................................................38
Section 8.04. Trustee May Own Certificates..........................................................39
Section 8.05. Trustee Fees and Expenses; Limited Indemnification; Expense Reserve Account...........39
Section 8.06. Eligibility Requirements for Trustee..................................................40
Section 8.07. Resignation or Removal of the Trustee.................................................41
Section 8.08. Successor Trustee.....................................................................41
Section 8.09. Merger or Consolidation of Trustee....................................................42
Section 8.10. Appointment of Co-Trustee.............................................................42
Section 8.11. Presentment and Surrender at Corporate Trust Office...................................43
Section 8.12. Representations and Warranties of Trustee.............................................43
Section 8.13. Limitation of Powers and Duties.......................................................44
ARTICLE IX TERMINATION..................................................................................44
Section 9.01. Termination of the Trust..............................................................44
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ARTICLE X MISCELLANEOUS TERMS..........................................................................45
Section 10.01. Amendment of this Agreement...........................................................45
Section 10.02. Counterparts..........................................................................46
Section 10.03. Limitation on Rights of Certificateholders............................................46
Section 10.04. GOVERNING LAW; Non-exclusive Submission to Jurisdiction...............................46
Section 10.05. Notices...............................................................................47
Section 10.06. Severability of Terms.................................................................47
Section 10.07. Notice to Rating Agencies.............................................................47
Section 10.08. No Recourse...........................................................................47
Section 10.09. No Petition Covenant..................................................................48
Section 10.10. Intention of Parties..................................................................48
SCHEDULE I Underlying Note Schedule
EXHIBIT A Form of Certificate
ANNEX A Form of Notice of Removal of Underlying Notes from Trust Property
ANNEX B Form of Notice of Election to Sell
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TRUST AGREEMENT
This Trust Agreement, dated as of November o, 2002 (this "Agreement"), is
by and among THE BANK OF NEW YORK, a New York corporation, as Trustee and
Securities Intermediary, CORE BOND PRODUCTS LLC, a Delaware limited liability
company, as Depositor, and BANC OF AMERICA SECURITIES LLC, a Delaware limited
liability company, as Administrative Agent, relates to the issuance of
Pass-Through Certificates, Series 2002-1 (the "Certificates") of Core Investment
Grade Bond Trust I (the "Trust").
PRELIMINARY STATEMENT
The Depositor, the Trustee and the Securities Intermediary have duly
authorized the execution and delivery of this Agreement to provide for the
issuance of the Certificates.
All representations, covenants and agreements made herein by each of
the Depositor, the Trustee and the Securities Intermediary are for the benefit
and security of the Certificateholders.
The Depositor is entering into this Agreement, and The Bank of New York
is accepting the trust created hereby, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged.
ARTICLE I
DEFINITIONS; CONSTRUCTION
Section 1.01 Definitions. Except as otherwise specified herein 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 3.06.
"Administrative Agent": An entity that has agreed to perform the services
specified in Sections 3.08 and 3.09, which initially shall be Banc of America
Securities LLC.
"Administrative Agent Fee": As defined in Section 3.09.
"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.
"Agency Agreement": The agency agreement among the Certificates Agents and
the Depositor, dated November o, 2002, relating to the offer and sale of the
Certificates.
"Authenticating Agent": As defined in Section 5.10.
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"Available Expense Amount": An amount equal to the product of (1) the
aggregate Certificate Principal Balance of all Certificates Outstanding on the
Business Day immediately preceding the applicable Regular Distribution Date and
(2) 0.002%.
"Available Funds": With respect to any Regular Distribution Date, (1) all
amounts received by the Trustee on or with respect to the Underlying Notes or
other Trust Property from but excluding the immediately preceding Regular
Distribution Date (or, in the case of the initial Regular Distribution Date, the
Closing Date) to and including such Regular Distribution Date, plus (2) all
investment income from Eligible Investments, in each case on deposit in the
Certificate Account and available for distribution on such Regular Distribution
Date, minus any amounts so received by the Trustee and previously distributed on
a Special Distribution Date.
"Book-Entry Certificate": A Certificate represented by a Global
Certificate.
"Business Day": Any day, other than a Saturday, Sunday or other day on
which commercial banks are obligated or authorized by law, executive order or
regulation to be closed in The City of New York.
"Certificate" or "Certificates": Any of the certificates, defined as
Certificates in the preamble hereto, that are executed, authenticated and
delivered under this Agreement, and includes Global Certificates and
Certificated Certificates.
"Certificate Account": An Eligible Account established in accordance with
Section 3.05.
"Certificate Principal Balance": With respect to a Certificate that is
Outstanding, as determined at any time, the maximum amount that the Holder
thereof is entitled to receive as distributions allocable to payments of
principal of the Underlying Notes (without taking into account any premium
payable in connection with the optional redemption of the Underlying Notes).
"Certificate Register" and "Certificate Registrar": As respectively defined
in Section 5.03.
"Certificated Certificate": Any Certificate in definitive, physical form
registered in the name of a Person other than the Depositary or its nominee.
"Certificateholder" and "Holder": The Person in whose name a Certificate is
registered as designated in the Certificate Register as of any relevant date.
"Certificates Agents": Banc of America Securities LLC, ▇.▇. ▇▇▇▇▇▇
Securities Inc. and o, in their capacity as agents for the Depositor in
soliciting offers to purchase the Certificates.
"Closing Date": The date on which the Certificates are originally executed,
authenticated and delivered under this Agreement.
"Code": The U.S. Internal Revenue Code of 1986, as amended, and Treasury
Regulations promulgated thereunder.
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"Commission": The U.S. Securities and Exchange Commission or any successor
agency thereto.
"Corporate Trust Office": The Trustee's offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other addresses as the Trustee may designate from
time to time by written notice to the Certificateholders and the Depositor.
"Currency": Dollars.
"DTC": The Depository Trust Company, a limited purpose trust company
organized under the laws of the State of New York, and any of its successors or
assigns.
"Debt Agents": Banc of America Securities LLC, ▇.▇. ▇▇▇▇▇▇ Securities Inc.
and o, in their capacity as agents for each Underlying Issuer in soliciting
offers to purchase the Underlying Notes.
"Default Event": An "event of default" with respect to any Underlying Note.
"Depositary": DTC initially, or such other depositary appointed by the
Depositor.
"Depositor": Core Bond Products LLC, a Delaware limited liability company,
and any of its successors or assigns.
"Depositor Order" or "Depositor Requests": A written order or request,
respectively, signed in the name of the Depositor by any of its Executive
Officers and delivered to the Trustee.
"Distribution Date": Each Regular Distribution Date and Special
Distribution Date.
"Distribution Period": The Initial Distribution Period and the period from
and including the immediately preceding Regular Distribution Date to but
excluding the applicable Regular Distribution Date.
"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.
"Downgrade Event": The rating of the Underlying Notes of any single
Underlying Issuer is downgraded below "BBB-" by S&P or "Baa3" by Moody's, or
their then equivalent rating, if applicable, or is withdrawn by either S&P or
Moody's.
"Eligible Account": A non-interest bearing account held in the name of
the Trustee in trust for the benefit of the Certificateholders that is either
(1) a segregated account or segregated accounts maintained with a Federal or
State chartered depository institution or trust company the short-term and
long-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the short-term and long-term unsecured debt obligations of such
holding company) are rated P-1 and Aaa by Moody's, A-1+ and AAA by S&P, and,
if rated by Fitch, F1+ and AAA by Fitch at the time any amounts are held on
deposit therein, including when such amounts are initially deposited and all
times subsequent or (2) a segregated trust account or segregated accounts
maintained as a
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segregated account or as segregated accounts and held by the Trustee in its
Corporate Trust Office in trust for the benefit of the Certificateholders.
"Eligible Investments": One or more of the following investments made by
the Trustee pursuant to Section 3.06:
(1) 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
explicitly 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 Eligible Investments only if, at the
time, and during the course, of investment, it has at least the credit
rating of P-1 or Aaa by Moody's, A-1+ or AAA by S&P, and, if rated by
Fitch, F1+ or AAA by Fitch;
(2) demand and time deposits in, certificates of deposit of, or
bankers' 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
at the time of, and during the course of, such investment or contractual
commitment providing for such investment have at least the credit rating of
P-1 or Aaa by Moody's, A-1+ or AAA by S&P, and, if rated by Fitch, F1+ or
AAA by Fitch (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 have a credit rating of
P-1 or Aaa by Moody's, A-1+ or AAA by S&P, and, if rated by Fitch, F1+ or
AAA by Fitch);
(3) commercial paper having a maturity of not more than 180 days and
having at the time, and during the course, of such investment at least the
credit rating of P-1 by Moody's, A-1+ by S&P, and, if rated by Fitch, F1+
by Fitch; and
(4) repurchase agreements with respect to (a) any security described
in clause (1) 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 of P-1 or Aaa by Moody's, A-1+ or AAA by S&P, and, if rated
by Fitch, F1+ or AAA by Fitch (it being understood that copies of any
repurchase agreement entered into will be delivered to the Rating Agencies,
if any);
provided, however, that the total return specified by the terms of each such
obligation or security is at least equal to the purchase price thereof;
provided, further, that each such obligation or security must mature at least
one Business Day prior to the next required distribution to Certificateholders
of the funds used to invest in such obligation or security; provided, further,
that each such obligation or security shall be held in the name of the Trustee
in trust for the benefit of Certificateholders; and provided, further, that an
Eligible Investment shall not consist
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of (a) a swap agreement as defined in the
United States Bankruptcy Code, 11 U.S.C. S 101 et seq., (b) an interest-only or
principal-only security or (c) a liability of the Trust in excess of the
principal amount invested by the Trustee. Eligible Investments shall include,
without limitation, those investments described above for which the Trustee or
an Affiliate of the Trustee provides services.
"Eligible Issuer": An issuer of Underlying Notes that (1) has registered
its Underlying Notes (or, in the case of Section 3.08(a), is eligible to
register its debt securities) for sale pursuant to an effective registration
statement under the Securities Act on Form S-3 or Form F-3 and is either (a) a
Reporting Company that satisfies either (x) the public float condition of $75
million or more of General Instruction B.1 or (y) the non-convertible investment
grade securities condition of General Instruction B.2, in each case of Form S-3
or Form F-3 as of the date of this Agreement or (b) a subsidiary that is not a
Reporting Company and is eligible to use Form S-3 or Form F-3 solely in reliance
on General Instruction C.3 of Form S-3 or General Instruction I.A.5(iii) of Form
F-3, as the case may be, and satisfaction of the requirements of Rule 3-10 of
Regulation S-X or (2) is a GSE.
"ERISA": The U.S. Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act": The U.S. Securities Exchange Act of 1934, as amended.
"Executive Officer": With respect to any corporation or limited liability
company, the Chief Executive Officer, Chief Operating Officer, Chief Financial
Officer, President, any Vice President, the Treasurer or any Assistant
Treasurer, and the Secretary or any Assistant Secretary of such corporation or
limited liability company, as the case may be.
"Expense Reserve Account": An Eligible Account established in accordance
with Section 8.05(d).
"Extraordinary Trust Expense": As defined in Section 8.05(b).
"Final Scheduled Distribution Date": o.
"Fitch": Fitch Ratings.
"FRBNY": As defined in Section 2.01(b).
"Fractional Undivided Interest" means the fractional undivided beneficial
ownership interests in the assets of the Trust evidenced by an Outstanding
Certificate that is equal to the Certificate Principal Balance of such
Certificate divided by the aggregate Certificate Principal Balance of all
Outstanding Certificates.
"Global Certificates": A Certificate in global form bearing the legend
specified in Section 5.11(c) that is deposited with the Trustee on behalf of the
Depositary and registered in the name of the Depositary or its nominee.
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"GSE": A government-sponsored enterprise that is not required to register
the public offering and sale of its securities under the Securities Act and that
makes its information publicly available on a periodic basis.
"Initial Distribution Period": The period from and including the Closing
Date to but excluding the initial Regular Distribution Date.
"Initial Underlying Note Accrual Period": The period from and including the
Closing Date to but excluding the initial Underlying Note Interest Payment Date.
"Investment Company Act": The U.S. Investment Company Act of 1940, as
amended.
"Luxembourg Authorized Newspaper": The Luxembourg Wort or any other
newspaper that is (1) printed in an official language of Luxembourg, (2)
customarily published on each day that is a business day in Luxembourg and (3)
in general circulation in Luxembourg.
"Maximum Reimbursable Amount": As specified in Section 8.05(b).
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc.
"Non-Filing Event": An Underlying Issuer of Underlying Notes representing
10% or more of the aggregate principal amount of all Underlying Notes is, at any
time, not filing periodic reports with the Commission under the Exchange Act, in
the case of a Reporting Company, or is not making its information publicly
available, in the case of a GSE, and, in any such case, the obligations of such
Underlying Issuer are not (1) fully and unconditionally guaranteed by an
Eligible Issuer (and all of the requirements of Rule 3-10 of Regulation S-X are
satisfied) or (2) assumed by an Eligible Issuer.
"Officer's Certificate": A certificate signed by one or more Executive
Officers of the Depositor, as specified in this Agreement, and delivered to the
Trustee.
"Opinion of Counsel": A written opinion of counsel, who may, except as
otherwise expressly provided in this Agreement, be counsel for the Depositor,
reasonably acceptable to the Trustee.
"Outstanding": As of any date of determination, all Certificates
theretofore authenticated and delivered under this Agreement, except:
(1) Certificates theretofore canceled by the Certificate Registrar or
delivered to the Trustee for cancellation; and
(2) 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 represent beneficial ownership interests in the assets of the
Trust; and
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(3) Certificates whose Certificate Principal Balance has been reduced
to zero in accordance with the terms of this Agreement.
"Paying Agent": As defined in Section 5.09.
"Person": Any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Certificate": With respect to any particular Certificate,
every previous Certificate evidencing all or a portion of the same undivided
beneficial ownership interests as those evidenced by such particular
Certificate; and, for the purpose of this definition, any Certificate
authenticated and delivered under Section 5.04 in lieu of a lost, destroyed or
stolen Certificate shall be deemed to evidence the same undivided beneficial
ownership interests as the lost, destroyed or stolen Certificate.
"Proceeding": Any suit in equity, action at law or other judicial or
administrative action or proceeding.
"Publicly Offered Securities": Securities that satisfy the requirements of
29 C.F.R.ss.2510.3-101(b)(2).
"Rating Agencies": ▇▇▇▇▇'▇, S&P and Fitch.
"Rating Agency Condition": With respect to any action taken or to be taken
under this Agreement, written confirmation from each Rating Agency to the
Depositor, the Trustee and the Administrative Agent that an immediate withdrawal
or reduction of its then current rating of the Outstanding Certificates from
such Rating Agency will not occur as a result of such action.
"Record Date": With respect to a distribution of interest to
Certificateholders on a Regular Distribution Date other than the Final
Scheduled Distribution Date, the o and o (whether or not a Business Day), as
the case may be, immediately preceding such Distribution Date; and with
respect to a distribution on a Special Distribution Date other than a Special
Distribution Date resulting from the optional redemption of Underlying Notes,
the calendar day (whether or not a Business Day) immediately preceding the
date on which the Trustee received the related payment.
"Regular Distribution Date": Any date, other than a Special Distribution
Date, on which payments are received by the Trustee in respect of the Underlying
Notes or, if that date is not a Business Day, the next succeeding Business Day.
"Removal Event": A Downgrade Event, a Non-Filing Event and/or a Default
Event.
"Reporting Company": A Person that is subject to the periodic informational
reporting requirements of the Exchange Act.
"Responsible Officer": With respect to the Trustee or the Administrative
Agent, as the context requires, any Vice President, Assistant Vice President,
Secretary, Assistant Secretary or
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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.
"Securities Act": The U.S. Securities Act of 1933, as amended.
"Securities Intermediary": As defined in Section 3.05(c).
"Special Distribution Date": As defined in Section 4.01(b).
"State": Any one of the ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ or the District of
Columbia.
"S&P": Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"TIA": The U.S. Trust Indenture Act of 1939, as amended.
"Transfer": With respect to the Underlying Notes or other Trust Property,
to sell, convey, assign, transfer, create, grant a pledge or other lien upon and
a security interest in and right of setoff against, deposit, set over,
contribute and confirm to the Trustee pursuant to this Agreement; and the terms
"Transferred" and "Transferring" have the meanings correlative to the foregoing.
A Transfer of any Underlying Notes or of any other instrument shall include all
rights, powers and options (but none of the obligations) of the Transferring
party thereunder, including the first priority and continuing right to claim
for, collect, receive and give receipt for principal, premium, if any, and
interest payments in respect of such Underlying Notes and all other moneys
payable thereunder, to give and receive notices and other communications, to
make waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the Transferring party or otherwise, and generally to
do and receive anything that the Transferring party is or may be entitled to do
or receive thereunder or with respect thereto.
"Trust": Core Investment Grade Bond Trust I, the trust created by this
Agreement.
"Trust Expenses": The sum of: (1) Trustee Fees; (2) fees and expenses
relating to preparing, filing, printing and delivering prospectuses, reports and
other information relating to the Trust under the Securities Act or the Exchange
Act (including the fees and disbursements of the Trust's counsel and
accountants); and (3) fees charged by the Rating Agencies with respect to their
ratings of the Certificates.
"Trust Property": As defined in Section 3.01.
"Trustee": The Bank of New York, a New York corporation, or any co-trustee
appointed pursuant to Section 8.10, until a successor Person shall have become
the Trustee pursuant to the applicable terms of the Trust Agreement, and
thereafter "Trustee" shall mean such successor Person.
"Trustee Fees": As defined in Section 8.05(a).
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"UCC": The Uniform Commercial Code as in effect in the relevant
jurisdiction.
"Underlying Issuer": Each issuer of Underlying Notes.
"Underlying Notes": The Underlying Notes specified on Schedule I, subject
to removal from the assets of the Trust upon the occurrence of a Removal Event,
an event specified in Section 3.10 or the optional redemption of Underlying
Notes by the related Underlying Issuer.
"Underlying Note Accrual Period": The Initial Underlying Note Accrual
Period and each period from and including an Underlying Note Interest Payment
Date to but excluding the next succeeding Underlying Note Interest Payment Date.
"Underlying Note Agreement": The indenture, fiscal agency agreement or
other agreement under or pursuant to which a particular Underlying Note is
issued by the related Underlying Issuer.
"Underlying Note Interest Payment Date": As specified in Schedule I.
"Underlying Note Interest Rate": As specified in Schedule I.
"United States": The United States of America (including the States), its
territories, its possessions and other areas subject to its jurisdiction.
"U.S. Person": A citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof, an estate the income of
which is subject to United States federal income taxation regardless of its
source or a trust if (i) a U.S. court is able to exercise primary supervision
over the trust's administration and (ii) one or more U.S. persons have the
authority to control all of the trust's substantial decisions.
Certain additional defined terms have the meanings assigned thereto in
other terms hereof.
Section 1.02 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
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(vi) words in the singular include the plural and words in the plural
include the singular.
Section 1.03 Article and Section References. All Article and Section
references used in this Agreement, unless otherwise provided, are to Articles
and sections in this Agreement. Any reference to "this Section" appearing within
a particular paragraph of a Section is a reference to such Section as a whole.
ARTICLE II
DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
Section 2.01 Creation and Declaration of Trust; Assignment of Underlying
Notes. (a) The Depositor, concurrently with the execution and delivery of this
Agreement, Transfers to the Trustee, on behalf and for the benefit of the
Certificateholders and without recourse, all the right, title and interest of
the Depositor, including any security interest therein, in, to and under (i)
the Underlying Notes, (ii) the Certificate Account, including all income from
the investment of funds in the Certificate Account, (iii) all payments on or
under and all proceeds of any of the foregoing (including all proceeds of the
conversion thereof, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance proceeds,
condemnation awards, causes of action, rights to payment of any and every kind
and other forms of obligations, receivables, instruments and other property
which at any time constitute all or part of or are included in the proceeds of
any of the foregoing) and (iv) all other assets included or to be included in
the Trust Property.
(b) In connection with the Transfer referred to in Section 2.01(a), the
Depositor shall, on the Closing Date, either (i) deposit the Underlying Notes in
definitive, physical form with the Trustee by physical delivery of such
Underlying Notes, duly endorsed and accompanied by all necessary Transfer
documents, to the Trustee, (ii) cause the Underlying Notes represented by global
securities (other than those Underlying Notes issued by GSEs) to be transferred
to the Trustee on the books and records of the applicable Depositary and its
participants or (iii) cause the Underlying Notes issued by GSEs that are
represented by global securities to be transferred to the Trustee in the
book-entry records of the Federal Reserve Bank of New York ("FRBNY").
(c) The Depositor's Transfer of the Underlying Notes to the Trustee
accomplished by this Agreement is absolute and is intended by the parties hereto
as a sale as further provided in Section 3.04.
Section 2.02 Entry into Agency Agreement. Prior to the execution of this
Agreement, the Depositor shall have entered into the Agency Agreement with the
Certificates Agents.
Section 2.03 Acceptance by Trustee. The Trustee acknowledges its receipt of
the Underlying Notes and the related documents referred to in Section 2.01 and
declares that it will hold such assets and all other assets comprising the Trust
Property in trust for the exclusive benefit of all present and future
Certificateholders and for the purposes and subject to the terms
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and conditions set forth in this Agreement, including the Trustee's
obligations to make distributions to the Certificateholders in accordance with
Section 4.01.
Section 2.04 Agreement to Execute, Authenticate and Deliver Certificates.
The Trustee agrees and acknowledges that it will, concurrently with its receipt
of the Underlying Notes and the execution and delivery by the Depositor of this
Agreement, duly execute, authenticate and deliver to or upon the order of the
Depositor, in exchange for the Underlying Notes and such other assets
constituting the Trust Property, Certificates in authorized denominations
evidencing beneficial ownership of the entire Trust Property, all in accordance
with the terms and conditions of this Agreement.
ARTICLE III
TRUST POWERS; ADMINISTRATION OF THE TRUST PROPERTY
Section 3.01 Trust Property. The "Trust Property" will consist of (i) the
Underlying Notes and all payments on or collections in respect of such
Underlying Notes and (ii) all Eligible Investments and all funds from time to
time deposited in segregated accounts held by the Trustee in trust for the
benefit of the Certificateholders other than the Expense Reserve Account.
Section 3.02 Administration of the Trust. (a) Except as otherwise
specified herein, the Trustee shall administer the Trust Property for the
benefit of the Certificateholders. In administering the Trust Property, the
Trustee shall follow the collection procedures specified in the Underlying
Notes and shall perform all other duties set forth herein. The duties of the
Trustee shall be performed in accordance with applicable law.
(b) Subject to Article VIII, the Trustee is hereby authorized to perform,
and from time to time hereafter, shall perform only those acts which are
described in this Agreement as obligations of the Trustee. Notwithstanding the
generality of the foregoing, the Trustee is hereby specifically authorized to do
the following on behalf of the Trust: to accept delivery of the Underlying
Notes; to execute, authenticate and deliver the Certificates; to establish and
maintain the Certificate Account hereunder; to pledge the Trust Property to
secure the obligations of the Trust; to make Eligible Investments pursuant to
Section 3.06; and to make distributions pursuant to Article IV.
(c) Notwithstanding anything to the contrary herein, the Trustee shall not
permit the Trust to engage in any business or activities other than receiving
and holding the Underlying Notes or other Trust Property as provided herein in
trust for the benefit of Certificateholders, issuing the Certificates, making
Eligible Investments in accordance with Section 3.06 and distributions pursuant
to Article IV and performing its duties set forth herein; provided, further,
that the Trustee shall not permit the Trust to engage in any business or
activity which will cause it to be required to be registered under the
Investment Company Act or which would cause the Trust to be taxed as an
association or publicly traded partnership taxable as a corporation or otherwise
alter the classification of the Trust for U.S. Federal income tax purposes.
(d) The Trustee shall not Transfer the Underlying Notes or other Trust
Property, or any interest of the Trust therein, to any Person or Persons, except
to a successor trustee as
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provided in Section 8.08 or as otherwise expressly specified hereunder. This
Section 3.02(d) shall not be construed to prohibit Transfers of the
Certificates or removal of any Underlying Notes from the Trust Property as
expressly specified herein. In addition, the Trustee shall not acquire any
asset or make any investment except as contemplated within the definition of
Trust Property.
(e) The Trustee shall be legally entitled to exercise all of the rights,
powers and privileges as a registered holder or beneficial owner of the
Underlying Notes, subject to the provisions of this Agreement. However, neither
the Trustee (except as specifically provided herein or in the TIA) nor the
Depositor shall be under any obligation whatsoever to appear in, prosecute or
defend any Proceeding in respect of Underlying Notes or Certificates.
(f) The Trustee shall not take any action that is reasonably likely to (i)
impair the interests of the Trust in any Underlying Notes or any other Trust
Property, (ii) impair the value of any Underlying Notes or any other Trust
Property, (iii) require the Trust to be registered under the Investment Company
Act or (iv) cause the Trust to be taxed as a corporation or publicly traded
partnership taxable as a corporation or otherwise alter the classification of
the Trust for U.S. Federal income tax purposes, and the Trustee shall not fail
to take any action that is reasonably likely to avoid any of the matters
referred to in clause (i), (ii), (iii) or (iv) above.
Section 3.03 Collection of Certain Underlying Note Payments. The Trustee
shall use its best efforts to collect all payments required to be made by each
Underlying Issuer pursuant to the terms of its Underlying Notes in a manner
consistent with the terms of such Underlying Notes.
Section 3.04 Sale. The parties hereto agree and intend that the Transfer of
Underlying Notes to the Trust by the Depositor and all proceeds thereof shall be
treated as a sale and purchase by the Trust and not as a loan or a pledge to
secure a loan. If for any reason such Transfer is deemed to be as a loan or a
pledge to secure a loan, the parties intend that this Agreement shall be a
security agreement pursuant to which there shall be deemed to have been granted
to the Trustee a security interest in all right, title and interest in and to
the Underlying Notes and to the obligation to the Trustee for Trust Expenses
specified herein. If the Trust terminates prior to the satisfaction of the
claims of any Certificateholder under any Certificate, the security interest
created hereby shall continue in full force and effect and the Trustee shall be
deemed to be the collateral agent for the benefit of such Certificateholder.
Section 3.05 Certificate Account. (a) The Trustee shall establish a
Certificate Account. The Trustee, on behalf of the Certificateholders, shall
possess all right, title and interest in and to all funds on deposit from time
to time in the Certificate Account and in all proceeds thereof, subject to the
payment of Trust Expenses as specified herein. The Certificate Account shall be
under the sole dominion and control of the Trustee. The Trustee shall deposit or
cause to be deposited in the Certificate Account all amounts collected with
respect to the Underlying Notes, including:
(i) all payments received by the Trustee on account of principal of
the Underlying Notes;
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(ii) all payments received by the Trustee on account of premium (if
any) on the Underlying Notes;
(iii) all payments received by the Trustee on account of interest on
the Underlying Notes; and
(iv) payments in the nature of penalties, late payment charges or
assumption fees received by the Trustee in respect of any Underlying Notes.
The Trustee shall also deposit or cause to be deposited in the Certificate
Account all interest payments received in respect of any Eligible Investments.
If, at any time, the Certificate Account is not an Eligible Account, the
Trustee shall, within five Business Days (or such longer period, not to exceed
30 calendar days, so long as the Rating Agency Condition is met), establish a
new Certificate Account meeting the conditions specified above and the Trustee
shall, within five Business Days after establishing a new Certificate Account,
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 purposes of this
Agreement.
(b) The Trustee shall give notice to the Depositor of the location of each
Eligible Account constituting the Certificate Account prior to any change
thereof.
(c)
(i) The Trustee hereby confirms the following with respect to the
Certificate Account: (A) the Certificate Account shall be a "securities
account" within the meaning of Section 8-501 of the UCC to which financial
assets are or may be credited, (B) the Trustee shall act in the capacity of
a "securities intermediary" within the meaning of Section 8-102(a)(14) of
the UCC (in such capacity, the "Securities Intermediary") with respect to
the Certificate Account, (C) the Securities Intermediary shall treat the
Trustee as the sole "entitlement holder" within the meaning of Section
8-102(a)(7) of the Certificate Account and the sole Person entitled to
exercise the rights that comprise any financial asset credited to the
Certificate Account, and (D) all securities, securities entitlements,
financial assets and other investment property shall be credited by the
Securities Intermediary to the Certificate Account as provided herein.
(ii) The Securities Intermediary hereby agrees that each item of
property (whether investment property, financial assets, securities, or
instruments) credited to the Certificate Account other than cash shall be
treated as a "financial asset" within the meaning of Article 8-102(a)(9) of
the UCC. On the day on which any funds are deposited in the Certificate
Account, the Securities Intermediary shall either distribute such funds in
accordance with Section 4.01 hereof or, as applicable, invest such funds in
Eligible Investments, in accordance with Section 3.06 hereof.
(iii) Notwithstanding anything to the contrary and for the avoidance
of doubt, if at any time the Securities Intermediary shall receive any
notification or entitlement order from the Trustee directing it to transfer
or redeem any financial asset or other
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property relating to the Certificate Account, the Securities Intermediary
shall comply with such notification or other entitlement order without
further consent by the Depositor or any other Person.
(iv) The Securities Intermediary's jurisdiction (as defined in Section
8-110 of the UCC) shall be the State of New York.
(v) The Trust Property and any other property to be deposited in, or
credited to, the Certificate Account shall be delivered as follows (terms
used in the following provisions that are not otherwise defined are used as
defined in Article 8 of the UCC):
(1) in the case of each certificated security (other than a clearing
corporation security (as defined below)) or instrument, by:
(a) the delivery of such certificated security or
instrument to the Securities Intermediary registered in the
name of the Securities Intermediary or its affiliated nominee
or endorsed to the Securities Intermediary or in blank,
(b) the Securities Intermediary continuously indicating by
book-entry that such certificated security or instrument is
credited to the Certificate Account, and
(c) the Securities Intermediary maintaining continuous
possession of such certificated security or instrument in the
State of New York;
(2) in the case of each uncertificated security (other than a clearing
corporation security (as defined below) ), by causing:
(a) such uncertificated security to be continuously
registered on the books of the issuer thereof to the Securities
Intermediary, and
(b) the Securities Intermediary continuously indicating by
book-entry that such uncertificated security is credited to the
Certificate Account;
(3) in the case of each security in the custody of or maintained on
the books of a clearing corporation or its nominee (a "clearing
corporation security"), by causing:
(a) the relevant clearing corporation to credit such
clearing corporation security to the securities account of the
Securities Intermediary, and
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(b) the Securities Intermediary continuously indicating by
book-entry that such clearing corporation security is credited to
the Certificate Account;
(4) in the case of each security issued or guaranteed by the United
States of America or agency or instrumentality thereof and that is
maintained in book-entry records of the FRBNY (a "government
security"), by causing:
(a) the creation of a security entitlement to such
government security by the credit of such government security to
the securities account of the Securities Intermediary at the
FRBNY, and
(b) the Securities Intermediary continuously indicating by
book-entry that such government security is credited to the
Certificate Account; and
(5) in the case of each security entitlement not governed by clauses
(1) through (4) above, by:
(a) causing a securities intermediary (x) to indicate by
book-entry that the underlying "financial asset" (as defined in
Section 8-102(a)(9) of the UCC) has been credited to be the
Securities Intermediary's securities account, (y) to receive a
financial asset from the Securities Intermediary or acquiring the
underlying financial asset for the Securities Intermediary, and,
in either case, accepting it for credit to the Securities
Intermediary's securities account or (z) to become obligated
under other law, regulation or rule to credit the underlying
financial asset to the Security Intermediary's securities
account,
(b) the making by such securities intermediary of entries on
its books and records continuously identifying such security
entitlement as belonging to the Securities Intermediary and
continuously indicating by book-entry that such securities
entitlement is credited to the Securities Intermediary's
securities account, and
(c) the Securities Intermediary continuously indicating by
book-entry that such security entitlement (or all rights and
property of the Securities Intermediary representing such
securities entitlement) is credited to the Certificate Account.
Section 3.06. Investment of Funds in the Accounts. The Trustee shall use
commercially reasonable efforts to deliver or cause to be delivered all
uninvested funds in the Certificate Account or any other segregated account the
content of which is held for the benefit of the Trust (each, an "Account") to an
account specified by the Administrative Agent for investment in
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Eligible Investments no later than 2:00 PM New York City time (or such other
time as may be acceptable to the Administrative Agent) on the Business Day
such funds are deposited in any such Account; provided, however, that in the
event the Trustee shall be unable to deliver such funds or cause such funds to
be delivered as aforesaid, the Trustee shall invest such funds in the Eligible
Investments of the type specified in clause (2) of the definition thereof
prior to the close of business on the Business Day such funds are deposited in
any such Account. On the Business Day any uninvested funds are delivered to
the Administrative Agent, the Administrative Agent shall invest such funds in
one or more Eligible Investments bearing interest or sold at a discount and
deposit or cause such Eligible Investments to be deposited in such Account for
the benefit of the Trust. The Depositor may direct the Administrative Agent in
writing no later than 2:00 PM New York City time on the Business Day on which
such funds are received by the Administrative Agent to invest such funds in
one or more Eligible Investments. However, if the Depositor does not provide
any investment directions to the Administrative Agent prior to that time, then
the Administrative Agent shall invest such funds in the Eligible Investments
of the type specified in clause (2) of the definition thereof. The Trustee or
any such depository institution shall be required to hold such Eligible
Investments to maturity unless any such investments shall (x) no longer
qualify as Eligible Investments (as determined by the Administrative Agent) or
(y) be payable on demand. In the event that the Administrative Agent
determines that such investments no longer qualify as Eligible Investments,
the Administrative Agent shall sell the same and deposit the proceeds or cause
the proceeds to be deposited in the applicable Account.
Section 3.07. Access to Certain Documentation. The Trustee shall provide to
any regulatory authority that may exercise authority over the Depositor or any
Certificateholder access to the documentation regarding the Underlying Notes
required by applicable laws and regulations. Such access shall be afforded
without charge, but only upon reasonable request and during normal business
hours at the offices of the Trustee designated by it. In addition, access to the
documentation regarding the Underlying Notes will be provided to the Depositor
or any Certificateholder upon request during normal business hours at the
Corporate Trust Office of the Trustee at the expense of the Person requesting
such access.
Section 3.08. Removal of Underlying Notes Upon a Removal Event. (a) If a
Removal Event with respect to any Underlying Note or the related Underlying
Issuer has occurred, then the Trustee, within two Business Days following its
receipt of written notice from the applicable Underlying Note indenture trustee
or fiscal agent or its actual knowledge of a payment default, in the case of a
Default Event, or its receipt of written notice from the Administrative Agent,
in the case of a Downgrade Event or a Non-Filing Event, will deliver to the
Certificateholders notice of the applicable Removal Event in the form specified
in Annex A hereto in accordance with Section 4.02(b) and, within twelve Business
Days following its receipt of any such written notice or its actual knowledge of
a payment default, will remove the related Underlying Notes from the Trust
Property and, subject to Section 3.08(b), will distribute such Underlying Notes
to the Certificateholders on a pro rata basis (based on their Fractional
Undivided Interests) and the Certificate Principal Balance of each Certificate
will be reduced by an amount equal to the pro rata share of the principal amount
of such Underlying Notes. In such cases, (i) the Trustee will decrease the
Certificate Principal Balance of a Global Certificate to reflect such reduction
or (ii) Certificateholders holding Certificated Certificates will be required to
deliver the same to the Corporate Trust Office of the Trustee, whereupon the
Trustee will execute, authenticate
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and deliver to such Certificateholders (without any service charge) new
Certificated Certificates of authorized denominations for the remaining
Certificate Principal Balance and will deliver a pro rata share of such
Underlying Notes or the sale proceeds specified in Sections 3.08(b) and (c)
and 3.09, as required, to such Certificateholders.
(b) If, following a Removal Event, an individual Certificateholder shall
notify the Trustee by delivering to the Trustee a notice substantially in the
form attached hereto as Annex B, within three Business Days of its receipt of
notice of such Removal Event from the Trustee, that it irrevocably elects to
sell its pro rata share of the related Underlying Notes, then the Trustee shall
deliver such Underlying Notes to the Administrative Agent for sale. The
Administrative Agent shall then use its reasonable efforts to sell each such
Certificateholder's pro rata share of the related Underlying Notes and deliver
the proceeds received in connection with such sale (less any Administrative
Agent Fee (as herein defined)), if any, to the Trustee for distribution to each
applicable Certificateholder. Any such sale and distribution of proceeds will be
made in accordance with Section 3.09.
(c) If the Trustee cannot distribute the related Underlying Notes that are
to be distributed to Certificateholders upon the occurrence of a Removal Event
as a result of the failure to satisfy the minimum authorized denomination
requirements of such Underlying Notes, the Trustee will deliver such Underlying
Notes to the Administrative Agent for sale on behalf of the related
Certificateholders. Following such sale, the Administrative Agent will promptly
deliver the proceeds received from such sale (without any deduction for any
Administrative Agent Fee) to the Trustee for distribution to the applicable
Certificateholders.
Section 3.09. Sale Procedures Following a Removal Event. In connection
with any sale of any Underlying Notes required pursuant to Section 3.08, the
Administrative Agent will, on behalf of the applicable Certificateholders, use
its reasonable efforts to sell such Underlying Notes to the highest of not
less than three solicited bidders (which bidders may include the
Administrative Agent and its Affiliates); provided, however, that neither the
Administrative Agent nor any of its Affiliates shall be obligated to bid for
such Underlying Notes; provided, further, that the Administrative Agent shall
use its reasonable efforts to solicit no less than three bids from financial
institutions with invested assets or assets under management of at least $100
million that are not Affiliates of the Administrative Agent. If, in connection
with the sale of any Underlying Notes for which one or more Certificateholders
have elected to sell their respective pro rata shares thereof in accordance
with Section 3.08(b), the Administrative Agent receives less than three such
bids prior to the close of business on the fifth Business Day after the
Trustee has notified Certificateholders of the related Removal Event, the
Administration Agent shall deliver the related aggregate principal amount of
such Underlying Notes to the Trustee for distribution to such
Certificateholder. If, in connection with the sale of any Underlying Notes
pursuant to Section 3.08(c) hereof, the Administrative Agent receives less
than three such bids prior to the close of business on the second Business Day
following the Administrative Agent's receipt of all such Underlying Notes to
be sold pursuant to Section 3.08(c), the Administrative Agent shall sell the
related Underlying Notes to the highest bidder and deliver the proceeds
received in connection with such sale (without any deduction for any
Administrative Agent Fee) to the Trustee for distribution to the applicable
Certificateholders. In the sole judgment of the Administrative Agent, bids may
be evaluated on the basis of bids for all or a portion of the Underlying Notes
to be sold or any other basis selected in good faith by the Administrative
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Agent. The proceeds of such sale will be allocated in the following order of
priority: (i) to the Administrative Agent for its fee for its services for the
sale of Underlying Notes pursuant to Section 3.08(b)(ii) equal to the product of
the (1) the aggregate principal amount of the Underlying Notes so sold and (2)
0.05% (the "Administrative Agent Fee") and (ii) to the Certificateholders in the
manner specified in Section 3.08. The Administrative Agent will deduct this fee
from the gross proceeds received from any such sale.
Section 3.10. Removal of Underlying Notes Upon Final Judgment. Upon the
Trustee's receipt of written notice or its actual knowledge of any action
brought under any U.S. Federal or State securities laws in respect of an
Underlying Note of any Underlying Issuer, the Trustee shall promptly notify
Certificateholders about the existence of such action and the Trustee's role, if
any, in such action. Furthermore, as soon as practicable (but in no event later
than twelve Business Days) following the Trustee's receipt of any written notice
or its actual knowledge of a final judgment or decree granting a right of
rescission with respect to an Underlying Note of an Underlying Issuer in
connection with any action brought under any U.S. Federal or State securities
laws in respect of such Underlying Note, the Trustee will remove all of the
Underlying Notes of such Underlying Issuer, in whole and not in part, from the
Trust Property and will distribute such Underlying Notes to the
Certificateholders on a pro rata basis (based on their Fractional Undivided
Interests) and the Certificate Principal Balance of each Certificate will be
reduced by an amount equal to the pro rata share of the principal amount of such
Underlying Notes. The removal of any Underlying Note pursuant to this Section
3.10 shall not be subject to or eligible for sale under Section 3.09.
Section 3.11. Administrative Agent Provisions. (a) The Administrative Agent
undertakes to perform such duties and only such duties that are applicable to it
as specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Administrative Agent.
Any permissive right of the Administrative Agent enumerated in this Agreement
shall not be construed as a duty.
(b) Neither the Administrative Agent nor any of its directors, officers,
employees or agents shall be liable, for any losses, costs or damages or
otherwise, to the Trustee or the Certificateholders under any circumstances for
any act or omission except for its willful misconduct, bad faith or gross
negligence in the performance of duties specifically set forth in this
Agreement; it being understood that:
(i) the duties and obligations of the Administrative Agent shall be
determined solely by the express terms of this Agreement and, in the
absence of gross negligence, bad faith or willful misconduct on the part of
the Administrative Agent, the Administrative Agent may conclusively rely
upon any certificates or opinions furnished to the Administrative Agent as
to the truth and correctness of any statements contained therein;
(ii) the Administrative Agent shall not be personally liable for any
action taken, suffered or omitted by a Responsible Officer or Responsible
Officers of the Administrative Agent in good faith and believed by such
Responsible Officer or Responsible Officers to be authorized or within
the discretion or rights or powers conferred upon it by this Agreement;
and
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(iii) except with respect to actions or duties required to be taken or
performed, as applicable, by the Administrative Agent under the express
terms of this Agreement, the Administrative Agent shall not be required to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers under this Agreement.
(c) Except as otherwise provided in Section 3.11(b):
(i) the Administrative Agent may request and rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officers' 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 by the proper party or parties;
(ii) the Administrative Agent may consult with counsel and any 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
under this Agreement in good faith and in accordance with such advice or
Opinion of Counsel;
(iii) the Administrative Agent shall be under no obligation to
institute, conduct or defend any Proceeding hereunder or in relation
thereto, at the request, order or direction of any of the
Certificateholders or otherwise;
(iv) the Administrative Agent 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;
(v) the Administrative Agent may execute any of the powers or perform
any duties under this Agreement either directly or by or through
Affiliates; and
(vi) the Administrative Agent shall not be deemed to have notice or
actual knowledge of any matter unless written notice thereof is received by
the Administrative Agent at its office at Bank of America ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: o.
(d) The Administrative Agent may at any time resign and be discharged
from its obligations and duties hereunder by giving written notice thereof to
the Depositor. Upon receiving such notice of resignation, the Depositor shall
as promptly as possible (and in any event within 45 calendar days after the
date of such notice of resignation) appoint a successor Administrative Agent
by written instrument, in duplicate, which instrument shall be delivered to
the resigning Administrative Agent and to the successor Administrative Agent;
provided, that the appointment of such successor does not result in the
failure of the Rating Agency Condition. A copy of such instrument shall be
delivered to the Certificateholders by the Depositor. If no such successor
Administrative Agent shall have been so appointed and have accepted
appointment within 45 calendar days after the giving of such notice of
resignation, the resigning Administrative Agent may petition any court of
competent jurisdiction for the appointment of a successor Administrative
Agent.
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(e) The Depositor may remove the Administrative Agent at any time;
provided, that the Depositor, in connection with any such removal, appoints a
successor Administrative Agent by written instrument, in duplicate, which
instrument shall be delivered to the Administrative Agent so removed and to the
successor Administrative Agent. A copy of such instrument shall be delivered to
the Certificateholders by the Depositor.
(f) Any resignation or removal of the Administrative Agent and appointment
of a successor Administrative Agent pursuant to any of the terms of Section
3.11(d) or (e) shall not become effective until acceptance of appointment by the
successor Administrative Agent as provided in Section 3.11(g).
(g) Any successor Administrative Agent appointed as provided in Section
3.11(d) or (e) shall execute, acknowledge and deliver to the Depositor and its
predecessor Administrative Agent an instrument accepting such appointment under
this Agreement, and thereupon the resignation or removal of the predecessor
Administrative Agent shall become effective and such successor Administrative
Agent, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of the predecessor
Administrative Agent under this Agreement, with the like effect as if originally
named as Administrative Agent in this Agreement. The predecessor Administrative
Agent shall deliver to the successor Administrative Agent all documents and
statements held by it under this Agreement, and the Depositor and the
predecessor Administrative Agent 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 Administrative Agent all such rights,
powers, duties and obligations. Upon acceptance of appointment by a successor
Administrative Agent as provided herein, the Depositor shall transmit notice of
the succession of such Administrative Agent under this Agreement to all
Certificateholders.
(h) Any corporation or association into which the Administrative Agent 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 Administrative Agent shall be a party, or any corporation or association
succeeding to the business of the Administrative Agent, shall be the successor
of the Administrative Agent under this Agreement without the execution or filing
of any paper or any further act on the part of any of the parties to this
Agreement, anything in this Agreement to the contrary notwithstanding.
ARTICLE IV
DISTRIBUTIONS AND REPORTS TO CERTIFICATEHOLDERS
Section 4.01. Distributions. (a) On each Regular Distribution Date for the
Certificates, the Trustee shall distribute the Available Funds in the
Certificate Account to (1) Certificateholders on the Record Date for a Regular
Distribution Date other than the Final Scheduled Distribution Date or (2)
Certificateholders against presentation and surrender of their Certificates on
the Final Scheduled Distribution Date, in the following order of priority:
(i) the Trustee will distribute the interest portion of Available
Funds:
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(1) first, to the Trustee for actual Trust Expenses, an aggregate
amount not to exceed the Available Expense Amount for the Distribution
Period applicable to such Regular Distribution Date;
(2) second, (x) to the extent the Available Expense Amount for
such Distribution Period exceeds the actual Trust Expenses for such
Distribution Period, to the Expense Reserve Account in the amount of
such excess and (y) to the extent actual Trust Expenses for such
Distribution Period exceed the sum of (a) the Available Expense Amount
for such Distribution Period, (b) funds, if any, on deposit in the
Expense Reserve Account and (c) the amount payable by the Depositor
for such Distribution Period in accordance with Section 8.05(a), to
the Trustee for all remaining unpaid actual Trust Expenses for that
Distribution Period;
(3) third, to the Certificateholders on a pro rata basis (based
on their Fractional Undivided Interests); and
(ii) the Trustee will distribute the principal portion of Available
Funds to the Certificateholders on a pro rata basis (based on their
Fractional Undivided Interests).
On the Final Scheduled Distribution Date, the Certificate Principal Balance
of each Certificate will be reduced on a pro rata basis (based on its Fractional
Undivided Interest) with respect to payment of the principal amount of each
Underlying Notes paid at its stated maturity, exclusive of any premium. In such
cases, (i) the Trustee will decrease the Certificate Principal Balance of a
Global Certificate to reflect the maturing Underlying Notes or (ii)
Certificateholders holding Certificated Certificates will be required to deliver
the same to the Corporate Trust Office of the Trustee, whereupon the Trustee
will execute, authenticate and deliver to such Certificateholders (without any
service charge) new Certificated Certificates of authorized denominations for
any remaining Certificate Principal Balance and will also deliver the principal
and any premium and interest so received on the maturing Underlying Notes.
(b) If the Trustee receives a payment of principal of or premium or
interest on an Underlying Note (i) after the due date for such payment as
specified in such Underlying Note or (ii) upon the optional redemption of such
Underlying Note by the related Underlying Issuer prior to the stated maturity
of such Underlying Note, then the Trustee will distribute the amounts so
received on the next succeeding Business Day (each, a "Special Distribution
Date") to (x) Certificateholders on the Record Date for a Special Distribution
Date resulting from the circumstances specified in clause (i) above or (y)
Certificateholders against presentation and surrender of their Certificates on
a Special Distribution Date resulting from the circumstances specified in
clause (ii) above, in the manner specified in Sections 4.01(a)(i)(3) and
4.01(a)(ii). In the case described in clause (ii) above, the Certificate
Principal Balance of each Certificate will be reduced on a pro rata basis
(based on its Fractional Undivided Interest) with respect to the principal
amount of each Underlying Note redeemed by the related Underlying Issuer prior
to its stated maturity, exclusive of any premium. In such cases, (1) the
Trustee will decrease the Certificate Principal Balance of a Global
Certificate to reflect such redemption or (2) Certificateholders holding
Certificated Certificates will be required to deliver the same to the
Corporate Trust Office of the Trustee, whereupon the Trustee will execute,
authenticate and
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deliver to such Certificateholders (without any service charge) new
Certificated Certificates of authorized denominations for the remaining
Certificate Principal Balance and will also deliver to such Certificateholders
the principal and any premium and interest so received on the Underlying Notes
so redeemed.
Section 4.02. Reports to Certificateholders; Notices. (a) On the Business
Day next succeeding each Distribution Date, the Trustee shall forward or cause
to be forwarded to the Depositor and each Certificateholder a statement setting
forth:
(i) the amount of distributions to Certificateholders allocable
to principal or interest portion of Available Funds or the amount of
any premiums payable to Certificateholders on a Special Distribution
Date resulting from the optional redemption of Underlying Notes;
(ii) the aggregate Certificate Principal Balance at the close of
business on such Distribution Date;
(iii) the amount received by the Trustee on the related
Underlying Notes for the applicable Underlying Note Accrual Period;
and
(iv) the aggregate principal amount of the Underlying Notes as of
such Distribution Date and the weighted average interest rate per
annum applicable to the Underlying Notes for the next succeeding
Underlying Note Accrual Period.
In the case of information furnished pursuant to clause (i) above, any
amount shall be expressed as a Dollar amount 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 clause
(i) above, aggregated for such calendar year or the applicable portion thereof
during which such Person was a Certificateholder, which statement shall
contain sufficient information to allow Certificateholders to calculate their
U.S. Federal income tax liability with respect to the Certificates. Such
obligation of the Trustee shall be deemed to have been satisfied to the extent
that substantially comparable information shall have been provided by the
Trustee pursuant to any requirements of the Code as are from time to time in
effect.
(b) If there is a Removal Event with respect to any Underlying Note or
Underlying Issuer and such Removal Event is actually known to the Trustee or the
Trustee is required to remove any Underlying Note from the assets of the Trust
in accordance with Section 3.10 hereof, the Trustee shall give notice to the
Certificateholders thereof as promptly as practicable in the manner and to the
extent provided in TIA Section 313(c). Such notice will set forth (i) the
identity of the Underlying Issuer of the relevant Underlying Notes, (ii) the
date and nature of such Removal Event, if any, including whether such Removal
Event relates to the failure of such Underlying Issuer to pay the principal of
or premium, if any, or interest on such Underlying Notes, (iii) whether the
Trustee is required to remove such Underlying Note pursuant to Section 3.10
hereof, (iv) the aggregate principal amount of such Underlying Notes and the
aggregate principal amount and weighted average interest rate per annum
applicable to the remaining
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Underlying Notes, (v) the Certificate Principal Balance of each Certificate
after the removal of such Underlying Notes from the Trust Property, (vi) the
requirement that Holders of Certificated Certificates must deliver the same to
the Trustee at its Corporate Trust Office to reflect a reduced Certificate
Principal Balance in exchange for such Underlying Notes or the proceeds
therefrom in accordance with Sections 3.08 and 3.09 and (vii) the then current
rating of the Certificates by each applicable Rating Agency after taking such
removal into account.
(c) The Trustee will promptly deliver to the Certificateholders copies of
all notices and communications it receives from any Underlying Issuer or the
trustee or fiscal agent relating to any Underlying Notes, including notice of
the optional redemption of any Underlying Notes by the related Underlying
Issuer.
(d) So long as the Certificates are listed on the Luxembourg Stock
Exchange, notice shall be published in a Luxembourg Authorized Newspaper
disclosing any change in the Co-Certificate Registrar or Paying Agent in
Luxembourg.
(e) Within 60 days after December 31 of each year, the Trustee shall mail a
brief report dated as of such date that would comply with TIA Section 313(a) if
the TIA were to apply to the Trust to (i) each Certficateholder as provided by
TIA Section 313(c) and (ii) the Depositor. The Trustee also shall comply with
TIA Section 313(b) as if such Section applied to the Trust.
Section 4.03. Compliance with Tax Reporting and Withholding Requirements.
The Trustee shall file or cause to be filed, within the time limits
established by law, U.S. Federal and State income tax returns and information
statements as a trust, the Certificateholders of which are treated as the
owners thereof under Section 671 of the Code, for each of the Trust's taxable
years. The Trust's taxable year shall be the calendar year. Notwithstanding
any other provision of this Agreement to the contrary, the Trustee shall
comply with all U.S. Federal withholding requirements (including any
applicable exceptions thereto) respecting distributions to, or receipts of
amounts on behalf of, Certificateholders. The consent of Certificateholders
shall not be required for any such withholding. In the event that the Trustee
does withhold any amount from any distribution to any Certificateholder
pursuant to U.S. Federal withholding requirements, the Trustee shall indicate
the amount so withheld in the statement required pursuant to Section 4.02.
Section 4.04. Preservation of Information, Communications to
Certificateholders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Certificateholders
contained in the most recent list furnished to the Trustee by the Certificate
Registrar and the names and addresses of Certificateholders received by the
Trustee in its capacity as Certificate Registrar, if applicable. The Trustee may
destroy any list furnished to it by the Certificate Registrar as provided upon
receipt of a new list.
(b) Certificateholders shall have the right to communicate pursuant to TIA
Section 312(b) with other Certificateholders with respect to their rights under
this Agreement or under the Certificates.
(c) Regardless of whether the TIA shall apply to this Agreement, the
Depositor, the Trustee and the Certificate Registrar shall have the protections
provided pursuant to TIA Section 312(c).
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Section 4.05. Exchange Act Reports. The Trustee will promptly deliver to
Certificateholders copies of any reports filed with the Commission by the
Depositor on behalf of the Trust in respect of the Certificates under the
Exchange Act.
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates. (a) There is hereby created a series of
Certificates to be distinguished and known as Core Investment Grade Bond Trust
I, Pass-Through Certificates, Series 2002-1. Each Certificate represents a
Fractional Undivided Interest in the assets of the Trust. The aggregate
Certificate Principal Balance of the Certificates shall initially be equal to
$o. Certificates will be denominated in Dollars and issued in denominations of
$1,000. No additional interests in the Trust other than the Certificates shall
be issued hereunder, except in accordance with Section 5.04.
(b) The Certificates will initially be issued as one or more Global
Certificates in definitive, fully registered form without coupons,
substantially in the form set forth in Exhibit A, and DTC will be the
Depositary. Upon issuance, the Global Certificates will initially be deposited
with the Trustee in its capacity as custodian on behalf of DTC. Such Global
Certificates shall initially be registered in the name of Cede & Co. or
another nominee designated by DTC. Global Certificates will clear and settle
in book-entry only form through the facilities of one or more Depositaries.
Unless and until it is exchanged in whole or in part for Certificates, a
Global Certificate may not be transferred except as a whole by the Depositary
for such Global Certificate to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor of such Depositary or a
nominee of such successor. The Certificate Principal Balance of any Global
Certificate may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for DTC for such Global
Certificate, as provided in Section 5.01(d) hereof.
(c) With respect to any transfer or exchange of Certificated Certificates,
the Certificate Registrar shall register the transfer or exchange of any such
Certificate without requiring any additional certification.
(d) Interests of beneficial owners in a Global Certificate may be
transferred in accordance with the rules and procedures of DTC and any other
applicable Depositaries. In connection with any exchange of beneficial ownership
interests in a Global Certificate for Certificated Certificates pursuant to
Section 5.11(b), the Certificate Registrar shall reflect on its books and
records the date of such exchange and a decrease in the Certificate Principal
Balance of such Global Certificate in an amount equal to the Certificate
Principal Balance of the beneficial ownership interests in such Global
Certificate being exchanged for Certificated Certificates.
Section 5.02. Execution, Authentication and Delivery. (a) The Certificates
shall be executed on behalf of the Trust by the Trustee by one of its
Responsible Officers. The signature of a Responsible Officer may be manual or
facsimile. Certificates bearing the manual or
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facsimile signature of an individual who was, at any time, a Responsible
Officer shall be valid, notwithstanding that such individual ceased to be a
Responsible Officer prior to the execution, authentication and delivery of
such Certificates or was not a Responsible Officer at the date of such
Certificates.
(b) Each Certificate shall be dated as of the date of its authentication.
(c) Subject to Section 5.10(e), 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 the form as contained in the form of Certificate attached to this Agreement
as Exhibit A executed by the Trustee by the signature of one of its authorized
signatories, which signature may be manual or facsimile, and such certificate
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered under this Agreement
and is entitled to the benefits of this Agreement.
Section 5.03. Registration; Registration of Transfer and Exchange. (a)
The Trustee shall keep or cause to be kept, at its Corporate Trust Office, a
register (the "Certificate Register") for the Certificates in which, subject
to such reasonable regulations as it may prescribe, 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 the
Certificate Registrar for such purposes until the earlier to occur of (i) the
appointment by the Depositor of a different Certificate Registrar, (ii) the
resignation or termination of the Trustee and appointment of a successor
trustee in accordance with Sections 8.07 and 8.08, in which case such
successor trustee shall assume the duties of Certificate Registrar and (iii)
the termination of the Trust and discharge of the Trustee's obligations under
this Agreement in accordance with Article IX; provided, however, that the
Depositor may appoint one or more Co-Certificate Registrars; provided,
further, that for so long as the Certificates are listed on the Luxembourg
Stock Exchange, a Co-Certificate Registrar shall be maintained in Luxembourg,
which initially shall be The Bank of New York (Luxembourg) SA. Upon the
resignation of any Certificate Registrar appointed by the Depositor pursuant
to clause (i) above, the Trustee shall promptly appoint a successor
Certificate Registrar or, in the absence of such appointment, assume the
duties of Certificate Registrar.
Upon (i) the appointment by the Depositor of a Certificate Registrar other
than the Trustee, (ii) the appointment by the Depositor of any Co-Certificate
Registrar or (iii) any change in the identity of the Certificate Registrar or
any Co-Certificate Registrar, the Depositor will, in each case, give the Trustee
written notice within three Business Days of any such appointment or change 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 Certificateholders and the Certificate Principal
Balance and number of each Certificate.
Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office of the Trustee, if the requirements of Section 8-401(1)
of the UCC are met to the Trustee's satisfaction, the Trustee shall execute,
authenticate and deliver, in the name of the designated
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transferee or transferees, one or more new Certificates of any authorized
denomination of a like tenor and aggregate Certificate Principal Balance.
(b) At the option of the Certificateholder, Certificates may be exchanged
for other Certificates of any authorized denomination or denominations of like
tenor and aggregate Certificate Principal Balance upon surrender of the
Certificates to be exchanged at the Corporate Trust Office of the Trustee.
Whenever any Certificates are so surrendered for exchange, the Trustee shall
execute, authenticate and deliver the requested Certificates that the
Certificateholder making the exchange is entitled to receive. Signatures must be
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Trustee, which requirements include membership or participation in the
Security Transfer Agent Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Trustee in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
(c) Every Certificate surrendered for registration of transfer or
exchange shall be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar,
duly executed, by the Certificateholder or his/her attorney duly authorized in
writing, with such signature guaranteed by a commercial bank or trust company
located, or having a correspondent located, in The City of New York or the
city in which the Corporate Trust Office is located, or by a member firm of a
national securities exchange, and such other documents as the Trustee may
reasonably require.
All Certificates issued upon any registration of transfer or exchange of
Certificates shall constitute complete and indefeasible evidence of ownership in
the Trust Property and be entitled to the same benefits under this Agreement as
the Certificates surrendered upon such registration of transfer or exchange.
No service charge shall be made to a Certificateholder for any registration
of transfer or exchange of its Certificates, but the Trustee may require payment
by the Certificateholders 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 an exchange contemplated in
Section 3.08(a) or 4.01(b) not involving any transfer.
Section 5.04. Mutilated, Destroyed, Lost and Stolen Certificates. If (i)
any mutilated Certificate is presented to the Depositor and the Trustee or (ii)
the Depositor and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Certificate, and there is delivered to the
Depositor and the Trustee such security or indemnity as they may reasonably
require to save each of them harmless, and neither the Depositor nor the Trustee
receives notice that such Certificate has been acquired by a bona fide
purchaser, then, in each case, the Trustee shall execute, authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of any authorized denomination or
denominations of like tenor and Certificate Principal Balance, bearing a number
not contemporaneously Outstanding, so that neither gain nor loss in interest
shall result from such exchange or substitution.
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Upon the issuance of any new Certificate under this Section 5.04, the
Trustee may require the payment by the Certificateholder of a sum sufficient to
cover any tax or other governmental charge that may be imposed in respect
thereto and any other reasonable expenses (including the reasonable fees and
expenses of the Trustee) connected therewith.
Every new Certificate issued pursuant to this Section 5.04 shall constitute
complete and indefeasible evidence of ownership in the Trust Property, 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, if
any, duly issued thereunder.
The terms of this Section 5.04 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 5.05. Distributions in Respect of Certificates. (a) Distributions
on a Certificate that are payable on a Regular Distribution Date other than
the Final Scheduled Distribution Date or a Special Distribution Date other
than a Special Distribution Date resulting from the optional redemption of
Underlying Notes shall be made to the Person in whose name such Certificate
(or one or more Predecessor Certificates) is registered at the close of
business on the Record Date immediately preceding such Regular Distribution
Date or Special Distribution Date, as the case may be. Distributions on
Certificates on such Regular Distribution Date or Special Distribution Date,
as the case may be, shall be made by check mailed to the address of the
Certificateholder entitled thereto as such address shall appear in the
Certificate Register. Distributions on Certificates on the Final Scheduled
Distribution Date, on a Special Distribution Date resulting from the optional
redemption of Underlying Notes or upon a removal of Underlying Notes from the
Trust Property under the circumstances prescribed in this Agreement shall be
made in same-day funds against presentation and surrender of such Certificates
to the Trustee at its Corporate Trust Office. Notwithstanding the foregoing,
payments on Global Certificates shall be made in same-day funds on the
applicable Distribution Date.
(b) Subject to the terms of this Agreement to the contrary, 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 amounts to be
distributed that are accrued and undistributed, and to accrue, that were carried
by such other Certificate.
Section 5.06. Persons Deemed Owners. Subject to Section 5.05, prior to due
presentment of a Certificate for registration of transfer, the Depositor, the
Trustee and any agent of the Depositor or the Trustee may treat the Person in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions on such Certificate and for all other
purposes whatsoever, whether or not such Certificate be overdue, and none of the
Depositor, the Trustee or any agent of the Depositor or the Trustee shall be
affected by notice to the contrary.
None of the Depositor, the Trustee or any agent of the Depositor or the
Trustee will have any responsibility or liability for any aspect of the records
relating to or payments made on
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account of beneficial ownership interests of a Global Certificate or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
Notwithstanding the foregoing, with respect to any Global Certificate,
nothing herein shall prevent the Depositor, the Trustee or any agent of the
Depositor or the Trustee from giving effect to any written certification, proxy
or other authorization furnished by any Depositary, as a Holder, with respect to
such Global Certificate or impair, as between such Depositary and owners of
beneficial interests in such Global Certificate, the operation of customary
practices governing the exercise of the rights of such Depositary (or its
nominee) as Holder of such Global Certificate.
Section 5.07. Cancellation. All Certificates presented and surrendered for
payment, transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by it. No
Certificates shall be authenticated in lieu of or in exchange for any
Certificates canceled as provided in this Section 5.07.
Section 5.08. Currency of Distributions in Respect of Certificates.
Distributions on the Certificates will be made in Dollars.
Section 5.09. Appointment of Paying Agent. (a) The Trustee may appoint
one or more paying agents (each, a "Paying Agent") with respect to the
Certificates. Any such Paying Agent shall be authorized to make distributions
to Certificateholders pursuant to this Agreement and shall report the amounts
of such distributions to the Trustee. The Trustee may 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 or if the Paying Agent fails to satisfy the eligibility requirements
set forth in paragraph (b) of this Section 5.09. The Trustee is hereby
initially appointed a Paying Agent. So long as the Certificates are listed on
the Luxembourg Stock Exchange, a Paying Agent shall be maintained in
Luxembourg, which initially shall be The Bank of New York (Luxembourg) SA. Any
Paying Agent shall be permitted to resign as Paying Agent upon 30 calendar
days' written notice to the Trustee. In the event that the Trustee shall no
longer be the Paying Agent and the Depositor has not appointed a co-Paying
Agent, the Trustee shall appoint a successor or additional Paying Agent. The
Trustee shall cause each such Paying Agent to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee
that it will hold all sums, if any, held by it for distribution to the
Certificateholders in an Eligible Account in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be distributed to
such Certificateholders. The Paying Agent shall return all unclaimed funds to
the Trustee within two years from the time such funds were first eligible to
be claimed.
(b) The Paying Agent shall at all times be a corporation or an association
the combined capital and surplus of which is at least $200,000,000 and the
long-term debt obligations of which are rated in one of the four highest
categories assigned long-term debt obligations by each of the Rating Agencies
and shall be subject to supervision or examination by U.S. 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 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
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conditions so published. In the event that at any time the Paying Agent shall
cease to be eligible in accordance with the terms of this Section 5.09(b), the
Paying Agent shall release all Trust Property to the Trustee and then resign
immediately. Upon such resignation, the Trustee shall act as Paying Agent
until the appointment of a successor Paying Agent in accordance with Section
5.09(a).
(c) The terms of Sections 8.01, 8.02, 8.03 and 8.05(b) shall apply to the
Trustee also in its role as Paying Agent, for so long as the Trustee shall act
as Paying Agent.
Section 5.10. Authenticating Agent. (a) The Trustee may appoint any one or
more Authenticating Agents (each, an "Authenticating Agent") with respect to the
Certificates which shall be authorized to act on behalf of the Trustee in
authenticating the Certificates in connection with the issuance, delivery and
registration or transfer or exchange of the Certificates. Whenever reference is
made in this Agreement to the authentication of Certificates by the Trustee or
the Trustee's unit of authentication, such reference shall be deemed to include
authentication on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent must be acceptable to the Depositor.
(b) Any institution succeeding to the corporate agency business of any
Authenticating Agent shall continue to be an Authenticating Agent without the
execution or filling 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 the Depositor. The
Trustee may at any time terminate the agency of an Authenticating Agent by
signing and delivery a written notice of termination to such Authenticating
Agent and to the Depositor. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time an Authenticating Agent shall
cease to be acceptable to the Trustee or the Depositor, the Trustee may
appoint a successor Authenticating Agent. Subsequent to any such removal or
resignation of the Authenticating Agent, the Trustee shall act as
Authenticating Agent until a successor Authenticating Agent, if any, is
appointed. 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.
(c) The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 5.10.
(d) The provision of Sections 8.01, 8.02 and 8.03 shall be applicable to
any Authenticating Agent.
(e) Pursuant to an appointment made under this Section 5.10, 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 referred to in the within-mentioned Trust
Agreement.
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_________________________________________
as Authenticating Agent for the Trustee,
By_______________________________________
Authorized Signatory
Section 5.11. Issuance Matters. (a) The Certificates shall be issued on the
Closing Date upon (i) deposit of the Underlying Notes into the Trust by the
Depositor in exchange for all the Certificates and (ii) the due authentication
by the Trustee of the Certificates in the form set forth in Exhibit A attached
hereto.
(b) Any Global Certificate representing Certificates shall be exchangeable
for Certificated Certificates only if (i) the Depositary notifies the Depositor
that it is unwilling or unable to continue as depositary for the Global
Certificates or the Depositor determines that the Depositary is unable to
continue as depositary, and the Depositor thereupon fails to appoint a successor
Depositary within 60 calendar days or (ii) the Depositor, in its sole
discretion, at any time determines not to have Certificates represented by
Global Certificates. Any Global Certificate that is exchangeable pursuant to the
preceding sentence will be exchangeable for Certificated Certificates of like
tenor and Certificated Principal Balance, in any authorized denomination or
denominations and registered in the names of such Person or Persons as the
Depositary shall direct. Upon such exchange, the Trustee shall execute and
authenticate such Certificated Certificates and register the same in the name
of, and deliver the same to, such Person or Persons consistent with Section
5.02.
(c) Any Global Certificate representing Certificates shall bear a legend in
substantially the following form:
"This Certificate is a Global Certificate within the meaning
of the Trust Agreement hereinafter referred to and is
registered in the name of the Depositary or the nominee of a
Depositary. This Certificate is exchangeable for Certificates
registered in the name of a Person other than the Depositary
or its nominee only in the limited circumstances described in
the Trust Agreement, and may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee
of the Depositary or by the Depositary or any such nominee to
a successor of the Depositary or a nominee of such successor."
(d) Each Person that purchases a Certificate will be deemed to represent
that its acquisition of such Certificate will not constitute or result in a
non-exempt prohibited transaction. In addition, in the event the Certificates do
not constitute Publicly Offered Securities, each Person that purchases a
Certificate on behalf of an employee benefit plan or other plan that is subject
to the provisions of ERISA Section 406 or Section 4975 of the Code will be
deemed to represent that:
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(i) the plan is so represented in this regard by a QPAM or INHAM (as
those terms are defined in Prohibited Transaction Class Exemption ("PTE")
84-14 and PTE 96-23, respectively) and will be so represented for so long
as such plan holds the related Certificate, and that the other conditions
of PTE 84-14 or PTE 96-23 are and will at all times be satisfied,
(ii) the conditions to the applicability of ▇▇▇ ▇▇-▇, ▇▇▇ ▇▇-▇▇ or PTE
91-38 are and will at all times be satisfied, or
(iii) the conditions of another applicable exemption are and will at
all times be satisfied,
such that in the case of clause (i), (ii) or (iii) above the applicable
exemption applies to the purchase, continued holding and disposition of such
Certificate, as well as to the underlying transactions of the Trust.
ARTICLE VI
THE DEPOSITOR
Section 6.01. Representations and Warranties of the Depositor. (a) The
Depositor represents and warrants to the Trustee that as of the Closing Date:
(i) the Depositor is a limited liability company duly formed, validly
existing and in good standing under the laws of the State of Delaware;
(ii) the execution, delivery and performance of this Agreement by the
Depositor will not violate the Depositor's Limited Liability Company
Agreement or constitute a default under, or result in the breach or
acceleration of, any contract, agreement or other instrument to which the
Depositor is a party or by which the Depositor or any of its assets is
bound;
(iii) to the Depositor's knowledge, the Depositor has the full power
and authority to enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery and performance
of this Agreement and has duly executed and delivered this Agreement; and
this Agreement, assuming due authorization, execution and delivery by the
Trustee, will constitute a valid and legally binding obligation of the
Depositor, enforceable against it in accordance with the terms hereof,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws relating to or
affecting the rights of creditors generally or by general equity principles
(regardless of whether such enforcement is considered in a proceeding in
equity or at law); and
(iv) to the Depositor's knowledge, the Depositor is not in violation,
and the execution, delivery and performance of this Agreement by the
Depositor will not constitute a violation, of any order decree of any court
or any order or regulation of any U.S. Federal or State governmental agency
having jurisdiction over the Depositor or any of its assets, which
violation would reasonably be expected to materially and adversely affect
the Depositor's duties and obligations under this Agreement.
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(b) It is the express intent of the parties hereto that the conveyance of
the Underlying Notes by the Depositor to the Trustee be, and be construed as, a
sale of the Underlying Notes by the Depositor and not a pledge of any Underlying
Notes by the Depositor to secure a debt or other obligation of the Depositor. In
the event that, notwithstanding the aforementioned intent of the parties, any
Underlying Notes are held to be property of the Depositor, then it is the
express intent of the parties that such conveyance be deemed a pledge of such
Underlying Notes by the Depositor to the Trustee to secure a debt or other
obligation of the Depositor. In connection with the grant of a security interest
in any Underlying Notes, the Depositor hereby represents and warrants to the
Trustee that as of the Closing Date:
(i) In the event such Underlying Notes are held to be property of the
Depositor, then this Agreement creates a valid and continuing security
interest (as defined in the UCC) in such Underlying Notes in favor of the
Trustee, which security interest is prior to all other liens, claims or
other encumbrances and is enforceable as such against creditors of, and
purchasers from, the Depositor;
(ii) Such Underlying Notes have been credited to the Certificate
Account and the Trustee has agreed to treat such Underlying Notes as
"financial assets" within the meaning of the UCC;
(iii) Immediately prior to the conveyance of such Underlying Notes to
the Trust, the Depositor owned and had good and marketable title to such
Underlying Notes free and clear of any lien, claim or other encumbrance of
any Person;
(iv) The Depositor has received all consents and approvals required by
the terms of such Underlying Notes to the conveyance to the Trustee of its
interest and rights in such Underlying Notes as contemplated by this
Agreement;
(v) The Depositor has taken all steps necessary to cause the Trustee
to identify on its records that the Trustee, as the trustee of the Trust,
is the Person having a security entitlement in the Certificate Account;
(vi) The Depositor has not assigned, pledged, granted a security
interest in, sold or otherwise conveyed any interest in such Underlying
Notes (or, if any such interest has been assigned, pledged or otherwise
encumbered, it has been released); the Depositor has not authorized the
filing of and is not aware of any financing statements against the
Depositor that includes a description of such Underlying Notes; and the
Depositor is not aware of any judgment or tax lien filings against the
Depositor; and
(vii) The Certificate Account is not in the name of any Person other
than the Trustee; and the Depositor has not consented to the compliance by
the Trustee with entitlement orders of any Person other than the Trustee,
as trustee of the Trust.
Section 6.02. Breach of Representation or Warranty. Upon the Depositor's
discovery of a breach of any representation or warranty of the Depositor set
forth in Section 6.01 that materially and adversely affects the rights of the
Certificateholders, the Depositor shall notify the Trustee of such breach and
shall use its reasonable efforts to cure such breach in all material respects
within five Business Days of its discovery.
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Section 6.03. Liability of the Depositor. The Depositor shall be liable in
accordance with this Agreement only to the extent of the obligations
specifically imposed upon it under this Agreement. Section 6.04. Limitation on
Liability of the Depositor. (a) Unless otherwise expressly specified in this
Agreement, the Depositor shall not be under any obligation to expend or risk its
own funds, except to the extent of its obligation to pay any amount payable
under Section 8.05(b) hereof, or otherwise incur financial liability in the
performance of its duties thereunder 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 assured to it.
(b) The Depositor shall not have any liability, for any losses, costs or
damages or otherwise, to the Trustee or the Certificateholders for any act or
omission except for its willful misconduct, bad faith or gross negligence in the
performance of duties specifically set forth in this Agreement. Notwithstanding
anything to the contrary contained herein, the managers, officers, employees and
agents of the Depositor shall not have any liability, for any losses, costs or
damages or otherwise, to the Trustee or the Certificateholders for any act or
omission, whether on their part or on the part of the Depositor or otherwise.
The Depositor shall not be under any obligation to appear in, prosecute or
defend any Proceeding; provided, however, that the Depositor may in its
discretion undertake any such Proceeding which it may deem necessary or
desirable with respect to this Agreement.
(c) The sole obligor with respect to any Underlying Note is the Underlying
Issuer thereof. The Depositor shall not have any obligation on or with respect
to the Underlying Notes. The Depositor, in its capacity as the depositor of the
Underlying Notes into the Trust under this Agreement, is not authorized to
proceed against the Underlying Issuer of any Underlying Note upon the occurrence
of a Default Event or otherwise or to assert the rights and privileges of
Certificateholders (except to the extent otherwise a Certificateholder) and has
no duty in respect thereof.
Section 6.05. Depositor May Purchase Certificates. The Depositor or its
Affiliates may at any time purchase Certificates in the open market or
otherwise. Certificates so purchased by the Depositor may, at the discretion of
the Depositor, be held or resold.
Section 6.06. Preparation and Filing of Exchange Act Reports; Obligations
of the Depositor. The Depositor, on behalf of the Trust, shall:
(a) prepare, sign and file with the Commission, within the time period set
forth below, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe), if any,
which the Depositor on behalf of the Trust may be required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act (collectively,
"Exchange Act Reports") with respect to the Trust. The names of such Exchange
Act Reports and the dates on which they are required to be filed with the
Commission are as follows:
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(i) Form 8-K, within the time requirement prescribed by the Exchange
Act if the filing of Form 8-K is necessary;
(ii) Form 10-K, within the time requirement prescribed by the Exchange
Act; and
(iii) such other reports as may be required pursuant to Section 13 or
15(d) of the Exchange Act.
(b) deliver to the Trustee, within 15 calendar days after the Depositor is
required to file the same with the Commission, such additional information,
documents and reports with respect to compliance by the Depositor with the
conditions and covenants of this Agreement, if any, as may be required to be
filed with the Commission from time to time by such rules and regulations;
(c) deliver to the Trustee, which shall then transmit by mail to all
Certificateholders described in TIA Section 313(c), in the manner and to the
extent provided therein, such summaries of any information, documents and
reports required to be filed by the Depositor and received pursuant to clauses
(a) and (b) of this Section 6.06, if any, as may be required by rules and
regulations prescribed from time to time by the Commission;
(d) prepare, sign and file with the Commission, if necessary appropriate or
advisable, a Form 8-A under the Exchange Act; and
(e) prepare and deliver to the Certificates Agents and other dealers such
number of copies of the prospectus relating to the offer and sale of the
Certificates as is reasonably requested by them and required to be delivered to
purchasers of the Certificates under the Securities Act.
Section 6.07. Preferential Collection of Claims Against Depositor.
Irrespective of whether the TIA shall apply to this Agreement, the Trustee shall
comply with TIA Section 311(a), excluding any creditor relationship listed in
TIA Section 311(b). A trustee who has resigned or been removed shall be subject
to TIA Section 311(a) to the extent required by TIA Section 311(a).
ARTICLE VII
RIGHTS OF CERTIFICATEHOLDERS
Section 7.01. Voting Rights with Respect to Underlying Notes. (a) Within
five Business Days after receipt of notice of any meeting of, or other occasion
for the exercise of voting rights or the giving of consents or waivers by,
registered holders of any of the Underlying Notes, the Trustee shall give notice
to the Certificateholders setting forth (i) a record date established therefor
by the Trustee, (ii) such information as is contained in such notice to
registered holders of such Underlying Notes, (iii) a statement that the
Certificateholders as of such record date will be entitled, subject to any
applicable provision of law and any applicable terms of such Underlying Notes,
to direct the Trustee as to the exercise of voting rights or giving of consents
or waivers, if any, that the Trustee, as the registered holder of such
Underlying
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Notes, is entitled to exercise or give, as the case may be, and (iv) a
statement as to the manner in which instructions may be given to the Trustee.
(b) The voting, consent or waiver rights allocable to the registered
holders of Underlying Notes pursuant to the terms thereof will be allocated
among the Certificateholders on a pro rata basis (based on their respective
Fractional Undivided Interest) as of a record date established therefor by the
Trustee; and upon the written direction of the Certificateholders, received on
or before the record date established by the Trustee for such purpose, the
Trustee shall, insofar as practicable and permitted under any applicable
provision of law and any applicable provision of the related Underlying Notes,
vote the principal amount of Underlying Notes that coincides with each such
Certificateholder's Certificate Principal Balance in accordance with any
nondiscretionary instruction set forth in the written direction of each such
Certificateholder; provided, however, that neither the Trustee, in its
capacity as such under this Agreement, nor any Certificateholder may (i) take
any action that would affect the conditions under which Underlying Notes may
be removed from Trust Property or (ii) declare an event of default in respect
of any Underlying Notes or to waive any event of default thereunder. With
respect to Underlying Notes issued outside of the United States and the United
Kingdom, at the request of any Certificateholder, the Trustee will provide
such Certificateholder with access to a provider of global proxy services (the
cost of which shall be paid by such Certificateholder). If requested, other
than providing access to such provider of global proxy services, the Trustee
shall have no obligations with respect to voting such Underlying Notes.
(c) In the absence of any written direction from the Certificateholders,
the Trustee shall not exercise any voting, consent or waiver rights with respect
to the Underlying Notes.
(d) The Trustee shall endeavor to notify Certificateholders of such rights
or discretionary actions or of the date or dates by when such rights must be
exercised or such action must be taken provided that the Trustee has received,
with respect to Underlying Notes issued in the United States and the United
Kingdom, from the related Underlying Issuer, or, with respect to Underlying
Notes issued in the United States, United Kingdom and in any other country, from
one of the nationally or internationally recognized bond or corporate action
services to which the Trustee subscribes, timely notice of such rights or
discretionary corporate action or of the date or dates such rights must be
exercised or such action must be taken. If the Trustee shall not actually
receive such notice, the Trustee shall have no liability for failing to so
notify Certificateholders.
Section 7.02. Direction of Remedies. (a) The Holders of a majority in
aggregate Certificate Principal Balance of the Outstanding Certificates shall
have the right to direct any Proceeding for any remedy in respect of any
Underlying Note available to the Trustee as the registered holder of such
Underlying Note. The Certificateholders also have the right to direct the
Trustee to direct any Proceeding for any remedy available to the applicable
trustee of the Underlying Note Agreement under which any Underlying Note is
issued.
Notwithstanding anything to the contrary contained herein, upon request of
any Certificateholder, the Trustee, on behalf of such Certificateholder, shall
enforce any of the Trustee's rights under U.S. Federal or State securities laws
as the purchaser of Underlying Notes from the related Underlying Issuers and
shall promptly notify the Certificateholders that it has received such a request
and is pursuing such enforcement.
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Section 7.03. Meetings of Certificateholders. Certificateholders may
exercise any voting right, give any consent or direct the Trustee at a separate
meeting of Certificateholders convened for that purpose or by written consent.
The Trustee will mail to each Certificateholder a notice of any meeting at which
the Certificateholders are entitled to vote or consent or notice of any matter
upon which action by written consent of those Certificateholders is to be taken.
Each such notice will include a statement setting forth the following
information:
(i) the date of the meeting or the date by which the action is to be
taken;
(ii) a description of any resolution proposed for adoption at the
meeting on which the Certificateholders are entitled to vote or consent or
of the matter upon which written consent is sought; and
Section 7.04. Assignment. The Trustee, as the Purchaser of the Underlying
Notes, hereby assigns to the purchasers of the Certificates from the Trust any
and all of its rights against the Underlying Issuers and the Debt Agents under
the U.S. Federal and State securities laws as the purchaser of the Underlying
Notes, including, but not limited to, any civil liability available to a
purchaser of securities under Rule 10b-5 of the Exchange Act and Sections 11
and 12(a)(2) of the Securities Act.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01. Duties of Trustee. (a) The Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this Agreement. Any
permissive right of the Trustee enumerated in this Agreement shall not be
construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement. If any such instrument is found
not to conform to the requirements of this Agreement, the Trustee shall take
action as it deems appropriate to have the instrument corrected, and if the
instrument is not corrected to the Trustee's satisfaction, the Trustee will
provide notice thereof to the Depositor and the 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) the duties and obligations of the Trustee shall be determined
solely by the express terms 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 (except for a fiduciary duty to the beneficiaries of the Trust)
shall be read into this Agreement against the Trustee and, in the absence
of negligence, bad faith or willful misconduct on the part of the Trustee,
the Trustee may
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conclusively rely upon any certificates or opinions furnished to the
Trustee as to the truth and correctness of any statements contained
therein;
(ii) the Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) except with respect to actions or duties required to be taken or
performed, as applicable, by the Trustee under the express terms of this
Agreement, 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 or in the exercise of any of its rights or powers under this
Agreement 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; provided, however, that the Trustee agrees that
the indemnification under Section 8.05 will provide reasonable assurance
against such risk or liability;
(iv) 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; and
(v) the Trustee shall not be personally liable for any indirect,
special or consequential damages, or for loss of business or lost profits,
regardless of the form of action and even if the same were foreseeable.
Section 8.02. Certain Matters Affecting the Trustee. (a) Except as
otherwise provided in Section 8.01:
(i) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officers'
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 by the proper party or parties;
(ii) the Trustee may consult with counsel and, in connection with the
preparation of the Trust's tax returns, accountants, and any advice or
Opinion of Counsel or tax return prepared by accountants shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by the Trustee under this Agreement in good faith and
in accordance with such advice or Opinion of Counsel or the filing of any
tax return;
(iii) except for the duties and obligations of the Trustee expressly
created by this Agreement, 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 Proceeding hereunder or in relation
thereto, at the request, order or direction of any of the
Certificateholders pursuant to the terms of this Agreement unless such
Certificateholders
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or the Depositor shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby;
(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) 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;
(vi) the Trustee may execute any of the trusts or powers or perform
any duties under this Agreement either directly or by or through agents,
attorneys or custodians;
(vii) the Trustee shall not be personally liable for any loss
resulting from the investment of funds held in any Certificate Account
pursuant to Section 3.05;
(viii) the Trustee shall not be deemed to have notice or actual
knowledge of any matter unless (1) a Responsible Officer assigned to and
working in the Corporate Trust Office has actual knowledge thereof or (2)
written notice thereof is received by the Trustee at the Corporate Trust
Office;
(ix) the Trustee shall not be personally liable for its failure to act
or delay in acting by reason of circumstances beyond its reasonable
control, including without limitation, acts of God, acts of war or
terrorism, earthquakes, fires, floods, civil or military disturbances,
sabotage, epidemics, riots, interruptions, loss or malfunctions of
utilities, computer (hardware or software) or communications services; and
(x) the Trustee shall not be personally liable for any acts or
omissions of the Depositary or the U.S. Federal Reserve Banks or any
malfunction in connection with the book-entry system of the Depositary or
the U.S. Federal Reserve Banks.
(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, or the production thereof at the trial or
other Proceeding relating thereto, and any Proceeding instituted by the Trustee
shall be brought in its name for the benefit of all the Certificateholders,
subject to the terms of this Agreement.
Section 8.03. Limitation on Liability of Trustee. The Trustee assumes no
responsibility for the correctness of the recitals contained in this Agreement,
the Certificates or any document issued in connection with the sale of the
Certificates (other than the signature and authentication on the Certificates).
The sole obligor with respect to the Underlying Notes is the related Underlying
Issuer. Except as set forth in Section 8.12, the Trustee makes no
representations or warranties as to the validity or sufficiency of this
Agreement, the Certificates (other than the signature and authentication on the
Certificates), any Underlying Note or any related document. The Trustee shall
not be accountable for the use or application by the Depositor of any of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid
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to the Depositor in respect of the Underlying Notes. The Certificates 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 Certificates or any interest therein.
Section 8.04. Trustee May Own Certificates. The Trustee, in its individual
capacity or in any other capacity, may become the owner or pledgee of
Certificates with the same rights it would have if it were not Trustee.
Section 8.05. Trustee Fees and Expenses; Limited Indemnification; Expense
Reserve Account. (a) As compensation for its services required hereunder and
in payment of its expenses (including the fees and disbursements of its
counsel) incurred in connection with the performance of such services, the
Trustee shall be entitled to $o on each Regular Distribution Date (the
"Trustee Fees"), which amount shall be payable solely from (x) the amounts
deducted from Available Funds by the Trustee in accordance with Section
4.01(a)(i) hereof, (y) funds, if any, on deposit in the Expense Reserve
Account and (z) the Depositor and/or the Certificateholders, as specified
below. In the event that the Available Expense Amount exceeds actual Trust
Expenses for the applicable Distribution Period, the Trustee shall deposit the
excess into the Expense Reserve Account. In the event that actual Trust
Expenses exceed the Available Expense Amount for the applicable Distribution
Period, the Trustee shall apply funds, if any, on deposit in the Expense
Reserve Account toward the payment of such actual Trust Expenses. In the event
that actual Trust Expenses for the applicable Distribution Period shall remain
outstanding after the application of funds, if any, on deposit in the Expense
Reserve Account as aforesaid, then the Depositor shall be obligated to satisfy
remaining actual Trust Expenses in an amount for that Distribution Period
equal to $130,000 minus the sum of the Available Expense Amount for that
Distribution Period and funds on deposit in the Expense Reserve Account that
the Trustee is required to apply or has applied, as the case may be, to the
payment of actual Trust Expenses for that Distribution Period, and payments so
made by the Depositor shall be reimbursed by Bank of America Corporation. All
remaining excess actual Trust Expenses on any Regular Distribution Date shall
be the responsibility of Certificateholders and shall be deducted from
Available Funds by the Trustee in accordance with the provisions of Section
4.01(a)(i)(2)(y). Trust Expenses that are required to be paid by the
Certificateholders will be allocated among them on a pro rata basis and
deducted from each Certificateholder's allocable share of interest collections
received by the Trustee on the applicable Regular Distribution Date.
(b) The Trustee and any director, officer, employee or agent of the Trustee
shall be indemnified by the Depositor and held harmless against any loss,
liability or expense incurred in connection with any Proceeding relating to this
Agreement or the Certificates or the performance of any of the Trustee's duties
under this Agreement, other than any loss, liability or expense (i) that
constitutes a specific liability of the Trustee under this Agreement or (ii)
incurred by reason of willful misconduct, bad faith or negligence in the
performance of the Trustee's duties hereunder or as a result of a breach or
reckless disregard of the Trustee's obligations and duties hereunder (such loss,
liability or expense, other than as described in clauses (i) and (ii) of this
sentence, "Extraordinary Trust Expense"); provided, however, that with respect
to any such Proceeding, (1) the Trustee shall have given the Depositor notice
thereof promptly after the Trustee shall have knowledge thereof, (2) while
maintaining control over its own defense in any such Proceeding, the Trustee
shall consult with the Depositor in preparing such defense, (3) if any Person
ever alleges such willful misconduct, bad faith or negligence by the Trustee,
the
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indemnification provided for in this Section 8.05(b) shall nonetheless be paid
upon demand, subject to later adjustment or reimbursement, until such time as
a court of competent jurisdiction enters a final judgment as to the extent and
effect of the alleged willful misconduct, bad faith or negligence and (4) the
Depositor shall in no event be obligated under this Agreement to indemnify the
Trustee for any Extraordinary Trust Expense to the extent that such
Extraordinary Trust Expense, when aggregated with all Extraordinary Trust
Expenses previously indemnified, exceeds $o (the "Maximum Reimbursable
Amount"). In the event the Trustee is not indemnified by the Depositor in
accordance with this Section 8.05(b), the Trustee shall nevertheless remain
obligated to perform its duties under this Agreement.
(c) The Trustee and the Depositor expressly acknowledge that the limited
obligations of the Depositor to indemnify the Trustee pursuant to Section
8.05(b) do not extend to amounts attributable to compensation for services or
payment of expenses of the Trustee, which amounts are payable in full in
accordance with Section 8.05(a).
(d) On the Closing Date, the Trustee shall establish an Expense Reserve
Account. Funds, if any, on deposit in the Expense Reserve Account shall be (x)
held separate and apart from, and shall not be commingled with, any other
moneys, including, without limitation, any moneys held by the Trustee pursuant
to this Agreement, (y) invested by the Trustee in Eligible Investments and (z)
deposited and withdrawn in accordance with the provisions of Section 8.05(a).
The Certificates shall evidence ownership of the Expense Reserve Account for
U.S. Federal income tax purposes and the Expense Reserve Account will not be
treated as an asset of the Trust for any purpose. In the event that all actual
Trust Expenses are paid in full upon the final distribution to
Certificateholders of all amounts due in respect of the Underlying Notes, all
funds on deposit in the Expense Reserve Account shall be distributed to the
Certificateholders on a pro rata basis.
Section 8.06. Eligibility Requirements for Trustee. (a) The Trustee shall
at all times satisfy the requirements of TIA Section 310(a) and Section
(a)(4)(i) of Rule 3a-7 under the Investment Company Act. The Trustee hereunder
shall at all times be a corporation which is not an Affiliate of the Depositor
(but may have normal banking relationships with the Depositor or any obligor
with respect to the Underlying Notes 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 $200,000,000 and subject to supervision or examination
by U.S. Federal or State banking authorities, and the long-term debt obligations
of which are rated in one of the four highest categories assigned long-term debt
obligations by each of the Rating Agencies. 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 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. In the event that at any time the Trustee shall cease
to be eligible in accordance with the terms of this Section 8.06, the Trustee
shall resign immediately in the manner and with the effect specified in Section
8.07.
(b) The Trustee shall comply with Section 310(b) of the TIA; provided,
however, that there shall be excluded from the operation of TIA Section
310(b)(1) other outstanding debt
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securities of the Underlying Issuer if the requirements for such exclusion set
forth in TIA Section 310(b)(1) are met.
Section 8.07. Resignation or Removal of the Trustee. (a) Subject to the
last sentence of this Section 8.07(a), the Trustee may at any time resign and
be discharged from its obligations and duties hereunder by giving written
notice thereof to the Depositor and to all Certificateholders. Upon receiving
such notice of resignation, the Depositor shall as promptly as possible (and
in any event within 45 calendar days after the date of such notice of
resignation) appoint a successor Trustee 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 the
Certificateholders by the Depositor. If no such successor Trustee shall have
been so appointed and have accepted appointment within 45 calendar 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 the Certificates. Upon any appointment of a successor Trustee pursuant to
this Section 8.07(a), the resigning Trustee shall be solely liable for (i) the
payment of such successor Trustee's fees and expenses and (ii) provision of
adequate indemnities satisfactory to such successor Trustee (it being
understood that the indemnification obligations of the Depositor pursuant to
Section 8.05(b) shall inure to the benefit of such successor Trustee, but that
any Extraordinary Trust Expense previously indemnified by the Depositor shall
reduce the Maximum Reimbursable Amount with respect to such successor Trustee
on a dollar-for-dollar basis). In the event that the Trustee fails to satisfy
the conditions contained in clauses (i) and (ii) above, the Trustee may not
resign pursuant to this Section 8.07(a).
(b) If at any time the Trustee shall cease to be eligible in accordance
with the terms of Section 8.06 and shall fail to resign after written request
therefor by the Depositor, or if at any time the Trustee shall become incapable
of acting, or shall be adjudged bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then the Depositor may remove
the Trustee and appoint a successor Trustee by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor Trustee. A copy of such instrument shall be delivered to the
Certificateholders by the Depositor.
(c) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the terms of this Section 8.07 shall not
become effective until acceptance of appointment by the successor Trustee as
provided in Section 8.08.
Section 8.08. Successor Trustee. (a) Any successor Trustee appointed as
provided in Section 8.07 shall execute, acknowledge and deliver to the Depositor
and its predecessor Trustee an instrument accepting such appointment under this
Agreement, 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 the predecessor Trustee under this Agreement, with the like
effect as if originally named as Trustee in this Agreement. The predecessor
Trustee shall deliver to the successor Trustee all documents and statements held
by it under this Agreement, and the Depositor and the predecessor Trustee shall
execute and deliver such instruments and do such
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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 8.08 unless at the time of such acceptance such
successor Trustee shall be eligible under the terms of Section 8.06.
(b) Upon acceptance of appointment by a successor Trustee as provided in
this Section 8.08, the Depositor shall transmit notice of the succession of such
Trustee under this Agreement to all Certificateholders.
Section 8.09. 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 under this Agreement, provided such corporation or
association shall be eligible under the terms of Section 8.06, without the
execution or filing of any paper or any further act on the part of any of the
parties to this Agreement, anything in this Agreement to the contrary
notwithstanding.
Section 8.10. Appointment of Co-Trustee. (a) Notwithstanding any other
terms of this Agreement, at any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any party of the Trust Property may at
the time be located, the Depositor and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-Trustee or co-Trustees, jointly
with the Trustee, of all or any part of the Trust Property, and to vest in such
Person or Persons, in such capacity, such title to the Trust Property, or any
part thereof, and, subject to the other terms of this Section 8.10, such powers,
duties, obligations, rights and trusts as the Depositor and the Trustee may
consider necessary or desirable. If the Depositor shall not have joined in such
appointment within 30 calendar days after the receipt by it of a request so to
do, the Trustee alone shall have the power to make such appointment. No
co-Trustee under this Agreement shall be required to meet the terms of
eligibility as a successor Trustee under Section 8.06 and no notice to
Certificateholders of the appointment of a co-Trustee or co-Trustees shall be
required under Section 8.08.
(b) In the case of any appointment of a co-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 co-Trustee jointly, except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed by the
Trustee, the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations (including the
holding of title to such Trust Property or any portion thereof in any such
jurisdiction) shall be exercised and performed by such 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 co-Trustees, as effectively as if given
to each of them. Every instrument appointment any co-Trustee shall refer to this
Agreement and the conditions of this Article VIII. Each co-Trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, jointly with the Trustee subject
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to all the terms 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 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 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. Presentment and Surrender at Corporate Trust Office. The
Certificates may be surrendered for registration of transfer or exchange, and
presented and surrendered on the Final Scheduled Distribution Date, on a Special
Distribution Date resulting from the optional redemption of Underlying Notes or
upon an event requiring removal of any Underlying Notes from the Trust Property,
and notices and demands to or upon the Trustee in respect of the Certificates
and this Agreement may be served, at the Corporate Trust Office of the Trustee.
Section 8.12. Representations and Warranties of Trustee. (a) The Trustee
represents and warrants that:
(i) the Trustee is duly organized, validly existing and in good
standing under the laws of the State of New York;
(ii) the Trustee has full power, authority and right to execute,
authenticate, deliver and perform its duties and obligations under this
Agreement and the Certificates and has taken all necessary action to
authorize the execution, authentication, delivery and performance by it
(or, with respect to the Certificates, by an Authenticating Agent on its
behalf, if applicable) of this Agreement and the Certificates;
(iii) the execution, authentication and delivery of this Agreement and
the Certificates by the Trustee and its performance of and compliance with
the terms of this Agreement and the Certificates will not violate the
Trustee's charter or by-laws or constitute a default under, or result in
the breach or acceleration of, any contract, agreement or other instrument
to which the Trustee is a party or which may be applicable to the Trustee
or any of its assets;
(iv) as of the Closing Date, each of this Agreement and the
Certificates has been duly executed, authenticated and delivered by the
Trustee (or, with respect to the Certificates, by an Authenticating Agent
on its behalf, if applicable) and this Agreement constitutes the valid and
legally binding obligation of the Trustee, enforceable in accordance with
its terms, except as enforcement may be limited by the applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally or by general principles of
equity;
(v) the Trustee is not in violation, and the execution, authentication
and delivery of this Agreement and the Certificates by the Trustee and its
performance and compliance with respective terms of this Agreement and the
Certificates will not
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constitute a violation, of any order or decree of any court or any order
or regulation of any U.S. Federal, State, municipal or governmental agency
having jurisdiction over the Trustee or any of its assets, which
violation would reasonably be expected to have a material adverse effect
on the business, prospects, condition (financial or otherwise) or
operations of the Trustee or on the performance of its duties thereunder;
(vi) there are no Proceedings against, or investigations of, the
Trustee pending, or, to the knowledge of the Trustee, threatened, before
any court, administrative agency or other tribunal (a) that could
reasonably be expected to prohibit its entering into this Agreement or to
render the Certificates invalid, (b) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions contemplated by
this Agreement or (c) that could reasonably be expected to prohibit or
materially and adversely affect the performance by the Trustee of its
obligations under, or the validity or enforceability of, this Agreement or
the Certificates; and
(vii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, authentication,
delivery and performance by the Trustee of, or compliance by the Trustee
with, this Agreement or the Certificates, or for the consummation of the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations and orders, if any, that have been obtained prior
to the Closing Date.
(b) Within 30 calendar days of the discovery by the Trustee of a breach of
any of its representations or warranties set forth in this Section 8.12, the
Trustee shall promptly cure such breach.
Section 8.13. Limitation of Powers and Duties. The Trust is constituted
solely for the purposes of acquiring and holding the Underlying Notes, entering
into the Agency Agreement, issuing the Certificates and engaging in activities
necessary, advisable or incidental to the foregoing. The Trust may not incur any
additional debt other than debt that does not constitute a claim against the
Trust Property. The Trustee is not authorized to acquire any other investments
or engage in any activities not authorized in this Agreement and, in particular,
the Trustee is not authorized (i) to Transfer any of the Underlying Notes or
interests therein to any Person except as contemplated in Section 3.08 or 3.09
or (ii) to do anything that would cause the Trust to (1) be required to be
registered under the Investment Company Act or (2) cause the Trust to be taxed
as a corporation or a publicly traded partnership taxable as a corporation or
otherwise alter the classification of the Trust for U.S. Federal income tax
purposes.
ARTICLE IX
TERMINATION
Section 9.01. Termination of the Trust. (a) The respective obligations and
responsibilities under this Agreement of the Depositor and the Trustee (other
than the obligations of the Trustee to provide reports and other information
under this Agreement and to make distributions to Certificateholders as herein
set forth) shall terminate upon the distribution to such Certificateholders of
all amounts required to be paid by the Underlying Issuers of their
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respective Underlying Notes then constituting a part of the Trust Property;
provided, however, that in no event shall the Trust continue beyond the
expiration of 21 years from the death of the last survivor of the descendants
of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., the late United States Ambassador to the Court of
St. ▇▇▇▇▇.
(b) Written notice of any termination shall be provided to each
Certificateholder and the Depositor within ten Business Days of such
termination, unless such termination occurs on the Final Scheduled Distribution
Date.
(c) On the Final Scheduled Distribution Date, unless none of the
Certificates are then Outstanding, the Trustee shall distribute to each
Certificateholder presenting and surrendering its Certificates, the amount
distributable on the Final Scheduled Distribution Date pursuant to Section 4.01
in respect of the Certificates so presented and surrendered. Any funds not
distributed on the Final Scheduled Distribution Date shall be set aside and held
in trust by the Trustee for the benefit of Certificateholders that fail to
present and surrender their Certificates on the Final Scheduled Distribution
Date and shall be disposed of upon such presentation and surrender, subject to
Sections 4.01 and 5.09. Immediately following the deposit of such funds in trust
hereunder, the Trust shall terminate.
ARTICLE X
MISCELLANEOUS TERMS
Section 10.01. Amendment of this Agreement. (a) This Agreement may be
amended from time to time by the Depositor and the Trustee without 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 in this Agreement which
may be defective or inconsistent with any other provision in this Agreement;
(ii) to add to the covenants, restrictions or obligations of the Depositor for
the benefit of the Certificateholders, (iii) to comply with any requirements
imposed by the Code; (iv) to amend the definition Maximum Reimbursable Amount so
as to increase, but not decrease, the amount contained in such definition or to
otherwise amend or waive the terms of Section 8.05(b) in any manner which shall
not adversely affect the Certificateholders in any material respect; (v) to
evidence and provide for the acceptance of appointment under this Agreement by a
successor Trustee.
(b) This Agreement may also be amended from time to time by the Depositor
and the Trustee with the consent of Certificateholders representing a majority
of the aggregate Certificate Principal Balances of the Outstanding Certificates
on the date of such determination 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 Certificateholders; provided,
however, that, the consent of 100% of the aggregate Certificate Principal
Balances of all Outstanding Certificates on the date of such determination shall
be required in the event any such amendment would (i) reduce in any manner the
amount, delay the timing or otherwise alter the pass-through nature of payments
received on Underlying Notes that are required to be distributed on any
Certificate, (ii) reduce the Certificate Principal Balance of the Certificates
except upon payment on the Final Scheduled Distribution Date or upon the
occurrence of a Removal Event, an event requiring removal of any Underlying
Notes from the Trust Property
-45-
pursuant to Section 3.10 or the optional redemption of Underlying Notes, or
(iii) reduce the aforesaid required percentages required for the consent to
any amendment with the consent of the Certificateholders.
(c) Notwithstanding the foregoing, no amendment of this Agreement pursuant
to Section 10.01(a) or (b) hereof shall be permitted that would (1) require the
Trust to be registered under the Investment Company Act, (2) cause the Trust to
be taxed as an association or publicly traded partnership taxable as a
corporation or otherwise alter the classification of the Trust for U.S. Federal
income tax purposes, (3) result in a sale or exchange of any Certificate for tax
purposes, (4) not meet the Rating Agency Condition, (5) change or add any
Removal Events or any conditions under which any Underlying Notes are required
to be removed from the Trust Property, (6) substitute Underlying Notes of an
Underlying Issuer for debt securities of another issuer or (7) modify the
provisions of this Agreement in a manner that would permit the Trustee, in its
capacity as such under this Agreement, or the Certificateholders to declare or
waive an event of default in respect of the Underlying Notes.
(d) Promptly after the execution of any amendment under this Section 10.01,
the Trustee shall furnish a copy of such amendment to each Certificateholder.
Section 10.02. 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 10.03. Limitation on Rights of Certificateholders. (a) The death
or incapacity of any Certificateholder shall not (1) operate to terminate this
Agreement or the Trust Property, (2) entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any Proceeding in
any court for a partition or winding up of the Trust Property or (3) otherwise
affect the rights, obligations and liabilities of the parties thereto or any
of them.
(b) Except as otherwise expressly provided herein, no Certificateholder
shall have any right to control the operation and management of any Trust
Property, or the obligations of the parties thereto, nor shall anything in this
Agreement 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. In addition, no Certificateholder shall be under any
liability to any third person by reason of any action taken by the parties to
this Agreement pursuant to any provision thereof.
Section 10.04. GOVERNING LAW; Non-exclusive Submission to Jurisdiction.
THIS AGREEMENT AND EACH CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. With respect to any
Proceedings relating to or arising out of this Agreement, the Depositor, Trustee
(including any Authentication Agent, Certificate Registrar and Paying Agent),
Administrative Agent and each Certificateholder irrevocably submits to the
non-exclusive jurisdiction of the courts of the State of New York and the United
States District Court located in the Borough of Manhattan in New York City.
Nothing in this Agreement precludes any such Person from bringing Proceedings in
any other jurisdiction, nor will the bringing of Proceedings in any one or more
jurisdictions preclude the bringing of Proceedings in any other jurisdiction.
-46-
Section 10.05. Notices. All directions, demands and notices under this
Agreement shall be in writing and shall be delivered to the Trustee at its
Corporate Trust Office and to the Administrative Agent at Bank of America
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Any notice required to be
given to a Certificateholder will be sent by first class mail, postage prepaid,
to the last address of such Certificateholder set forth in the Certificate
Register or will be given by facsimile to such number as may be provided to the
Trustee and the Administrative Agent. 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.
Notices given by facsimile will be effective upon confirmation (including
electronic confirmation) of effective transmission. So long as the Certificates
are listed on the Luxembourg Stock Exchange, notices will also be made by
publication in a Luxembourg Authorized Newspaper. Any notice in a Luxembourg
Authorized Newspaper will be deemed to have been given on the date of
publication or, if published more than once, on the date of the first
publication.
Section 10.06. Severability of Terms. If any one or more of the covenants,
agreements or terms of this Agreement shall be for any reason whatsoever held
invalid, then such covenants, agreements or terms shall be deemed severable from
the remaining covenants, agreements or terms of this Agreement and shall in no
way affect the validity or enforceability of the other terms of this Agreement
or of the Certificates or the rights of the Certificateholders.
Section 10.07. Notice to Rating Agencies. The Trustee shall use its best
efforts promptly to provide notice to the Rating Agencies with respect to each
of the following events as to which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the resignation or termination of the Trustee;
(iii) any change in the location of the Certificate Account;
(iv) any Removal Event;
(v) any event requiring removal of any Underlying Note from the Trust
Property in accordance with Section 3.10;
(vi) any optional redemption of Underlying Notes; and
(vii) the final distribution to Certificateholders.
In addition, the Trustee shall promptly furnish to the Rating Agencies copies of
each report to Certificateholders described in Section 4.02. Any such notice
pursuant to this Section 10.07 shall be in writing and shall be deemed to have
been duly given if personally delivered, sent by facsimile or mailed by first
class mail, postage prepaid, or by express delivery service to the Rating
Agencies.
Section 10.08. No Recourse. Each Holder, by its acceptance of a Certificate
or a beneficial interest or participation therein, acknowledges that such
Holder's Certificate
-47-
represents a beneficial ownership interest in the assets of
the Trust only and does not represent an interest in or obligation of the
Depositor, the Trustee, any Affiliate of the Depositor or the Trustee or any
other entity or any of their respective directors, managers, officers, employees
or agents and no recourse may be had against such Persons or individuals or
their respective assets, except as may be expressly set forth or contemplated in
this Agreement or the Certificates, and each Holder's recourse is limited to the
Trust Property secured hereby. The Trustee shall have no recourse to the
Underlying Notes.
Section 10.09. No Petition Covenant. Notwithstanding any prior termination
of this Agreement, the Trustee and each Certificateholder shall not, prior to
the date which is one year and one day after the termination of this Agreement,
acquiesce in, petition or otherwise invoke or cause the Trust or the Depositor
to invoke the process of any court or governmental authority for the purpose of
commencing or sustaining a case against the Trust or the Depositor under any
U.S. 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 the Depositor or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the Trust
or the Depositor.
Section 10.10. Intention of Parties. The parties hereto intend that the
Trust be classified for U.S. Federal income tax purposes as a grantor trust
under Subpart E, Part I of Subchapter J of the Code and not as a trust or
association taxable as a corporation or as a partnership. Each
Certificateholder, by its acceptance of its Certificate or a beneficial interest
or participation therein, agrees to treat the Trust as a grantor trust for all
U.S. Federal, State and local income tax purposes. The powers granted and
obligations undertaken pursuant to this Agreement shall be so construed so as to
further such intent.
-48-
IN WITNESS WHEREOF, the Depositor, the Trustee and the Administrative Agent
have each caused this Agreement to be duly executed by its duly authorized
representative as of the date first above written.
CORE BOND PRODUCTS LLC, as Depositor
By: ___________________________________
Name:
Title:
THE BANK OF NEW YORK, as Trustee and
Securities Intermediary
By: ___________________________________
Name:
Title:
BANC OF AMERICA SECURITIES LLC,
as Administrative Agent
By: ___________________________________
Name:
Title:
-49-
-50-
-51-
SCHEDULE I
Underlying Note Schedule
------- ------------ ----------- ------ ----------- ---------- --------- -------- ------------ ------------- -------- ------ -------
Series/ Underlying Non-U.S.
Tranche Underlying Note Company/
of Note Interest Make-Whole Withholding
Underlying Underlying Interest Payment Principal Maturity Redemption Redemption ▇▇▇▇▇'▇ S&P Fitch
CUSIP Issuer Notes Rank Rate Dates Amount Date Option/Price Option Rating Rating Rating
------- ------------ ----------- ------ ----------- ---------- --------- -------- ------------ ------------- -------- ------ -------
------- ------------ ----------- ------ ----------- ---------- --------- -------- ------------ ------------- -------- ------ -------
------- ------------ ----------- ------ ----------- ---------- --------- -------- ------------ ------------- -------- ------ -------
------- ------------ ----------- ------ ----------- ---------- --------- -------- ------------ ------------- -------- ------ -------
------- ------------ ----------- ------ ----------- ---------- --------- -------- ------------ ------------- -------- ------ -------
-52-
EXHIBIT A
---------
FORM OF CERTIFICATE
-------------------
[FACE OF CERTIFICATE]
EACH PERSON THAT PURCHASES A CERTIFICATE WILL BE DEEMED TO REPRESENT THAT ITS
ACQUISITION OF SUCH CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION. IN ADDITION, IN THE EVENT THE CERTIFICATES DO NOT
CONSTITUTE PUBLICLY OFFERED SECURITIES, EACH PERSON THAT PURCHASES THIS
CERTIFICATE ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN THAT IS SUBJECT
TO THE PROVISIONS OF SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, WILL BE DEEMED TO REPRESENT THAT EITHER (I) THE PLAN IS SO REPRESENTED
IN THIS REGARD BY A QPAM OR INHAM (AS THOSE TERMS ARE DEFINED IN PROHIBITED
TRANSACTION CLASS EXEMPTION ("PTE") 84-14 AND PTE 96-23, RESPECTIVELY) AND WILL
BE SO REPRESENTED FOR SO LONG AS SUCH PLAN HOLDS THIS CERTIFICATE, AND THAT THE
OTHER CONDITIONS OF PTE 84-14 OR PTE 96-23 ARE AND WILL AT ALL TIMES BE
SATISFIED, (II) THE CONDITIONS TO THE APPLICABILITY OF PTE 90-1, PTE 95-60 OR
PTE 91-38 ARE AND WILL AT ALL TIMES BE SATISFIED OR (III) THE CONDITIONS OF
ANOTHER APPLICABLE EXEMPTION ARE AND WILL AT ALL TIMES BE SATISFIED, SUCH THAT
IN THE CASE OF EITHER (I), (II) OR (III), THE APPLICABLE EXEMPTION APPLIES TO
THE PURCHASE, CONTINUED HOLDING AND DISPOSITION OF THIS CERTIFICATE, AS WELL AS
TO THE UNDERLYING TRANSACTIONS OF THE TRUST REFERRED TO HEREIN.
B-1
[Include if this Certificate is a Global Certificate:
This Certificate is a Global Certificate within the meaning of the Trust
Agreement hereinafter referred to and is registered in the name of the
Depositary or a nominee of the Depositary. This Certificate is exchangeable for
Certificates registered in the name of a Person other than the Depositary or its
nominee only in the limited circumstances described in the Trust Agreement, and
may not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor of the Depositary or a nominee of such successor.]
[Include if this Certificate is a Global Certificate and DTC is the Depositary:
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Trustee or its
agent for registration of transfer, exchange or payment, and any certificate
issued in exchange for this certificate or any portion hereof is registered in
the name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), any transfer,
pledge or other use hereof for value or otherwise by or to any person is
wrongful inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.]
CERTIFICATE CERTIFICATE PRINCIPAL BALANCE: $_______
No. ______
CUSIP No. ___________
ISIN US _____________
Common Code No. ____________
Core Investment Grade Bond Trust I
Pass-Through Certificate, Series 2002-1
Issuance Date: ____________, 2002
Final Scheduled Distribution Date: o
Evidencing a Fractional Undivided Interest in Core Investment Grade Bond Trust I
THIS CERTIFIES THAT _______________, for value received, is the registered
owner (the "Holder") of $__________ (___________ dollars) in Certificate
Principal Balance, subject to change as specified in Schedule 1 hereto, in Core
Investment Grade Bond Trust I (the "Trust") created pursuant to a Trust
Agreement, dated as of [ ], 2002 (the "Trust Agreement"), among The Bank of New
York, as trustee and securities intermediary (the "Trustee"), Core Bond Products
LLC, as depositor (the "Depositor"), and Banc of America Securities LLC, as
administrative agent (the "Administrative Agent"), a summary of certain of the
pertinent provisions of which is set forth below. To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings assigned to
them in the Trust Agreement.
B-2
This Certificate is one of the duly authorized Certificates designated as
"Pass-Through Certificates, Series 2002-1" (the "Certificates"). This
Certificate is issued under and is subject to the terms, provisions, and
conditions of the Trust Agreement. By virtue of its acceptance hereof, the
Holder assents to and agrees to be bound by the provisions of the Trust
Agreement.
This Certificate evidences a Fractional Undivided Interest in the Trust
Property. Subject to the terms and conditions of the Trust Agreement, until the
obligations created by the Trust Agreement shall have terminated in accordance
therewith, Certificateholders will be entitled to receive on the related
Distribution Date distributions in an amount equal to their Fractional Undivided
Interest in the amounts received by the Trustee and required to be distributed
to Certificateholders on such Distribution Date pursuant to the terms of the
Trust Agreement.
Except as otherwise provided in the Trust Agreement and notwithstanding the
foregoing, distributions payable on the Final Schedule Distribution Date, on a
Special Distribution Date resulting from the optional redemption of Underlying
Notes or upon a removal of Underlying Notes under the circumstances prescribed
in the Trust Agreement will be made only upon presentation and surrender of this
Certificate at the Corporate Trust Office of the Trustee.
Each Certificateholder, by its acceptance of this Certificate or a
beneficial interest herein, agrees to treat the Trust as a trust, the
certificateholders of which are treated as the owners thereof under Section 671
of the Code, for U.S. Federal income tax purposes.
THE TRUST AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Trustee, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Trustee in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended. Unless the certificate of
authentication hereon has been executed by the Trustee, by manual or facsimile
signature, this Certificate shall not be entitled to any benefit under the Trust
Agreement or be valid for any purpose.
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 by any Certificateholder, upon request (free of
charge), during normal business hours at the Corporate Trust Office of the
Trustee, located initially at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and
at such other places, if any, designated by the Trustee, including, for so long
as the Certificates are listed on the Luxembourg Stock Exchange, the main office
of The Bank of New York (Luxembourg) SA, the Trust's Luxembourg paying agent,
initially located at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇,
Luxembourg.
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.
B-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust, and not in its
individual capacity, has caused this Certificate to be duly executed.
CORE INVESTMENT GRADE BOND TRUST I
By: THE BANK OF NEW YORK, as Trustee
By: ___________________________________
Authorized Signatory
DATED:
Trustee's Certificate of Authentication:
This is one of the Certificates referred to in the within-mentioned Trust
Agreement.
Date: THE BANK OF NEW YORK, as Trustee
By: ______________________________
Authorized Signatory
B-4
[REVERSE OF CERTIFICATE]
Core Investment Grade Bond Trust I
Pass-Through Certificate, Series 2002-1
The Trust Agreement permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Trust Agreement and subject to certain limitations
herein and therein set forth, the transfer of this Certificate is registerable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the Corporate Trust Office, accompanied by a written instrument
of transfer in form and substance satisfactory to the Trustee duly completed and
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate Certificate Principal Balance will be issued to
the designated transferee.
As provided in the Trust Agreement and subject to certain limitations
herein and therein set forth, this Certificate is exchangeable for new
Certificates of authorized denominations representing the same aggregate
Certificate Principal Balance, as requested by the Holder surrendering the same.
The Trustee may require payment of a sum sufficient to cover any tax or
governmental charges payable in connection therewith and any expenses reasonably
incurred by the Trustee, except as otherwise specified in the Trust Agreement.
The Certificates are issuable only in registered form without coupons in
denominations of $1,000.
Prior to due presentment for registration of transfer, 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.
The obligations and responsibilities created by the Trust Agreement and the
Trust created thereby will terminate upon the payment to Certificateholders of
all amounts required to be paid to them pursuant to the Trust Agreement.
Notwithstanding anything contained in the Trust Agreement to the contrary,
the Trust Agreement has been accepted by the Trustee, not in its individual
capacity but solely as Trustee. In no event shall the Trustee 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
of the Depositor delivered pursuant thereto, as to all of which recourse shall
be had solely to the assets of the Depositor, and, except as specified in
Section 8.05 of the Trust Agreement, under no circumstances shall the Trustee be
personally liable for the payment of any indebtedness or expenses of the Trust.
This Certificate does not represent an interest in or obligation 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 Certificates or any interest
therein except as expressly provided in the Trust Agreement.
B-5
[Include if this Certificate is a Global Certificate]
Schedule 1
SCHEDULE OF CHANGES IN OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
The following notations in respect of changes in the outstanding
Certificate Principal Balance of this Global Certificate have been made in
respect of a Removal Event or a Special Distribution Date resulting from the
optional redemption of Underlying Notes:
Initial Certificate Change in Outstanding New Certificate Notation
Date Principal Balance Certificate Principal Balance Principal Balance Made by
---- ----------------- ----------------------------- ----------------- -------
B-6
Annex A
FORM OF NOTICE OF REMOVAL OF UNDERLYING NOTES FROM TRUST PROPERTY
[Name and Address of Certificateholder]
Re: Core Investment Grade Bond Trust I
Pass-Through Certificates, Series 2002-1
We hereby notify you in accordance with Section 3.08(a) of the Trust
Agreement, dated as of November o, 2002 (the "Trust Agreement"), among Core Bond
Products LLC, as Depositor, The Bank of New York, as trustee and securities
intermediary, and Banc of America Securities LLC, as administrative agent, [of
the occurrence of a Removal Event with respect to the following Underlying
Notes: [specify series or issue of Underlying Notes and specific Removal
Event]][that the following series or issue of Underlying Notes are subject to
removal from the Trust Property in accordance with Section 3.10 of the Trust
Agreement.]
[In accordance with Section 3.08, you have the right to have the
administrative agent sell your pro rata portion of the Underlying Notes subject
to removal and receive the proceeds thereof. If you choose to exercise this
option, please notify us no later than three Business Days from your receipt of
this notification by completing and returning to our attention, the form of
notice specified in Annex B to the Trust Agreement.] [If you choose not to
exercise this option,] we will distribute to you your pro rata portion of the
Underlying Notes subject to removal.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Trust Agreement.
THE BANK OF NEW YORK
By: ___________________________
Name:
Title:
B-7
Annex B
FORM OF NOTICE OF ELECTION TO SELL
The Bank of New York
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Core Investment Grade Bond Trust I
Pass-Through Certificates, Series 2002-1
The undersigned Holder of this Certificate hereby irrevocably exercises the
option to effect the sale of its pro rata portion of the Underlying Notes
subject to removal as specified in the notice received by the Trustee on o with
respect to the following Underlying Notes: [specify series or issue of
Underlying Notes subject to removal] in accordance with the terms of the Trust
Agreement, dated as of November o, 2002 (the "Trust Agreement"), among Core Bond
Products LLC, as Depositor, The Bank of New York, as trustee and securities
intermediary, and Banc of America Securities LLC, as administrative agent.
Dated:______________________ ________________________________
Signature
Signature Guarantee: _________________________
Social Security or other
Taxpayer Identification
Number, if any: ______________________________
B-8