Exhibit 4.1.1
-------------
FORM OF
STANDARD TERMS FOR TRUST AGREEMENT
between
BOND PRODUCTS DEPOSITOR LLC,
as Depositor
and
[name of Trustee],
as Trustee
TRUST CERTIFICATES
Dated as of [ , 2003]
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Assumptions
SECTION 1.01 Definitions.............................................1
SECTION 1.02 Rules of Construction..................................22
SECTION 1.03 Compliance Certificates and Opinions; Record Date......22
ARTICLE II
Declaration of Trust; Issuance of Certificates;
Purpose and Classification of Trusts
SECTION 2.01 Creation and Declaration of Trusts; Assignment of
the Trust Estate.......................................24
SECTION 2.02 Acceptance by Trustee..................................26
SECTION 2.03 Representations and Warranties of the Depositor........26
SECTION 2.04 Breach of Depositor's Representations or Warranties....27
SECTION 2.05 Agreement to Authenticate and Deliver Certificates.....28
ARTICLE III
Administration of each Trust
SECTION 3.01 Administration of each Trust...........................28
SECTION 3.02 Collection of Payments on the Trust Estate ............28
SECTION 3.03 Certificate Account and Reserve Account................29
SECTION 3.04 Liquidation of the Underlying Securities...............31
SECTION 3.05 Investment of Funds in the Accounts....................31
SECTION 3.06 Maintenance of Credit Support and
Other Deposited Assets.................................32
SECTION 3.07 Realization Upon Defaulted ............................32
SECTION 3.08 Retained Interest......................................34
SECTION 3.09 Access to Certain Documentation........................35
SECTION 3.10 Reports by the Depositor...............................35
SECTION 3.11 Charges and Expenses...................................36
SECTION 3.12 Underlying Securities Reporting Failure................36
ARTICLE IV
Distributions and Reports to Certificateholders
SECTION 4.01 Distributions..........................................38
SECTION 4.02 Distributions on Certificates..........................38
SECTION 4.03 Reports to Certificateholders..........................41
SECTION 4.04 Advances...............................................43
SECTION 4.05 Allocation of Realized Losses and Trust Expenses.......44
SECTION 4.06 Compliance with Withholding Requirements...............44
SECTION 4.07 Optional Exchange......................................45
SECTION 4.08 Optional Call Procedures...............................47
SECTION 4.09 Early Termination......................................48
ARTICLE V
The Certificates
SECTION 5.01 The Certificates.......................................48
SECTION 5.02 Execution, Authentication and Delivery.................49
SECTION 5.03 Temporary Certificates.................................50
SECTION 5.04 Registration; Registration of Transfer and Exchange....51
SECTION 5.05 Mutilated, Destroyed, Lost and Stolen Certificates.....56
SECTION 5.06 Persons Deemed Owners..................................57
SECTION 5.07 Cancellation...........................................58
SECTION 5.08 Global Securities......................................58
SECTION 5.09 Notices to Depository..................................59
SECTION 5.10 Definitive Certificates................................59
SECTION 5.11 Currency of Distributions in Respect of Certificates...60
SECTION 5.12 Conditions of Authentication and Delivery of New Series61
SECTION 5.13 Appointment of Paying Agent............................62
SECTION 5.14 Authenticating Agent...................................62
SECTION 5.15 Voting Rights with Respect to Underlying Securities....64
SECTION 5.16 Actions by Certificateholders..........................64
SECTION 5.17 Termination Events.....................................65
SECTION 5.18 Judicial Proceedings Instituted by Trustee;
Trustee May Bring Suit.................................65
SECTION 5.19 Control by Certificateholders..........................65
SECTION 5.20 Waiver of Past Defaults................................66
SECTION 5.21 Right of Certificateholders to Receive Payments
Not to Be Impaired.....................................67
SECTION 5.22 Remedies Cumulative....................................67
ARTICLE VI
The Depositor
SECTION 6.01 Liability of the Depositor.............................67
SECTION 6.02 Limitation on Liability of the Depositor...............67
SECTION 6.03 Depositor May Purchase Certificates....................69
SECTION 6.04 Merger or Consolidation of the Depositor...............69
SECTION 6.05 No Liability of the Depositor with Respect to
the Deposited Assets; Certificateholders to Proceed
Directly Against the Deposited Asset Providers.........69
ARTICLE VII
Concerning the Trustee
SECTION 7.01 Duties of Trustee......................................70
SECTION 7.02 Between Trustee and Administrative Agents..............74
SECTION 7.03 Certain Matters Affecting the Trustee..................75
SECTION 7.04 Trustee Not Liable for Recitals in Certificates or
Underlying Securities..................................76
SECTION 7.05 Trustee May Own Certificates...........................77
SECTION 7.06 Trustee's Fees and Expenses............................77
SECTION 7.07 Eligibility Requirements for Trustee...................78
SECTION 7.08 Resignation or Removal of the Trustee;
Appointment of Successor Trustee.......................79
SECTION 7.09 Merger or Consolidation of Trustee.....................80
SECTION 7.10 Appointment of Office or Agency........................81
SECTION 7.11 Representations and Warranties of Trustee..............81
SECTION 7.12 Indemnification of Trustee by the Depositor;
Contribution...........................................82
SECTION 7.13 Indemnification of Depositor by Trustee................83
SECTION 7.14 No Liability of the Trustee with Respect to
the Deposited Assets; Certificateholders to Proceed
Directly Against the Issuer(s).........................84
SECTION 7.15 [RESERVED].............................................84
SECTION 7.16 Preservation of Information............................84
SECTION 7.17 Reports by Trustee.....................................84
SECTION 7.18 Trustee's Application for Instructions from
the Depositor..........................................84
ARTICLE VIII
Market Agent
SECTION 8.01 Market Agent...........................................85
ARTICLE IX
[RESERVED]
ARTICLE X
Miscellaneous Provisions
SECTION 10.01 Amendment..............................................86
SECTION 10.02 Limitation on Rights of Certificateholders.............88
SECTION 10.03 GOVERNING LAW..........................................89
SECTION 10.04 Notices................................................89
SECTION 10.05 Notice to Rating Agencies..............................90
SECTION 10.06 Severability of Provisions.............................91
SECTION 10.07 Grant of Security Interest.............................91
SECTION 10.08 Nonpetition Covenant...................................92
SECTION 10.09 No Recourse............................................93
SECTION 10.10 Article and Section References.........................93
SECTION 10.11 Counterparts...........................................93
SECTION 10.12 Trust Indenture Act Controls...........................93
SECTION 10.13 Segregation Provisions.................................93
STANDARD TERMS FOR TRUST AGREEMENTS dated as of [ ], 2003, among BOND
PRODUCTS DEPOSITOR LLC, a Delaware limited liability company, as Depositor,
and [name of Trustee], [a national banking association], as Trustee.
PRELIMINARY STATEMENT
The Depositor and the Trustee have duly authorized the execution and
delivery of these Standard Terms for Trust Agreements (the "Standard Terms")
to provide for one or more Series (and one or more Classes within each such
Series) of Certificates, issuable from time to time as provided in these
Standard Terms.
Each such Series (inclusive of any Classes specified within such
Series) of Certificates will be issued only under a separate Series Supplement
to these Standard Terms, duly executed and delivered by the Depositor and the
Trustee. With respect to each Series, the applicable Series Supplement,
together with these Standard Terms, shall be known as the "Trust Agreement."
All representations, covenants and agreements made herein by each of
the Depositor and the Trustee are for the benefit and security of the
Certificateholders and, to the extent provided in the applicable Series
Supplement, for the benefit and security of any Credit Support Provider and/or
any other party as may be specified therein;
The Depositor is entering into these Standard Terms, and the Trustee
is accepting the trusts created hereby, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged.
ARTICLE I
Definitions and Assumptions
SECTION 1.01 Definitions. Except as otherwise specified
herein or in the applicable Series Supplement or as the context may otherwise
require, the following terms have the respective meanings set forth below for
all purposes of this Trust Agreement.
"Account" As defined in Section 3.05.
"Accounting Date" With respect to any Series, if applicable,
as defined in the related Series Supplement.
"Administration Account" As defined in Section 7.02(c).
"Administrative Agent" Any Person with which the Trustee has
entered into a Administration Agreement.
"Administration Agreement" The written contract, if any,
between the Trustee and a Administrative Agent and any successor Trustee and
Administrative Agent relating to the administration of certain duties of the
Trustee related to any Series.
"Administrative Fees" With respect to any Series, if
applicable, as defined in the related Series Supplement.
"Advance" As defined in Section 4.04.
"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.
"Allowable Expense Amounts" With respect to any Series, as
defined in the related Series Supplement.
"Authenticating Agent" As defined in Section 5.14.
"Authorized Newspaper" A newspaper in an official language
of the country of publication customarily published at least once a day, and
customarily published for at least five (5) days in each calendar week, and of
general circulation in such city or cities specified in the related Series
Supplement with respect to the Certificates of any Series. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same
city meeting the foregoing requirements and in each case on any Business Day
in such city.
"Available Funds" Unless otherwise specified in the
applicable Series Supplement, for any Distribution Date in respect of a given
Series or Class, the sum of (i) all amounts actually received on or with
respect to the Underlying Securities (including Liquidation Proceeds and
investment income on amounts in the Accounts) with respect to such Series
during the related Collection Period; (ii) all amounts received by the Trust
pursuant to the terms of any Credit Support Instruments with respect to such
Series for such Distribution Date, (iii) all amounts received by the Trust
pursuant to the terms of any Other Deposited Assets with respect to such
Series for such Distribution Date, (iv) all amounts transferred on such
Distribution Date to the Certificate Account from any Reserve Account
established under the applicable Series Supplement, and (v) all other amounts,
if any, specified by the applicable Series Supplement.
"Basic Documents" With respect to any Series, shall mean,
the Trust Agreement [and if applicable, any other documents set forth in the
related Series Supplement].
"Bearer Certificate" Any Certificate (with or without
Coupons), title to which passes by delivery only, but exclusive of any
Coupons.
"Beneficial Owner" Shall mean, with respect to Certificates
held through a Depository, the beneficial owner of a Certificate. For purposes
only of Section 5.16, the Trustee shall be obligated to treat a Person who
claims to be a beneficial owner of a Certificate as a "Beneficial Owner"
within the meaning of the Series Supplement only if such Person has first
delivered to the Trustee, (i) a certificate or other writing executed by such
Person stating the full name and address of such Person, the principal
distribution amount of the Certificate with respect to which such Person
claims to be the Beneficial Owner, and the Participant in the Depository
("such Person's Participant") through which such Person holds its beneficial
ownership interest in the Certificates and (ii) a certificate or other writing
executed by such Person's Participant confirming that such Person's
Participant holds on its own books and records Certificates for the account of
such Beneficial Owner and identifying the principal distribution amount held
for such Beneficial Owner.
"Bidding Procedures" shall mean those procedures set forth
in Section 3.13 of this Agreement for the sale of Underlying Securities.
"Business Day" Any day that is not (i) a Saturday, a Sunday,
(ii) a legal holiday in the State of New York and the city and state in which
the Corporate Trust Office of the Trustee is located, or (iii) a day on which
banking or savings institutions in New York or the city and state in which the
Corporate Trust Office of the Trustee are located are authorized or obligated
by law, regulation or executive order to close.
"Calculation Agent" With respect to any Series, if
applicable, as defined in the related Series Supplement.
"Call Date" With respect to any Series, if applicable, shall
be the date set forth in the related Series Supplement.
"Call Option" Shall mean the right to purchase the
Certificates in whole or in part at the Call Price, on any Call Date pursuant
to Section 4.08 hereof and the terms of the applicable Series Supplement.
"Call Premium Percentage" With respect to any Series (or
Class with such Series), if applicable, as defined in the related Series
Supplement.
"Call Price" With respect to any Series, if applicable,
shall be as defined in the related Series Supplement.
"Call Request" Shall have the meaning specified in Section
4.08 hereof.
"Certificate Account" As defined in Section 3.03.
"Certificate Owners" As defined in Section 5.08.
"Certificate Principal Balance" With respect to an
Outstanding Certificate, as determined at any time, the maximum amount that
the Holder thereof is entitled to receive as distributions allocable to
principal payments on the Deposited Assets. The Certificate Principal Balance,
if any, of any Class within a given Series (other than those Classes, if any,
specified in the related Series Supplement), as of any date of determination,
shall be equal to the aggregate initial Certificate Principal Balance thereof
less the sum of (i) all amounts allocable to prior distributions made to such
Class in respect of principal, (ii) any reductions attributable to
Certificates surrendered in exchange for Underlying Securities, as and to the
extent provided in the applicable Series Supplement, and (iii) any reductions
in the Certificate Principal Balance thereof deemed to have occurred in
connection with allocations of (A) Realized Losses in respect of principal of
any Deposited Assets and (B) Extraordinary Trust Expenses in respect of
principal as allocated to such Class pursuant to the applicable Series
Supplement.
"Certificate Register" and "Certificate Registrar" As
respectively defined in Section 5.04.
"Certificateholder" Any Holder of a Certificate.
"Certificates" Any trust certificates authorized by, and
authenticated and delivered under this Trust Agreement.
"Class" With respect to any Series, any one of the classes
of Certificates of such Series, each consisting of Certificates having
identical terms.
"Clearing Agency" An organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Closing Date" With respect to any Series, the day on which
Certificates of such Series are first executed, authenticated and delivered,
as specified in the related Series Supplement.
"Code" The Internal Revenue Code of 1986, as amended, and
Treasury Regulations promulgated thereunder.
"Collection Period" With respect to any Distribution Date
for a Series (or Class within such Series), the period specified in the
related Series Supplement.
"Commission" The Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution and delivery of this Trust Agreement such Commission is
not existing and performing the duties now assigned to it, then the body then
performing such duties.
"Corporate Trust Office" The principal corporate trust
office of the Trustee located at the address set forth in the related Series
Supplement or such other addresses as the Trustee may designate from time to
time by notice to the Holders and the Depositor, or the principal corporate
trust office of any successor Trustee (or such other addresses as a successor
Trustee may designate from time to time by notice to the Holders and the
Depositor).
"Coupon" Any interest coupon appertaining to a Bearer
Certificate.
"Coupon Certificate" Any Bearer Certificate authenticated
and delivered with one or more Coupons appertaining thereto.
"Credit Support" With respect to any Series (or any Class
within such Series), a Letter of Credit, Surety Bond or other asset intended
to support or ensure the timely or ultimate distributions of amounts due in
respect of all or certain of the Underlying Securities for such Series (or
Class), which in each case is specified as such in the related Series
Supplement.
"Credit Support Instrument" The instrument or document
pursuant to which the Credit Support for a given Series (or any Class within
such Series) is provided, as specified in the applicable Series Supplement.
"Credit Support Provider" With respect to any Series (or any
Class within such Series), the Person, if any, that will provide any Credit
Support with respect to all or a portion of the Underlying Securities for such
Series or Class as specified in the applicable Series Supplement.
"Currency" Dollars or Foreign Currency.
"Cut-Off Date" With respect to any Series, the date
specified as such in the related Series Supplement. For purposes of this Trust
Agreement, any Underlying Security acquired by the Depositor after the
applicable Cut-Off Date but prior to the applicable Closing Date and included
in the related Trust as of such Closing Date shall be deemed to have been
Outstanding as of such Cut-Off Date and references to the principal balance of
such Underlying Security as of such Cut-Off Date shall be deemed to be to the
principal balance of such Underlying Security as of the date on which it was
acquired by the Depositor.
"Definitive Certificates" As defined in Section 5.08.
"Deposited Assets" With respect to any Series shall have the
meaning specified in the related Series Supplement.
"Deposited Assets Provider" With respect to any Series (or
any Class within such Series), shall mean as applicable, the Underlying
Security Provider, the Credit Support Provider and the Other Deposited Assets
Provider, as applicable.
"Depositor" Bond Products Depositor LLC, a Delaware limited
liability company, and, if a successor Person shall have become the Depositor
pursuant to any applicable provisions of this Trust Agreement, "Depositor"
shall mean such successor Person. With respect to any provisions of this Trust
Agreement that relate to the provisions of the Trust Indenture Act,
"Depositor" shall include any obligor on the Certificates as the term obligor
is defined in the Trust Indenture Act.
"Depositor Order" A written order or request, respectively,
signed in the name of the Depositor by any of its Executive Officers.
"Depository" With respect to the Certificates of any Series
(or Class within such Series) issuable in whole or in part in the form of one
or more Global Securities, the Person designated as Depository by the
Depositor in the related Series Supplement until a successor Depository shall
have become such pursuant to the applicable provisions of this Trust
Agreement, and thereafter "Depository" shall mean or include each Person who
is then a Depository hereunder, and if at any time there is more than one such
Person, "Depository" as used with respect to the Certificates of any such
Series or Class shall mean the Depository with respect to the Certificates of
that Series or Class.
"Discount Certificate" Any Certificate that is issued with
"original issue discount" within the meaning of Section 1273(a) of the Code
and any other Certificate designated by the Depositor as issued with original
issue discount for United States Federal income tax purposes.
"Distribution Date" With respect to any Series (or Class
within such Series) of Certificates, each date specified as a "Distribution
Date" for such Series (or Class) in the related Series Supplement.
"Dollar" or "$" or "USD" Such currency of the United States
as at the time of payment is legal tender for the payment of public and
private debts.
"Eligible Account" Either (i) a segregated account or
accounts maintained with a federal or state chartered depository institution
the long term unsecured debt obligations of which are rated by at least one
Rating Agency in the higher of (x) at least the then current long-term rating
of the Certificates or (y) in one of its [two] highest long-term rating
categories (unless otherwise specified in the Series Supplement) at the time
any amounts are held in deposit therein or (ii) an account(s) maintained as a
segregated account(s) and held by a federal or state chartered depository
institution, a national banking association in trust for the benefit of the
Certificateholders; provided, however, that such depository institution (or
its parent) has a long-term rating in one of the four highest categories by
the Rating Agency.
"Eligible Expense" With respect to any Series, as specified
in the related Series Supplement.
"Eligible Investments" With respect to any Series, unless
otherwise specified in the related Series Supplement, any one or more of the
following obligations or securities; provided, however, that the total stated
return specified by the terms of each such obligation or security is at least
equal to the purchase price thereof; and provided, further, that no such
instrument may carry the symbol "R" in its rating;
(i) direct obligations of, and obligations fully
guaranteed by, the United States, the Federal Home Loan
Mortgage Corporation, the Federal National Mortgage
Association, the Federal Farm Credit System , the Student
Loan Marketing Association, the Resolution Funding
Corporation, the Federal Home Loan Banks (to the extent such
obligations represent the joint and several obligations of
the twelve Federal Home Loan Banks), the Tennessee Valley
Authority, the Federal Farm Credit Banks or any agency or
instrumentality of the United States the obligations of
which are backed by the full faith and credit of the United
States of America; provided, however, that obligations of,
or guaranteed by, the Federal Home Loan Mortgage
Corporation, the Federal National Mortgage Association, the
Federal Farm Credit System , the Student Loan Marketing
Association, the Resolution Funding Corporation, the Federal
Home Loan Banks (to the extent such obligations represent
the joint and several obligations of the twelve Federal Home
Loan Banks), the Tennessee Valley Authority, the Federal
Farm Credit Banks shall be Eligible Investments only if, at
the time of investment, they have the rating specified in
such Series Supplement for Eligible Investments;
(ii) demand and time deposits in, certificates of
deposit of, or banker's acceptances issued by any depository
institution or trust company (including the Trustee or any
agent of the Trustee acting in their respective commercial
capacities) incorporated under the laws of the United States
or any state and subject to supervision and examination by
federal and/or state banking authorities so long as the
commercial paper and/or the short-term debt obligations of
such depository institution or trust company (or, in the
case of a depository institution which is the principal
subsidiary of a holding company, the commercial paper or
other short-term debt obligations of such holding company)
at the time of such investment or contractual commitment
providing for such investment have the rating specified in
such Series Supplement for Eligible Investments;
(iii) repurchase agreements with respect to (a) any
security described in clause (i) above or (b) any other
security issued or guaranteed by an agency or
instrumentality of the United States, with an entity having
the credit rating specified in such Series Supplement for
Eligible Investments;
(iv) securities bearing interest or sold at a
discount issued by any corporation incorporated under the
laws of the United States or any State that have the rating
specified in such Series Supplement for Eligible Investments
at the time of such investment or contractual commitment
providing for such investment; provided, however, that such
rating shall be no lower than the rating on the Underlying
Securities; and provided, further, that securities issued by
any particular corporation will not be Eligible Investments
to the extent that investment therein will cause the then
outstanding principal amount of securities issued by such
corporation and held as part of the Trust for such Series to
exceed [10]% of the aggregate outstanding principal balances
and amounts of all the Underlying Securities and Eligible
Investments held as part of the Trust for such Series;
(v) commercial paper having at the time of such
investment the rating specified in the Series Supplement for
Eligible Investments; and
(vi) a Guaranteed Investment Contract if and only
if specified in the related Series Supplement, provided that
the Rating Agency Condition is met.
"Exchange Act" The Securities Exchange Act of 1934, as
amended and the rules and regulations promulgated thereunder.
"Exchange Rate Agent" With respect to any Series (or Class
within such Series) of Certificates, if applicable, the Depositor or its agent
so specified in the related Series Supplement.
"Executive Officer" Any one of the duly elected or appointed
qualified and acting officers of any entity executing a certificate.
"Extraordinary Trust Expenses" Unless otherwise specified in
the related Series Supplement, any and all costs, expenses or liabilities of
the Trustee incurred on behalf of the Trust which [100%] of the
Certificateholders have expressly consented to and which arise out of the
establishment, existence or administration of the Trust, other than (i)
Ordinary Expenses and (ii) costs and expenses payable by a particular
Certificateholder, the Trustee or the Depositor pursuant to this Trust
Agreement.
"Final Scheduled Distribution Date" With respect to any
Certificate, the date on which all the unpaid principal of (and premium, if
any, on) such Certificate is scheduled, without giving effect to any
prepayment, exchange or early termination, to become due and payable as
provided therein and in the applicable Series Supplement.
"Fitch" shall, mean, Fitch, Inc., doing business as "Fitch
Ratings", and any successor thereto.
"Fixed Pass-Through Rate" With respect to any Fixed Rate
Certificate, as defined in the related Series Supplement.
"Fixed Rate Certificate" A Certificate that provides for a
payment of interest at a Fixed Pass-Through Rate.
"Floating Pass-Through Rate" With respect to any Floating
Rate Certificate, as defined in the related Series Supplement.
"Floating Rate Certificate" A Certificate that provides for
the payment of interest at a Floating Pass-Through Rate determined
periodically by reference to a formula specified in the related Series
Supplement.
"Foreign Currency" A currency issued by the government of
any country other than the United States or a composite currency the value of
which is determined by reference to the values of the currencies of any group
of countries.
"Global Security" A Registered Certificate or Bearer
Certificate evidencing all or part of a Series (or Class within such Series)
of Certificates, issued to the Depository for such Series or Class in
accordance with Section 5.08 and bearing the legend prescribed therein.
"Grant" To sell, convey, assign, transfer, create, ▇▇▇▇▇ ▇
▇▇▇▇ upon and a security interest in and right of set-off against, deposit,
set over and confirm to the Trustee pursuant to these Standard Terms and a
related Series Supplement; and the terms "Granted" and "Granting" have the
meanings correlative to the foregoing. A Grant of the Trust Estate or of any
other instrument shall include all rights, powers and options (but none of the
obligations) of the Granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for
principal, premium, if any, interest and other payments in respect of such
Trust Estate or other instruments and all other moneys payable thereunder, to
give and receive notices and other communications, to make waivers or other
agreements, to exercise all rights and options, to bring Proceedings in the
name of the Granting party or otherwise, and generally to do and receive
anything that the Granting party is or may be entitled to do or receive
thereunder or with respect thereto.
"Guaranteed Investment Contract" With respect to any Series
(or Class within such Series), a guaranteed investment contract or surety bond
provided for in the related Series Supplement, Granted as part of the Trust or
to the Trustee for the benefit of the Certificateholders for such Series,
providing for the investment of funds in a related Account or related Accounts
and insuring a minimum or a fixed rate of return on the investment of such
funds, which contract or surety bond shall be an obligation of an insurance
company or other entity whose rating is no lower than the rating on the
Certificates of any such Series and shall satisfy any other requirements
specified in such Series Supplement.
"Holder" With respect to a Registered Certificate, the
Registered Holder thereof and, with respect to a Bearer Certificate or a
Coupon, the bearer thereof.
"Independent" When used with respect to any specified Person
means that the Person (1) is in fact independent of the Depositor and of any
Affiliate thereof, (2) does not have any direct or indirect material financial
interest in the Depositor or in any Affiliate thereof and (3) is not connected
with the Depositor as a manager, member, officer, employee, promoter,
underwriter, trustee, partner or person performing similar functions.
"Interest Proceeds" With respect to any Series, as defined
in the related Series Supplement.
"Initial Accrued Interest" With respect to any Series, shall
mean, with respect to each Underlying Security, the amount of interest which
accrued thereon from the Underlying Security Payment Date for such Underlying
Security next preceding the deposit of such Underlying Security hereunder (or,
in the event that such Underlying Security Payment Date is the first
Underlying Security Payment Date to occur after the original issuance of such
Underlying Security, from the dated date thereof) to, but excluding, the
Closing Date.
"Issuer" Shall mean, with respect to an Underlying Security,
the issuer thereof (including, if applicable, the guarantor of the Underlying
Security) as identified in Schedule I to the Series Supplement.
"Investment Company Act" Shall mean the Investment Company
Act of 1940, as amended, and the rules, regulations and interpretations
thereunder.
"Letter of Credit" With respect to any Series or Class
within such Series, the letter of credit, if any, providing for the payment of
all or a portion of amounts due in respect of such Series or Class, Granted as
part of the Trust or to the Trustee for the benefit of the Certificateholders
of such Series or Class, issued by the related Credit Support Provider, in
each case as specified in the related Series Supplement.
"Liquidation Proceeds" The amounts received by the Trustee
in connection with (i) the liquidation of a defaulted Underlying Security or
any collateral, if any, related thereto, (ii) the repurchase, substitution or
sale of an Underlying Security, or (iii) the termination of, or the occurrence
of a default under, any Other Deposited Asset or any Credit Support
Instrument.
"Market Agent" Shall mean the market agent or market agents
appointed pursuant to Section 8.01 hereof, and its or their successors or
assigns.
"Market Agent Agreement" With respect to any Series shall
mean the Market Agent Agreement, dated as of the Closing Date, between the
Trustee and the Market Agent, and any similar agreement with a successor
Market Agent, in each case as from time to time amended or supplemented.
"Minimum Wire Denomination" If applicable, with respect to
any Series, as defined in the related Series Supplement.
"Moody's" Shall mean ▇▇▇▇▇'▇ Investors Service Inc. and any
successor thereto.
"Non-Issuing Trust" As defined in Section 10.13(e).
"Notional Amount" With respect to any Class of Certificates,
if applicable, the initial notional amount specified in the related Series
Supplement on which distributions of interest may be determined at the
applicable Pass-Through Rate, as the same may be adjusted as specified in such
Series Supplement.
"Officer's Certificate" A certificate signed by any (or, if
specified in these Standard Terms or any Series Supplement, more than one)
Executive Officer of the Depositor, and delivered to the Trustee.
"Opinion of Counsel" A written opinion of counsel, who may,
except as otherwise expressly provided in this Trust Agreement, be counsel for
the Depositor acceptable to the Trustee, except that any opinion of counsel
relating to the qualification of any account required to be maintained
pursuant to this Trust Agreement as an Eligible Account must be an opinion of
counsel who is in fact Independent of the Depositor.
"Optional Exchange" Shall mean the exchange of the
Certificates held by any Certificateholder for a corresponding portion of the
Underlying Securities in accordance with the Series Supplement.
"Optional Exchange Date" Shall have the meaning set forth in
Section 4.07 hereof.
"Ordinary Expenses" The Trustee's customary fees for its
services as Trustee, including but not limited to: (i) the costs and expenses
of preparing, sending and receiving all reports, statements, notices, returns,
filings, solicitation of consent or instructions, or other communications
required by this Trust Agreement, (ii) the costs and expenses of holding and
making ordinary collections or payments on the assets of the Trust and of
determining and making distributions, (iii) the costs and expenses of the
Trust's or Trustee's counsel, accountants and other experts for ordinary or
routine consultation or advice in connection with the establishment,
administration and termination of the Trust, and (iv) any other costs and
expenses that are, or reasonably should have been, expected to be incurred in
the ordinary course of administration of the Trust.
"Organizational Documents" Shall mean the Certificate of
Formation as filed with the Secretary of State of the State of Delaware and
the limited liability company agreement of the Depositor.
"Other Deposited Assets" With respect to any Series, shall
mean any puts, calls, interest rate swaps, currency swaps, floors, collars,
caps or credit derivatives or similar arrangements as described in the related
Series Supplement.
"Other Deposited Assets Provider" With respect to any Series
(or any Class within such Series), the Person, that acts as a counterparty or
issuer of any Other Deposited Assets as specified in the applicable Series
Supplement.
"Outstanding" With respect to Certificates of a specified
Series (or Class within such Series), as of any date of determination, all
such Certificates theretofore authenticated and delivered under these Standard
Terms and the related Series Supplement, except:
(i) Certificates theretofore cancelled by the
Certificate Registrar or delivered to the Certificate
Registrar for cancellation;
(ii) Certificates in exchange for or in lieu of
which other Certificates have been authenticated and
delivered pursuant to this Trust Agreement, unless proof
satisfactory to the Trustee is presented that any such
Certificates are held by a bona fide purchaser in whose
hands such Certificates are valid obligations of the Trust;
and
(iii) Certificates exchanged for Underlying
Securities as provided herein and in any related Series
Supplement;
provided, however, that in determining whether the Holders of the required
percentage of the aggregate Voting Rights of the Certificates have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Certificates beneficially owned by the Depositor, the Trustee or
any Affiliate thereof, shall be disregarded and deemed not to be Outstanding,
and the Voting Rights to which its Holder would otherwise be entitled shall
not be taken into account in determining whether the requisite percentage of
aggregate Voting Rights necessary to effect any particular consent or take any
particular action has been obtained, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Certificates with
respect to which the Depositor has provided an Officer's Certificate to the
Trustee stating that such Certificates are so owned shall be so disregarded.
Certificates so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Certificates and that the
pledgee is not, to the knowledge of the Trustee, the Depositor or any
Affiliate of any thereof. The principal amount or notional amount, as
applicable, of a Discount Certificate that shall be deemed to be Outstanding
shall be the Certificate Principal Balance or Certificate Notional Amount, as
applicable, with respect thereto as of the date of such determination, and the
principal amount or notional amount, as applicable, of a Certificate
denominated in a Foreign Currency that shall be deemed to be Outstanding for
purposes of the determination referred to in the foregoing provision shall be
the amount calculated pursuant to Section 5.11(c).
"Participant" A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Pass-Through Rate" With respect to any Series (or Class
within such Series) of Certificates (except certain Discount Certificates and
Certificates entitled to nominal or no interest distributions) the annual rate
at which interest accrues on the Certificates of such Series (or Class), which
may be a fixed rate or a floating rate of interest, determined upon the basis
and in the manner specified in the related Series Supplement.
"Paying Agent" As defined in Section 5.13.
"Percentage Interest" With respect to a Certificate of any
Series or Class within a Series, the portion of such Series or Class evidenced
by such Certificate, expressed as a percentage, equal to the product of (x) a
fraction, the numerator of which is the initial Certificate Principal Balance
or Notional Amount, as applicable, represented by such Certificate and the
denominator of which is the aggregate initial Certificate Principal Balance or
Notional Amount, as applicable, of all the Certificates of such Series or
Class and (y) 100.
"Person" Any individual, corporation, partnership, limited
liability company, limited liability partnership, joint venture, association,
joint stock company, trust (including any beneficiary thereof), unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Distribution" With respect to any Series (or Class
within such Series) of Certificates, the place or places where the principal
of (and premium, if any) and interest on the Certificates or such Series (or
Class) are distributable as specified in the related Series Supplement.
"Predecessor Certificate" With respect to any particular
Certificate, every previous Certificate evidencing all or a portion of the
same interest as that evidenced by such particular Certificate; and for the
purpose of this definition, any Certificate authenticated and delivered under
Section 5.05 in lieu of a lost, destroyed or stolen Certificate shall be
deemed to evidence the same interest as the lost, destroyed or stolen
Certificate.
"Premium Proceeds" With respect to any Series, as defined in
the related Series Supplement.
"Premiums" With respect to any Series, as defined in the
related Series Supplement.
"Prepaid Ordinary Expenses" Unless otherwise specified in
the Series Supplement, the amount (if any) paid by the Depositor to the
Trustee on or before the Closing Date to cover Ordinary Expenses, as specified
in the related Series Supplement.
"Principal Proceeds" With respect to any Series, as defined
in the related Series Supplement.
"Proceeding" Any suit in equity, action at law or other
judicial or administrative proceeding.
"Purchase Price" If applicable, as specified in the related
Series Supplement.
"Rating Agency" With respect to any Series (or Class within
such Series), each nationally recognized statistical rating organization
specified in the related Series Supplement that initially rates the
Certificates of such Series (or Class).
"Rating Agency Condition" With respect to any action or
occurrence, unless otherwise specified in the applicable Series Supplement,
that each Rating Agency shall have been given ten (10) days (or such shorter
period as may be acceptable to each Rating Agency) prior notice thereof and
that each Rating Agency shall have notified the Depositor and the Trustee in
writing that such action or occurrence will not result in a reduction,
withdrawal or qualification of the then current rating of any Certificate of
the applicable Series.
"Realized Losses" Shall mean the sum of (i), with respect to
any defaulted and liquidated Underlying Security, an amount equal to the
excess, if any, of (x) the principal amount of such Underlying Security plus
accrued and unpaid interest thereon, plus expenses of the Trustee incurred in
connection with its efforts to liquidate or otherwise realize the value of the
Underlying Security to the extent reimbursable under these Standard Terms or
the related Series Supplement, over (y) Liquidation Proceeds with respect
thereto, (ii) with respect to any Other Deposited Asset, [an amount equal to
any termination payments or other amounts payable to the Other Deposited
Assets Provider in accordance with the terms of the Other Deposited Assets
Agreement] [an amount equal to the difference between the amount scheduled to
be received under such Other Deposited Asset upon the occurrence of a
specified event and the amount actually received thereunder upon such
occurrence], and (iii) with respect to any Credit Support Instrument, [an
amount equal to the termination penalty under the Credit Support
Instrument][an amount equal to the difference between the amount scheduled to
be received under the Credit Support Instrument upon the occurrence of a
specified event and the amount actually received thereunder upon such
occurrence].
"Record Date" With respect to any Distribution Date for any
Series (or Class within such Series) of Registered Certificates, the date
specified in the related Series Supplement.
"Registered Certificate" Any Certificate registered as to
principal, premium, if any, and interest in the Certificate Register.
"Registered Holder" The Person in whose name a Registered
Certificate is registered in the Certificate Register on the applicable Record
Date.
"Required Percentage--Amendment" Unless otherwise specified
in the related Series Supplement, if a Rating Agency Condition is specified in
the related Series Supplement and such Rating Agency Condition is met, or, if
a Rating Agency Condition is not so specified in the related Series
Supplement, [66-2/3]% of the aggregate Voting Rights of Outstanding
Certificates of such Series, and [100]% otherwise.
"Required Percentage--Definitive Certificates" Unless
otherwise specified in the related Series Supplement, [66 2/3]% of the
aggregate Voting Rights of Outstanding Certificates of such Series.
"Required Percentage--Direction of Trustee" Unless otherwise
specified in the related Series Supplement, [66 2/3]% of the aggregate Voting
Rights of Outstanding Certificates of such Series.
"Required Percentage--Remedies" Unless otherwise specified
in the related Series Supplement, [66-2/3]% of the aggregate Voting Rights of
Outstanding Certificates of such Series.
"Required Percentage--Removal of Trustee" Unless otherwise
specified in the related Series Supplement, more than [50]% of the aggregate
Voting Rights of Outstanding Certificates of such Series.
"Required Percentage--Waiver" Unless otherwise specified in
the related Series Supplement, [66-2/3]% of the aggregate Voting Rights of
Outstanding Certificates of such Series.
["Required Premium Amount" If applicable, unless otherwise
specified in the related Series Supplement, with respect to the Certificates
of any Series or any Class thereof, an amount equal to the product, as
determined on any Distribution Date with respect to such Series and Class, of
(i) the Required Principal for such Series and Class and (ii) the Call Premium
Percentage for such Series and Class.]
"Requisite Reserve Amount" As of any date with respect to
any Series (or Class within such Series) of Certificates, the amount, if any,
required to be maintained in the Reserve Account, if any, for such Series or
Class as specified in or determined pursuant to the related Series Supplement.
"Reserve Account" An Eligible Account, if any, created and
maintained pursuant to Section 3.03 and specified in the related Series
Supplement.
"Responsible Officer" With respect to the Trustee, any
officer within the Corporate Trust Office of the Trustee, including any Vice
President, Assistant Vice President, Assistant Treasurer or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's actual knowledge of and familiarity with the particular subject.
"Retained Interest" If applicable, with respect to any
Underlying Security, an ownership interest in and a right to a portion of the
payments thereon by the obligor thereof, as specified in the related Series
Supplement, held by the Person so specified in such Series Supplement.
"Rights Holder" If applicable, with respect to any Series,
as defined in the related Series Supplement and the related Certificates.
"Sale Procedures" Unless otherwise specified in the Series
Supplement, shall mean that, with respect to any sale of one or more
Underlying Securities, the Market Agent, on behalf of the Trust, shall sell
such Underlying Security or Underlying Securities to the highest bidders among
not less than two solicited bidders for such Underlying Securities (one of
which bidders may include Banc of America Securities LLC or any Affiliate
thereof; provided, however, that neither Banc of America Securities LLC nor
any of its Affiliates will be under any obligation to bid, and which bidders
need not be limited to recognized broker dealers). In the sole judgment of the
Market Agent, bids may be evaluated on the basis of bids for a single
Underlying Security, a portion of the Underlying Securities or all of the
Underlying Securities being sold or any other basis selected in good faith by
the Market Agent.
"S&P" Shall mean Standard & Poor's, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any successor thereof.
"Series" A separate series of Certificates issued pursuant
to these Standard Terms and a related Series Supplement, which series may be
divided into two or more Classes, as provided in such Series Supplement.
"Series Supplement" An agreement incorporating these
Standard Terms that authorizes the issuance of a particular Series (and each
Class within such Series) of Certificates.
"Special Distribution Date" If applicable, with respect to
any Series, as defined in the related Series Supplement and the related
Certificates.
"Specified Currency" As defined in the related Series
Supplement.
"Standard Terms" As defined in the preliminary statement to
this Agreement.
"Surety Bond" If so specified in the Series Supplement, with
respect to any Series (or Class within such Series) of Certificates, the
surety bond providing for the distribution under certain circumstances
specified in such Series Supplement of amounts to the Certificateholders of
such Series (or Class), which surety bond will be Granted to the Trustee for
the benefit of such Certificateholders of such Series or Class, by the related
Credit Support Provider, all as specified in such Series Supplement.
"Termination Events" With respect to any Series (or Class
within such Series) of Certificates, as specified in the related Series
Supplement.
"Trust" With respect to any Series the trust created hereby
as amended by the related Series Supplement and as administered hereunder and
thereunder, and consisting of the Trust Estate related to such Series and all
sums distributed in respect thereof that are specified as being part of the
Trust for such Series in the related Series Supplement, for the benefit of the
Certificateholders of such Series as of any particular time.
"Trust Agreement" With respect to each Series of
Certificates, these Standard Terms and all amendments hereto and, unless the
context otherwise requires, the related Series Supplement and all amendments
thereto.
"Trust Estate" With respect to any Series, shall have the
meaning set forth in the Series Supplement.
"Trust Indenture Act" The Trust Indenture Act of 1939, as
amended, as the same is in force and effect as of the date hereof.
"Trustee" With respect to any Series, the Person so
specified in the applicable Series Supplement, until a successor Person shall
have become the Trustee pursuant to the applicable provisions of these
Standard Terms and the applicable Series Supplement, and thereafter "Trustee"
shall mean such successor Person.
"Underlying Security" or "Underlying Securities" With
respect to any Series, the fixed income securities purchased in the secondary
market which may be (a) debt securities or asset backed securities or a pool
of debt securities or asset backed securities issued by one or more
corporations, banking organizations, insurance companies or special purpose
vehicles (including trusts, limited liability companies, partnerships or other
special purpose entities), (b) debt securities or a pool of debt securities
which represent obligations issued or guaranteed by a foreign government,
political subdivision or agency or instrumentality thereof, (c) obligations of
one or more foreign private issuers or (d) debt securities or a pool of debt
securities which represent obligations of (x) the United States, (y) any
agency of the United States with respect to which obligations, the full faith
credit of the United States is pledged, or (z) a United States governmental
sponsored organization created pursuant to a federal statute; and in each
case, having certain characteristics described in the applicable Series
Supplement; and Granted as part of the Trust for such Series or acquired (or,
in the case of an agreement, entered into) by the Trustee for the benefit of
the Holders of such Series, all as identified in Schedule I to the related
Series Supplement. The Underlying Securities for any such Series or the
related Trust shall not constitute Underlying Securities for any other Series
or any other Trust.
"Underlying Security Payment Date" Shall mean a date on
which interest, principal and/or redemption premium is payable on an
Underlying Security in accordance with its terms.
"Underlying Security Provider" With respect to any Series
(or any Class within such Series), any Person, if any, that sells an
Underlying Security to the Depositor.
"Uniform Commercial Code" The Uniform Commercial Code as in
effect in the State of New York, as amended from time to time.
"United States" The United States of America, its
territories, its possessions and other areas subject to its jurisdiction.
"Voting Rights" With respect to any Series (or Class within
such Series) of Certificates, the portion of the aggregate voting rights of
the Certificates of such Series or Class which shall be allocated to any
Certificate and as specified in the applicable Series Supplement.
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 Trust Agreement
as a whole and not to any particular Article, Section or
other subdivision:
(v) "including" means including without limitation;
and
(vi) words in the singular include the plural and
words in the plural include the singular.
SECTION 1.03 Compliance Certificates and Opinions; Record
Date. (a) Upon any application or request by the Depositor to the Trustee to
take any action under any provision of this Trust Agreement other than the
initial issuance of the Certificates, the Depositor shall furnish to the
Trustee, an Officer's Certificate stating that, in the opinion of the signer
thereof, all conditions precedent, if any, provided for in this Trust
Agreement relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Trust Agreement
relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for this Trust Agreement (other than a
certificate provided pursuant to Section 3.10(d)) shall include:
(1) a statement that the individual signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of such
individual, he or she has made such examination or
investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of
such individual, such condition or covenant has been
complied with.
(b) The Depositor may at its option by delivery of an
Officer's Certificate to the Trustee set a Record Date to determine the
Holders of any Class of Certificates entitled to give any consent, request,
demand, authorization, direction, notice, waiver or other act. Notwithstanding
Section 316(c) of the Trust Indenture Act, such Record Date shall be the
Record Date specified in such Officer's Certificate, which shall be a date not
more than thirty (30) days prior to the first solicitation of
Certificateholders in connection therewith. If such a Record Date is fixed,
such consent, request, demand, authorization, direction, notice, waiver or
other act may be given before or after such Record Date, but only the Holders
of record of Certificates of the applicable Class at the close of business on
such Record Date shall be deemed to be Certificateholders of such Class for
the purposes of determining whether Holders of the requisite aggregate
principal amount of Outstanding Certificates of such Class have authorized or
agreed or consented to such consent, request, demand, authorization,
direction, notice, waiver or other act, and for that purpose the aggregate
principal amount of the Outstanding Certificates of such Class shall be
computed as of such Record Date; provided, however, that no such consent,
request, demand, authorization, direction, notice, waiver or other act by the
Holders of Certificates of such Class on such Record Date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Trust Agreement not later than one year after the Record Date.
ARTICLE II
Declaration of Trust; Issuance of Certificates;
Purpose and Classification of Trusts
SECTION 2.01 Creation and Declaration of Trusts; Assignment
of the Trust Estate. (a) The Depositor does hereby agree to Grant to the
Trustee upon the execution and delivery of the related Series Supplement, on
behalf and for the benefit of the Certificateholders of each given Series of
Certificates and without recourse, all the right, title and interest of the
Depositor, including any security interest therein for the benefit of the
Depositor, in, to and under the Trust Estate, attributable to each such Series
(other than any Retained Interest attributable to such Series, as specified in
Schedule III to the applicable Series Supplement), then existing or thereafter
acquired, in each case as identified in the applicable Series Supplement, and
all other assets included or to be included in the respective Trust for the
benefit of the Certificateholders of each such Series. Each such Grant will
include all interest, premium (if any) and principal due after the applicable
Cut-Off Date received by or on behalf of the Depositor of, on or with respect
to the Trust Estate, and, unless otherwise specified in the Series Supplement,
will exclude (i) all interest, premium (if any) and principal of, on or with
respect to the Trust Estate due on or before the applicable Cut-Off Date and
(ii) any Retained Interest in any portion of the Trust Estate.
(b) In connection with each Grant referred to in the
preceding paragraph, the Depositor shall, not later than the applicable
Closing Date, deposit the Underlying Securities for a given Series (other than
the Retained Interest attributable to such Series) with the Trustee either (i)
by physical delivery of Underlying Securities which are in physical form, duly
endorsed, to the Trustee or (ii) by delivery of any other Underlying
Securities through a Clearing Agency, in which event (A) the Trustee has
accepted delivery of such Underlying Securities through such Clearing Agency,
and (B) the Underlying Securities have been credited to custodial account
established by the Trustee, or its authorized agent for the benefit of the
Certificateholders, and the Trustee shall have the right to hold and maintain
such Underlying Securities on deposit with such Clearing Agency for all
purposes of this Trust Agreement. In addition, the Depositor shall, not later
than the applicable Closing Date, deliver to the Trustee any related
agreements or other instruments with respect to the Underlying Securities,
[any Other Deposited Assets and Credit Support, if any,] for a given Series.
(c) Unless otherwise specified in the applicable Series
Supplement, any Grant of the Trust Estate by the Depositor for a given Series
accomplished hereby and by such Series Supplement is absolute and is intended
by the parties hereto as a sale.
(d) With respect to the delivery of the Trust Estate to the
Trustee, the Depositor shall be deemed thereby to represent and warrant to the
Trustee that:
(i) the Depositor is duly authorized to so deliver
the Trust Estate;
(ii) the Trust Estate so delivered is genuine;
(iii) at the time of delivery of the Trust Estate,
the Depositor's interest in such Trust Estate is free and
clear of any lien, pledge, encumbrance, right, charge, claim
or other security interest;
(iv) such delivery is irrevocable and free of any
continuing claim by the Depositor except such as the
Depositor may have as a Certificateholder of a Certificate;
(v) each item of the Trust Estate comprised of
"securities", "instruments", "tangible chattel paper",
"accounts", "security entitlements" or "general
intangibles," shall in each case have the meaning defined in
the Uniform Commercial Code; and
(vi) the Depositor has caused or will have caused,
within ten (10) days of the Closing Date, the filing of all
appropriate financing statements in the proper filing office
in the appropriate jurisdictions under applicable law in
order to perfect the security interest in the Trust Estate
Granted to the Trustee hereunder.
The above representations and warranties shall survive the
delivery of such Trust Estate to the Trustee and the execution and delivery of
the Certificates in respect of the related Series. The Depositor shall further
be deemed by such delivery to have made the further representation that, to
the best of its knowledge, as of the Closing Date, no default or event of
default with respect to any of the Trust Estate has occurred and is
continuing.
(e) Unless otherwise specified in the related Series
Supplement, it is the intention of all of the parties hereto that the transfer
of the Trust property hereunder and under any Series Supplement shall
constitute a sale and the Trust created hereunder and thereunder shall
constitute a fixed investment trust for federal income tax purposes under
Treasury Regulation Section 301.7701-4, and all parties hereto and thereto
agree to treat the Trust, any distributions therefrom and the beneficial
interest in the assets of the Trust consistently with such characterization.
The provisions of this Trust Agreement shall be interpreted consistently with
such characterization.
(f) Unless otherwise specified in the related Series
Supplement, any Trust created hereunder shall not engage in any business or
activities other than in connection with, or relating to, the holding,
protecting and preserving of the Trust property and the issuance of the
Certificates, and other than those required or authorized by this Trust
Agreement or incidental to and necessary to accomplish such activities. Any
Trust created hereunder shall not issue or sell any certificates or other
obligations other than the Certificates issued in connection with the related
Series or otherwise incur, assume or guarantee any indebtedness for money
borrowed.
SECTION 2.02 Acceptance by Trustee. With respect to each
Series, the Trustee will acknowledge receipt by it, or by a custodian on its
behalf, of the related Trust Estate now existing or hereafter acquired, and
the related documents referred to in Section 2.01, and declares that it will
hold such Trust Estate and all other documents delivered to it pursuant to
this Trust Agreement, and that it will hold all such assets and such other
assets (including Trust Estate acquired from a Person other than the
Depositor) comprising the Trust for a given Series of Certificates, in trust
for the exclusive use and benefit of all present and future Certificateholders
of such Series and for the purposes and subject to the terms and conditions
set forth in this Trust Agreement.
SECTION 2.03 Representations and Warranties of the
Depositor. The Depositor hereby represents and warrants to the Trustee that as
of the Closing Date or as of such other date specifically provided herein or
in the applicable Series Supplement:
(i) the Depositor is a limited liability company
duly organized, validly existing and in good standing under
the laws of the State of Delaware;
(ii) with respect to each Series Supplement, to the
Depositor's knowledge, the information set forth in Schedule
I attached thereto with respect to each Underlying Security
is true and correct in all material respects at the date or
dates, respecting which, such information is furnished;
(iii) the execution and delivery of this Trust
Agreement by the Depositor and its performance of and
compliance with the terms of this Trust Agreement will not
violate the Depositor's Organizational Documents or
constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under,
or result in the breach or acceleration of, any material
contract, agreement or other instrument to which the
Depositor is a party or which may be applicable to the
Depositor or any of its assets;
(iv) the Depositor has the full power and authority
to enter into and consummate all transactions contemplated
by this Trust Agreement, has duly authorized the execution,
delivery and performance of this Trust Agreement and has
duly executed and delivered this Trust Agreement. This Trust
Agreement, upon its execution and delivery by the Depositor
and assuming due authorization, execution and delivery by
the Trustee, will constitute a valid, legal and binding
obligation of the Depositor, enforceable against it in
accordance with the terms hereof, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other laws relating to or
affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is
considered a proceeding in equity or at law); and
(v) any additional representations and warranties,
if any, that may be specified in the applicable Series
Supplement.
It is understood and agreed that the representations and
warranties of the Depositor set forth in this Section 2.03 shall survive
delivery of the Trust Estate to the Trustee and shall inure to the benefit of
the Trustee on behalf of the Certificateholders notwithstanding any
restrictive or qualified endorsement or assignment. Upon discovery by any of
the Depositor or the Trustee of a breach of any of the foregoing
representations and warranties which materially and adversely affects the
interests of the Certificateholders, the party discovering such breach shall
give prompt written notice thereof to the other party.
SECTION 2.04 Breach of Depositor's Representations or
Warranties. Within ninety (90) days of the earlier of discovery by the
Depositor or receipt of notice by the Depositor of a breach of any
representation or warranty of the Depositor set forth in Section 2.03 that
materially and adversely affects the interests of the Certificateholders of a
given Series of Certificates, the Depositor shall cure such breach in all
material respects.
SECTION 2.05 Agreement to Authenticate and Deliver
Certificates. With respect to each Series of Certificates and the related
Trust, the Trustee hereby agrees and acknowledges that it will, concurrently
with the Grant to, and receipt by it of, the related Trust Estate and delivery
to it by the Depositor of executed Certificates and Coupons, if any, of such
Series, cause to be authenticated and delivered to or upon the written order
of the Depositor, in exchange for the Trust Estate constituting the Trust for
a given Series, Certificates duly authenticated by or on behalf of the Trustee
in authorized denominations evidencing ownership of the entire Trust for such
Series, all in accordance with the terms and subject to the conditions of
Sections 5.02 and 5.14.
ARTICLE III
Administration of each Trust
SECTION 3.01 Administration of each Trust. (a) The Trustee
shall administer the Trust Estate for each Trust for the benefit of the
Certificateholders of the related Series. In engaging in such activities, the
Trustee shall follow or cause to be followed collection procedures in
accordance with the terms of: (i) these Standard Terms, (ii) the applicable
Series Supplement, (iii) the respective Underlying Securities, (iv) any
applicable Credit Support Instruments and (v) any Other Deposited Assets. With
respect to each Trust, and subject only to the above- described standards, the
Trustee shall have full power and authority, acting alone or through
Administrative Agents as provided in Section 7.02, to do or cause to be done
any and all things in connection with such administration which it deems
necessary to comply with the terms of these Standard Terms and the applicable
Series Supplement.
(b) The duties of the Trustee shall be performed in
accordance with applicable local, state and federal law, and the Trustee shall
make any and all filings, reports, notices or applications with, and seek any
comments and authorizations from, the Commission and any state securities
authority on behalf of the Trust for each Series.
SECTION 3.02 Collection of Payments on the Trust Estate .
With respect to any Series or Class of Certificates, the Trustee shall make
reasonable efforts to collect all payments required to be made on the assets
which comprise the Trust Estate in a manner consistent with the terms of this
Trust Agreement and such assets.
SECTION 3.03 Certificate Account and Reserve Account. (a)
For each Series of Certificates, the Trustee shall establish and maintain one
or more Eligible Accounts (collectively, the "Certificate Accounts"), held in
trust for the benefit of the Certificateholders of such Series. The Trustee on
behalf of such Certificateholders shall possess all right, title and interest
in all funds on deposit from time to time in each Certificate Account and in
all proceeds thereof. With respect to each Series of Certificates, the
Certificate Account shall be under the sole dominion and control of the
Trustee for the benefit of the related Certificateholders. With respect to
each Series of Certificates, not later than the close of business on the
Business Day on which the Trustee receives such amounts in the form of
immediately available funds (so long as such funds are received by the Trustee
by 3:00 p.m. New York City time, and on the next Business Day otherwise), the
Trustee shall deposit or cause to be deposited in the Certificate Account all
amounts received by it with respect to the Trust Estate related to such
Series, and direct the investment of such amounts pursuant to the provisions
of Section 3.05 hereof, including, without limitation:
(i) all payments on account of principal on the
Deposited Assets;
(ii) all payments on account of interest on the
Deposited Assets;
(iii) all payments on account of premium (if any)
on the Deposited Assets;
(iv) all other payments in respect of the Deposited
Assets;
(v) amounts, if any, required to be transferred
from the Reserve Account to the Certificate Account to cover
any shortfall as described in the related Series Supplement
on the related Certificates;
(vi) any Advances made as required pursuant to
Section 4.04; and
(vii) any interest or investment income earned on
funds deposited in the related Accounts.
Unless otherwise specified in the applicable Series
Supplement, it is understood and agreed that payments in the nature of
prepayment or redemption penalties, late payment charges, default interest or
reinvestment income which may be received by the Trustee shall be deposited by
the Trustee in the Certificate Account and shall not be retained by the
Trustee for its own account.
If, at any time, the Certificate Account for any Series
ceases to be an Eligible Account, the Trustee shall within five (5) Business
Days (or such longer period, not to exceed thirty (30) calendar days, as to
which the Rating Agency Condition is met) establish a new Certificate Account
meeting the conditions specified above and the Trustee shall within five (5)
Business Days transfer any cash and any investments on deposit in the
Certificate Account to such new Certificate Account, and from the date such
new Certificate Account is established, it shall be the Certificate Account
for such Series.
(b) To the extent required by the related Series Supplement,
the Trustee shall establish and maintain separate Eligible Accounts
(collectively, the "Reserve Accounts"), held in trust for the benefit of the
Certificateholders of such Series. The Trustee on behalf of such
Certificateholders shall possess all right, title and interest in all funds on
deposit from time to time in each Reserve Account and in all proceeds thereof.
With respect to each Series of Certificates, the Reserve Account shall be
under the sole dominion and control of the Trustee for the benefit of the
related Certificateholders. To the extent specified in the applicable Series
Supplement, the Depositor will make or cause to be made any initial deposit to
the Reserve Account for the related Series as of the Closing Date. If a
Reserve Account exists for such Series, a portion of the collections with
respect to the Deposited Assets for such Series not distributed to the
Certificateholders of such Series may be deposited in the Reserve Account.
If, at any time, the Reserve Account for any Series ceases
to be an Eligible Account, the Trustee shall within five (5) Business Days (or
such longer period, not to exceed thirty (30) calendar days, as to which the
Rating Agency Condition is met) establish a new Reserve Account meeting the
conditions specified above and the Trustee shall within five (5) Business Days
transfer any cash and any investments on deposit in the Reserve Account to
such new Reserve Account, and from the date such new Reserve Account is
established, it shall be the Reserve Account for such Series.
(c) Amounts on deposit in the Reserve Account for such
Series shall be applied by the Trustee to make distributions of principal of,
premium (if any) and/or interest on the Certificates of such Series as set
forth in the applicable Series Supplement to the extent that funds are not
otherwise available for such purpose. If specified in such Series Supplement,
immediately after each Distribution Date, amounts on deposit in the Reserve
Account for such Series in excess of a specified amount shall be paid to the
Person so specified in such Series Supplement.
(d) The Trustee shall give notice to the Depositor and the
applicable Rating Agencies of the new location of any Certificate Account or
Reserve Account prior to any change thereof.
SECTION 3.04 Liquidation of the Underlying Securities. If
specified in the applicable Series Supplement, upon the occurrence of certain
specified events, the Trustee shall direct the Market Agent to sell the
Underlying Securities in compliance with the Sale Procedures and to deposit
the Liquidation Proceeds thereof into the Certificate Account pursuant to
Section 3.03(a) hereof.
SECTION 3.05 Investment of Funds in the Accounts. The
Trustee on behalf of the Trust, shall direct any depository institution
maintaining the Certificate Account or the Reserve Account, if any, for the
applicable Series and any other segregated Eligible Account the contents of
which are held for the benefit of Certificateholders of such Series (each, an
"Account"), to invest the funds therein at the specific written direction of
the Depositor in one or more Eligible Investments bearing interest or sold at
a discount, which shall be held to maturity unless payable on demand and which
funds shall not be reinvested upon the maturity or demand for payment of such
Eligible Investment. If the Depositor does not provide any investment
directions, funds held in any Account will be invested in the Eligible
Investments specified in [clause (ii)] of the definition thereof. Investments
of such funds shall be invested in Eligible Investments that will mature so
that such funds will be available for distribution on the next Distribution
Date. Except as otherwise provided in the applicable Series Supplement, any
earnings with respect to such Eligible Investments shall be paid to the
Certificateholders (and, if applicable, the Retained Interest holder) in
accordance with the priorities set forth in the related Series Supplement. In
the event amounts on deposit in an Account are at any time invested in an
Eligible Investment payable on demand, the Trustee shall:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last
day such Eligible Investment may otherwise mature hereunder
in an amount equal to the lesser of (1) all amounts then
payable thereunder and (2) the amount required to be
withdrawn on such date; and
(y) demand same day payment of all amounts due
thereunder upon a determination by the Trustee that such
Eligible Investment would not constitute an Eligible
Investment in respect of funds thereafter on deposit in any
Account.
SECTION 3.06 Maintenance of Credit Support and Other
Deposited Assets.
(a) On the applicable Closing Date, the Trustee at the
written direction of the Depositor or, if so specified in the applicable
Series Supplement, the Depositor shall, establish and maintain, or enter into,
as applicable, in the name of the Trustee, either as a part of the related
Trust or outside of it, for the benefit of the Certificateholders of the
related Series, the Credit Support specified in the applicable Series
Supplement.
(b) Amounts received by the Trustee pursuant to any Credit
Support Instrument for such Series shall be applied by the Trustee to make
distributions to the Certificateholders of the related Series as required
pursuant to the terms of such Credit Support and the applicable Series
Supplement.
(c) On the applicable Closing Date, the Trustee at the
written direction of the Depositor or, if so specified in the applicable
Series Supplement, the Depositor shall establish and maintain, or enter into,
as applicable, in the name of the Trustee, either as a part of the related
Trust or outside of it, for the benefit of the Certificateholders of the
related Series, the Other Deposited Assets specified in the applicable Series
Supplement.
(d) Amounts received pursuant to the terms of any Other
Deposited Assets for such Series shall be applied by the Trustee to make
distributions on the Certificates of such Series as required pursuant to the
terms of such Other Deposited Assets and the applicable Series Supplement.
SECTION 3.07 Realization Upon Defaulted Deposited Assets.
(a) Unless otherwise set forth in the related Series
Supplement, in the event of the occurrence of (i) an Event of Default with
respect to any Underlying Security or (ii) an acceleration of the date of
maturity of any Underlying Security in connection with a default thereon, the
Depositor shall, take such action as is set forth in the Series Supplement
with respect to such default, which steps may include, without limitation, (A)
instructing the Trustee to make a distribution "in-kind" of the related
Underlying Security to the Certificateholders on a pro rata basis in
proportion to their outstanding Certificate Principal Balances, (B)
instructing the Trustee to direct the Market Agent to sell such Underlying
Security and distribute proceeds of such sale to the Certificateholders pro
rata in accordance with their respective Certificate Principal Balances or
(iii) taking such other actions as may be described in the applicable Series
Supplement. If the Depositor instructs the Trustee to make an "in-kind"
distribution to the Certificateholders, the provisions of Section 3.07(b)
below will apply.
(b) Unless otherwise set forth in the related Series
Supplement, if the Depositor instructs the Trustee to make an "in-kind"
distribution to the Certificateholders, individual Certificateholders may
elect to either (x) receive such "in-kind" distribution of the related
Underlying Security or (y) have the Depositor (or its Affiliate) sell their
allocable share of such Underlying Security in lieu of receiving such
"in-kind" distribution. If a Certificateholder determines to accept an
"in-kind" distribution, the Trustee shall distribute to such Certificateholder
its pro rata share of the related Underlying Security. If as a result of any
minimum denomination requirements applicable to the Underlying Securities, the
Trustee cannot make a full distribution to such Certificateholders of their
pro rata share of the Underlying Securities, the Depositor will instruct the
Trustee to direct the Market Agent to sell, in accordance with the Bidding
Procedures, the portion of such Underlying Securities which cannot be sold in
compliance with the applicable minimum denomination requirements. The amount
of the Underlying Securities to be sold by the Market Agent will equal the
difference between the amount of such Certificateholder's pro rata share of
such Underlying Securities held by the Trust and the maximum amount of such
Underlying Securities that can be distributed to such Certificateholder in
compliance with the applicable minimum denomination requirements applicable to
such Underlying Securities.
(c) Unless otherwise set forth in the related Series
Supplement, in the event the Underlying Securities, subject to distribution,
are to be sold rather than distributed in kind, the Depositor will instruct
the Trustee to direct the Market Agent to sell the defaulted Underlying
Securities in accordance with the Bidding Procedures
and upon the sale of such Underlying Securities, the Trustee will distribute
the proceeds of such sale to the Certificateholder(s).
(d) In the event that the Trustee receives non-cash property
in respect of any Underlying Security as a result of a payment default on such
Underlying Security (including from the sale thereof), the Trustee will
promptly give notice to the Depositary (or for any Certificates which are not
then held by DTC or any other depository, directly to the registered holders
of the Certificates then Outstanding and unpaid) of the receipt of such
non-cash property. Such notice shall state that not later than thirty days
after the receipt of such non-cash property, the Market Agent will liquidate
such property on behalf of the Trust and the Trustee will allocate and
distribute the amount received to the holders of Certificates, pro rata by
Certificate Principal Balance (after deducting the costs incurred in
connection therewith).
(e) If the Liquidation Proceeds of a defaulted Underlying
Security are less than the sum of (i) the outstanding principal balance of the
defaulted Underlying Security, (ii) interest accrued but unpaid thereon at the
applicable interest rate and (iii) the aggregate amount of all reasonable
expenses incurred by the Trustee in connection with the practices and
procedures referred to in paragraph (a) of this Section 3.07, the Trust for
the applicable Series shall recognize a Realized Loss equal to the amount of
such difference. Any such reimbursed Realized Loss shall be allocated pursuant
to Section 4.05 among the Certificateholders of such Series in the manner and
priority set forth in the related Series Supplement.
(f) With respect to any Underlying Securities specified in a
related Series Supplement, if any related document or instrument is found to
be missing or defective in any material respect, the Trustee shall immediately
notify the Depositor and the related Underlying Securities Issuer of such
missing or defective document. If, and to the extent specified in the related
Series Supplement, the Underlying Securities Issuer cannot cure such omission
or defect within sixty (60) days after receipt of such notice, the Underlying
Securities Issuer will be obligated to, within [ninety (90)] days of receipt
of such notice, repurchase the related Underlying Securities from the Trustee
at the Purchase Price or provide a substitute for such Underlying Securities.
Neither the Trustee nor the Depositor shall be obligated to repurchase or
provide a substitute for such Underlying Securities if the Underlying
Securities Issuer defaults on its obligations. Unless otherwise specified in
the related Series Supplement, if applicable, the Underlying Securities
Issuer's repurchase or substitution obligation constitutes the sole remedy
available to the Certificateholders or the Trustee for omission of, or a
material defect in, or failure to provide, a constituent document.
SECTION 3.08 Retained Interest. The Retained Interest, if
any, in any Underlying Security shall initially be held by the Person so
specified in the related Series Supplement as and to the extent specified
therein. With respect to each Underlying Security, unless otherwise specified
in the related Series Supplement, the Retained Interest shall be deducted by
the Trustee from applicable collections in respect of such Underlying
Security. Unless otherwise provided in the applicable Series Supplement,
collections in respect of the Retained Interest shall not be deposited in the
Certificate Account for the applicable Series and shall not constitute a part
of the Trust for such Series, but shall instead be distributed to the holder
of such Retained Interest; provided, however, that the Series Supplement for
any Series with respect to which there is a Retained Interest may provide that
notwithstanding the terms contained herein, commingled amounts received in
respect of assets inclusive of Underlying Securities and Retained Interest may
initially be deposited in a segregated account established by the Trustee and
such Series Supplement may provide for additional terms relating to the
distribution of amounts contained therein to the Trustee for the benefit of
the Certificateholders and the holder of the Retained Interest. Unless
otherwise provided in the applicable Series Supplement, after deduction of all
applicable fees as provided for in this Trust Agreement, on each Distribution
Date the Trustee shall allocate on a pari passu basis any partial recovery on
an Underlying Security between (a) the Retained Interest, if any, and (b)
distributions to Certificateholders of the applicable Series.
SECTION 3.09 Access to Certain Documentation. The Trustee
shall provide to any federal, state or local regulatory authority that may
exercise authority over any Certificateholder, access to the documentation
regarding the Trust Estate as required by any applicable law and regulation.
Such access shall be afforded without charge, but only upon request and during
normal business hours at the offices of the Trustee designated by it. In
addition, access to the documentation regarding the Trust Estate related to a
given Series (or Class within such Series) will be provided to any
Certificateholder of such Series (or Class) upon reasonable request during
normal business hours at the offices of the Trustee designated by it at the
expense of the Certificateholder requesting such access.
SECTION 3.10 Reports by the Depositor. The Depositor shall:
(a) file with the Trustee, within thirty (30) days after the
Depositor is required to file the same with the Commission, 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 is
required to file with the Commission pursuant to Section 13 or Section 15(d)
of the Exchange Act; or, if the Depositor is not required to file information,
documents or reports pursuant to either of such sections, then to file with
the Trustee and the Commission, in accordance with rules and regulations
prescribed by the Commission, such of the supplementary and periodic
information, documents and reports, if any, which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and registered
on a national securities exchange as may be prescribed in such rules and
regulations; provided, however, that the Trustee shall file the reports
specified in Section 7.01 (e) hereof
(b) file with the Trustee and the Commission, in accordance
with the rules and regulations prescribed by the Commission, such additional
information, documents and reports with respect to compliance by the Depositor
with the conditions and covenants provided for in this Trust Agreement, as may
be required by such rules and regulations;
(c) transmit to all Certificateholders, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act, such
summaries of any information, documents and reports required to be filed by
the Company pursuant to subsections (a) and (b) of this Section 3.10 as may be
required by rules and regulations prescribed by the Commission; and
(d) furnish to the Trustee, not less often than annually, a
certificate from the principal executive, financial or accounting officer of
the Depositor as to his or her knowledge of the Depositor's compliance with
all conditions and covenants under this Trust Agreement. For purposes of this
paragraph (d) such compliance shall be determined without regard to any period
of grace or requirement of notice provided under this Trust Agreement.
SECTION 3.11 Charges and Expenses. Except as otherwise
provided in this Trust Agreement or the related Series Supplement, no amounts
in the nature of fees or charges shall be payable by or withheld from the
Trust, the Depositor or any other person. There shall be no recourse or claim
against the Trust or the property of the Trust for all or any part of any fees
or charges payable to any person.
SECTION 3.12 Underlying Securities Reporting Failure. Unless
otherwise set forth in the related Series Supplement, in the event an issuer
of an Underlying Security (the outstanding principal balance of which exceeds
ten percent (10%) of the aggregate principal balance of the Underlying
Securities) ceases to file periodic reports (to the extent such periodic
reports are required to be filed by such Underlying Securities Issuer under
the Exchange Act), the Depositor shall, within a reasonable period of time
after such failure to file such periodic report, instruct the Trustee to make
a distribution "in-kind" of the related Underlying Security to the
Certificateholders on a pro rata basis in proportion to their outstanding
Certificate Principal Balances. An Underlying Securities Issuer shall not be
deemed to have ceased filing required periodic reports for this purpose merely
because reporting by such issuer is delayed or temporarily suspended.
Accordingly, the requirement above to make an "in-kind" distribution of an
Underlying Security shall not apply unless an Underlying Securities Issuer
either (x) states in writing that it intends permanently to cease filing
reports required under the Exchange Act or (y) fails to file any required
reports for one full calendar year. If the Depositor instructs the Trustee to
make such an "in-kind" distribution to the Certificateholders, the provisions
of Section 3.07(b) above will apply with respect to such distribution.
SECTION 3.13 Bidding Procedures. Unless otherwise set forth
in the related Series Supplement, prior to selling Underlying Securities
pursuant to either of Sections 3.07 or 3.12 hereof, the Market Agent shall
solicit bids from not less than 3 dealers in such securities (which bidders
may include Banc of America Securities LLC) for the sale of such Underlying
Securities with settlement thereof on or before the third Business Day after
such sale. Each bid shall be solicited from a financial institution with not
less than $100 million in assets under management or $100 million in invested
assets. Neither the Market Agent nor the Trustee shall be responsible for the
failure to obtain a bid provided the Market Agent has made reasonable efforts
to obtain bids. In the event one or more bids are received by the Market
Agent, the Market Agent shall accept the highest bid received, subject to best
execution. If a bid for the purchase of an Underlying Security has been
accepted by the Market Agent but the sale has failed to settle on the proposed
settlement date, the Market Agent shall solicit new bids. Upon any sale of any
applicable Underlying Security, the proceeds of such sale (less expenses and
commissions) shall be distributed to the Certificateholders pro rata, in
proportion to their respective Certificate Principal Balances no later than
[two] Business Days after receipt of immediately available funds. In the event
the Market Agent receives no bids to purchase such Underlying Security by the
close of business on the fifth Business Day after the distribution of bid
solicitations, [or is unable to settle with any Purchaser within [15] days
from the date the Market Agent was first directed to sell such Underlying
Security,] the Trustee shall distribute such Underlying Security in-kind to
the Certificateholders on a pro rata basis in proportion to their respective
Certificate Principal Balances; provided, however, that if the bidding process
is undertaken to comply with any minimum denominations requirement, the Market
Agent shall repeat the foregoing bidding process until such Underlying
Securities have been sold.
SECTION 3.14 Other "in kind"Distributions In addition to "in
kind" distributions to Noteholders of defaulted Underlying Securities or
Underlying Securities with respect to which the Underlying Securities Issuer
has failed to file required reports, the Depositor may determine to make in
kind distributions to certificateholders under other circumstances as may be
described in the related Series Supplement.
ARTICLE IV
Distributions and Reports to Certificateholders
SECTION 4.01 Distributions. (a) On each Distribution Date
for a given Series of Certificates, the Trustee shall distribute Available
Funds for such Series in the manner and priority set forth in the Series
Supplement for such Series. In any event, however, any amounts collected
during any period shall be distributed to the Certificateholders no later than
the Distribution Date immediately following the receipt thereof.
(b) All cash distributions on the Certificates shall be
payable only from Available Funds, and no provision of this Trust Agreement
shall be deemed to create any obligation on the part of the Trustee or the
Depositor to make any distribution in cash from any other source. All
circumstances under which "in-kind" distributions may be made, shall be as
described in Sections 3.07 and 3.12 hereof and in the related Series
Supplement.
SECTION 4.02 Distributions on Certificates. (a)
Distributions on any Registered Certificate that are payable and are
punctually paid or duly provided for on any Distribution Date shall be
distributed to the Person in whose name such Registered Certificate (or one or
more Predecessor Certificates) is registered at the close of business on the
related Record Date notwithstanding the cancellation of such Registered
Certificate upon any transfer or exchange subsequent to such related Record
Date.
The distribution of interest and principal on Registered
Certificates shall be made:
(i) if the Certificateholder is a Depository, to
the Depository, which shall credit the relevant
Participant's account at such Depository in accordance with
the policies and procedures of the Depository, or
(ii) if the Certificateholder is not a Depository,
at the Corporate Trust Office (except as otherwise specified
in the related Series Supplement) or, at the option of the
Trustee, by check mailed to the address of the Person
entitled thereto as such address shall appear in the
Certificate Register or, if provided in the related Series
Supplement and in accordance with arrangements satisfactory
to the Trustee, at the option of the Registered Holder by
wire transfer to an account designated by the Registered
Holder. Notwithstanding the preceding sentence, with respect
to a Certificateholder of Certificates not held in a
Depository and having at least the Minimum Wire
Denomination, such payment shall be made by wire transfer of
immediately available funds to the account designated by
such Certificateholder in a written request received by the
Trustee not later than ten (10) days prior to such
Distribution Date; provided, however, that if a wire
transfer cannot be made for any reason, payment shall be
made by check. The Trustee shall not be required to send
federal funds wires until any corresponding payments which
were not same day funds when received by it have become same
day funds.
In case a Coupon Certificate of any Series (or Class within
such Series) is surrendered in exchange for a Registered Certificate of such
Series or Class after the close of business (at an office or agency in a Place
of Distribution for such Series or Class) on any Record Date and before the
opening of business (at such office or agency) on the next succeeding
Distribution Date, such Coupon Certificate shall be surrendered without the
Coupon relating to such Distribution Date and interest will not be payable on
the related Distribution Date in respect of the Registered Certificate issued
in exchange for such Coupon Certificate, but will be distributable only to the
Holder of such Coupon when due in accordance with the provisions of this Trust
Agreement.
(b) Interest on any Coupon Certificate that is distributable
and is punctually distributed or duly provided for on any Distribution Date
shall be distributed to the Holder of the Coupon that has matured on such
Distribution Date upon surrender of such Coupon on such Distribution Date at
the principal London office of the Trustee or at such other Place of
Distribution outside the United States specified in the related Series
Supplement.
Interest on any Bearer Certificate (other than a Coupon
Certificate) that is distributable and is punctually distributed or duly
provided for on any Distribution Date shall be distributed to the Holder of
the Bearer Certificate upon presentation of such Bearer Certificate and
notation thereon on such Distribution Date at the principal London office of
the Trustee or at such other Place of Distribution outside the United States
specified in the related Series Supplement.
Unless otherwise specified in the related Series Supplement,
at the direction of the holder of any Bearer Certificate or Coupon Certificate
payable in Dollars, and subject to applicable laws and regulations,
distributions in respect of such Bearer Certificate or Coupon will be made by
check or, in accordance with arrangements satisfactory to the Trustee, by wire
transfer to a Dollar account maintained by such Holder with a bank outside the
United States. If such distribution at the offices of the Trustee or all
Paying Agents, if any, outside the United States becomes illegal or is
effectively precluded because of the imposition of exchange controls or
similar restrictions on the full distribution or receipt of such amounts in
Dollars, the Depositor will appoint an office or agent in the United States at
which such distribution may be made. Unless otherwise specified in the related
Series Supplement, at the direction of the Holder of any Bearer Certificate or
Coupon payable in a Foreign Currency, distributions on such Bearer Certificate
or Coupon will be made by a check drawn on a bank outside the United States
or, in accordance with arrangements satisfactory to the Trustee, by wire
transfer to an appropriate account maintained by such Holder outside the
United States. Except as provided in this paragraph, no distribution on any
Bearer Certificate or Coupon will be made by mail to an address in the United
States or by transfer to an account maintained by the Holder thereof in the
United States.
(c) Subject to the foregoing provisions of this Section
4.02, each Certificate delivered under this Trust Agreement upon transfer of
or in exchange for or in lieu of any other Certificate shall carry the rights
to interest accrued and undistributed, and to accrue, that were carried by
such other Certificate.
(d) All computations of interest due with respect to any
Certificate of any Series or Class within such Series shall be made as
specified in the Series Supplement applicable to that particular Series or
Class of Certificates.
(e) With respect to any computations or calculations to be
made under these Standard Terms, the applicable Series Supplement and the
Certificates, except as otherwise provided, (i) all percentages resulting from
any calculation of accrued interest will be rounded, if necessary, to the
nearest 1/100,000 of 1 % (.0000001), with five one-millionths of a percentage
point rounded upward, and (ii) all currency amounts will be rounded to the
nearest one-hundredth of a unit (with .005 of a unit being rounded upward).
(f) Unless specified otherwise in a Series Supplement, the
final distribution of principal and/or premium shall be made upon presentation
and surrender of such Certificates at the Corporate Trust Office.
SECTION 4.03 Reports to Certificateholders. Unless otherwise
specified in the applicable Series Supplement, on the next Business Day
following each such Distribution Date the Trustee shall forward or cause to be
forwarded to the Depositor, each Certificateholder of such Series, to each
Rating Agency rating such Series and such other Persons as may be specified in
such Series Supplement, a statement setting forth:
(i) the amounts received by the Trustee as of the
last such statement in respect of principal, interest and
premium (if any) on each of the Underlying Securities, the
Other Deposited Assets and the Credit Support, if any;
(ii) all amounts due and owing to any Other
Deposited Asset Provider with respect to any Other Deposited
Asset or any Credit Support Provider with respect to any
Credit Support Instrument for such date;
(iii) the amount to be distributed on such
Distribution Date to Certificateholders of each Class of
such Series allocable to principal of, and premium, if any,
and interest on the Certificates of each such Class; and the
amount of aggregate unpaid interest accrued as of such
Distribution Date;
(iv) in the case of each Class of Floating Rate
Certificates of such Series, the respective Floating
Pass-Through Rate applicable to each such Class on such
Distribution Date, as calculated in accordance with the
method specified in such Certificates and the related Series
Supplement;
(v) the amount of Ordinary Expenses paid to the
Trustee for the period relating to such Distribution Date,
as well as any Extraordinary Trust Expenses incurred by the
Trustee during such period;
(vi) the balance of the Reserve Account, if any,
and the amount , if any, transferred to the Certificate
Account on the related Distribution Date;
(vii) if the Series Supplement provides for
Advances, the aggregate amount of Advances, if any, included
in such distribution, and the aggregate amount of
unreimbursed Advances, if any, at the close of business on
such Distribution Date;
(viii) (A) the aggregate stated principal amount
and, if applicable, notional amount of the Underlying
Securities related to such Series, (B) the current ratings
assigned by the Rating Agencies thereto, (C) the current
interest rate or rates thereon at the close of business on
such Distribution Date, and (D) a description of any
defaults which occurred during the related period with
respect to any Underlying Securities;
(ix) the aggregate Certificate Principal Balance
(or Notional Amount, if applicable) of each Class of such
series at the close of business on such Distribution Date,
separately identifying any reduction in such aggregate
Certificate Principal Balance (or Notional Amount) due to
the allocation of any Realized Losses on such Distribution
Date or otherwise;
(x) as to any Series (or any Class within such
Series) for which Credit Support or any Other Deposited
Assets has been obtained, the amount or notional amount of
each element of Credit Support or the Other Deposited Asset
(and rating, if any, thereof) included therein as of the
close of business on such Distribution Date; and
(xi) such other customary information as the
Trustee deems necessary or desirable (or that any such
Certificateholder reasonably requests), to enable such
Certificateholders to prepare their tax returns.
In the case of information furnished pursuant to subclauses (ii), (iii), (v)
and (vii) above, the amounts shall be expressed as a dollar amount (or the
equivalent thereof in any other Specified Currency) per minimum denomination
of Certificates or for such other specified portion thereof. Within a
reasonable period of time after the end of each calendar year, the Trustee
shall furnish to each Person who at any time during each such calendar year
was a Certificateholder a statement containing the information set forth in
subclauses (ii), (iii), (v), (vii) and (ix) above, aggregated for such
calendar year or the applicable portion thereof during which such person was a
Certificateholder. Such obligation of the Trustee shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code as are from
time to time in effect. The Trustee shall supply to Certificateholders who so
request all materials received by the Trustee from the Underlying Securities
Issuer.
SECTION 4.04 Advances. (a) Unless otherwise specified in the
applicable Series Supplement, the Trustee shall have no obligation to make
Advances (as defined below) with respect to amounts not received in accordance
with the terms of the Deposited Assets or in favor of the Holders of any
Series (or Class within such Series) of Certificates.
(b) As and to the extent provided in the Series Supplement
for a given Series, and subject to the terms of paragraphs (b) and (c) of this
Section 4.04, on or prior to each Distribution Date, the Trustee shall advance
or cause to be advanced in immediately available funds for deposit to the
Certificate Account for such Series, an advance (each, an "Advance") in an
amount equal, unless otherwise specified in the related Series Supplement, to
the aggregate of distributions of principal, premium (if any) and interest
(net of related administration fees and any Retained Interest) due on the
Deposited Assets for such Series during the related Collection Period, to the
extent remaining unpaid at the time of such Advance. In satisfaction of its
obligation to make such Advances, the Trustee shall make such Advances from
its own funds. The Trustee may recover Advances from late collections received
by the Trustee, Credit Support proceeds, and Liquidation Proceeds for such
Series or Class, as specified in the related Series Supplement.
(c) Notwithstanding any provision herein to the contrary, no
Advance shall be required to be made hereunder if the Trustee reasonably
believes that it will be unable to recover such Advance from related late
collections, the proceeds of any Underlying Securities or Other Deposited
Assets or Liquidation Proceeds. It is further understood and agreed that the
Trustee shall not be obligated to make any Advances in respect of reductions
in the amount of collections on Deposited Assets due to bankruptcy proceedings
with respect to the obligors thereof.
(d) Notwithstanding any provision herein to the contrary,
unless otherwise provided in the Series Supplement for a given Series, any
Advances made in respect of any Series (or Class within such Series) that are
subsequently deemed by the Trustee to be nonrecoverable from related late
collections, the proceeds of any Underlying Securities or Other Deposited
Assets or Liquidation Proceeds may be reimbursed to the Trustee through
application of the amounts on deposit in the Certificate Account for such
series allocable to any of such Deposited Assets prior to the distributions of
interest, premium (if any) and principal with respect to the Certificates of
such Series or Class.
SECTION 4.05 Allocation of Realized Losses and Trust
Expenses. With respect to any Series of Certificates, the manner and priority
of the allocation of Realized Losses, Administrative Fees, Eligible Expenses,
Allowable Expense Amounts and Extraordinary Trust Expenses, if any, on any
Distribution Date among the Classes, if any, of such Series shall be as set
forth in the related Series Supplement.
SECTION 4.06 Compliance with Withholding Requirements. (a)
Notwithstanding any other provision of this Trust Agreement to the contrary,
the Trustee shall comply with all federal withholding requirements respecting
distributions to Certificateholders of interest or original issue discount
that the Trustee reasonably believes are applicable under the Code. The
consent of Certificateholders shall not be required for such withholding.
(b) Each Certificateholder will provide the Trustee (and, so
long as the Certificates are held at a Depository in the form of Global
Securities, each Beneficial Owner of the Certificates will provide such
Depository and the Trustee) with evidence that there should not be any
withholding tax assessed for federal income tax purposes in respect of
distributions to such Certificateholder, such evidence to take the form of a
statement, on a duly executed and up-to-date Internal Revenue Service Form
W-8BEN (or successor form), Form W-9 (or successor form), or Form 4224 (or
successor form), as applicable, that identifies the Beneficial Owner of the
Certificate; provided, however, that for so long as the Certificates are held
at a Depository in the form of Global Securities, the Certificateholder shall
have no obligation to provide the Trustee with any such evidence except to the
extent it has received such evidence from Beneficial Owners of the
Certificates. The Trustee shall not be required to accept any such Internal
Revenue Service forms if it believes that they are not accurate (but the
Trustee shall not be required to make any independent investigation to
determine their accuracy).
(c) If any tax or other governmental charge shall become
payable by or on behalf of the Trustee, including any tax or governmental
charge required to be withheld from any payment by the Trustee under the
provisions of any applicable law or regulation with respect to any Underlying
Securities or the Certificates, such tax or governmental charge shall be
payable by the Certificateholder and may be withheld by the Trustee. The
consent of Certificateholder shall not be required for such withholding. In
the event the Trustee does withhold any amount from interest or original issue
discount distributions or Advances thereof to any Certificateholder
pursuant to federal withholding requirements, the Trustee shall indicate in
the statement required pursuant to Section 4.03 the amount so withheld.
(d) The Depositor and the Trustee shall have the right to
refuse the surrender, registration of transfer or exchange of any Certificate
with respect to which such tax or other governmental charge shall be payable
until such payment shall have been made by the Certificateholder.
SECTION 4.07 Optional Exchange. (a) The terms and
conditions, if any, upon which Certificates of any Series (or Class within
such Series) held by any Certificateholder may be exchanged for a pro rata
portion of the Underlying Securities of the related Trust will be specified in
the related Series Supplement; provided, however, that any right of exchange
shall be exercisable only to the extent that the Depositor provides upon the
Trustee's request an opinion of Counsel that (i) such exchange would not be
inconsistent with the Depositor's and the Trustee's continued satisfaction of
the applicable requirements for exemption under Rule 3a-7 (or other applicable
rule or exemption) under the Investment Company Act, (ii) such exchange would
not affect the characterization of the Trust as a "grantor trust" for federal
income tax purposes, and (iii) such exchange would not cause the Trust to be
treated as an association or publicly traded partnership, taxable as a
corporation for federal income tax purposes. The terms and conditions of such
exchange may include, without limitation, the following:
(1) a requirement that the exchanging Holder tender
to the Trustee its Certificates;
(2) a minimum Certificate Principal Balance or
Notional Amount, as applicable, with respect to Certificates
being tendered for exchange by a single Holder;
(3) a requirement that the Certificate Principal
Balance or Notional Amount, as applicable, of each
Certificate tendered for exchange be an integral multiple of
an amount specified in such Series Supplement;
(4) specified dates during which a Holder may
effect such an exchange (each, an "Optional Exchange Date");
(5) limitations on the right of an exchanging
Holder to receive any benefit from any Credit Support or any
Other Deposited Asset upon any exchange;
(6) adjustments to the value of the proceeds (if
any) received upon any exchange based upon any required
prepayment of future expense allocations and the
establishment of a reserve for any anticipated Extraordinary
Trust Expenses; and
(7) requirement that the exchanging
Certificateholder pay any due and unpaid fees and expenses
owed to the Trustee.
(b) Unless otherwise provided in the applicable Series
Supplement, no Certificate may be exchanged pursuant to the preceding
paragraph unless the Trustee has received at least thirty (30) days but not
more than forty-five (45) days prior to an Optional Exchange Date in
accordance with delivery instructions specified in the applicable Series
Supplement: (i) such Certificate with the form entitled "Option to Elect
Exchange" on the reverse thereof duly completed, or (ii) in the case of
Registered Certificates, a telegram, telex, facsimile, electronic transmission
or letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc., the Depository (in accordance with
its normal procedures) or a commercial bank or trust company in the United
States setting forth the name of the Holder of such Registered Certificate,
the Certificate Principal Balance or Notional Amount of such Registered
Certificate to be exchanged and the Certificate number or a description of the
tenor and the terms of such Registered Certificate, a statement that the
option to elect exchange is being exercised thereby and an assurance that the
Registered Certificate to be exchanged with the form entitled "Option to Elect
Exchange" on the reverse of the Registered Certificate duly completed will be
received by such Trustee not later than five (5) Business Days after the date
at such telegram, telex, facsimile, electronic transmission or letter, and
such Registered Certificate and form duly completed must be received by such
Trustee by such fifth Business Day. Any tender of a Certificate by the Holder
thereof for exchange shall be irrevocable. Unless otherwise provided in the
applicable Series Supplement, the exchange option may be exercised pursuant to
this Section by the Holder of a Certificate for less than the Certificate
Principal Balance or Notional Amount of such Certificate as long as the
Certificate Principal Balance or Notional Amount remaining Outstanding after
such exchange is an authorized denomination and all other exchange
requirements set forth in the related Series Supplement are satisfied upon
such partial exchange such Certificate shall be cancelled and a new
Certificate or Certificates for the remaining Certificate Principal Balance or
Notional Amount thereof shall be issued (which, in the case of any Registered
Certificate, shall be in the name of the Holder of such exchanged
Certificate).
(c) Upon the completion of any such optional exchange, the
Trustee shall give prompt written notice thereof to each Rating Agency.
SECTION 4.08 Optional Call Procedures.
If the related Series Supplement provides for an Optional
Call with respect to the Certificates, the terms upon which the Optional Call
may be exercised will be specified in the related Series Supplement; provided,
however, that unless otherwise specified in the related Series Supplement, the
following procedures will apply to an exercise of an Optional Call:
(a) On any Call Date, the Certificates may be called at the
Call Price, in whole or in part, by the Rights Holder, or an affiliate
thereof, upon payment of the Call Price on or prior to such Call Date.
(b) The Rights Holder shall provide notice to the Trustee (a
"Call Request") no less than five (5) Business Days prior to any Call Date, of
its intention to exercise its Call Option with respect to the Certificates on
the related Call Date.
(c) Upon receipt of a Call Request, the Trustee shall
provide notice of its receipt of the Call Request to the Depository not less
than three (3) Business Days prior to the applicable Call Date.
(d) As a condition to the exercise of any Optional Call, the
Rights Holder must deliver an Opinion of Counsel to the Trustee and to the
Rating Agencies, in form and substance reasonably satisfactory to the Rating
Agencies and the Trustee [indicating that payment of the Call Price shall not
be recoverable as a preferential transfer or fraudulent conveyance under the
United States Bankruptcy Code.] Such opinion may contain customary assumptions
and qualifications. [In addition, the Rights Holder shall provide a
certificate of solvency to the Trustee.]
(e) The delivery of the Certificates to the Rights Holder
will only be made against payment by the Rights Holder of the Call Price to
the Trustees in immediately available funds. Such payment must occur no later
than 10:00 a.m. New York City time on the Call Date. In the event that the
Rights Holder fails to make such payment by such time, (i) the sale shall be
voided, (ii) the Optional Call will be deemed not to be effective with respect
to such Distribution Date, and (iii) the Certificates [and the Call Option]
shall continue to remain Outstanding. Subject to receipt of the Call Price as
aforesaid, the Trustee shall pay the Call Price to the Certificateholders on
the Call Date.
(f) The Trustee shall not be obligated to determine whether
an Optional Call complies with the applicable provisions for exemption under
Rule 3a-7 of the Investment Company Act.
(g) This Section 4.08 shall not provide the Rights Holder
with a lien against, an interest in or a right to specific performance with
respect to the Deposited Assets.
SECTION 4.09 Early Termination.
If set forth in the related Series Supplement, the Depositor
may, at its sole option, purchase the Underlying Securities and effect an
early termination of the Certificates on any Distribution Date on or after the
date on which the aggregate principal amount of such Underlying Securities is
reduced to less than [ten percent (10%)] of the aggregate principal amount of
the Underlying Securities as of the Cut- Off Date. The purchase price payable
by the Depositor in such event shall be not less than the aggregate principal
amount of such Underlying Securities on the date of purchase.
ARTICLE V
The Certificates
SECTION 5.01 The Certificates. (a) The Certificates of any
Series (or Class within such Series) may be issued in (x) fully registered
form as Registered Certificates or (y) bearer form with or without Coupons as
Bearer Certificates, and shall be substantially in the form of the exhibits
with respect thereto attached to the applicable Series Supplement.
The Certificates may be issued in one or more Series, each
of which Series may, subject to the provisions of the Code and the intended
status of each Series Trust to constitute a fixed investment trust for federal
income tax purposes, be issued in one or more Classes, with such further
particular designation added or incorporated in such title for the
Certificates of any particular Series or Class within such Series as the
Depositor may determine. Each Certificate and Coupon shall bear upon its face
the designation so selected for the Series and Class to which it belongs. All
Certificates and all Coupons of the same Series and Class shall be identical
in all respects except for the denominations thereof. All Certificates of all
Classes within any one Series at any time Outstanding shall be identical
except for differences among the Certificates of the different Classes within
such Series specified in the applicable Series Supplement. Except as otherwise
provided in a Series Supplement, all Certificates of a particular Series (and
all Classes within such Series) issued under this Trust Agreement shall be in
all respects equally and ratably entitled to the benefits hereof without,
preference, priority or distinction on account of the actual time or times of
authentication and delivery, all in accordance with the terms and provisions
of this Trust Agreement.
(b) Each Series (and all Classes within such Series) of
Certificates shall be created by a Series Supplement authorized by the
Depositor and establishing the terms and provisions of such Series. The
several Series may, subject to the provisions of the Code and the intended
status of each Trust to constitute a fixed investment trust for federal income
tax purposes, differ as between Series and any given Class may vary as between
the other Classes within any given Series.
SECTION 5.02 Execution, Authentication and Delivery. (a) The
Certificates and the Coupons, if any, shall be executed by the Depositor by
its President, its Treasurer, or one of its Vice Presidents, under its company
seal, which may be in facsimile form and imprinted or otherwise reproduced
thereon and shall be attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers may be manual or
facsimile. Certificates and Coupons bearing the manual or facsimile signature
of individual who were at any time the proper officers of the Depositor shall
be binding, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Certificates or Coupons or did not hold such offices at the date of such
Certificates and Coupons. Notwithstanding anything in this Agreement to the
contrary, the Trustee, upon written direction by the Depositor, will, with
respect to any Series, execute any related Certificates. The Certificates
shall be authenticated upon satisfaction of the conditions set forth in the
related Series Supplement.
(b) Each Certificate shall be dated as of the later of the
date specified in the related Series Supplement and the date of its
authentication.
(c) No Certificate or Coupon appertaining thereto shall be
entitled to any benefit under this Trust Agreement or be valid or obligatory
for any purpose, unless there appears on such Certificate a certificate of
authentication substantially in one of the forms provided for herein or in the
form of Certificate attached to the related Series Supplement executed by the
Trustee by the manual signature of one of its authorized signatories, and such
certificate of authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate (and any Coupons
appertaining thereto) has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Trust Agreement. Except as permitted by
Section 5.04, 5.05 or 5.06, the Trustee shall not authenticate and deliver any
Bearer Certificate unless all appurtenant Coupons then matured have been
detached and cancelled.
SECTION 5.03 Temporary Certificates. Pending the preparation
of Definitive Certificates of any Series (or Class within each such Series),
the Depositor may execute, and upon receipt of a Depositor Order, the Trustee
shall authenticate and deliver temporary Certificates which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the Definitive
Certificates in lieu of which they are issued, in registered form or, if
authorized, in bearer form with one or more Coupons or without Coupons, and
with such appropriate insertions, omissions, substitutions and other
variations as may be authorized by such Depositor Order. Any such temporary
Certificate may be in global form, representing all or a portion of the
Outstanding Certificates of such Series or Class. Every such temporary
Certificate shall be executed by the Depositor and shall be authenticated and
delivered by the Trustee upon the same conditions and in substantially the
same manner, and with the same effect, as the Definitive Certificate or
Definitive Certificates in lieu of which is issued.
If temporary Certificates of any Series (or Class within
such Series) are issued, the Depositor will cause Definitive Certificates of
such Series or Class to be prepared without unreasonable delay. Except as
otherwise specified in the applicable Series Supplement with respect to a
Series (or Class within such Series) of Certificates issuable as Bearer
Certificates or as one or more Global Securities representing individual
Bearer Certificates of such Series or Class, (a) after the preparation of
Definitive Certificates of such Series or Class, the temporary Certificates of
such Series or Class shall be exchangeable for Definitive Certificates of such
Series or Class upon surrender of the temporary Certificates of such Series or
Class at the office of the Trustee in a Place of Distribution for such Series
or Class, without charge to the Holder, except as provided in Section 5.04 in
connection with a transfer and except that a Person receiving definitive
Bearer Certificates shall bear the cost of insurance, postage, transportation
and the like unless otherwise specified in the applicable Series Supplement,
and (b) upon surrender for cancellation of any one or more temporary
Certificates of any Series or Class within such Series (accompanied by any
unmatured Coupons appertaining thereto), the Depositor shall execute and the
Trustees shall authenticate and deliver in exchange therefore Definitive
Certificates with a like Certificate Principal Balance or Notional Amount, as
applicable, of the same Series (or Class within such Series) of authorized
denominations and of like tenor; provided, however, that no definitive Bearer
Certificate shall be delivered in exchange for a temporary Registered
Certificate; and provided, further, that delivery of a Global Security
representing individual Bearer Certificates or a Bearer Certificate shall
occur only outside the United States. Until so exchanged, temporary
Certificates of any Series (or Class within such Series) shall in all respects
be entitled to the same benefits under this Trust Agreement as Definitive
Certificates of such Series or Class, except as otherwise specified in the
applicable Series Supplement with respect to the payment of interest on Global
Securities in temporary form.
Unless otherwise specified in the related Series Supplement,
the Depositor will execute and deliver individual Bearer Certificates in
exchange for beneficial interests in the definitive Global Security and each
Bearer Certificate to the Trustee's principal office in London or to an
authorized agent at such other place outside the United States specified in
the related Series Supplement.
Upon any exchange of a portion of a temporary Global
Security for a definitive Global Security or for the individual Definitive
Certificates represented thereby pursuant to this Section 5.03 or Section
5.04, the temporary Global Security shall be endorsed by the Trustee to
reflect the reduction of the aggregate Certificate Principal Balance or
Notional Amount, as applicable, evidenced thereby, whereupon the aggregate
Certificate Principal Balance or Notional Amount, as applicable, of such
temporary Global Security shall be reduced for all purposes by the amount so
exchanged and endorsed.
SECTION 5.04 Registration; Registration of Transfer and
Exchange. (a) The Trustee shall cause to be kept a register for each Series of
Registered Certificates (the registers maintained in such office and in any
other office or agency of the Trustee in a Place of Distribution being herein
sometimes collectively referred to as the "Certificate Register") in which a
transfer agent and registrar (which may be the Trustee) (the "Certificate
Registrar") shall provide for the registration of Registered Certificates and
the registration of transfers and exchanges of Registered Certificates. The
Trustee is hereby initially appointed Certificate Registrar for the purpose of
registering Registered Certificates and transfers and exchanges of Registered
Certificates as herein provided; provided, however, that the Trustee may
appoint one or more co-Certificate Registrars. Upon any resignation of any
Certificate Registrar, the Depositor shall promptly appoint a successor or, in
the absence of such appointment, assume the duties of Certificate Registrar.
If a Person other than the Trustee is appointed by the
Depositor as Certificate Registrar, the Depositor will give the Trustee prompt
written notice of the appointment of a Certificate Registrar and of the
location, and any change in the location, of the Certificate Register, and the
Trustee shall have the right to rely upon a certificate executed on behalf of
the Certificate Registrar by an Executive Officer thereof as to the names and
addresses of the Holders of the Registered Certificates and the principal
amounts and numbers of such Registered Certificates.
(b) Upon surrender for registration of transfer any
Registered Certificate of any Series (or Class within such Series) at the
office or agency of the Trustee, if the requirements of Section 8-4010) of the
Uniform Commercial Code are met to the Depositor's satisfaction, the Depositor
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered
Certificates of any authorized denominations, of a like Series, Class and
aggregate Certificate Principal Balance or Notional Amount, as applicable.
Except as otherwise specified in the related Series Supplement, in no event
may Registered Certificates, including Registered Certificates received in
exchange for Bearer Certificates, be exchanged for Bearer Certificates.
(c) Notwithstanding any other provisions of this Section,
unless and until it is exchanged in whole or in part for the individual
Certificates represented thereby, a Global Security representing all or a
portion of the Certificates of a Series (or Class within such Series) may not
be transferred except as a whole by the Depository for such Series or Class to
a nominee of such Depository or by a nominee of such Depository to such
Depository or another nominee of such Depository or by such Depository or any
such nominee to a successor Depository for such Series or Class or a nominee
of such successor Depository.
(d) At the option of the Holder, Registered Certificates of
any Series (or Class within such Series) (other than a Global Security, except
as set forth below) may be exchanged for other Registered Certificates of the
same Series or Class of any authorized denomination or denominations of like
tenor and aggregate Certificate Principal Balance or Notional Amount, as
applicable, upon surrender of the Registered Certificates to be exchanged at
the office or agency of the Trustee maintained for such purpose.
(e) At the option of the Holder, except as otherwise
specified in the related Series Supplement with respect to a Global Security
representing Bearer Certificates, Bearer Certificates of any Series (or Class
within such Series) may be exchanged for Registered Certificates (if the
Certificates of such Series or Class are issuable as Registered Certificates)
or Bearer Certificates of the same Series or Class, of any authorized
denomination or denominations, of like tenor and aggregate Certificate
Principal Balance or Notional Amount, as applicable, upon surrender of the
Bearer Certificates to be exchanged at the office or agency of the Trustee
maintained for such purpose, with all unmatured Coupons and all matured
Coupons in default thereto appertaining; provided, however, that delivery of a
Bearer Certificate shall occur only outside the United States. If the Holder
of a Bearer Certificate is unable to produce any such unmatured Coupon or
Coupons or matured Coupon or Coupons in default, such exchange may be effected
if the Bearer Certificates are accompanied by payment in funds acceptable to
the Depositor and the Trustee in an amount equal to the face amount of such
missing Coupon or Coupons, or the surrender of such missing Coupon or Coupons
may be waived by the Depositor and the Trustee if there be furnished to each
of them such security or indemnity as they may require to save each of them
and any Paying Agent harmless. If thereafter the Holder of such Bearer
Certificate shall surrender for payment any such missing Coupon in respect of
which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that, except as
otherwise provided in Section 5.06, interest represented by Coupons shall be
payable only upon presentation and surrender of those Coupons at an office or
agency located outside the United States.
Whenever any Certificates are so surrendered for exchange,
the Depositor shall execute and the Trustee shall authenticate and deliver the
Certificates that the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer
Certificates for Registered Certificates will be subject to the provisions of
United States income tax laws and regulations applicable to Certificates in
effect at the time of such exchange.
(f) If at the time the Depository for the Certificates of a
Series (or Class within such Series) notifies the Depositor that it is
unwilling or unable to continue as Depository for the Certificates of such
Series or Class or if at any time the Depository for the Certificates of such
Series or Class shall no longer be eligible under Section 5.08(b), the
Depositor shall appoint a successor Depository with respect to the
Certificates of such Series or Class. If a successor Depository for the
Certificates of such Series or Class is not appointed by the Depositor within
ninety (90) days after the Depositor receives such notice or becomes aware of
such ineligibility, the Depositor's election as specified in the related
Series Supplement shall no longer be effective with respect to the
Certificates of such Series or Class and the Depositor will execute, and the
Trustee, upon receipt of a Depositor Order for the authentication and delivery
of individual Certificates of such Series or Class, will authenticate and
deliver individual Certificates of such Series or Class in an aggregate
Certificate Principal Balance or Notional Amount, as applicable, equal to the
aggregate Certificate Principal Balance or Notional Amount, as applicable, of
the Global Security or Securities representing Certificates of such Series or
Class in exchange for such Global Security or Securities.
(g) The Depositor may at any time and in its sole discretion
determine that individual Certificates of any Series (or Class within such
Series) issued in the form of one or more Global Securities shall no longer be
represented by such Global Security or Securities. In such event the Depositor
shall execute, and the Trustee, upon receipt of a Depositor Order for the
authentication and delivery of individual Certificates of such Series or
Class, shall authenticate and deliver, individual Certificates of such Series
or Class in an aggregate Certificate Principal Balance or Notional Amount, as
applicable, equal to the aggregate Certificate Principal Balance or Notional
Amount, as applicable, of the Global Security or Securities representing
Certificates of such Series or Class in exchange for such Global Security or
Securities.
(h) If specified by the Depositor pursuant to the related
Series Supplement with respect to a Series (or Class within such Series) of
Certificates, the Depository for such Series may surrender a Global Security
for such Series or Class in exchange in whole or in part for individual
Certificates of such Series or Class on such terms as are acceptable to the
Depositor and such Depository. Thereupon, tile Depositor shall execute, and
the Trustee, upon receipt of a Depositor Order, shall authenticate and
deliver, without service charge,
(i) to each Person specified by such Depository a
new individual Certificate or Certificates of the same
Series or Class, of any authorized denomination as requested
by such Person in an aggregate Certificate Principal Balance
or Notional Amount, as applicable, equal to and in exchange
for such Person's beneficial interest in the Global
Security; and
(ii) to such Depository a new Global Security in a
denomination equal to the difference, if any, between the
aggregate Certificate Principal Balance or Notional Amount,
as applicable, of the surrendered Global Security and the
aggregate Certificate Principal Balance or Notional Amount,
as applicable, of individual Certificates delivered to
Holders thereof.
In any exchange provided for in any of the preceding three
paragraphs, the Depositor shall execute, and the Trustee, upon receipt of a
Depositor Order, will authenticate and deliver individual Certificates (a) in
registered form in authorized denominations, if the Certificates of such
Series or Class are issuable as Registered Certificates, (b) in bearer form in
authorized denominations, with or without Coupons attached, if the
Certificates of such Series or Class are issuable as Bearer Certificates or
(c) as either Registered or Bearer Certificates, if the Certificates of such
Series or Class are issuable in either form; provided, however, that
individual Bearer Certificates shall be delivered in exchange for a Global
Security only in accordance with the procedures specified in the related
Series Supplement.
Upon the exchange of a Global Security for individual
Certificates, such Global Security shall be cancelled by the Trustee.
Individual Registered Certificates issued in exchange for a Global Security
pursuant to this Section 5.04 shall be registered in such names and in such
authorized denominations as the Depository for such Global Security, pursuant
to instructions from its Participants, any indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Registered
Certificates to the Person in whose names such Registered Certificates are so
registered. The Trustee shall deliver individual Bearer Certificates issued in
exchange for a Global Security pursuant to this Section 5.04 to the Persons
and in such authorized denominations as the Depository for such Global
Security, pursuant to instructions from its Participants, any indirect
participants or otherwise, shall instruct the Trustee; provided, however, that
individual Bearer Certificates shall be delivered in exchange for a Global
Security only in accordance with the procedures as may be specified in the
related Series Supplement.
Notwithstanding the foregoing, the exchange of Bearer
Certificates for Registered Certificates will be subject to the provisions of
United States income tax laws and regulations applicable to Certificates in
effect at the time of such exchange.
(i) All Certificates issued upon any registration of
transfer or exchange of Certificates shall constitute complete and
indefeasible evidence of ownership in the Trust related to such Certificates
and be entitled to the same benefits under this Trust Agreement as the
Certificates surrendered upon such registration of transfer or exchange.
(j) Every Registered Certificate presented or surrendered
for registration of transfer or exchange shall (if so required by the
Depositor, the Trustee or the Certificate Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Depositor, the Trustee or the Certificate Registrar, duly executed, by the
Holder thereof or his attorney duly authorized in writing, with such signature
guaranteed by a brokerage firm or financial institution that is a member of a
Securities Approved Medallion Program such as Securities Transfer Agents
Medallion Program (STAMP), Stock Exchange Medallion Program (SEMP) or New York
Stock Exchange Inc. Medallion Signature Program (MSP).
(k) No service charge shall be made to a Holder for any
registration of transfer or exchange of Certificates, but the Depositor may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Certificates, other than exchanges pursuant to Section 5.03 not
involving any transfer.
SECTION 5.05 Mutilated, Destroyed, Lost and Stolen
Certificates. If (i) any mutilated Certificate or any mutilated Coupon with
the Coupon Certificate to which it appertains (and all unmatured Coupons
attached thereto) is surrendered to the Trustee at its Corporate Trust Office
(in the case of Registered Certificates) or at its principal London office (in
the case of Bearer Certificates) or (ii) the Depositor and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any
Certificate or any Coupon, and there is delivered to the Depositor and the
Trustee such security or indemnity as they may require to hold each of them
and any Paying Agent harmless, and neither the Depositor nor the Trustee
receives notice that such Certificate or Coupon has been acquired by a bona
fide purchaser, then the Depositor shall execute and the Trustee, upon receipt
of a Depositor Order, shall authenticate and deliver, in exchange for any such
mutilated Certificate, or in lieu of any such destroyed, lost or stolen
Certificate or in exchange for the Coupon Certificate to which such mutilated,
destroyed, lost or stolen Coupon appertained, a new Certificate of the same
Series or Class of like tenor, form, terms and principal amount, bearing a
number not contemporaneously Outstanding, and, in the case of a Coupon
Certificate, with such Coupons attached thereto so that neither gain nor loss
in interest shall result from such exchange or substitution.
Upon the issuance of any new Certificate under this Section,
the Depositor may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Certificate of any Series or Class, with its
Coupons, if any, issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the Trust related to such Series,
whether or not the destroyed, lost or stolen Certificate or Coupon shall be at
any time enforceable by anyone, and shall be entitled to all the benefits of
this Trust Agreement equally and proportionately with any and all other
Certificates of that Series or Class and their Coupons, if any, duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen
Certificates or Coupons.
SECTION 5.06 Persons Deemed Owners. (a) The Depositor, the
Trustee and any agent of the Depositor or the Trustee may treat the Person in
whose name any Registered Certificate is registered as the owner of such
Registered Certificate for the purpose of receiving distributions of principal
of (and premium, if any) and (subject to Section 4.02) interest, if any, on
such Registered Certificate and for all other purposes whatsoever, whether or
not such Registered Certificate be overdue, and neither the Depositor or the
Trustee, nor any agent of the Depositor or the Trustee shall be affected by
notice to the contrary.
(b) The Depositor, the Trustee and any agent of the
Depositor or the Trustee may treat the Holder of any Bearer Certificate or of
any Coupon as the absolute owner of such Bearer Certificate or Coupon for the
purposes of receiving distributions thereof or on account thereof and for all
other purposes whatsoever, whether or not such Bearer Certificate or Coupon be
overdue, and neither the Depositor, the Trustee, nor any agent of the
Depositor or the Trustee shall be affected by notice to the contrary. All
distributions made to any Holder, or upon his order, shall be valid, and, to
the extent of the sum or sums paid, effectual to satisfy and discharge the
liability for moneys distributable upon such Certificate or Coupon.
(c) None of the Depositor, the Trustee or any of their
agents will have any responsibility or liability for any aspect of the records
relating to or distributions made on account of beneficial ownership interests
in a Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
SECTION 5.07 Cancellation. Unless otherwise specified in the
related Series Supplement for Certificates of any Series, all Certificates
surrendered for payment, redemption, transfer or exchange and all Coupons
surrendered for payment or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled
by it. No Certificates or Coupons shall be authenticated in lieu of or in
exchange for any Certificates or Coupons cancelled as provided in this
Section, except as expressly permitted by this Trust Agreement.
SECTION 5.08 Global Securities. (a) If the Series Supplement
pursuant to Section 5.01 provides that a Series (or Class within such Series)
of Certificates shall be represented by one or more Global Securities, then
the Depositor shall execute and the Trustee shall authenticate and deliver one
or more Global Securities, that (i) shall represent an aggregate initial
Certificate Principal Balance or Notional Amount, as applicable, equal to the
aggregate initial Certificate Principal Balance or Notional Amount, as
applicable, of the Certificates of such Series or Class to be represented by
such one or more Global Securities, (ii) shall be registered, if in registered
form, in the name of the Depository for such Global Security or Securities or
the nominee of such Depository, (iii) shall be delivered by the Trustee to
such Depository or pursuant to such Depository's instruction and (iv) shall
bear a legend substantially to the following effect: "Unless and until it is
exchanged in whole or in part for the individual Certificates represented
hereby, this Global Security may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
a successor Depository or a nominee of such successor Depository."
No Holder of a Certificate of such Series or Class will
receive a Definitive Certificate representing such Holder's interest in such
Certificate or Certificates, except as provided in Section 5.10. Unless and
until definitive, fully registered Certificates (the "Definitive
Certificates") have been issued to Holders of such Series or Class pursuant to
Section 5.11:
(i) the provisions of this Section 5.09 shall be in
full force and effect;
(ii) the Certificate Registrar and the Trustee
shall be entitled to deal with the Depository, as the sole
Holder of the Certificates of such Series or Class, for all
purposes under this Trust Agreement (including the
distribution of principal of, and premium, if any, and
interest on the Certificates and the giving of instructions
or directions hereunder) and shall have no obligation to the
owners of beneficial interests in such Series or Class
(collectively, the "Certificate Owners");
(iii) to the extent that the provisions of this
Section 5.08 conflict with any other provisions of this
Trust Agreement, the provisions of this Section 5.08 shall
control;
(iv) the rights of Certificate Owners of such
Series or Class shall be exercised only through the
Depository and shall be limited to those established by law
and agreements between such Certificate Owners and the
Depository or its Participants;
(v) whenever this Trust Agreement requires or
permits actions to be taken based upon instructions or
directions of Holders of Certificates of such Series or
Class evidencing a specified percentage of the aggregate
Voting Rights of such Series or Class, the Depository shall
be deemed to represent such percentage only to the extent
that it has received instructions to such effect from
Certificate Owners of such Series or Class or Participants
in such Depository's system owning or representing,
respectively, such required percentage of the beneficial
interest in the Certificates of such Series or Class and has
delivered such instructions to the Trustee.
(b) Each Depository designated in the related Series
Supplement for a Global Security in registered form must, at the time of its
designation and at all times while it serves as such Depository, be a clearing
agency registered under the Exchange Act and any other applicable statute or
regulation.
SECTION 5.09 Notices to Depository. Whenever a notice or
other communication to the Holders of a Series or Class within such Series
represented by one or more Global Securities is required under this Trust
Agreement, unless and until Definitive Certificates for such Series or Class
shall have been issued to such Certificate Owners pursuant to Section 5.10,
the Trustee shall give all such notices and communications specified herein to
be given to Holders of the Certificates of such Series to the Depository, and
shall have no obligation to the Certificate Owners.
SECTION 5.10 Definitive Certificates. If in respect of a
Series (or Class within such Series) represented by one or more Global
Securities: (i) the Depositor advises the Trustee in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities with respect to the Certificates of such Series or Class and
the Depositor is unable to locate a qualified successor, (ii) the Depositor at
its option advises the Trustee in writing that it elects to terminate the
book-entry system of such Series or Class through the Depository or (iii)
Certificate Owners representing beneficial interests aggregating at least a
majority (or such other Required Percentage-Definitive Certificates that may
be specified in a Series Supplement) of the Voting Rights of the Certificates
of such Series or Class advise the Depository in writing that the continuation
of a book-entry system for such Series or Class through the Depository is no
longer in the best interests of the Certificates Owners of such Series or
Class, then the Depository shall notify all Certificate Owners or Participants
in the Depository's system with respect to such Series or Class and the
Trustee of the occurrence of any such event and of the availability of
Definitive Certificates for such Series or Class to Certificate Owners of such
Series or Class requesting the same.
Upon surrender to the Trustee of the Global Securities of
such Series or Class by the Depository, accompanied by registration
instructions, the Depositor shall execute and the Trustee shall authenticate
the Definitive Certificates of such Series or Class in accordance with the
instructions of the Depository. None of the Depositor, the Certificate
Registrar or the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying
on, such instructions. Upon the issuance of Definitive Certificates of Series
or Class, the Trustee shall recognize the holders of the Definitive
Certificates of such Series or Class as Holders.
SECTION 5.11 Currency of Distributions in Respect of
Certificates. (a) Except as otherwise specified in the related Series
Supplement for Bearer Certificates of any Series (or Class within such
Series), distributions of the principal of (and premium, if any) and interest
on Bearer Certificates of such Series or Class denominated in any Currency
will be made in such Currency.
(b) Except as otherwise specified in the related Series
Supplement for Registered Certificates of any Series (or Class within such
Series), distributions of the principal of (and premium, if any) and interest
on Registered Certificates of such Series or Class will be made in Dollars.
(c) For purposes of any provision of the Trust Agreement
where the Holders of Outstanding Certificates may perform an act that requires
that a specified percentage of the aggregate Voting Rights of the Certificates
of all Series perform such act and for purposes of any decision or
determination by the Trustee of amounts due and not distributed for the
principal of (and premium, if any) and interest on the Certificates of all
Series in respect of which moneys are to be disbursed ratably, the principal
of (and premium, if any) or notional amount of, as applicable, and interest on
the Outstanding Certificates denominated in a Foreign Currency will be the
amount in Dollars based upon exchange rates, determined as specified in the
related Series Supplement for Certificates of such Series, as of the date for
determining whether the Holders entitled to perform such act have performed it
or as of the date of such decision or determination by the Trustee, as the
case may be.
(d) With respect to Certificates of any Series, any decision
or determination to be made regarding exchange rates shall be made by an
Exchange Rate Agent appointed by the Depositor; provided, however, that such
Exchange Rate Agent shall accept such appointment in writing and the terms of
such appointment shall be acceptable to the Trustee and shall, in the opinion
of the Depositor at the time of such appointment, require such Exchange Rate
Agent to make such determination by a method provided in the applicable Series
Supplement for the making of such decision or determination. All decisions and
determinations of such Exchange Rate Agent regarding exchange rates shall be
in its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and irrevocably binding upon the Depositor, the
Trustee and all Holders of the Certificates of such Series.
(e) If distributions in respect of a Certificate are
required to be made in a Specified Currency other than Dollars and such
currency is unavailable due to the imposition of exchange controls or other
circumstances beyond the control of the Trustee and the Depositor or is no
longer used by the government of the country issuing such Specified Currency
or is no longer commonly used for the settlement of transactions by public
institutions of or within the international banking community, then all
distributions in respect of such Certificate shall be made in Dollars until
such Specified Currency is again so used in the manner specified in the
related Series Supplement.
SECTION 5.12 Conditions of Authentication and Delivery of
New Series. Certificates of a new Series may be issued at any time and from
time to time after the execution and delivery of these Standard Terms and the
related Series Supplement. The Depositor shall execute and deliver
Certificates of such Series to the Trustee, with appropriate Coupons, if any,
appertaining thereto, and the Trustee shall authenticate and deliver such
Certificates upon a Depositor Order and upon delivery by the Depositor to the
Trustee of the documents and satisfaction of the other conditions, each as set
forth in the related Series Supplement.
SECTION 5.13 Appointment of Paying Agent. The Trustee may
appoint one or more paying agents (each, a "Paying Agent") with respect to the
Certificates of any Series. Any such Paying Agent shall be authorized to make
distributions to Certificateholders of such Series from the Certificate
Account for such Series pursuant to the provisions of the applicable Series
Supplement and shall report the amounts of such distributions to the Trustee.
Any Paying Agent shall have the revocable power to withdraw funds from such
Certificate Account for the purpose of making the distributions referred to
above. The Trustee may revoke such power and remove the Paying Agent if the
Trustee determines in its sole discretion that the Paying Agent shall have
failed to perform its obligations under this Trust Agreement in any material
respect. The Paying Agent shall initially be the Trustee and any co- paying
agent chosen by the Trustee and acceptable to the Depositor. Any Paying Agent
shall be permitted to resign as Paying Agent upon thirty (30) days' notice to
the Trustee. In the event that the Trustee shall no longer be the Paying
Agent, the Trustee shall appoint a successor or additional Paying Agent. The
Trustee shall cause each successor to act as Paying Agent to execute and
deliver to the Trustee, an instrument in which such successor or additional
Paying Agent shall agree with the Trustee that it will hold all sums, if any,
held by it for distribution to the Certificateholders in trust for the benefit
of the Certificateholders entitled thereto until such sums shall be
distributed to such Certificateholders and will agree to such other matters as
are required by Section 317(b) of the Trust Indenture Act. The Paying Agent
shall return all unclaimed funds to the Trustee and upon removal shall also
return all funds in its possession to the Trustee. The provisions of Sections
7.01, 7.03, 7.04 and 7.06 shall apply to the Trustee also in its role as
Paying Agent, for so long as the Trustee shall act as Paying Agent. Any
reference in this Trust Agreement to the Paying Agent shall include any
co-paying agent unless the context requires otherwise. Notwithstanding
anything contained herein to the contrary, the appointment of a Paying Agent
pursuant to this Section 5.13 shall not release the Trustee from the duties,
obligations, responsibilities or liabilities arising under this Trust
Agreement other than with respect to funds paid to such Paying Agent.
SECTION 5.14 Authenticating Agent. (a) The Trustee may
appoint one or more authenticating agents (each, an "Authenticating Agent")
with respect to the Certificates of any Series which shall be authorized to
act on behalf of the Trustee in authenticating such Certificates in connection
with the issuance, delivery and registration of transfer or exchange of such
Certificates. Whenever reference is made in this Trust Agreement to the
authentication of Certificates by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication on
behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent must be acceptable to the Depositor. Notwithstanding
anything contained herein to the contrary, the appointment of an
Authenticating Agent pursuant to this Section 5.14 shall not release the
Trustee from the duties, obligations, responsibilities or liabilities arising
under this Trust Agreement.
(b) Any institution succeeding to the corporate agency
business of any Authenticating Agent shall continue to be an Authenticating
Agent without the execution or filing of any power or any further act on the
part of the Trustee or such Authenticating Agent. An Authenticating Agent may
at any time resign by giving notice of resignation to the Trustee and to the
Depositor. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving notice of termination to such Authenticating
Agent and to the Depositor. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time an Authenticating Agent shall
cease to be acceptable to the Trustee or the Depositor, the Trustee promptly
may appoint a successor Authenticating Agent. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with
all the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless acceptable to the Depositor.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section. The provisions of
Section 7.01, 7.03 and 7.04 shall be applicable to any Authenticating Agent.
(c) Pursuant to an appointment made under this Section, the
Certificates may have endorsed thereon, in lieu of the Trustee's certificate
of authentication, an alternate certificate of authentication in substantially
the following form:
This is one of the Certificates described in the Standard
Terms and the related Series Supplement.
Dated:
as Authenticating Agent
for the Trustee,
By: _____________________
SECTION 5.15 Voting Rights with Respect to Underlying
Securities. (a) Within five (5) Business Days after receipt of notice of any
meeting of, or other occasion for the exercise of voting rights or the giving
of consents ("Underlying Security Voting Rights") by, owners of any of the
Underlying Securities, the Trustee shall give notice to the
Certificateholders, setting forth (i) such information as is contained in such
notice to owners of Underlying Securities, (ii) a statement that the
Certificateholders will be entitled, subject to any applicable provision of
law and any applicable provisions of such Underlying Securities (and to the
extent of the voting rights allocated to the Certificateholders pursuant to
subsection 5.15(b)), to instruct the Trustee as to the exercise of voting
rights, if any, pertaining to such Underlying Securities and (iii) a statement
as to the manner in which instructions may be given to the Trustee to give a
discretionary proxy to a person designated in the notice received by the
Trustee. Such notice shall be given by the Trustee to the Certificateholders
of record on such Record Date.
Upon the written request of the applicable Certificateholder,
received on or before the date established by the Trustee for such purpose,
the Trustee shall endeavor, insofar as practicable and permitted under any
applicable provision of law and any applicable provision of or governing the
Underlying Securities, to vote in accordance with any nondiscretionary
instruction set forth in such written request (in each case to the extent of
the voting rights allocated pursuant to subsection 5.15(b) to such
Certificateholder). The Trustee shall not vote except as specifically
authorized and directed in written instructions from the applicable
Certificateholder entitled to give such instructions.
(b) Unless otherwise specified in the applicable Series
Supplement, the Underlying Security Voting Rights allocable to the owners of
the Underlying Securities pursuant to the terms thereof shall be allocated
among the Certificateholders pro rata, in the proportion that the denomination
of each Certificate bears to the aggregate denomination of all Certificates.
SECTION 5.16 Actions by Certificateholders.
(a) Wherever in this Trust Agreement a provision is made
that an action may be taken or a notice, demand or instruction given by
Certificateholders or Beneficial Owners, such action, notice or instruction
may be taken or given by any Certificateholder or Beneficial Owner.
(b) Certificateholders or Beneficial Owners shall not be
required to act in concert with any other Certificateholder or Beneficial
Owner or any other Person.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Certificateholder or Beneficial Owner of a
Certificate shall bind such Certificateholder or Beneficial Owner and every
subsequent Certificateholder or Beneficial Owner of such Certificate or any
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, suffered or omitted
to be done by the Certificateholder or Beneficial Owner or the Trustee in
reliance thereon, whether or not notation of such action is made upon such
Certificate.
SECTION 5.17 Termination Events. If any Termination Event
shall occur and be continuing with respect to any Class of Certificates, then,
and in each and every case, the Trustee shall exercise any rights in respect
of the related Deposited Assets, if any, as provided in the applicable Series
Supplement.
SECTION 5.18 Judicial Proceedings Instituted by Trustee;
Trustee May Bring Suit. If there shall be a failure to make payment of the
principal of or premium, if any, or interest on any Deposited Asset, then the
Trustee, in its own name, and as trustee of an express trust, as holder of
such Deposited Assets, shall be, to the extent permitted by and in accordance
with the terms of the applicable Deposited Assets, subject to the limitations
on acceleration and the exercise of remedies set forth therein, entitled and
empowered to institute any suits, actions or proceedings at law, in equity or
otherwise, including the power to make a demand on the trustee in respect of
such Deposited Assets, if provided for, to take action to enforce the
collection of the sums so due and unpaid on such Deposited Assets and may
prosecute any such claim or proceeding to judgment or final decree with
respect to the whole amount of any such sums so due and unpaid.
SECTION 5.19 Control by Certificateholders. The Holders of
Certificates of any Class holding Certificates representing not less than the
Required Percentage--Direction of Trustee, of the aggregate Voting Rights of
the Outstanding Certificates of such Class shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee under
this Trust Agreement, including any right of the Trustee as holder of the
Deposited Assets, if any; provided, however, that:
(1) such direction shall not be in conflict with
any rule of law or with this Trust Agreement and would not
involve the Trustee in personal liability or expense;
(2) the Trustee shall not determine that the action
so directed would be unjustly prejudicial to the Holders of
Certificates of such Class not taking part in such
direction;
(3) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
SECTION 5.20 Waiver of Past Defaults. The Holders of the
Required Percentage--Waiver of any Series: (i) may direct the Trustee to vote
such percentage of the Underlying Securities held by the Trustee as
corresponds to the percentage of the aggregate principal amount of the
Certificates of such Series held by such Holders to waive any past defaults
with respect to such Underlying Security and its consequences or (ii) may
instruct the Trustee, on behalf of all Certificateholders of such Series, to
waive any past default under this Trust Agreement and its consequences, except
a default:
(1) in the payment of the principal of or premium
(if any) or interest on the Underlying Securities or the
Certificates;
(2) in respect of a covenant or provision hereof
which under Article X hereof cannot be modified or amended
without the consent of the Holder of each Outstanding
Certificate affected;
(3) specified in the applicable Series Supplement,
if any, unless the applicable Series Supplement provides
otherwise; or
(4) [specified as a Termination Event under the
related Series Supplement.]
Upon any such direction, the Trustee shall vote such
percentage of the Underlying Securities of the corresponding Series held by
the Trustee as corresponds to the percentage of the aggregate principal amount
of the Outstanding Certificates of such Series held by Holders who directed
the Trustee to waive such default thereunder. Upon any waiver that is
effective under the terms of such Underlying Security to waive such default,
such default shall cease to exist with respect to this Trust Agreement, and,
in the default arising therefrom shall be deemed to have been cured for every
purpose of this Trust Agreement and any prior direction given by the Trustee
on behalf of such Certificateholders or in respect of any Underlying
Securities shall be annulled with respect thereto; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
SECTION 5.21 Right of Certificateholders to Receive Payments
Not to Be Impaired. Anything in this Trust Agreement to the contrary
notwithstanding, the right of any Certificateholder to receive distributions
of payments required pursuant to Section 4.01 hereof on the Certificates when
due, or to institute suit for enforcement of any such payment on or after the
applicable Distribution Date, Special Distribution Date or other date
specified herein for the making of such payment, shall not be impaired or
affected without the consent of such Certificateholder.
SECTION 5.22 Remedies Cumulative. Every remedy given
hereunder to the Trustee or to any of the Certificateholders shall not be
exclusive of any other remedy or remedies, and every such remedy shall be
cumulative and in addition to every other remedy given hereunder or now or
hereafter given by statute, law, equity or otherwise.
ARTICLE VI
The Depositor
SECTION 6.01 Liability of the Depositor. The Depositor shall
be liable in accordance herewith only to the extent of the obligations
specifically imposed by these Standard Terms and the related Series
Supplement.
SECTION 6.02 Limitation on Liability of the Depositor. (a)
The Depositor shall not be under any obligation to expend or risk its own
funds or otherwise incur financial liability in the performance of its duties
hereunder or under a Series Supplement or in the exercise of any of its rights
or power if reasonable grounds exist for believing that the repayment or such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(b) Neither the Depositor nor any of its members, managers,
officers, employees or agents shall be under any liability to any Trust or the
Certificateholders of any Series for any action taken, or for refraining from
the taking of any action, in good faith pursuant to this Trust Agreement, or
for errors in judgment; provided, however, that this provision shall not
protect the Depositor against any breach of representations, warranties or
covenants made herein, or against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of reckless disregard of its obligations
and duties hereunder.
Unless otherwise provided in a related Series Supplement,
the Trust will indemnify and hold harmless the Depositor and any member,
manager, officer, employee or agent of the Depositor against any loss,
liability or expense incurred in connection with any legal action relating to
the Trust Agreement or the Certificates, other than any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties by the Depositor and any of its
members, managers, officers, employees or agents hereunder or by reason of
reckless disregard of their obligations and duties hereunder.
(c) The Depositor shall not be under any obligation to
appear in, prosecute or defend any legal action unless such action is related
to its respective duties under this Trust Agreement and, in its opinion, does
not involve it in any expense or liability; provided, however, that the
Depositor may in its discretion undertake any such action which it may deem
necessary or desirable with respect to this Trust Agreement and the rights and
duties of the parties hereto and the interests of the Certificateholders
hereunder. The Depositor shall be under no obligation whatsoever to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Underlying Securities.
(d) The Depositor shall not be liable to any
Certificateholder for any action or non-action by it in reliance upon the
advice of or information from legal counsel, accountants, any
Certificateholder of a Certificate or any other person believed by it in good
faith to be competent to give such advice or information, including, without
limitation, the Calculation Agent, the Market Agent or the other party to this
Trust Agreement as amended by any Series Supplement. The Depositor may rely
and shall be protected in acting upon any written notice, request, direction
or other document believed by it to be genuine and to have been signed or
presented by the proper party or parties.
(e) The Depositor shall not incur any liability to any
Certificateholder if, by reason of any provision of any present or future law,
or regulation thereunder, or any governmental authority, or by any reason of
any act of God or war or other circumstance beyond the control of the relevant
party, the Depositor shall be prevented or forbidden from doing or performing
any act or thing which the terms of this Trust Agreement provide shall be done
or performed; and the Depositor shall not incur any liability to any
Certificateholder by reason of any non- performance or delay, caused as
aforesaid, in the performance of any act or thing which the terms of this
Trust Agreement provide shall or may be done or performed, or by reason of any
exercise of, or failure to exercise, any discretion provided for in this Trust
Agreement.
SECTION 6.03 Depositor May Purchase Certificates. The
Depositor may at any time purchase Certificates in the open market or
otherwise. Certificates so purchased by the Depositor may, at the discretion
of the Depositor, be held or resold. Certificates beneficially owned by the
Depositor will be disregarded for purposes of determining whether the required
percentage of the aggregate Voting Rights has given any request, demand,
authorization, direction, notice, consent or waiver hereunder.
SECTION 6.04 Merger or Consolidation of the Depositor.
Nothing in this Trust Agreement shall prevent any consolidation or merger of
the Depositor with or into any other corporation, or any consolidation or
merger of any other corporation with or into the Depositor or any sale or
transfer of all or substantially all of the property and assets of the
Depositor to any other Person lawfully entitled to acquire the same; provided,
however, that, so long as Certificates are outstanding hereunder, the
Depositor covenants and agrees that any such consolidation, merger, sale or
transfers shall be upon the condition that the due and punctual performance
and observance of all the terms, covenants and conditions of this Trust
Agreement to be kept or performed by the Depositor shall be assumed by the
Person (if other than the Depositor) formed by or resulting from any such
consolidation or merger, or which shall have received the transfer of all or
substantially all of the property and assets of the Depositor, just as fully
and effectually as if successor Person had been the original party of the
first part hereto; and in the event of any such sale or transfer the
predecessor Depositor may be dissolved, wound up and liquidated at any time
thereafter.
SECTION 6.05 No Liability of the Depositor with Respect to
the Deposited Assets; Certificateholders to Proceed Directly Against the
Deposited Asset Providers. (a) The sole obligor with respect to any Deposited
Asset is the respective Deposited Asset Provider thereof. The Depositor shall
not have any obligation on or with respect to the Deposited Assets and its
obligations with respect to Certificates shall be solely as set forth in this
Trust Agreement.
(b) The Depositor is not authorized to proceed against the
Deposited Asset Provider in the event of a default or to assert the rights and
privileges of Certificateholders of Certificates and has no duty in respect
thereof.
ARTICLE VII
Concerning the Trustee
SECTION 7.01 Duties of Trustee. (a) The Trustee undertakes
to perform such duties and only such duties as are specifically set forth in
these Standard Terms and the related Series Supplement. The Trustee shall
exercise those rights in a manner consistent with the status of any Trust
created hereunder as a fixed investment trust for federal income tax purposes.
The Trustee shall not have any power to vary the investment of any
Certificateholders of any Series or to accept any assets (other than proceeds
of the Trust Estate) other than the Trust Estate transferred to it on the
Closing Date of any Series. Any permissive right of the Trustee enumerated in
this Trust Agreement shall not be construed as a duty and shall be interpreted
consistently with the status of the Trust as a fixed investment trust.
(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 Trust Agreement, shall examine
them to determine whether they conform to the requirements of this Trust
Agreement. If any such instrument is found not to conform to the requirements
of this Trust Agreement, the Trustee shall take action as it deems appropriate
to have the instrument corrected, and if the instrument is not corrected to
the Trustee's satisfaction, the Trustee will provide notice thereof to the
Depositor and Certificateholders.
(c) No provision of this Trust 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 provisions of this Trust
Agreement, the Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Trust Agreement, no implied
covenants or obligations shall be read into this Trust
Agreement against the Trustee and, in the absence of bad
faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee that
conform to the requirements of this Trust Agreement;
(ii) the Trustee shall not be personally liable for
an error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be personally liable
with respect to any action taken, suffered or omitted to be
taken by it in good faith in accordance with the direction
of Holders of the Required Percentage -- Direction of
Trustee of the aggregate Voting Rights of a given Series (or
Class or group of Classes within such Series), as specified
in the applicable Series Supplement relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Trust Agreement;
(iv) the Trustee shall not be required to expend or
risk its own funds or otherwise incur financial liability in
the performance of any of its duties hereunder or in the
exercise of any of its rights or powers if there is
reasonable ground for believing that the repayment of such
funds or adequate indemnity against such risk or liability
is not reasonably assured to it;
(v) except for actions expressly authorized by this
Trust Agreement, the Trustee shall take no actions
reasonably likely to impair the interests of the Trust in
any Deposited Assets now existing or hereafter acquired;
(vi) except as expressly provided in this Trust
Agreement, the Trustee shall have no power to vary the
corpus of the Trust including by (A) accepting any
substitute obligation or asset for any Deposited Assets
initially assigned to the Trustee under Section 2.01, (B)
adding any other investment, obligation or security to the
Trust or (C) withdrawing from the Trust any Deposited
Assets;
(vii) in the event that the Paying Agent or the
Certificate Registrar shall fail to perform any obligation,
duty or agreement in the manner or on the day required to be
performed by the Paying Agent or Certificate Registrar, as
the case may be, under this Trust Agreement, the Trustee
shall be obligated promptly upon its knowledge thereof to
perform such obligation, duty or agreement in the manner so
required;
(viii) the Trustee shall not be liable to any
Certificateholder for any action or non-action by it in
reliance upon the advice of or information from legal
counsel, accountants, any Certificateholder of a Certificate
or any other person believed by it in good faith to be
competent to give such advice or information, including,
without limitation, the Calculation Agent, the Market Agent
or the other party to this Trust Agreement. The Trustee may
rely and shall be protected in acting upon any written
notice, request, direction or other document believed by it
to be genuine and to have been signed or presented by the
proper party or parties;
(ix) the Trustee shall not incur any liability to
any Certificateholder if, by reason of any provision of any
present or future law, or regulation thereunder, or any
governmental authority, or by any reason of any act of God
or war or other circumstance beyond the control of the
relevant party, the Trustee shall be prevented or forbidden
from doing or performing any act or thing which the terms of
this Trust Agreement provide shall be done or performed; and
the Trustee shall not incur any liability to any
Certificateholder by reason of any non-performance or delay,
caused as aforesaid, in the performance of any act or thing
which the terms of this Trust Agreement provide shall or may
be done or performed, or by reason of any exercise of, or
failure to exercise, any discretion provided for in this
Trust Agreement;
(x) the Trustee shall be under no obligation
whatsoever to appear in, prosecute or defend any action,
suit or other proceeding in respect of any Deposited Assets;
(xi) whenever in the administration of this Trust
Agreement the Trustee shall deem it desirable that a matter
be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, conclusively rely upon an
Officers' Certificate; and
(xii) the Trustee may consult with counsel of its
selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or
omitted by it hereunder in reliance thereon, unless the
Trustee's taking, suffering or omitting such action shall
have been willful misconduct, in bad faith or negligent.
(d) As promptly as practicable after, and in any event
within ten (10) days after, the occurrence of any default (as such term is
defined below) hereunder with respect to any Class of Certificates, the
Trustee shall transmit by mail to the Depositor and the Holders of
Certificates of such Class in accordance with Section 313(c) of the Trust
Indenture Act, notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except
in the case of a default in the payment of the principal of or premium, if
any, or interest on any Deposited Assets, the Trustee shall be protected in
withholding such notice if and so long as a trust committee of Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Holders of the Certificates of such Class.
For the purpose of this Section, the term "default" means, with respect to any
Class of Certificates, any event that is, or after notice or lapse of time or
both would become, a Termination Event with respect to such Class of
Certificates.
(e) Within five (5) Business Days after the receipt by the
Trustee of a written application by any [three or more] Certificateholders
stating that the applicants desire to communicate with other
Certificateholders with respect to their rights under this Trust Agreement or
under the Certificates, and accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, and by
reasonable proof that each such applicant has owned its Certificates for a
period of at least six (6) months preceding the date of such application, the
Trustee shall, at its election, either:
(i) afford to such applicants access to all
information so furnished to or received by the Trustee; or
(ii) inform such applicants as to the approximate
number of Certificateholders according to the most recent
information so furnished to or received by the Trustee, and
as to the approximate cost of mailing to such Certificate-
holders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to all such Certificateholders copies of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of such mailing.
(f) The Trustee shall file periodic reports pursuant to the
Exchange Act in accordance with the customary practices of the Depositor. The
Depositor will respond reasonably promptly to any inquiry of the Trustee as to
such customary practices of the Depositor.
SECTION 7.02 Between Trustee and Administrative Agents. (a)
Unless otherwise provided in a Series Supplement, the Trustee may enter into
Administration Agreements with one or more Administrative Agents in order to
delegate certain of its administrative obligations with respect to a related
Series under this Trust Agreement to such Administrative Agents; provided,
however, that (i) such delegation shall not release the Trustee from the
duties, obligations, responsibilities or liabilities arising under this Trust
Agreement; (ii) the Rating Agency Condition shall have been satisfied with
respect to the entering into of any such agreement and (iii) such agreements
are consistent with the terms of these Standard Terms and, with respect to
Certificates of any Series, the related Series Supplement. With respect to any
Series (or Class within such Series) of Certificates, each Administration
Agreement shall impose on the Administrative Agent requirements conforming to
the provisions set forth in Section 3.01 and provide for administration of the
related Trust and all or certain Deposited Assets for such Series consistent
with the terms of this Trust Agreement. Additional requirements relating to
the scope and contents of any Administration Agreement may be provided in the
applicable Series Supplement. The Trustee shall deliver to the Depositor
copies of all Administration Agreements which it enters into, and any
amendments or modifications thereof, promptly upon the Trustee's execution and
delivery of any such instruments.
(b) The Trustee shall be entitled to terminate any
Administration Agreement which it enters into and the rights and obligations
of any Administrative Agent under any Administration Agreement in accordance
with the terms and conditions of any such Administration Agreement. In the
event of a termination of any Administration Agreement, the Trustee shall
simultaneously reassume direct responsibility for all obligations delegated in
such Administration Agreement without any act or deed on the part of the
applicable Administrative Agent, the Trustee shall administer directly the
related Underlying Securities or shall enter into a Administration Agreement
with a successor Administrative Agent which so qualifies under this Section
7.02.
(c) Unless otherwise provided in the applicable Series
Supplements, in the event an Administrative Agent is administering one or more
Underlying Securities pursuant to an Administration Agreement, the
Administrative Agent shall be required immediately to direct the Trustee to
deposit into an Eligible Account established by such Administrative Agent (an
"Administration Account") any amounts collected with respect thereto, and all
such amounts shall be deposited into the related Certificate Account not later
than the Business Day after receipt thereof.
SECTION 7.03 Certain Matters Affecting the Trustee. (a)
Except as otherwise provided in this Article VII:
(i) the Trustee may request and rely upon and shall
be protected in acting or refraining from acting upon any
resolution, Officer's Certificate, certificate of auditors
or any other certificate, statement, instrument, opinion;
report, notice, request, consent, order, appraisal, bond or
other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper
party or parties;
(ii) the Trustee may consult with counsel and any
Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with
such Opinion of Counsel;
(iii) the Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this
Trust Agreement or to institute, conduct or defend any
litigation hereunder or in relation hereto, at the request,
order or direction of any of the Certificateholders,
pursuant to the provisions of this Trust Agreement, unless
such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses
and liabilities which may be incurred therein or thereby;
(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 Trust 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, unless requested in writing to do so by Holders
of the Required Percentage -- Direction of Trustee, of the
aggregate Voting Rights of the affected Series (or Class or
Classes within any such Series), as specified by the
applicable Series Supplement; provided, however, that if the
payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of
the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Trust
Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking
any such action;
(vi) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys or a
custodian; and
(vii) the Trustee shall not be personally liable
for any loss resulting from the investment of funds held in
any Certificate Account or Reserve Account at the direction
of the Depositor pursuant to Section 3.05.
(b) All rights of action under this Trust Agreement or under
any of the Certificates, enforceable by the Trustee, may be enforced by it
without the possession of any of the Certificates of any Series (or Class
within such Series), or the production thereof at the trial or other
Proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Trust
Agreement.
SECTION 7.04 Trustee Not Liable for Recitals in Certificates
or Underlying Securities. The Trustee assumes no responsibility for the
correctness of the recitals contained herein and in the Certificates or in any
document issued in connection with the sale of the Certificates (other than
the signature and authentication on the Certificates). Except as set forth in
Section 7.11, the Trustee makes no representations or warranties as to the
validity or sufficiency of this Trust Agreement or of the Certificates of any
Series (other than the signature and authentication on the Certificates) or of
any Underlying Security or related document. The Trustee shall not be
accountable for the use or application by the Depositor, of any of the
Certificates or of the proceeds of such Certificates.
SECTION 7.05 Trustee May Own Certificates. The Trustee in
its individual capacity or any other capacity may become the owner or pledgee
of Certificates with the same rights it would have if it were not Trustee;
provided, however, that in determining whether the required percentage of
aggregate Voting Rights shall have consented to any action hereunder requiring
the consent of the Certificateholders, the Trustee's interest shall be
excluded.
SECTION 7.06 Trustee's Fees and Expenses. (a) The applicable
Series Supplement shall specify the amount and circumstances of the Trustee's
compensation and the source thereof.
(b) If the Prepaid Ordinary Expenses set forth in the Series
Supplement are greater than zero, the Trustee acknowledges that the Depositor
has paid to the Trustee an amount equal to the Prepaid Ordinary Expenses, and
the Trustee agrees that the payment of such amount shall constitute full and
final satisfaction of and payment for all Ordinary Expenses incurred on or
prior to the Closing Date.
(c) The Series Supplement may indicate that Ordinary
Expenses will be paid for by the Trust or the Depositor, in which case the
Trustee shall be paid on a periodic basis by the Trust or the Depositor, as
indicated in the Series Supplement, at the rate or amount and on the terms
provided for in the Series Supplement. The Trustee agrees that its right to
receive such payments shall constitute full and final satisfaction of and
payment for all Ordinary Expenses and that the Trustee shall have no claim on
payment of Ordinary Expenses from any other source.
(d) The Trustee further agrees that, notwithstanding any
failure by the Depositor or the Trust to make such periodic payments of the
Ordinary Expenses, the Trustee shall continue to perform its obligations under
this Trust Agreement. The Depositor's obligations to pay Ordinary Expenses
under this Trust Agreement shall be extinguished and of no further effect upon
the payment of Ordinary Expenses due and owing on the termination of the Trust
pursuant to Section 9.01 hereof.
(e) Subject to subsection 7.06(f), all Extraordinary Trust
Expenses, to the extent not paid by a third party are, and shall be,
obligations of the Trust and when due and payable shall be satisfied solely by
the Trust.
(f) The Trustee shall not take any action, including
appearing in, instituting or conducting any action or suit hereunder or in
relation hereto, which is not indemnifiable under Section 7.12 hereof which,
in the Trustee's opinion, would or might cause it to incur costs, expenses or
liabilities that are Extraordinary Trust Expenses unless (i) the Trustee is
satisfied that it will have adequate security or indemnity in respect of such
costs, expenses and liabilities, (ii) the Trustee has been instructed to do so
by Certificateholders representing not less than the Required
Percentage--Remedies of the aggregate principal amount of Certificates then
outstanding, and (iii) the Certificateholders, pursuant to the instructions
given under clause (ii) above, have agreed that such costs, expenses or
liabilities shall either be (x) paid by the Trustee from the Trust, in the
case of a vote of 100% of the aggregate principal amount of Certificates then
outstanding, or (y) paid by the Trustee (which payment shall be made out of
its own funds and not from monies on deposit in the Trust) in which case the
Trustee shall be entitled to receive, upon demand, reimbursement from those
Certificateholders who have agreed to bear the entire amount of such costs,
expenses or liabilities, on a pro rata basis among such Certificateholders.
SECTION 7.07 Eligibility Requirements for Trustee. (a) The
Trustee hereunder shall at all times be a corporation or an association which
is not an Affiliate of the Depositor, the Underlying Securities Issuer or the
Credit Support Provider (but may have normal banking relationships with such
parties and their Affiliates) organized and doing business under the laws of
any State or the United States, authorized under such laws to exercise
corporate trust powers which shall be eligible to act as a trustee under
Section 310(a) of the Trust Indenture Act, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authority. If such corporation or association (or its parent)
publishes reports of conditions at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation
or association shall be deemed to be its combined capital and surplus as set
forth in its most recent report of conditions so published. Such corporation
or association (or its parent) must be rated in one of the four highest rating
categories by the Rating Agency. In the event that at any time such Trustee
shall cease to be eligible in accordance with the provisions of this Section,
such Trustee shall resign immediately in the manner and with the effect
specified in Section 7.08.
(b) In determining whether the Trustee has a conflicting
interest with respect to any Class of Certificates under Section 310(b) of the
Trust Indenture Act and this Section, each other Class of Certificate will be
treated as having been issued under an indenture other than this Trust
Agreement.
SECTION 7.08 Resignation or Removal of the Trustee;
Appointment of Successor Trustee. (a) The Trustee may at any time resign as
Trustee hereunder by written notice of its election so to do, delivered to the
Depositor and each Rating Agency, and such resignation shall take effect only
upon the appointment of a successor Trustee and its acceptance of such
appointment as hereinafter provided; provided, however, that in the event of
such resignation, the Trustee shall (a) assist the Depositor in finding a
successor Trustee acceptable to the Depositor, (b) negotiate in good faith
concerning any prepaid but unaccrued fees and (c) cooperate fully in effecting
the orderly transition to the successor trustee of all information related to
the transaction.
(b) The Depositor or Holders of the Required Percentage--
Removal of Trustee of Certificates may at any time remove the Trustee as
Trustee hereunder by written notice delivered to the Trustee and each Rating
Agency in the manner provided in Section 10.04 hereof, and such removal shall
take effect only upon the appointment of the successor trustee and its
acceptance of such appointment as provided in the succeeding paragraph;
provided, however, that in the event of such removal, the Depositor shall
negotiate in good faith with the Trustee in order to agree regarding payment
of the termination costs of the Trustee resulting from such removal.
(c) Upon the designation of a successor Trustee, following
either resignation or removal of the Trustee, the Trustee shall deliver to the
successor Trustee all records relating to the Certificates in the form and
manner then maintained by the Trustee, which shall include a hard copy thereof
upon written request of the successor Trustee.
(d) If at any time the Trustee shall become incapable of
acting or shall be adjudged a 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 of affairs for the
purpose of rehabilitation, conservation or liquidation, the Depositor shall
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee. In the event the Trustee resigns
or is removed, the Trustee shall reimburse the Depositor for any fees or
charges previously paid to the Trustee in respect of duties not yet performed
under this Trust Agreement which remain to be performed by a successor
Trustee.
(e) In case at any time the Trustee acting hereunder
notifies the Depositor that it elects to resign or the Depositor or Holders of
the Required Percentage--Removal of Trustee of Certificates notifies or notify
the Trustee that it or they elects or elect to remove the Trustee as Trustee,
the Depositor shall, within [ninety (90)] days after the delivery of the
notice of resignation or removal, appoint a successor Trustee, which shall
satisfy the requirements for a trustee under Section 7.07. If no successor
Trustee has been appointed within ninety (90) days after the Trustee has given
written notice of its election to resign or the Depositor or Holders of the
Required Percentage--Removal of Trustee of Certificates have given written
notice to the Trustee of its or their election to remove the Trustee, as the
case may be, the Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee. Every successor Trustee shall execute
and deliver to its predecessor and to the Depositor an instrument in writing
accepting its appointment hereunder, and thereupon such successor Trustee,
without any further act or deed, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor and for all purposes
shall be the Trustee under this Trust Agreement, and such predecessor, upon
payment of all sums due it and on the written request of the Depositor, shall
execute and deliver an instrument transferring to such successor all rights,
obligations and powers of such predecessor hereunder, and shall duly assign,
transfer and deliver all right, title and interest in the Trust Estate and
parts thereof to such successor Trustee. Any successor Trustee shall promptly
give notice of its appointment to the Certificateholders of Certificates for
which it is successor Trustee in the manner provided in Section 10.04 hereof.
SECTION 7.09 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 party, or any corporation or association succeeding to the trust
business of the Trustee, shall be the successor of the Trustee hereunder and
shall be deemed to have assumed the Trustee's obligations hereunder, provided
such corporation or association shall be eligible under the provisions of
Section 7.07, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 7.10 Appointment of Office or Agency. As specified
in a Series Supplement, the Trustee shall appoint an office or agency in the
City of New York where the Certificates may be surrendered for registration of
transfer or exchange, and presented for the final distribution with respect
thereto, and where notices and demands to or upon the Trustee in respect of
the Certificates of the related Series and this Trust Agreement may be served.
SECTION 7.11 Representations and Warranties of Trustee. The
Trustee represents and warrants that:
(i) the Trustee is duly organized, validly existing
and in good standing under the laws of its jurisdiction of
incorporation or association;
(ii) neither the execution nor the delivery by the
Trustee of this Trust Agreement, nor the consummation by it
of the transactions contemplated hereby nor compliance by it
with any of the terms or provisions hereof will contravene
any federal or New York law, governmental rule or regulation
governing the banking or trust powers of the Trustee or any
judgment or order binding on it, or violate its charter
documents or by-laws or constitute a default under (or an
event which, without notice or lapse of time or both, would
constitute a default) under, or result in the breach or
acceleration of any material contract, indenture, mortgage,
agreement or instrument to which it is a party or by which
any of its properties may be bound.
(iii) the Trustee has full power, authority and
right to execute, deliver and perform its duties and
obligations as set forth herein and in each Series
Supplement to which it is a party and has taken all
necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(iv) this Trust Agreement has been duly executed
and delivered by the Trustee and constitutes the legal,
valid and binding obligation of the Trustee, enforceable in
accordance with its terms, except as enforcement may be
limited by the applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
rights of creditors generally and general principles of
equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(v) the Trustee is not in violation, and the
execution and delivery of the Trust Agreement by the Trustee
and its performance and compliance with the terms thereof
will not constitute a violation, of any order or decree of
any court or any order or regulation of any
federal, state, municipal or governmental agency having
jurisdiction over the Trustee or its properties, which
violation would reasonably be expected to have a material
adverse effect on the condition (financial or otherwise) or
operations of the Trustee or its properties or on the
performance of its duties hereunder;
(vi) there are no actions or 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 the
Trust Agreement, (B) seeking to prevent the issuance of the
Certificates contemplated by the Trust Agreement or (C) that
could reasonably affect the performance by the Trustee of
its obligations under, or the validity or enforceability
against the Trustee of, the Trust Agreement; and
(vii) no consent, approval, authorization or order
of any court, governmental agency or body is required for
the execution, delivery and performance by the Trustee of,
or compliance by the Trustee with, the Trust Agreement, or
for the consummation of the transactions contemplated by the
Trust Agreement, except for such consents, approvals,
authorizations and orders, if any, that have been obtained
prior to the Closing Date.
The representations and warranties of the Trustee set forth in this Section
7.11 shall survive the receipt of the Trust Estate by the Trustee and shall
survive the delivery of the Trust Agreement by the Trustee to the Depositor.
SECTION 7.12 Indemnification of Trustee by the Depositor;
Contribution. (a) The Depositor agrees, to the extent the Trustee is not
reimbursed pursuant to Section 7.06 hereof, to indemnify the Trustee against,
and hold it harmless from, any loss, expense or liability incurred in
connection with any legal action relating to this Trust Agreement or the
Certificates or the performance of any of the Trustee's duties hereunder,
other than any loss, liability or expense (i) that constitutes a specific
liability of the Trustee under this Trust Agreement or (ii) that is incurred
by reason of willful misfeasance, bad faith or negligence in the performance
of the Trustee's duties hereunder or by reason of reckless disregard of the
Trustee's obligations and duties hereunder or as a result of a breach of the
Trustee's obligations and duties hereunder.
(b) In case any claim shall be made or action brought
against the Trustee for any reason for which indemnity may be sought against
the Depositor as provided above, the Trustee shall promptly notify the
Depositor in writing setting forth the particulars of such claim or action and
the Depositor may assume the defense thereof. In the event that the Depositor
assumes the defense, the Trustee shall have the right to retain separate
counsel in any such action but shall bear the fees and expenses of such
counsel unless: (i) the Depositor shall have specifically authorized the
retaining of such counsel or (ii) the parties to such suit include the Trustee
and the Depositor, and the Trustee has been advised in writing by such counsel
that one or more legal defenses may be available to it which may not be
available to the Depositor, in which case the Depositor shall not be entitled
to assume the defense of such suit notwithstanding its obligation to bear the
reasonable fees and expenses of such counsel.
(c) The term "liability," as used in this-Section 7.12,
shall include any losses, claims, damages, expenses (including without
limitation the Trustee's reasonable costs and expenses) in defending itself
against any losses, claims or investigations of any nature whatsoever.
(d) The obligations of the Depositor under this Section 7.12
shall be in addition to any liability which the Depositor may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Trustee, and to each person, if any, who controls the Trustee
within the meaning of the Exchange Act.
(e) Notwithstanding anything to the contrary contained in
this Section 7.12, the Depositor shall not be liable for settlement of any
such claim by the Trustee entered into without the prior written consent of
the Depositor, which consent shall not be unreasonably withheld.
(f) The indemnity provided in this Section shall survive the
termination or discharge of this Trust Agreement.
SECTION 7.13 Indemnification of Depositor by Trustee. The
Trustee, in its individual capacity and not from the assets of the Trust,
shall indemnify the Depositor and any successor trustee against any losses,
claims, damages, expenses (including without limitation the Depositor's costs
and expenses in defending itself against any losses, claims or investigations
of any nature whatsoever) or other liabilities, joint or several, which may
arise out of acts performed or omitted by the Trustee or its agents due to its
or their negligence, bad faith or willful misconduct.
SECTION 7.14 No Liability of the Trustee with Respect to the
Deposited Assets; Certificateholders to Proceed Directly Against the
Issuer(s). (a) The sole obligor with respect to any Deposited Asset is the
Deposited Asset Provider thereof. Except as set forth herein, the Trustee
shall not have any obligation on or with respect to the Deposited Assets; and
its obligations with respect to Certificates shall be solely as set forth in
this Trust Agreement.
(b) Except as provided herein and in the related Series
Supplement, the Trustee is not authorized to proceed against any Deposited
Assets Provider in the event of a default or to assert the rights and
privileges of Certificateholders of Certificates and has no duty in respect
thereof except as expressly provided herein.
SECTION 7.15 [RESERVED]
SECTION 7.16 Preservation of Information. The Trustee shall
preserve, in as current a form as is reasonably practicable, the names and
addresses of Certificateholders contained in the most recent list furnished to
the Trustee as provided in Section 7.15, and the names and addresses of
Certificateholders received by the Trustee in its capacity as Certificate
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 7.15, upon receipt of a new list so furnished.
SECTION 7.17 Reports by Trustee. If required, within sixty
(60) days after [ ] of each year, commencing with the year [ ], the Trustee
shall transmit to the Certificateholders, as provided in Section 313(a) of the
Trust Indenture Act, a brief report dated as of such [ ], if any of the events
described in Section 313(a) of the Trust Indenture Act have occurred.
SECTION 7.18 Trustee's Application for Instructions from the
Depositor. Any application by the Trustee for written instructions from the
Depositor may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Trust Agreement and
the date on and/or after which such action shall be taken or such omission
shall be effective, if, but only if, the obligations of the Trustee with
respect to such proposed action or omission are not set forth reasonably
clearly in these Standard Terms and the related Series Supplement. The Trustee
shall not be liable for any action taken by, or omission of, the Trustee in
accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than ten (10)
Business Days after the date an officer of the Depositor actually receives
such application, unless any such officer shall have consented in writing to
any earlier date) unless, prior to taking any such action (or the effective
date in the case of an omission), the Trustee shall have received written
instructions in response to such application specifying the action to be taken
or omitted; provided, however, that this provision shall not protect the
Trustee from liability for any action or omission constituting willful
misconduct, bad faith or negligence.
ARTICLE VIII
Market Agent
SECTION 8.01 Market Agent. If specified for a specific
Series, on the Closing Date the Trustee shall enter into a Market Agent
Agreement with [Banc of America Securities LLC], as the initial Market Agent,
in the form attached to the related Series Supplement. The Market Agent shall
serve as such under the terms and provisions hereof and of the Market Agent
Agreement. The Market Agent, including any successor appointed pursuant
hereto, shall be a member of the National Association of Securities Dealers,
Inc., have capitalization of at least $25,000,000, and be authorized by law to
perform all the duties imposed upon it by this Trust Agreement and the Market
Agent Agreement. The Market Agent may be removed at any time by the Trustee,
acting at the direction of the Depositor; provided, however, that such removal
shall not take effect until the appointment of a successor Market Agent. The
Market Agent may resign upon thirty (30) days' written notice delivered to the
Trustee. The Trustee shall use its best efforts to appoint a successor Market
Agent that is a qualified institution, effective as of the effectiveness of
any such resignation or removal.
ARTICLE IX
[RESERVED]
ARTICLE X
Miscellaneous Provisions
SECTION 10.01 Amendment. (a) This Trust 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 herein which may
be defective or inconsistent with any other provision herein or to provide for
any other terms or modify any other provisions with respect to matters or
questions arising under this Trust Agreement which shall not adversely affect
the interests of the Holders in any material respect; (ii) to evidence and
provide for the acceptance of appointment hereunder of a change in Trustee as
Trustee for a Series of Certificates subsequent to the Closing Date for such
Series, and to add to or change any of the provisions of this Trust Agreement
as shall be necessary to provide for or facilitate the administration of the
separate Trusts hereunder by more than one trustee, pursuant to the
requirements of Section 5.01 hereof; or (iii) to evidence and provide for the
acceptance of appointment hereunder by a successor Trustee with respect to the
Certificate of one or more Series or to add or change any of the provisions of
this Trust Agreement as shall be necessary to provide for or facilitate the
administration of the trusts hereunder; or (iv) to provide for the issuance of
a new Series of Certificates pursuant to a Series Supplement issued hereunder
pursuant to Sections 5.01 and 5.12 hereof; provided, however, that in the case
of any amendment the Rating Agency Condition shall be satisfied with respect
to such amendment and that no such amendment shall cause any Trust created
hereunder (as evidenced by an Opinion of Counsel) to fail to qualify as a
fixed investment trust for federal income tax purposes.
(b) Without limiting the generality of the foregoing, with
respect to any Series, unless otherwise specified in a related Series
Supplement, this Trust Agreement may also be modified or amended from time to
time by the Depositor and the Trustee with the consent of the Holders of
Certificates representing the Required Percentage-Amendment of the aggregate
Voting Rights of those Certificates to which such modification or amendment
relates for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Trust Agreement or of modifying
in any manner the rights of the Holders of Certificates; provided, however,
that, unless otherwise specified in a related Series Supplement, no such
amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received on Underlying Securities which are required to be
distributed on any Certificate without the consent of the Holders of such
Certificates, (ii) adversely affect in any material respect the interests of
the Holders of any Series (or Class within such Series) of Certificates in a
manner other than as described in (i), without the consent of the Holders of
Certificates of such Series or Class evidencing not less than the Required
Percentage-- Amendment of the aggregate Voting Rights of such Series or Class
or (iii) reduce the percentage of aggregate Voting Rights required by (ii), as
described in (ii), without the consent of the Holders of all Certificates of
such Series or Class then Outstanding.
(c) The Trustee shall not enter into any amendment or
modification of the Trust Agreement which would adversely affect in any
material respect the interests of the holders of any class of Certificates
without the consent of the holders of [100%] of such class of Certificates;
provided, however, that no such amendment or modification will be permitted
which would alter the status of the Trust as a grantor trust for federal
income tax purposes or cause the Trust to be required to register as an
Investment Company under the Investment Company Act. Further, no amendment
shall be permitted which would adversely affect in any material respect the
interests of any Class of Certificateholders without confirmation by each
Rating Agency that such amendment will not result in a downgrading or
withdrawal of its rating of such Certificates.
Notwithstanding any other provision of this Trust Agreement,
for purposes of the giving or withholding of consents pursuant to this Section
10.01, Certificates registered in the name of the Depositor or the Trustee or
any Affiliate thereof shall be entitled to Voting Rights with respect to
matters affecting such Certificates; and provided, further, that in the event
the Rating Agency Condition is not satisfied with respect to such modification
or amendment, the Required Percentage--Amendment shall be increased to require
an aggregate percentage of the aggregate Voting Rights in the amount specified
in the applicable Series Supplement. Notwithstanding any other provision of
this Trust Agreement, this Section 10.01(b) shall not be amended without the
unanimous consent of the Holders of all such Certificates.
(d) Promptly after the execution of any such amendment or
modification, the Trustee shall furnish a copy of such amendment or
modification to each Certificateholder of the affected Series or Class and to
the Rating Agency. It shall not be necessary for the consent of
Certificateholders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
SECTION 10.02 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate to
terminate this Trust Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
to take any action or proceeding in any court for a partition or winding up of
the applicable Trust, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
(b) No Certificateholder of a given Series shall have any
right to vote (except as expressly provided for herein) or in any manner
otherwise control the operation and management of any Trust, or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Certificates, be construed so as to constitute
the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Trust
Agreement pursuant to any provision hereof.
(c) No Certificateholder of a given Series shall have any
right by virtue of any provision of this Trust Agreement to institute any
suit, action or proceeding in equity or at law upon or under or with respect
to this Trust Agreement, unless (i) such Holder previously shall have given to
the Trustee a written notice of breach and of the continuance thereof, (ii)
the Holders of Certificates of such Series evidencing not less than the
Required Percentage--Remedies of the aggregate Voting Rights of such Series
shall have made written request upon the Trustee to institute such action,
suit or proceeding in its own name as Trustee hereunder and shall have offered
to the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, (iii) the Trustee,
for [fifteen (15)] days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit
or proceeding, and (iv) no direction inconsistent with such written request
has been given to the Trustee during such [fifteen (15)]-day period by
Certificateholders evidencing not less than the Required Percentage--Remedies
of the aggregate Voting Rights of such Series. It is understood and agreed
that the Trustee shall not be obligated to make any investigation of matters
arising under this Trust Agreement or to institute, conduct or defend any
litigation hereunder or in relation hereto at the request, order or direction
of any Certificateholders unless such Certificateholders have offered to the
Trustee the reasonable security or indemnity referred to above. It is further
understood and agreed, and expressly covenanted by each Certificateholder of
each Series with every other Certificateholder of such Series and the Trustee,
that no one or more Holders of Certificates of such Series shall have any
right in any manner whatever by virtue of any provision of this Trust
Agreement to affect, disturb or prejudice the rights of the Holders of any
other of the Certificates of such Series, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Trust Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all Certificateholders of such Series.
For the protection and enforcement of the provisions of this Section, each and
every Certificateholder and the Trustee shall be entitled to such relief as
can be given either at law of in equity.
SECTION 10.03 GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY IN THE STATE OF NEW
YORK AND WITHOUT GIVING EFFECT TO SUCH STATE'S PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD
BE REQUIRED THEREBY, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.04 Notices. (a) All directions, demands and
notices hereunder shall be in writing and shall be delivered as set forth in
the applicable Series Supplement.
(b) Any notice required to be provided to a Holder of a
Registered Certificate shall be given by first class mail, postage prepaid, at
the last address of such Holder as shown in the Certificate Register. Any
notice so mailed within the time prescribed in this Trust Agreement shall be
conclusively presumed to have been duly given when mailed, whether or not the
Certificateholder receives such notice.
(c) Any notice required to be given to a holder of a Bearer
Certificate or Coupon shall be published in an Authorized Newspaper or
Newspapers in such Place or Places of Distribution as may be specified for a
given Series in the applicable Series Supplement, and such notice shall be
deemed sufficient if published on two separate Business Days within two
Business Days of the time prescribed in this Trust Agreement.
(d) Any and all notices to be given to the Depositor shall
be deemed to have been duly given if sent by facsimile transmission to Bond
Products Depositor LLC, attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Manager (fax no.:
(▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to Bank of America Corporate Center at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Depositor may change this
information by written notice to the Trustee.
(e) Any and all notices to be given to the Trustee shall be
deemed to have been duly given if sent by facsimile transmission to the
Trustee at [Trustee contact information]. The Trustee may change this
information by notice to the Depositor.
(f) Any and all notices to be given to the Swap
Counterparty, if any, will be specified in the Series Supplement.
SECTION 10.05 Notice to Rating Agencies. (a) The Trustee
shall use its best efforts promptly to provide notice to each Rating Agency
with respect to each of the following of which it has actual knowledge:
(i) any change or amendment to this Trust
Agreement;
(ii) the resignation or termination of the Trustee;
(iii) the final payment to Holders of the
Certificates of any Class;
(iv) any change in the location of the Certificate
Account; and
(v) any event that would result in the inability of
the Trustee to make Advances.
(b) In addition, the Trustee shall promptly furnish to each
Rating Agency copies of each report to Certificateholders described in Section
4.03.
(c) Any such notice pursuant to this Section shall be in
writing and shall be deemed to have been duly given if personally delivered or
mailed by first class mail, postage prepaid, or by express delivery service to
each Rating Agency at the address specified below or in the applicable Series
Supplement.
(d) (i) Any and all notices to be given to Moody's shall be
deemed to have been duly given if sent by facsimile transmission to Moody's at
▇▇▇▇▇'▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: [ ], facsimile transmission number (▇▇▇) ▇▇▇-▇▇▇▇, telephone
confirmation number (▇▇▇) ▇▇▇-▇▇▇▇. Moody's may change this information by
notice to the Depositor and the Trustee.
(ii) Any and all notices to be given to S&P shall
be deemed to have been duly given if sent by facsimile
transmission to S&P at Standard & Poor's, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: [Structured Finance
Surveillance Group, facsimile transmission number (212)
▇▇▇-▇▇▇▇, telephone confirmation number (▇▇▇) ▇▇▇-▇▇▇▇]. S&P
may change this information by notice to the Depositor and
the Trustee.
SECTION 10.06 Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Trust Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Trust Agreement and shall
in no way affect the validity or enforceability of the other provisions of
this Trust Agreement or of the Certificates or the rights of the Holders
thereof.
SECTION 10.07 Grant of Security Interest. (a) It is the
express intent of the parties hereto that each conveyance of any Deposited
Assets by the Depositor to the Trustee be, and be construed as, a sale of the
Deposited Assets by the Depositor and not a pledge of any Deposited Assets by
the Depositor to secure a debt or other obligation of the Depositor.
(b) In the event that, notwithstanding the aforementioned
intent of the parties, any Deposited Assets are held to be property of the
Depositor, then, (x) it is the express intent of the parties that such
conveyance be deemed a pledge of such Deposited Assets by the Depositor to the
Trustee to secure a debt or other obligation of the Depositor and (y)(1) this
Trust Agreement shall also be deemed to be a security agreement within the
meaning of Articles 8 and 9 of the Uniform Commercial Code as in effect from
time to time in the State of New York, or such other State as may be specified
in the related Series Supplement; (2) the conveyance provided for in Section
2.01 hereof shall be deemed to be a grant by the Depositor to the Trustee of a
security interest in all the Depositor's right, title and interest in and to
such Deposited Assets and all amounts payable to the holders of such Deposited
Assets in accordance with the terms hereof and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities
or other property including all amounts from time to time held or invested in
the applicable Certificate Account, whether in the form of cash, instruments,
securities or other property; (3) the obligations secured by such security
agreement shall be deemed to be all the Depositor's obligations under this
Trust Agreement, including the obligation to provide to the Certificateholders
the benefits of this Trust Agreement relating to such Deposited Assets and the
applicable Trust; and (4) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as
applicable) of the Trustee for the purpose of perfecting such security
interest under applicable law.
Accordingly, the Depositor hereby grants to the Trustee a
security interest in the Deposited Assets and all other property described in
clause (y)(2) of the preceding paragraph, for the purpose of securing to the
Trustee the performance by the Depositor of the obligations described in
clause (y)(3) of the preceding paragraph. Notwithstanding the foregoing, the
parties hereto intend the Grant pursuant to Section 2.01 to be a true,
absolute and unconditional sale of the Deposited Assets and assets
constituting the applicable Trust by the Depositor to the Trustee.
(c) The Depositor and the Trustee shall to the extent
consistent with this Trust Agreement, take such actions as may be necessary to
ensure that, if this Trust Agreement were deemed to create a security interest
in the Deposited Assets, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such for so long as any of the Deposited Assets remain
outstanding. Without limiting the generality of the foregoing, the Trustee
shall file, or shall cause to be filed, all filings necessary to maintain the
effectiveness of any original filings necessary under the Uniform Commercial
Code as in effect in any jurisdiction to perfect the Trustee's security
interest in or lien on the Deposited Assets, including (x) continuation
statements and (y) such other statements as may be occasioned by (1) any
change of name of the Depositor or the Trustee, (2) any change of location of
the place of business or the chief executive office of the Depositor or (3)
any transfer of any interest of the Depositor in any Deposited Asset.
SECTION 10.08 Nonpetition Covenant. Notwithstanding any
prior termination of this Trust Agreement, each of the Trustee (including any
Administrative Agent, Authenticating Agent, Calculation Agent, or Paying
Agent), the Depositor and each Certificateholder agrees that it shall not,
until the date which is one year and one day after the termination of the
Trust acquiesce, petition or otherwise invoke or cause the Trust to invoke the
process of the United States of America, any State or other political
subdivision thereof or any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government for the
purpose of commencing or sustaining a case by or against the Trust under a
federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Trust or all or any part of the property or assets of
the Trust or ordering the winding up or liquidation of the affairs of the Trust.
SECTION 10.09 No Recourse. Neither the Trustee (including
any Administrative Agent, Authenticating Agent, Calculation Agent, or Paying
Agent) nor the Depositor shall have any recourse to the Underlying Securities,
except for as specifically provided in the related Series Supplement.
SECTION 10.10 Article and Section References. All article
and section references used in these Standard Terms, unless otherwise
provided, are to articles and sections in these Standard Terms.
SECTION 10.11 Counterparts. These Standard Terms 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 one and the same instrument.
SECTION 10.12 Trust Indenture Act Controls. This Trust
Agreement is subject to the provisions of the Trust Indenture Act and shall,
to the extent applicable, be governed by such provisions. The Trustee agrees
to take all actions within its control to prevent these Standard Terms, as
supplemented by any Series Supplements, from failing to qualify under the
Trust Indenture Act.
SECTION 10.13 Segregation Provisions.
(a) Each Trust established hereunder is a legal entity
separate and apart from each other Trust established by the Depositor under
this Agreement or otherwise.
(b) Pursuant to Section 2.01 hereof, each Trust will issue
only one Series of securities, unambiguously identified with the Underlying
Securities unambiguously identified on a series-by-series basis in the Basic
Documents, and the Underlying Securities will be held separate and apart from
the Underlying Securities relating to any other Series and separate and apart
from any property backing any other securities caused to be issued by the
Depositor.
(c) Any swap transaction entered into by a Trust for a
Series will be separate from any other swap transaction for any other Series.
(d) A first priority ownership or, pursuant to Section 10.07
hereof, security interest shall be created and perfected over all of the
Underlying Securities with respect to each Series and it shall be enforceable
notwithstanding the related Trust's insolvency.
(e) The Certificateholders of each Series shall have
recourse solely to the Deposited Assets deposited in the Trust issuing such
Series, and not to any Deposited Assets or other property deposited in any
other Trust. If the foregoing provisions of this paragraph 10.13(e) are
unenforceable for any reason, or for any reason notwithstanding such
provisions any Certificateholder with respect to a Series issued by a Trust is
deemed to have an interest in the assets of a different Trust (the
"Non-Issuing Trust") such interest shall be subordinate to the interest of the
holders of Certificates issued by the Non-Issuing Trust. Such
Certificateholders are deemed to agree that the preceding sentence constitutes
a subordination agreement for purposes of Section 510(a) of the Bankruptcy
Code. Creditors of the Depositor, and claimants with respect to trusts
established pursuant to other instruments, shall have no recourse with respect
to the assets of any Trust established hereunder.
(f) Except as provided in Section 10.02(c) hereof, only the
Trustee shall be entitled to exercise remedies on behalf of the
Certificateholders in accordance with the related Series Supplement.
(g) Any difference between the amount realized from the
Underlying Securities upon enforcement of the Underlying Securities and the
amount that otherwise would have been due pursuant to the related Series
Supplement will not constitute a claim against the related Trust any other
Trust, the Depositor, the Trustee or any of their Affiliates.
(h) Each Trust shall not sell, assign or transfer the
Deposited Assets except as expressly provided for herein or in the related
Series Supplement.
(i) The Depositor agrees that it shall not issue any debt
obligations unless it first obtains written confirmation from each relevant
Rating Agency that such action will not result in the reduction, withdrawal or
qualification, of the rating of any outstanding Series of Certificates.
IN WITNESS WHEREOF, the Depositor and the Trustee have
caused their names to be signed hereto by their respective officers thereunto
duly authorized, in each case as of the day and year first above written.
BOND PRODUCTS DEPOSITOR LLC,
as Depositor
By:
----------------------------
Name:
Title:
[name of Trustee],
as Trustee
By:
----------------------------
Name:
Title:
Reconciliation and tie between the Trust Agreement dated as
of [ , 2003], and the Trust Indenture Act of 1939 as amended. This
reconciliation does not constitute part of Trust Agreement.
Trust Indenture Act Trust
of 1939 Section Agreement Section
--------------- -----------------
310(a)(1) 7.07
(a)(2) 7.07
(a)(5) 7.07
310(b) 7.07
312(a) 7.15
313(a) 7.17
314(a) 3.10
(c)(1) 1.03
(c)(2) 1.03
(e) 1.03
315(a)(1) 7.01(a)
315(a)(2) 7.03(a)
315(b) 7.01(d)
315(d) 7.01(c)
316(a)(1)(A) 5.19
(a)(1)(B) 5.20
(b) 5.21
(c) 1.03(b)
317(a)(1) 5.18
(b) 5.13
318(a) 10.12