EXHIBIT 4.4.3
FORM OF TRUST AGREEMENT
(GRANTOR TRUST, VEHICLE SECURITIES)
FORM OF TRUST AGREEMENT
between
GS Mortgage Securities Corp. ,
as Company,
and
[---------------------]
as Trustee
[ ] VEHICLE RECEIVABLES
SECURITIES TRUST
200_ - __
Dated as of _________________
TABLE OF CONTENTS
Page
ARTICLE I Definitions.............................................................................................1
SECTION 1.01. Defined Terms............................................................................1
SECTION 1.02. Other Definitional Provisions............................................................7
ARTICLE II Organization...........................................................................................8
SECTION 2.01. Name.....................................................................................8
SECTION 2.02. Office...................................................................................8
SECTION 2.03. Purposes and Powers......................................................................8
SECTION 2.04. Appointment of Trustee...................................................................9
SECTION 2.05. Conveyance of Underlying Securities......................................................9
SECTION 2.06. Declaration of Trust....................................................................10
SECTION 2.07. Liability of the Owners.................................................................10
SECTION 2.08. Title to Trust Property.................................................................10
SECTION 2.09. Situs of Trust..........................................................................10
SECTION 2.10. Representations and Warranties of the Company...........................................11
SECTION 2.11. Maintenance of the Demand Note..........................................................11
SECTION 2.12. Federal Income Tax Allocations..........................................................12
ARTICLE III Trust Certificates and Transfer of Interests.........................................................12
SECTION 3.01. Initial Ownership.......................................................................12
SECTION 3.02. The Trust Certificates..................................................................12
SECTION 3.03. Authentication of Trust Certificates....................................................13
SECTION 3.04. Registration of Transfer and Exchange of Trust Certificates.............................13
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates.................................14
SECTION 3.06. Persons Deemed Owners...................................................................14
SECTION 3.07. Access to List of Certificateholders' Names and Addresses...............................14
SECTION 3.08. Maintenance of Office or Agency.........................................................14
SECTION 3.09. Appointment of Paying Agent.............................................................15
SECTION 3.10. Ownership by Company of Trust Certificates..............................................15
SECTION 3.11. Book-Entry Trust Certificates...........................................................15
SECTION 3.12. Notices to Clearing Agency..............................................................16
SECTION 3.13. Definitive Trust Certificates...........................................................16
ARTICLE IV Actions by Trustee....................................................................................17
SECTION 4.01. Prior Notice to Owners with Respect to Certain Matters..................................17
SECTION 4.02. Action by Owners with Respect to Sale of Trust Estate...................................17
SECTION 4.03. Action by Owners with Respect to Bankruptcy.............................................17
SECTION 4.04. Restrictions on Owners' Power...........................................................17
SECTION 4.05. Majority Control........................................................................17
ARTICLE V Collections; Distributions; Certain Duties.............................................................17
SECTION 5.01. Establishment of Trust Accounts.........................................................17
SECTION 5.02. Collections.............................................................................19
SECTION 5.03. Application of Trust Funds..............................................................19
SECTION 5.04. Reserve Account.........................................................................20
SECTION 5.05. Distributions...........................................................................21
SECTION 5.06. Method of Payment.......................................................................21
SECTION 5.07. Accounting and Reports to the Owners, the Internal Revenue
Service and Others......................................................................21
SECTION 5.08. Signature on Returns; Tax Matters Partner...............................................22
SECTION 5.09. Statements to Certificateholders........................................................22
ARTICLE VI Authority and Duties of Trustee.......................................................................22
SECTION 6.01. General Authority.......................................................................22
SECTION 6.02. General Duties..........................................................................23
SECTION 6.03. Action upon Instruction.................................................................23
SECTION 6.04. No Duties Except as Specified in this Agreement or in Instructions......................23
SECTION 6.05. No Action Except Under Specified Documents or Instructions..............................24
SECTION 6.06. Restrictions............................................................................24
ARTICLE VII Concerning the Trustee...............................................................................24
SECTION 7.01. Acceptance of Trust and Duties..........................................................24
SECTION 7.02. Furnishing of Documents.................................................................25
SECTION 7.03. Representations and Warranties..........................................................25
SECTION 7.04. Reliance; Advice of Counsel.............................................................25
SECTION 7.05. Not Acting in Individual Capacity.......................................................26
SECTION 7.06. Trustee Not Liable for Trust Certificates or Underlying Securities......................26
SECTION 7.07. Trustee May Own Trust Certificates......................................................26
ARTICLE VIII Compensation of Trustee.............................................................................26
SECTION 8.01. Trustee's Fees and Expenses.............................................................27
SECTION 8.02. Indemnification.........................................................................27
SECTION 8.03. Payments to the Trustee.................................................................27
ARTICLE IX Termination of Trust Agreement........................................................................27
SECTION 9.01. Termination of Trust Agreement..........................................................27
SECTION 9.02. Dissolution upon Bankruptcy of the Company..............................................29
SECTION 9.03. Optional Purchase of All Underlying Securities..........................................29
ARTICLE X Successor Trustees and Additional Trustees.............................................................29
SECTION 10.01. Eligibility Requirements for Trustee...................................................29
SECTION 10.02. Resignation or Removal of Trustee......................................................29
SECTION 10.03. Successor Trustee......................................................................30
SECTION 10.04. Merger or Consolidation of Trustee.....................................................30
SECTION 10.05. Appointment of Co-Trustee or Separate Trustee..........................................31
ARTICLE XI Miscellaneous.........................................................................................32
SECTION 11.01. Supplements and Amendments.............................................................32
SECTION 11.02. No Legal Title to Trust Estate in Owners...............................................33
SECTION 11.03. Limitations on Rights of Others........................................................33
SECTION 11.04. Notices................................................................................33
SECTION 11.05. Severability...........................................................................33
SECTION 11.06. Separate Counterparts..................................................................33
SECTION 11.07. Successors and Assigns.................................................................33
SECTION 11.08. Covenants of the Company...............................................................33
SECTION 11.09. No Petition............................................................................34
SECTION 11.10. No Recourse............................................................................34
SECTION 11.11. Headings...............................................................................34
SECTION 11.12. GOVERNING LAW..........................................................................34
SECTION 11.13. Trust Certificate Transfer Restrictions................................................34
SCHEDULE I - UNDERLYING SECURITIES........................................................................... S-1
EXHIBIT A - FORM OF TRUST CERTIFICATE........................................................................ A-1
EXHIBIT B - CERTIFICATE OF TRUST OF [ ] VEHICLE RECEIVABLES TRUST 200_-_.................................. B-1
EXHIBIT C - FORM OF CERTIFICATE DEPOSITORY AGREEMENT......................................................... C-1
EXHIBIT D - FORM OF STATEMENT................................................................................ D-1
TRUST AGREEMENT dated as of _______________________, between GS
Mortgage Securities Corp. , a Delaware corporation (the "Company"), and
________________, a Delaware banking corporation, as trustee (the
"Trustee").
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. Whenever used in this Agreement, the
following terms, unless the context requires otherwise, shall have the
meanings set forth below:
"Agreement" shall mean this Trust Agreement, as the same may be
amended and supplemented from time to time.
"Available Amount" means, with respect to any Distribution Date,
the amount of funds on deposit in the Reserve Account on such Distribution
Date before giving effect to any reduction thereto on such date.
"Basic Documents" shall mean the Certificate Depository Agreement
and the other documents and certificates delivered in connection therewith.
"Benefit Plan" shall have the meaning assigned to such term in
Section 11.13.
"Book-Entry Trust Certificate" shall mean a beneficial interest in
the Trust Certificates, ownership and transfers of which shall be made
through book entries by a Clearing Agency as described in Section 3.11.
"Business Day" means any day other than a Saturday, a Sunday or a
day on which banking institutions or trust companies in The City of New
York are authorized or obligated by law, regulation or executive order to
remain closed.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code (S) 3801 et seq., as the same may be amended
from time to time.
"Certificate Balance" equals, initially, $___________ and,
thereafter, equals such initial Certificate Balance reduced by all amounts
allocable to principal previously distributed to Certificateholders.
"Certificate Depository Agreement" shall mean the agreement dated
_______________, among the Trust, the Trustee and The Depository Trust
Company, as the initial Clearing Agency, substantially in the form attached
hereto as Exhibit C, relating to the Trust Certificates, as the same may be
amended and supplemented from time to time.
"Certificate Distribution Account" shall have the meaning assigned
to such term in Section 5.01.
"Certificate of Trust" shall mean the Certificate of Trust,
substantially in the form of Exhibit B, filed for the Trust pursuant to
Section 3810(a) of the Business Trust Statute.
"Certificate Owner" shall mean, with respect to a Book-Entry Trust
Certificate, the Person who is the beneficial owner of such Book-Entry
Trust Certificate, as reflected on the books of the Clearing Agency or on
the books of a Person maintaining an account with such Clearing Agency
(directly as a Clearing Agency Participant or as an indirect participant,
in each case in accordance with the rules of such Clearing Agency).
"Certificate Pool Factor" means, as of the close of business on
the last day of a Collection Period, a seven-digit decimal figure equal to
the Certificate Balance (after giving effect to any reductions therein to
be made on the immediately following Distribution Date) divided by the
initial Certificate Balance. The Certificate Pool Factor will be 1.0000000
as of the Closing Date; thereafter, the Certificate Pool Factor will
decline to reflect reductions in the Certificate Balance.
"Certificate Register" and "Certificate Registrar" shall mean the
register mentioned in and the registrar appointed pursuant to Section 3.04.
"Certificateholder" shall mean a Person in whose name a Trust
Certificate is registered.
"Certificateholders' Distributable Amount" means, with respect to
any Distribution Date, the sum of the Certificateholders' Principal
Distributable Amount and the Certificateholders' Interest Distributable
Amount for such date.
"Certificateholders' Interest Carryover Shortfall" means, with
respect to any Distribution Date, the excess of the sum of the
Certificateholders' Monthly Interest Distributable Amount for the preceding
Distribution Date and any outstanding Certificateholders' Interest
Carryover Shortfall on such preceding Distribution Date, over the amount in
respect of interest that is actually deposited in the Certificate
Distribution Account on such preceding Distribution Date, plus 30 days'
interest on such excess, to the extent permitted by law, at the
Pass-Through Rate.
"Certificateholders' Interest Distributable Amount" means, with
respect to any Distribution Date, the sum of the Certificateholders'
Monthly Interest Distributable Amount for such Distribution Date and the
Certificateholders' Interest Carryover Shortfall for such Distribution
Date. Interest with respect to the Certificates shall be computed on the
basis of a 360-day year consisting of twelve 30-day months for all purposes
of this Agreement and the Basic Documents.
"Certificateholders' Monthly Interest Distributable Amount" means,
with respect to any Distribution Date, 30 days of interest (or, in the case
of the first Distribution Date, interest accrued from and including the
Closing Date to but excluding _________) at the Pass-Through Rate on the
Certificate Balance on the last day of the preceding Collection Period (or,
in the case of the first Distribution Date, on the Closing Date).
"Certificateholders' Monthly Principal Distributable Amount" means
that portion of all collections on Underlying Securities allocable to
principal received during the related Collection Period.
"Certificateholders' Principal Carryover Shortfall" means, as of
the close of any Distribution Date, the excess of the Certificateholders'
Monthly Principal Distributable Amount and any outstanding
Certificateholders' Principal Carryover Shortfall from the preceding
Distribution Date, over the amount in respect of principal that is actually
deposited in the Certificate Distribution Account on such current
Distribution Date.
"Certificateholders' Principal Distributable Amount" means, with
respect to any Distribution Date, the sum of the Certificateholders'
Monthly Principal Distributable Amount for such Distribution Date and the
Certificateholders' Principal Carryover Shortfall as of the close of the
preceding Distribution Date; provided, however, that the
Certificateholders' Principal Distributable Amount shall not exceed the
Certificate Balance. In addition, on the Final Scheduled Distribution Date,
the principal required to be included in the Certificateholders' Principal
Distributable Amount will equal the amount that is necessary (after giving
effect to the other amounts to be deposited in the Certificate Distribution
Account on such Distribution Date and allocable to principal) to reduce the
Certificate Balance to zero.
"Clearing Agency" shall mean an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" shall mean a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Date" means ________________________.
"Code" shall mean the Internal Revenue Code of 1986, as amended,
and Treasury Regulations promulgated thereunder.
"Collection Account" shall have the meaning assigned to such term
in Section 5.01.
"Collection Period" means a calendar month.
"Company" shall mean GS Mortgage Securities Corp. , a Delaware
corporation, and any successor in interest.
"Corporate Trust Office" shall mean, with respect to the Trustee,
the principal corporate trust office of the Trustee located at
_____________________, or at such other address as the Trustee may
designate by notice to the Owners and the Company, or the principal
corporate trust office of any successor Trustee at the address designated
by such successor Trustee by notice to the Owners and the Company.
"Cutoff Date" means ________________________.
"Definitive Trust Certificates" shall have the meaning set forth
in Section 3.11.
"Delivery" when used with respect to Trust Account Property means:
(a) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that constitute
"instruments" within the meaning of Section 9-102(a)(47) of the UCC and are
susceptible of physical delivery, transfer thereof to the Trustee or its
nominee or custodian by physical delivery to the Trustee or its nominee or
custodian endorsed to, or registered in the name of, the Trustee or its
nominee or custodian or endorsed in blank, and, with respect to a
certificated security (as defined in Section 8- 102 of the UCC) transfer
thereof (i) by delivery of such certificated security endorsed to, or
registered in the name of, the Trustee or its nominee or custodian or
endorsed in blank to a financial intermediary (as defined in Section 8-313
of the UCC) and the making by such financial intermediary of entries on its
books and records identifying such certificated securities as belonging to
the Trustee or its nominee or custodian and the sending by such financial
intermediary of a confirmation of the purchase of such certificated
security by the Trustee or its nominee or custodian, or (ii) by delivery
thereof to a "clearing corporation" (as defined in Section 8-102(3) of the
UCC) and the making by such clearing corporation of appropriate entries on
its books reducing the appropriate securities account of the transferor and
increasing the appropriate securities account of a financial intermediary
by the amount of such certificated security, the identification by the
clearing corporation of the certificated securities for the sole and
exclusive account of the financial intermediary, the maintenance of such
certificated securities by such clearing corporation or a "custodian bank"
(as defined in Section 8-102(4) of the UCC) or the nominee of either
subject to the clearing corporation's exclusive control, the sending of a
confirmation by the financial intermediary of the purchase by the Trustee
or its nominee or custodian of such securities and the making by such
financial intermediary of entries on its books and records identifying such
certificated securities as belonging to the Trustee or its nominee or
custodian (all of the foregoing, "Physical Property"), and, in any event,
any such Physical Property in registered form shall be in the name of the
Trustee or its nominee or custodian; and such additional or alternative
procedures as may hereafter become appropriate to effect the complete
transfer of ownership of any such Trust Account Property (as defined
herein) to the Trustee or its nominee or custodian, consistent with changes
in applicable law or regulations or the interpretation thereof;
(b) with respect to any securities issued by the U.S. Treasury,
the Federal Home Loan Mortgage Corporation or by the Federal National
Mortgage Association that is a book-entry security held through the Federal
Reserve System pursuant to Federal book-entry regulations, the following
procedures, all in accordance with applicable law, including applicable
Federal regulations and Articles 8 and 9 of the UCC: book-entry
registration of such Trust Account Property to an appropriate book-entry
account maintained with a Federal Reserve Bank by a financial intermediary
which is also a "depository" pursuant to applicable Federal regulations and
issuance by such financial intermediary of a deposit advice or other
written confirmation of such book-entry registration to the Trustee or its
nominee or custodian of the purchase by the Trustee or its nominee or
custodian of such book-entry securities; the making by such financial
intermediary of entries in its books and records identifying such
book-entry security held through the Federal Reserve System pursuant to
Federal book-entry regulations as belonging to the Trustee or its nominee
or custodian and indicating that such custodian holds such Trust Account
Property solely as agent for the Trustee or its nominee or custodian; and
such additional or alternative procedures as may hereafter become
appropriate to effect complete transfer of ownership of any such Trust
Account Property to the Trustee or its nominee or custodian, consistent
with changes in applicable law or regulations or the interpretation
thereof; and
(c) with respect to any item of Trust Account Property that is an
uncertificated security under Article 8 of the UCC and that is not governed
by clause (b) above, registration on the books and records of the issuer
thereof in the name of the financial intermediary, the sending of a
confirmation by the financial intermediary of the purchase by the Trustee
or its nominee or custodian of such uncertificated security, the making by
such financial intermediary of entries on its books and records identifying
such uncertificated certificates as belonging to the Trustee or its nominee
or custodian.
"Demand Note" shall mean, in the case of _____________, the Demand
Note dated __________, from [▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.] to ________________.
"Distribution Date" means, with respect to each Collection Period,
the __________ day of the following month or, if such day is not a Business
Day, the immediately following Business Day, commencing on __________________.
"ERISA" shall have the meaning assigned thereto in Section 11.13.
"Eligible Deposit Account" means either (a) a segregated account
with an Eligible Institution or (b) a segregated trust account with the
corporate trust department of a depository institution organized under the
laws of the United States of America or any one to the states thereof or
the District of Columbia (or any domestic branch of a foreign bank), having
corporate trust powers and acting as trustee for funds deposited in such
account, so long as any of the securities of such depository institution
shall have a credit rating from each Rating Agency in one of its generic
rating categories that signifies investment grade.
"Eligible Institution" means (a) the corporate trust department of
the Trustee or (b) a depository institution organized under the laws of the
United States of America or any one of the states thereof or the District
of Columbia (or any domestic branch of a foreign bank), which (1) has
either (A) a long-term unsecured debt rating of AAA or better by Standard &
Poor's and A1 or better by Moody's or (B) a certificate of deposit rating
of A-1+ by Standard Poor's and P- 1 or better by Moody's or any other
long-term, short-term or certificate of deposit rating acceptable to the
Rating Agencies and (2) whose deposits are insured by the FDIC. If so
qualified, the Trustee may be considered an Eligible Institution for the
purposes of clause (b) of this definition.
"Eligible Investments" mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or
registered form which evidence;
(a) direct obligations of, and obligations fully guaranteed as to
timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit of
any depository institution or trust company incorporated under the laws of
the United States of America or any state thereof (of any domestic branch
of a foreign bank) and subject to supervision and examination by federal or
state banking or depository institution authorities; provided, however,
that at the time of the investment or contractual commitment to invest
therein, the commercial paper or other short-term unsecured debt
obligations thereof (other than such obligations the rating of which is
based on the credit of a Person other than such depository institution or
trust company) shall have a credit rating of A-1+ from Standard & Poor's
and P1 from Moody's;
(c) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating of A-1+ from Standard &
Poor's and P1 from Moody's;
(d) investments in money market funds having a rating of AAA-m or
AAAm-G from Standard & Poor's and Aaa from Moody's;
(e) bankers' acceptances issued by any depository institution or
trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of America
or any agency or instrumentality thereof the obligations of which are
backed by the full faith and credit of the United States of America, in
either case entered into with a depository institution or trust company
(acting as principal) described in clause (b);
(g) any other investment with respect to which the Trustee or the
Company has received written notification from the Rating Agencies that the
acquisition of such investment as an Eligible Investment will not in a
withdrawal or downgrading of the ratings of the Certificates.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exemption" shall have the meaning assigned to such term in
Section 11.13.
"Expenses" shall have the meaning assigned to such term in Section
8.02.
"Final Scheduled Distribution Date" means the _______________
Distribution Date.
"Holder" means the Person in whose name such Certificate is
registered on the Certificate Register.
"Indemnified Parties" shall have the meaning assigned to such term
in Section 8.02.
"Initial Certificate Balance" shall mean $________________.
"Lien" means any security interest, lien, pledge, equity or
encumbrance of any kind, other than tax liens, mechanics' liens and any
liens that attach to an Underlying Security by operation of law.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or its successor.
"Obligor" means, with respect to any Underlying Security, the
Person obligated to make payments under the terms of such Underlying
Security.
"Original Pool Balance" means the Pool Balance as of the Cutoff Date.
"Owner" shall mean each Holder of a Trust Certificate.
"Person" means any individual, corporation, estate, partnership,
joint venture, association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any
agency or political subdivision thereof.
"Pass-Through Rate" means __________% per annum.
"Paying Agent" shall mean any paying agent or co-paying agent
appointed pursuant to Section 3.09, which initially shall be
________________.
"Payment Determination Date" means, with respect to any
Distribution Date, the Business Day immediately preceding such Distribution
Date.
"Physical Property" has the meaning assigned to such term in the
definition of "Delivery" above.
"Pool Balance" means, as of the close of business on the last day
of a Collection Period, the aggregate principal balance of the Underlying
Securities as of such day.
"Purchase Amount" means the amount, as of the close of business on
the last day of a Collection Period, required to pay an Underlying Security
in full under the terms thereof, including interest to the end of the month
of purchase.
"Rating Agency" means Moody's or Standard & Poor's or, if neither
such organization nor a successor thereto remains in existence, any
nationally recognized statistical rating organization or other comparable
Person designated by the Company, notice of which designation shall be
given to the Trustee and the Servicer.
"Record Date" shall mean, with respect to any Distribution Date,
the close of business on the day immediately preceding such Distribution
Date.
"Reserve Account" shall have the meaning assigned to such term in
Section 5.01.
"Reserve Account Initial Deposit" means an amount equal to the
Specified Reserve Account Balance on the Closing Date (which is equal to
$______________).
"Secretary of State" shall mean the Secretary of State of the
State of Delaware.
"Specified Reserve Account Balance" means [state formula].
"Standard & Poor's" means Standard & Poor's Ratings Services, a
division of ▇▇▇▇▇▇-▇▇▇▇, Inc.
"Total Distribution Amount" means, for each Distribution Date, the
aggregate of all distributions received by the Trustee on the Underlying
Securities, for the Collection Period immediately preceding such
Distribution Date.
"Treasury Regulations" shall mean regulations, including proposed
or temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor
Treasury Regulations.
"Trust" shall mean the trust established by this Agreement.
"Trust Accounts" shall mean any or all of the Certificate
Distribution Account, the Collection Account or the Reserve Account, as
applicable.
"Trust Certificate" shall mean a certificate evidencing the
beneficial interest of a Certificate Owner in the Trust, substantially in
the form attached hereto as Exhibit A.
"Trust Estate" shall mean all right, title and interest of the
Trust in and to the property and rights assigned to the Trust pursuant to
Article II and all funds on deposit from time to time in the Trust
Accounts.
"Trustee" shall mean _______________, a Delaware banking
corporation, not in its individual capacity but solely as Trustee under
this Agreement, and any successor Trustee hereunder.
"Underlying Security" means any one of the securities described on
Schedule I hereto, transferred to the Trustee by the Company pursuant to
Section 2.05 and held as part of the Trust Estate.
"Underwriter" shall mean that underwriter named in and a party to
the Certificate Underwriting Agreement dated _______________, with the
Company, pursuant to which the Trust Certificates will be offered publicly.
SECTION 1.02. Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such
certificate or other document to the extent not defined herein or therein,
shall have the respective meanings given to them under generally accepted
accounting principles. To the extent that the definitions of accounting
terms in this Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Agreement or in
any such certificate or other document shall control.
(c) The words "hereof", "herein", "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation".
(d) The definitions contained in this Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to
herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
ARTICLE II
Organization
SECTION 2.01. Name. The Trust created hereby shall be known as "[
] Vehicle Receivables Securities Trust 200_-_", in which name the Trustee
may conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and ▇▇▇ and be sued.
SECTION 2.02. Office. The office of the Trust shall be in care of
the Trustee at the Corporate Trust Office or at such other address in
Delaware as the Trustee may designate by written notice to the Owners and
the Company.
SECTION 2.03. Purposes and Powers. (a) The purpose of the Trust is
to engage in the following activities:
(i) to issue the Trust Certificates pursuant to this
Agreement and to sell the Trust Certificates;
(ii) with the proceeds of the sale of the Trust
Certificates, to purchase the Underlying Securities, to fund the
Reserve Account and to pay the organizational, start-up and
transactional expenses of the Trust and to pay the balance to the
Company;
(iii) (iii) to enter into and perform its obligations
under the Basic Documents to which it is to be a party;
(iv) to engage in those activities, including entering
into agreements, that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected
therewith; and
(v) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection
with conservation of the Trust Estate and the making of
distributions to the Owners.
The Trust is hereby authorized to engage in the foregoing
activities. The Trust shall not engage in any activity other than in
connection with the foregoing or other than as required or authorized by
the terms of this Agreement or the Basic Documents.
SECTION 2.04. Appointment of Trustee. The Company hereby appoints
the Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
SECTION 2.05. Conveyance of Underlying Securities(a) in
consideration of the Trustee's delivery on the Closing Date to or upon the
order of the Company of $__________, the Company, concurrently with the
execution and delivery of this Agreement, does hereby sell, transfer,
assign, set over and otherwise convey to the Trustee, in trust, for the use
and benefit of the Certificateholders, without recourse, all the right,
title and interest of the Company including any security interest therein,
in, to and under the Underlying Securities, all payments and all proceeds
therefrom, and all other assets constituting the Trust Estate. (b) It is
intended that the conveyance of the Company's right, title and interest in
and to the Underlying Securities and all other assets constituting the
Trust Estate pursuant to this Agreement shall constitute, and be construed
as, an absolute sale of the Underlying Securities by the Depositor to the
Trustee for the benefit of the Certificateholders. Furthermore, it is not
intended that such conveyance be deemed a pledge of the Underlying
Securities and the other assets constituting the Trust Estate by the
Company to the Trustee to secure a debt or other obligation of the Company.
However, in the event that, notwithstanding the aforementioned intent of
the parties, the Underlying Securities and the other assets constituting
the Trust Estate are held to be the property of the Company, or if for any
other reason this Agreement is held or deemed to create a security interest
in the Underlying Securities and the other assets constituting the Trust
Estate, then it is intended as follows: (a) this 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 States of
New York and Delaware; (b) the conveyance provided for in this Section
shall be deemed to be a grant by the Company to the Trustee of a security
interest in all the Company's right, title and interest in and to the
Underlying Securities and all amounts payable to the holders of the
Underlying Securities after the Closing Date in accordance with the terms
thereof and all proceeds of the conversion, voluntary or involuntary, of
the foregoing into cash, instruments, securities or other property,
including without limitation all amounts from time to time held or invested
in any Trust Account, whether in the form of cash, instruments, securities
or other property; (c) the possession by the Trustee or its agent of the
Underlying Securities and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed
to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-305 of the Uniform Commercial Code;
and (d) 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. Notwithstanding the foregoing, the parties
to this Agreement intend the transfer pursuant to this section to be a
true, absolute and unconditional sale of the Underlying Securities and all
such other assets constituting the Trust Estate by the Company to the
Trustee.
SECTION 2.06. Declaration of Trust. The Trustee hereby declares
that it will hold the Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Owners, subject
to the obligations of the Trust under the Basic Documents. It is the
intention of the parties hereto that the Trust constitute a business trust
under the Business Trust Statute and that this Agreement constitute the
governing instrument of such business trust. It is the intention of the
parties hereto that, solely for income and franchise tax purposes, the
Trust shall be treated as a partnership, with the assets of the partnership
being the Underlying Securities and other assets held by the Trust, the
partners of the partnership being the Certificateholders. The parties agree
that, unless otherwise required by appropriate tax authorities, the Trust
will file or cause to be filed annual or other necessary returns, reports
and other forms consistent with the characterization of the Trust as a
partnership for such tax purposes. Effective as of the date hereof, the
Trustee shall have all rights, powers and duties set forth herein and in
the Business Trust Statute with respect to accomplishing the purposes of
the Trust.
SECTION 2.07. Liability of the Owners(a)The Company shall be
liable directly to and will indemnify any injured party for all losses,
claims, damages, liabilities and expenses of the Trust (including Expenses,
to the extent not paid out of the Trust Estate) to the extent that the
Company would be liable if the Trust were a partnership under the Delaware
Revised Uniform Limited Partnership Act in which the Company were a general
partner; provided, however, that the Company shall not be liable for any
losses incurred by a Certificateholder in the capacity of an investor in
the Trust Certificates. In addition, any third party creditors of the Trust
(other than in connection with the obligations described in the preceding
sentence for which the Company shall not be liable) shall be deemed third
party beneficiaries of this paragraph. The obligations of the Company under
this paragraph shall be evidenced by the Trust Certificates described in
Section 3.10, which for purposes of the Business Trust Statute shall be
deemed to be a separate class of Trust Certificates from all other Trust
Certificates issued by the Trust; provided that the rights and obligations
evidenced by all Trust Certificates, regardless of class, shall, except as
provided in this Section, be identical.
(b) No Owner, other than to the extent set forth in paragraph (a)
above, shall have any personal liability for any liability or obligation of
the Trust.
SECTION 2.08. Title to Trust Property. Legal title to all the
Trust Estate shall be vested at all times in the Trust as a separate legal
entity except where applicable law in any jurisdiction requires title to
any part of the Trust Estate to be vested in a trustee or trustees, in
which case title shall be deemed to be vested in the Trustee, a co-trustee
and/or a separate trustee, as the case may be.
SECTION 2.09. Situs of Trust. The Trust will be located and
administered in the State of Delaware. All bank accounts maintained by the
Trustee on behalf of the Trust shall be located in the State of Delaware or
the State of New York. The Trust shall not have any employees in any state
other than Delaware; provided, however, that nothing herein shall restrict
or prohibit the Trustee from having employees within or without the State
of Delaware. Payments will be received by the Trust only in Delaware or New
York, and payments will be made by the Trust only from Delaware or New
York. The only office of the Trust will be at the Corporate Trust Office in
Delaware.
SECTION 2.10. Representations and Warranties of the Company. The
Company hereby represents and warrants to the Trustee that:
(i) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its organization, with the power and authority to
own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted;
(ii) The Company is duly qualified to do business as a
foreign corporation in good standing and has obtained all
necessary licenses and approvals in all jurisdictions in which the
ownership or lease of its property or the conduct of its business
shall require such qualifications;
(iii) The Company has the power and authority to execute
and deliver this Agreement and to carry out its terms; the Company
has full power and authority to sell and assign the property to be
sold and assigned to and deposited with the Trust, and the Company
has duly authorized such sale and assignment and deposit to the
Trust by all necessary corporate action; and the execution,
delivery and performance of this Agreement have been duly
authorized by the Company by all necessary corporate action;
(iv) The Company has the full power and authority to
purchase the Trust Certificates that the Company has agreed to
purchase pursuant to Section 3.10;
(v) The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of
time) a default under, the articles of incorporation or bylaws of
the Company, or any indenture, agreement or other instrument to
which the Company is a party or by which it is bound; nor result
in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement
or other instrument (other than pursuant to the Basic Documents);
nor violate any law or, to the best of the Company's knowledge,
any order, rule or regulation applicable to the Company of any
court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction
over the Company or its properties; and
(vi) There are no proceedings or investigations pending
or, to the Company's best knowledge, threatened before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Company or its
properties: (A) asserting the invalidity of this Agreement, (B)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or (C) seeking any determination or
ruling that might materially and adversely affect the performance
by the Company of its obligations under, or the validity or
enforceability of, this Agreement.
SECTION 2.11. Maintenance of the Demand Note. To the fullest
extent permitted by applicable law, the Company agrees that it shall not
sell, convey, pledge, transfer or otherwise dispose of the Demand Note.
SECTION 2.12. Federal Income Tax Allocations. Net income of the
Trust for any month as determined for federal income tax purposes (and each
item of income, gain, loss and deduction entering into the computation
thereof) shall be allocated:
(a) among the Certificate Owners as of the first day following the
end of such month, in proportion to their ownership of principal amount of
Trust Certificates on such date, net income in an amount up to the sum of
(i) the Certificateholders' Monthly Interest Distributable Amount for such
month, (ii) interest on the excess, if any, of the Certificateholders'
Interest Distributable Amount for the preceding Distribution Date over the
amount in respect of interest that is actually deposited in the Certificate
Distribution Account on such preceding Distribution Date, to the extent
permitted by law, at the Pass-Through Rate from such preceding Distribution
Date through the current Distribution Date, (iii) the portion of the market
discount on the Underlying Securities accrued during such month that is
allocable to the excess, if any, of the initial aggregate principal amount
of the Trust Certificates over their initial aggregate issue price, (iv)
any amount expected to be distributed to the Certificateholders pursuant to
Section [9.01(e)(i)] (to the extent not previously allocated pursuant to
this clause), and (v) any other amounts of income payable to the
Certificateholders for such month; such sum to be reduced by any
amortization by the Trust of premium on Underlying Securities that
corresponds to any excess of the issue price of Certificates over their
principal amount; and
(b) to the Company, to the extent of any remaining net income.
If the net income of the Trust for any month is insufficient for
the allocations described in clause (a) above, subsequent net income shall
first be allocated to make up such shortfall before being allocated as
provided in the preceding sentence. Net losses of the Trust, if any, for
any month as determined for federal income tax purposes (and each item of
income, gain, loss and deduction entering into the computation thereof)
shall be allocated to the Company to the extent the Company is reasonably
expected to bear the economic burden of such net losses, and any remaining
net losses shall be allocated among the Certificate Owners as of the first
Record Date following the end of such month in proportion to their
ownership of principal amount of Trust Certificates on such Record Date.
The Company is authorized to modify the allocations in this paragraph if
necessary or appropriate, in its sole discretion, for the allocations to
fairly reflect the economic income, gain or loss to the Company or to the
Certificate Owners, or as otherwise required by the Code.
ARTICLE III
Trust Certificates and Transfer of Interests
SECTION 3.01. Initial Ownership. Upon the formation of the Trust
by the contribution by the Company pursuant to Section 2.05 and until the
issuance of the Trust Certificates, the Company shall be the sole
beneficiary of the Trust.
SECTION 3.02. The Trust Certificates. The Trust Certificates shall
be issued in minimum denominations of $20,000 and in integral multiples of
$1 in excess thereof; provided, however, that the Trust Certificates issued
to the Company pursuant to Section 3.10 may be issued in such denomination
as required to include any residual amount. The Trust Certificates shall be
executed on behalf of the Trust by manual or facsimile signature of an
authorized officer of the Trustee. Trust Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the
Trust, shall be validly issued and entitled to the benefit of this
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Trust Certificates or did not hold such offices at the date of
authentication and delivery of such Trust Certificates.
A transferee of a Trust Certificate shall become a
Certificateholder and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder upon such transferee's
acceptance of a Trust Certificate duly registered in such transferee's name
pursuant to Section 3.04.
SECTION 3.03. Authentication of Trust Certificates. On the Closing
Date, the Trustee shall cause the Trust Certificates in an aggregate
principal amount equal to the Initial Certificate Balance to be executed on
behalf of the Trust, authenticated and delivered to or upon the written
order of the Company, signed by its chairman of the board, its president,
any vice president, secretary or any assistant treasurer, without further
corporate action by the Company, in authorized denominations. No Trust
Certificate shall entitle its Holder to any benefit under this Agreement or
be valid for any purpose unless there shall appear on such Trust
Certificate a certificate of authentication substantially in the form set
forth in Exhibit A, executed by the Trustee by manual signature; such
authentication shall constitute conclusive evidence that such Trust
Certificate shall have been duly authenticated and delivered hereunder. All
Trust Certificates shall be dated the date of their authentication.
SECTION 3.04. Registration of Transfer and Exchange of Trust
Certificates. The Certificate Registrar shall keep or cause to be kept, at
the office or agency maintained pursuant to Section 3.08, a Certificate
Register in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall provide for the registration of Trust
Certificates and of transfers and exchanges of Trust Certificates as herein
provided. _______________ shall be the initial Certificate Registrar.
Upon surrender for registration of transfer of any Trust
Certificate at the office or agency maintained pursuant to Section 3.08,
the Trustee shall execute, authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Trust Certificates in
authorized denominations of a like aggregate amount dated the date of
authentication by the Trustee or any authenticating agent. At the option of
a Holder, Trust Certificates may be exchanged for other Trust Certificates
of authorized denominations of a like aggregate amount upon surrender of
the Trust Certificates to be exchanged at the office or agency maintained
pursuant to Section 3.08.
Every Trust Certificate presented or surrendered for registration
of transfer or exchange shall be accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the Holder or such Holder's attorney duly authorized in
writing. Each Trust Certificate surrendered for registration of transfer or
exchange shall be cancelled and subsequently disposed of by the Trustee in
accordance with its customary practice.
No service charge shall be made for any registration of transfer
or exchange of Trust Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Trust Certificates.
The preceding provisions of this Section notwithstanding, the
Trustee shall not make, and the Certificate Registrar shall not register
transfers or exchanges of, Trust Certificates for a period of 15 days
preceding the due date for any payment with respect to the Trust
Certificates.
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen Trust
Certificates. If (a) any mutilated Trust Certificate shall be surrendered
to the Certificate Registrar, or if the Certificate Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Certificate and (b) there shall be delivered to the Certificate Registrar
and the Trustee such security or indemnity as may be required by them to
save each of them harmless, then in the absence of notice that such Trust
Certificate has been acquired by a bona fide purchaser, the Trustee on
behalf of the Trust shall execute, authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Trust
Certificate, a new Trust Certificate of like tenor and denomination. In
connection with the issuance of any new Trust Certificate under this
Section, the Trustee or the Certificate Registrar may require the payment
of a sum sufficient to cover any tax or other governmental charge that may
be imposed in connection therewith. Any duplicate Trust Certificate issued
pursuant to this Section shall constitute conclusive evidence of ownership
in the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Trust Certificate shall be found at any time.
SECTION 3.06. Persons Deemed Owners. Prior to due presentation of
a Trust Certificate for registration of transfer, the Trustee, the
Certificate Registrar or any Paying Agent may treat the Person in whose
name any Trust Certificate is registered in the Certificate Register as the
owner of such Trust Certificate for the purpose of receiving distributions
pursuant to Section 5.05 and for all other purposes whatsoever, and none of
the Trustee, the Certificate Registrar or any Paying Agent shall be bound
by any notice to the contrary.
SECTION 3.07. Access to List of Certificateholders' Names and
Addresses. The Trustee shall furnish or cause to be furnished to the
Company, within 15 days after receipt by the Trustee of a written request
therefor from the Company, a list, in such form as the Company may
reasonably require, of the names and addresses of the Certificateholders as
of the most recent Record Date. If three or more Certificateholders or one
or more Holders of Trust Certificates evidencing not less than 25% of the
Certificate Balance apply in writing to the Trustee, and such application
states that the applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or
under the Trust Certificates and such application is accompanied by a copy
of the communication that such applicants propose to transmit, then the
Trustee shall, within five Business Days after the receipt of such
application, afford such applicants access during normal business hours to
the current list of Certificateholders. Each Holder, by receiving and
holding a Trust Certificate, shall be deemed to have agreed not to hold any
of the Company, the Certificate Registrar or the Trustee accountable by
reason of the disclosure of its name and address, regardless of the source
from which such information is derived.
SECTION 3.08. Maintenance of Office or Agency. The Trustee shall
maintain in the Borough of Manhattan, The City of New York, an office or
offices or agency or agencies where Trust Certificates may be surrendered
for registration of transfer or exchange and where notices and demands to
or upon the Trustee in respect of the Trust Certificates and the Basic
Documents may be served. The Trustee initially designates ______________ as
its office for such purposes. The Trustee shall give prompt written notice
to the Company and to the Certificateholders of any change in the location
of the Certificate Register or any such office or agency.
SECTION 3.09. Appointment of Paying Agent. The Paying Agent shall
make distributions to Certificateholders from the Certificate Distribution
Account pursuant to Section 5.05 and shall report the amounts of such
distributions to the Trustee. Any Paying Agent shall have the revocable
power to withdraw funds from the Certificate Distribution Account for the
purpose of making the distributions referred to above. The Trustee may
revoke such power and remove the Paying Agent if the Trustee determines in
its sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Paying Agent
initially shall be _______________, and any co-paying agent chosen by
_______________ and acceptable to the Trustee. _______________ shall be
permitted to resign as Paying Agent upon 30 days' written notice to the
Trustee. In the event that _______________ shall no longer be the Paying
Agent, the Trustee shall appoint a successor to act as Paying Agent (which
shall be a bank or trust company). The Trustee shall cause such successor
Paying Agent or any additional Paying Agent appointed by the Trustee to
execute and deliver to the Trustee an instrument in which such successor
Paying Agent or additional Paying Agent shall agree with the Trustee that,
as Paying Agent, such successor Paying Agent or additional Paying Agent
will hold all sums, if any, held by it for payment to the
Certificateholders in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to such Certificateholders.
The Paying Agent shall return all unclaimed funds to the Trustee and upon
removal of a Paying Agent such Paying Agent shall also return all funds in
its possession to the Trustee. The provisions of Sections 7.01, 7.03, 7.04
and 8.01 shall apply to the Trustee also in its role as Paying Agent for so
long as the Trustee shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in
this Agreement to the Paying Agent shall include any co-paying agent unless
the context requires otherwise.
SECTION 3.10. Ownership by Company of Trust Certificates. The
Company shall on the Closing Date purchase from the Underwriter Trust
Certificates representing at least 1% of the Initial Certificate Balance
and shall thereafter retain beneficial and record ownership of Trust
Certificates representing at least 1% of the Certificate Balance. Any
attempted transfer of any Trust Certificate that would reduce such interest
of the Company below 1% of the Certificate Balance shall be void. The
Trustee shall cause any Trust Certificate issued to the Company to contain
a legend stating "THIS CERTIFICATE IS NON- TRANSFERABLE AS DESCRIBED IN
SECTION 3.10 OF THE TRUST AGREEMENT".
SECTION 3.11. Book-Entry Trust Certificates. The Trust
Certificates, upon original issuance, will be issued in the form of a
typewritten Trust Certificate or Trust Certificates representing Book-Entry
Trust Certificates, to be delivered to The Depository Trust Company, the
initial Clearing Agency, by, or on behalf of, the Trust; provided, however,
that one Definitive Trust Certificate may be issued to the Company pursuant
to Section 3.10. Such Trust Certificate or Trust Certificates shall
initially be registered on the Certificate Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Certificate Owner
will receive a definitive Trust Certificate representing such Certificate
Owner's interest in such Trust Certificate, except as provided in Section
3.13. Unless and until definitive, fully registered Trust Certificates (the
"Definitive Trust Certificates") have been issued to Certificate Owners
pursuant to Section 3.13:
(a) The provisions of this Section shall be in full force and
effect;
(b) The Certificate Registrar, the Trustee and the Paying Agent
shall be entitled to deal with the Clearing Agency for all purposes of this
Agreement (including the payment of principal of and interest on the Trust
Certificates and the giving of instructions or directions hereunder) as the
sole Holder of the Trust Certificates and shall have no obligation to the
Certificate Owners;
(c) To the extent that the provisions of this Section conflict
with any other provisions of this Agreement, the provisions of this Section
shall control;
(d) The rights of Certificate Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Certificate Owners and the Clearing Agency
and/or the Clearing Agency Participants. Pursuant to the Certificate
Depository Agreement, unless and until Definitive Trust Certificates are
issued pursuant to Section 3.13, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive and
transmit payments of principal of and interest on the Trust Certificates to
such Clearing Agency Participants; and
(e) Whenever this Agreement requires or permits actions to be
taken based upon instructions or directions of Holders of Trust
Certificates evidencing a specified percentage of the Certificate Balance,
the Clearing Agency shall be deemed to represent such percentage only to
the extent that it has received instructions to such effect from
Certificate Owners and/or Clearing Agency Participants owning or
representing, respectively, such required percentage of the beneficial
interest in the Trust Certificates and has delivered such instructions to
the Trustee.
SECTION 3.12. Notices to Clearing Agency. Whenever a notice or
other communication to the Certificateholders is required under this
Agreement, unless and until Definitive Trust Certificates shall have been
issued to Certificate Owners pursuant to Section 3.13, the Trustee shall
give all such notices and communications specified herein to be given to
Certificateholders to the Clearing Agency, and shall have no obligations to
the Certificate Owners.
SECTION 3.13. Definitive Trust Certificates. If (i) the Company
advises the Trustee in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to
the Trust Certificates and the Company is unable to locate a qualified
successor, (ii) the Company at its option advises the Trustee in writing
that it elects to terminate the book- entry system through the Clearing
Agency or (iii) after the occurrence of an Event of Default, Certificate
Owners representing beneficial interests aggregating at least a majority of
the Certificate Balance advise the Clearing Agency in writing that the
continuation of a book-entry system through the Clearing Agency is no
longer in the best interest of the Certificate Owners, then the Clearing
Agency shall notify all Certificate Owners and the Trustee of the
occurrence of such event and of the availability of the Definitive Trust
Certificates to Certificate Owners requesting the same. Upon surrender to
the Trustee of the typewritten Trust Certificate or Trust Certificates
representing the Book-Entry Trust Certificates by the Clearing Agency,
accompanied by registration instructions, the Trustee shall execute and
authenticate the Definitive Trust Certificates in accordance with the
instructions of the Clearing Agency. Neither the Certificate Registrar nor
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 Trust Certificates, the
Trustee shall recognize the Holders of the Definitive Trust Certificates as
Certificateholders. The Definitive Trust Certificates shall be printed,
lithographed or engraved or may be produced in any other manner that is
reasonably acceptable to the Trustee, as evidenced by its execution
thereof.
ARTICLE IV
Actions by Trustee
SECTION 4.01. Prior Notice to Owners with Respect to Certain
Matters. With respect to the following matters, the Trustee shall not take
action unless at least 30 days before the taking of such action, the
Trustee shall have notified the Certificateholders in writing of the
proposed action and the Owners shall not have notified the Trustee in
writing prior to the 30th day after such notice is given that such Owners
have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust or the
compromise of any action, claim or lawsuit brought by or against the Trust;
(b) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under
the Business Trust Statute); or
(c) the appointment of a successor Certificate Registrar, or the
consent to the assignment by the Certificate Registrar of its obligations
under this Agreement.
SECTION 4.02. Action by Owners with Respect to Sale of Trust
Estate. The Trustee shall not have the power, except upon the direction of
the Owners and as expressly provided herein or in the Basic Documents, to
sell the Underlying Securities.
SECTION 4.03. Action by Owners with Respect to Bankruptcy. The
Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of
all Owners and the delivery to the Trustee by each such Owner of a
certificate certifying that such Owner reasonably believes that the Trust
is insolvent.
SECTION 4.04. Restrictions on Owners' Power. The Owners shall not
direct the Trustee to take or to refrain from taking any action if such
action or inaction would be contrary to any obligation of the Trust or the
Trustee under this Agreement or any of the Basic Documents or would be
contrary to Section 2.03, nor shall the Trustee be obligated to follow any
such direction, if given.
SECTION 4.05. Majority Control. Except as expressly provided
herein, any action that may be taken by the Owners under this Agreement may
be taken by the Holders of Trust Certificates evidencing not less than a
majority of the Certificate Balance. Except as expressly provided herein,
any written notice to the Owners delivered pursuant to this Agreement shall
be effective if signed by Holders of Trust Certificates evidencing not less
than a majority of the Certificate Balance at the time of the delivery of
such notice.
ARTICLE V
Collections; Distributions; Certain Duties
SECTION 5.01. Establishment of Trust Accounts. (a) (i) The
Trustee, for the benefit of the Certificateholders, shall establish and
maintain in the name of the Trustee an Eligible Deposit Account (the
"Collection Account"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Certificateholders.
(ii) The Trustee, for the benefit of the
Certificateholders, shall establish and maintain in the name of
the Trustee an Eligible Deposit Account (the "Reserve Account"),
bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Certificateholders.
(iii) The Trustee, for the benefit of the
Certificateholders, shall establish and maintain in the name of
the Trust an Eligible Deposit Account (the "Certificate
Distribution Account"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the
Certificateholders.
(b) Funds on deposit in the Trust Accounts shall be invested (1)
by the Trustee in Eligible Investments selected in writing by the Company
or an investment manager selected by the Company, which investment manager
shall have agreed to comply with the terms of this Agreement as it relates
to investing such funds or (2) by an investment manager in Eligible
Investments selected by such investment manager, provided that (A) such
investment manager shall be selected by the Company, (B) such investment
manager shall have agreed to comply with the terms of this Agreement as it
relates to investing such funds, (C) any investment so selected by such
investment manager shall be made in the name of the Trustee and shall be
settled by a Delivery to the Trustee that complies with the terms of this
Agreement as it relates to investing such funds, and (D) prior to the
settlement of any investment so selected by such investment manager the
Trustee shall affirm that such investment is an Eligible Investment. It is
understood and agreed that the Trustee shall not be liable for any loss
arising from an investment in Eligible Investments made in accordance with
this Section 5.01(b). All such Eligible Investments shall be held by the
Trustee for the benefit of the Certificateholders; provided, that on each
Payment Determination Date all interest and other investment income (net of
losses and investment expenses) on funds on deposit in the Trust Accounts
shall be deposited into the Collection Account and shall be deemed to
constitute a portion of the Interest Distribution Amount for the related
Distribution Date. Unless otherwise permitted by the Rating Agencies, funds
on deposit in the Trust Accounts shall be invested in Eligible Investments
that will mature (A) not later than the Business Day immediately preceding
the next Distribution Date or (B) on such next Distribution Date if either
(x) such investment is held in the trust department of the institution with
which the applicable Trust Account is then maintained and is invested in a
time deposit of _____________________ rated at least A-1 by Standard &
Poor's and P-1 by Moody's (such account being maintained within the trust
department of ___________________) or (y) the Trustee (so long as the
short-term unsecured debt obligations of the Trustee are either (i) rated
at least P-1 by Moody's and A-1 by Standard & Poor's on the date such
investment is made or (ii) guaranteed by an entity whose short-term
unsecured debt obligations are rated at least P-1 by Moody's and A-1 by
Standard & Poor's on the date such investment is made) has agreed to
advance funds on such Distribution Date to the Certificate Distribution
Account in the amount payable on such investment on such Distribution Date
pending receipt thereof to the extent necessary to make distributions on
such Distribution Date. The guarantee referred to in clause (y) of the
preceding sentence shall be subject to the Rating Agency Condition. For the
purpose of the foregoing, unless the Trustee affirmatively agrees in
writing to make such advance with respect to such investment prior to the
time an investment is made, it shall not be deemed to have agreed to make
such advance. Funds deposited in the Trust Accounts on a day which
immediately precedes a Distribution Date upon the maturity of any Eligible
Investments are not required to be invested overnight.
(c) (i) The Trustee shall possess all right, title and interest in
all funds on deposit from time to time in the Trust Accounts and in all
proceeds thereof. Except as otherwise expressly provided herein, the Trust
Accounts shall be under the sole dominion and control of the Trustee for
the benefit of the Certificateholders. If, at any time, any of the Trust
Accounts ceases to be an Eligible Deposit Account, the Trustee shall within
10 Business Days (or such longer period not to exceed 30 calendar days, as
to which each Rating Agency may consent) establish a new Trust Account as
an Eligible Deposit Account and shall transfer any cash and/or any
investments to such new Trust Account.
(ii) With respect to the Trust Account Property, the
Trustee agrees that:
(A) any Trust Account Property that is held in
deposit accounts shall be held solely in Eligible Deposit
Accounts, subject to the last sentence of Section
5.01(c)(i); and each such Eligible Deposit Account shall
be subject to the exclusive custody and control of the
Trustee, and the Trustee shall have sole signature
authority with respect thereto;
(B) any Trust Account Property that constitutes
Physical Property shall be delivered to the Trustee in
accordance with paragraph (a) of the definition of
"Delivery" and shall be held, pending maturity or
disposition, solely by the Trustee or a financial
intermediary (as such term is defined in Section
8-313(4)) of the UCC acting solely for the Trustee;
(C) any Trust Account Property that is a
book-entry security held through the Federal Reserve
System pursuant to Federal book-entry regulations shall
be delivered in accordance with paragraph (b) of the
definition of "Delivery" and shall be maintained by the
Trustee, pending maturity or disposition, through
continued book-entry registration of such Trust Account
Property as described in such paragraph; and
(D) any Trust Account Property that is an
"uncertificated security" under Article VIII of the UCC
and that is not governed by clause (C) above shall be
delivered to the Trustee in accordance with paragraph (c)
of the definition of "Delivery" and shall be maintained
by the Trustee, pending maturity or disposition, through
continued registration of the Trustee's (or its
nominee's) ownership of such security.
SECTION 5.02. Collections. The Trustee shall remit within two
Business Days of receipt thereof, but in no event later than the Payment
Determination Date immediately preceding each Distribution Date, to the
Collection Account all payments by or on behalf of the Obligors with
respect to the Underlying Securities as collected during the Collection
Period.
SECTION 5.03. Application of Trust Funds. (a) On each Payment
Determination Date, the Trustee shall calculate all amounts required to be
deposited in the Certificate Distribution Account as follows:
(i) to the Certificate Distribution Account, from the
Total Distribution Amount, the Certificateholders' Interest
Distributable Amount;
(ii) to the Certificate Distribution Account, from the
Total Distribution Amount remaining after the application of
clause (i), the Certificateholders' Principal Distributable
Amount;
(iii) to the Reserve Account, the portion, if any, of the
Total Distribution Amount remaining after the application of
clauses (i) and (ii).
(b) On each Distribution Date, the Trustee shall make
distributions from the Collection Account for deposit in the applicable
account by 11:00 a.m. (New York time), to the extent of the Total
Distribution Amount, to the accounts and in the order of priority listed in
clauses (a)(i) though (iii) above.
SECTION 5.04. Reserve Account. (a) On the Closing Date, the
Trustee will deposit, on behalf of the Company, the Reserve Account Initial
Deposit into the Reserve Account from the net proceeds of the sale of the
Certificates.
(b) If the amount on deposit in the Reserve Account on any
Distribution Date (after giving effect to all deposits thereto or
withdrawals therefrom on such Distribution Date) is greater than the
Specified Reserve Account Balance for such Distribution Date, the Trustee
shall distribute the amount of such excess to the Company.
(c) (i) In the event that the Certificateholders' Distributable
Amount for a Distribution Date exceeds the sum of the amounts deposited
into the Certificate Distribution Account pursuant to Section 5.03(a)(i)
and (ii) on such Distribution Date, the Trustee shall withdraw from the
Reserve Account on such Distribution Date an amount equal to such excess,
to the extent of funds available therein up to the Available Amount, and
deposit such amount into the Certificate Distribution Account on such
Distribution Date.
(ii) In the event that the Certificateholders' Principal
Distributable Amount on the Final Scheduled Distribution Date
exceeds the amount deposited in the Certificate Distribution
Account pursuant to Section 5.03(a)(ii), the Trustee shall
withdraw from the Reserve Account on such Distribution Date an
amount equal to such excess, to the extent of funds available
therein after giving effect to paragraph (c)(i) above, and deposit
such amount into the Certificate Distribution Account.
(d) Subject to Section 9.01, amounts will continue to be applied
pursuant to Section 5.03(a) following payment in full of the Certificate
Balance until the Pool Balance is reduced to zero. Following the payment in
full of the Certificate Balance and of all other amounts owing or to be
distributed hereunder to Certificateholders and the termination of the
Trust, any amount remaining on deposit in the Reserve Account shall be
distributed to the Company.
(e) On the Final Scheduled Distribution Date, if the amount of
funds remaining in the Reserve Account (after all other distributions to be
made from the Reserve Account pursuant to this Section have been made,
other than paragraphs (b) and (d)) is in excess of the amounts described
below, a portion of such excess according to the following schedule shall
be deposited in the Certificate Distribution Account for distribution to
Certificateholders:
(i) with respect to all such funds in the Reserve Account
in excess of $________ but which do not exceed $_______________,
20% of such amount;
(ii) with respect to all such funds in the Reserve
Account in excess of $________ but which do not exceed
$_______________, 40% of such amount;
(iii) with respect to all such funds in the Reserve
Account in excess of $________ but which do not exceed
$_______________, 60% of such amount;
(iv) with respect to all such funds in the Reserve
Account in excess of $________ but which do not exceed
$_______________, 80% of such amount; and
(v) with respect to all such funds in the Reserve Account
in excess of $________, 100% of such amount.
The amounts to be deposited in the Certificate Distribution Account
pursuant to the preceding sentence are in excess of all amounts otherwise
required to be deposited in the Certificate Distribution Account pursuant
to this Agreement, notwithstanding anything to the contrary contained
herein.
SECTION 5.05. Distributions. (a) On each Distribution Date, the
Trustee will distribute to Certificateholders, on a pro rata basis, amounts
deposited in the Certificate Distribution Account pursuant to Sections 5.03
and 5.04 with respect to such Distribution Date.
(b) In the event that any withholding tax is imposed on the
Trust's payment (or allocations of income) to an Owner, such tax shall
reduce the amount otherwise distributable to the Owner in accordance with
this Section. The Trustee is hereby authorized and directed to retain from
amounts otherwise distributable to the Owners sufficient funds for the
payment of any tax that is legally owed by the Trust (but such
authorization shall not prevent the Trustee from contesting any such tax in
appropriate proceedings and withholding payment of such tax, if permitted
by law, pending the outcome of such proceedings). The amount of any
withholding tax imposed with respect to an Owner shall be treated as cash
distributed to such Owner at the time it is withheld by the Trust and
remitted to the appropriate taxing authority. If there is a possibility
that withholding tax is payable with respect to a distribution (such as a
distribution to a non-U.S. Owner), the Trustee may in its sole discretion
withhold such amounts in accordance with this paragraph (b).
SECTION 5.06. Method of Payment. Subject to Section 9.01(c),
distributions required to be made to Certificateholders on any Distribution
Date shall be made to each Certificateholder of record on the preceding
Record Date either by wire transfer in immediately available funds to the
account of such Holder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided to the
Certificate Registrar appropriate written instructions at least five
Business Days prior to such Distribution Date and such Holder's Trust
Certificates in the aggregate evidence a denomination of not less than
$____________, or, if not, by check mailed to such Certificateholder at the
address of such holder appearing in the Certificate Register.
SECTION 5.07. Accounting and Reports to the Owners, the Internal
Revenue Service and Others. The Trustee shall (a) maintain (or cause to be
maintained) the books of the Trust on a calendar year basis and the accrual
method of accounting, (b) deliver to each Owner, as may be required by the
Code and applicable Treasury Regulations, such information as may be
required (including Schedule K-1) to enable each Owner to prepare its
federal and state income tax returns, (c) file such tax returns relating to
the Trust (including a partnership information return, IRS Form 1065) and
make such elections as from time to time may be required or appropriate
under any applicable state or federal statute or any rule or regulation
thereunder so as to maintain the Trust's characterization as a partnership
for federal income tax purposes, (d) cause such tax returns to be signed in
the manner required by law and (e) collect or cause to be collected any
withholding tax as described in and in accordance with Section 5.05(b) with
respect to income or distributions to Owners. The Trustee shall elect under
Section 1278 of the Code to include in income currently any market discount
that accrues with respect to the Underlying Securities. The Trustee shall
not make the election provided under Section 754 of the Code.
SECTION 5.08. Signature on Returns; Tax Matters Partner. (a) The
Trustee shall sign on behalf of the Trust the tax returns of the Trust
unless applicable law requires an Owner to sign such documents, in which
case such documents shall be signed by the Company.
(b) The Company shall be designated the "tax matters partner" of
the Trust pursuant to Section 6231(a)(7)(A) of the Code and applicable
Treasury Regulations.
SECTION 5.09. Statements to Certificateholders. (a) On each
Distribution Date, the Trustee shall provide to each certificateholder of
record as of the most recent Record Date (with a copy to the Rating
Agencies and each Paying Agent) a statement substantially in the form of
Exhibit D setting forth at least the following information as to the
Certificates to the extent applicable:
(i) the amount of such distribution allocable to
principal allocable to the Certificates;
(ii) the amount of such distribution allocable to
interest allocable to the Certificates;
(iii) the Certificate Balance and the Certificate Pool
Factor as of the close of business on the last day of the
preceding Collection Period, after giving effect to payments
allocated to principal reported under clause (i) above;
(iv) the balance of the Reserve Account on the related
Payment Determination Date after giving effect to deposits and
withdrawals to be made on the next following Distribution Date, if
any; and
(v) the Pool Balance as of the close of business on the
last day of the related Collection Period, after giving effect to
payments allocated to principal reported under subsection (i)
above.
Each amount set forth reconciling amounts on the Distribution Date
statement under clauses (i) or (ii) above shall be expressed as a dollar
amount per $1,000 of original principal balance of a Certificate.
ARTICLE VI
Authority and Duties of Trustee
SECTION 6.01. General Authority. The Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is
to be a party and each certificate or other document attached as an exhibit
to or contemplated by the Basic Documents to which the Trust is to be a
party, in each case, in such form as the Company shall approve, as
evidenced conclusively by the Trustee's execution thereof. In addition to
the foregoing, the Trustee is authorized, but shall not be obligated, to
take all actions required of the Trust pursuant to the Basic Documents. The
Trustee is further authorized from time to time to take such action as the
Company recommends with respect to the Basic Documents. SECTION 6.02.
General Duties. It shall be the duty of the Trustee to discharge (or cause
to be discharged) all of its responsibilities pursuant to the terms of this
Agreement and the Basic Documents to which the Trust is a party and to
administer the Trust in the interest of the Owners, subject to the Basic
Documents and in accordance with the provisions of this Agreement.
SECTION 6.03. Action upon Instruction. (a) Subject to Article IV
and in accordance with the terms of the Basic Documents, the Owners may by
written instruction direct the Trustee in the management of the Trust. Such
direction may be exercised at any time by written instruction of the Owners
pursuant to Article IV.
(b) The Trustee shall not be required to take any action hereunder
or under any Basic Document if the Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is
likely to result in liability on the part of the Trustee or is contrary to
the terms hereof or of any Basic Document or is otherwise contrary to law.
(c) Whenever the Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or
under any Basic Document, the Trustee shall promptly give notice (in such
form as shall be appropriate under the circumstances) to the Owners
requesting instructions as to the course of action to be adopted, and to
the extent the Trustee acts in good faith in accordance with any written
instruction received from the Owners, the Trustee shall not be liable on
account of such action to any Person. If the Trustee shall not have
received appropriate instruction within 10 days of such notice (or within
such shorter period of time as reasonably may be specified in such notice
or may be necessary under the circumstances) it may, but shall be under no
duty to, take or refrain from taking such action not inconsistent with this
Agreement or the Basic Documents as it shall deem to be in the best
interests of the Owners, and shall have no liability to any Person for such
action or inaction.
(d) In the event that the Trustee is unsure as to the application
of any provision of this Agreement or any Basic Document, or any such
provision is ambiguous as to its application or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Trustee or is silent or is
incomplete as to the course of action that the Trustee is required to take
with respect to a particular set of facts, the Trustee may give notice (in
such form as shall be appropriate under the circumstances) to the Owners
requesting instruction and, to the extent that the Trustee acts or refrains
from acting in good faith in accordance with any such instruction received,
the Trustee shall not be liable with respect to any such action or inaction
to any Person. If the Trustee shall not have received appropriate
instruction within 10 days of such notice (or within such shorter period of
time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or
refrain from taking such action not inconsistent with this Agreement or the
Basic Documents as it shall deem to be in the best interests of the Owners,
and shall have no liability to any Person for such action or inaction.
SECTION 6.04. No Duties Except as Specified in this Agreement or
in Instructions. The Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose
of, or otherwise deal with the Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, any document
contemplated hereby to which the Trustee is a party, except as expressly
provided by the terms of this Agreement or in any document or written
instruction received by the Trustee pursuant to Section 6.03; and no
implied duties or obligations shall be read into this Agreement or any
Basic Document against the Trustee. The Trustee shall have no
responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder or to
prepare or file any Securities and Exchange Commission filing for the Trust
or to record this Agreement or any Basic Document. The Trustee nevertheless
agrees that it will, at its own cost and expense, promptly take all action
that may be necessary to discharge any liens on any part of the Trust
Estate that result from actions by, or claims against, the Trustee that are
not related to the ownership or the administration of the Trust Estate.
SECTION 6.05. No Action Except Under Specified Documents or
Instructions. The Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the
Trustee pursuant to this Agreement, (ii) in accordance with the Basic
Documents and (iii) in accordance with any document or instruction
delivered to the Trustee pursuant to Section 6.03.
SECTION 6.06. Restrictions. The Trustee shall not take any action
(a) that is inconsistent with the purposes of the Trust set forth in
Section 2.03 or (b) that, to the actual knowledge of the Trustee, would
result in the Trust's becoming taxable as a corporation for federal income
tax purposes. The Owners shall not direct the Trustee to take action that
would violate the provisions of this Section.
ARTICLE VII
Concerning the Trustee
SECTION 7.01. Acceptance of Trust and Duties. The Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts, but only upon the terms of this Agreement. The
Trustee also agrees to disburse all moneys actually received by it
constituting part of the Trust Estate upon the terms of the Basic Documents
and this Agreement. The Trustee shall not be answerable or accountable
hereunder or under any Basic Document under any circumstances, except (i)
for its own willful misconduct or negligence or (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 7.03
expressly made by the Trustee. In particular, but not by way of limitation
(and subject to the exceptions set forth in the preceding sentence):
(a) The Trustee shall not be liable for any error of judgment made
by a Trust Officer of the Trustee;
(b) The Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of
any Owner transmitted pursuant to the terms hereof;
(c) No provision of this Agreement or any Basic Document shall
require the Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of its rights or powers hereunder or
under any Basic Document if the Trustee shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured or provided to it;
(d) Under no circumstances shall the Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents;
(e) The Trustee shall not be responsible for or in respect of the
validity or sufficiency of this Agreement or for the due execution hereof
by the Company, or for the form, character, genuineness, sufficiency, value
or validity of any of the Trust Estate, or for or in respect of the
validity or sufficiency of the Basic Documents, other than the certificate
of authentication on the Trust Certificates, and the Trustee shall in no
event assume or incur any liability, duty or obligation to any Owner, other
than as expressly provided for herein or expressly agreed to in the Basic
Documents;
(f) The Trustee shall not be liable for the default or misconduct
of the Company under any of the Basic Documents or otherwise, and the
Trustee shall have no obligation or liability to perform the obligations of
the Trust under this Agreement or the Basic Documents that are required to
be performed by the Company; and
(g) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any Basic Document, at the request, order or
direction of any of the Owners, unless such Owners have offered to the
Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Trustee therein or
thereby. The right of the Trustee to perform any discretionary act
enumerated in this Agreement or in any Basic Document shall not be
construed as a duty, and the Trustee shall not be answerable for other than
its negligence or willful misconduct in the performance of any such act.
SECTION 7.02. Furnishing of Documents. The Trustee shall furnish
to the Owners promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to
the Trustee under the Basic Documents.
SECTION 7.03. Representations and Warranties. The Trustee hereby
represents and warrants to the Company, for the benefit of the Owners,
that:
(a) It is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware. It has
all requisite corporate power and authority to execute, deliver and perform
its obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(c) None of the execution and delivery by it of this Agreement,
the consummation by it of the transactions contemplated hereby or
compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Trustee or any judgment or order binding on
it, or constitute any default under its charter documents or bylaws or any
indenture, mortgage, contract, agreement or instrument to which it is a
party or by which any of its properties may be bound.
SECTION 7.04. Reliance; Advice of Counsel. (a) The Trustee shall
incur no liability to anyone in acting upon any signature, instrument,
notice, resolution, request, consent, order, certificate, report, opinion,
bond, or other document or paper believed by it to be genuine and believed
by it to be signed by the proper party or parties. The Trustee may accept a
certified copy of a resolution of the board of directors or other governing
body of any corporate party as conclusive evidence that such resolution has
been duly adopted by such body and that the same is in full force and
effect. As to any fact or matter the method of determination of which is
not specifically prescribed herein, the Trustee may for all purposes hereof
rely on a certificate, signed by the president or any vice president or by
the treasurer or other authorized officers of the relevant party, as to
such fact or matter, and such certificate shall constitute full protection
to the Trustee for any action taken or omitted to be taken by it in good
faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and
in the performance of its duties and obligations under this Agreement or
the Basic Documents, the Trustee (i) may act directly or through its agents
or attorneys pursuant to agreements entered into with any of them, and the
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the
Trustee with reasonable care, and (ii) may consult with counsel,
accountants and other skilled Persons to be selected with reasonable care
and employed by it. The Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the written
opinion or advice of any such counsel, accountants or other such Persons
and not contrary to this Agreement or any Basic Document.
SECTION 7.05. Not Acting in Individual Capacity. Except as
provided in this Article VII, in accepting the trusts hereby created
____________________ acts solely as Trustee hereunder and not in its
individual capacity, and all Persons having any claim against the Trustee
by reason of the transactions contemplated by this Agreement or any Basic
Document shall look only to the Trust Estate for payment or satisfaction
thereof.
SECTION 7.06. Trustee Not Liable for Trust Certificates or
Underlying Securities. The recitals contained herein and in the Trust
Certificates (other than the signature and countersignature of the Trustee
on the Trust Certificates) shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for the correctness thereof. The
Trustee makes no representations as to the validity or sufficiency of this
Agreement, of any Basic Document or of the Trust Certificates (other than
the signature and countersignature of the Trustee on the Trust
Certificates) or of any Underlying Security or any related documents. The
Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Underlying
Security, or the perfection and priority of any security interest created
by any Underlying Security or the maintenance of any such perfection and
priority, or for or with respect to the sufficiency of the Trust Estate or
its ability to generate the payments to be distributed to
Certificateholders under this Agreement, including, without limitation: the
existence and contents of any Underlying Security on any computer or other
record thereof; the validity of the assignment of any Underlying Security
to the Trust or of any intervening assignment; the completeness of any
Underlying Security; the performance or enforcement of any Underlying
Security; or the compliance by the Company with any warranty or
representation made under any Basic Document or in any related document or
the accuracy of any such warranty or representation.
SECTION 7.07. Trustee May Own Trust Certificates. The Trustee in
its individual or any other capacity may become the owner or pledgee of
Trust Certificates and may deal with the Company in banking transactions
with the same rights it would have if it were not Trustee.
ARTICLE VIII
Compensation of Trustee
SECTION 8.01. Trustee's Fees and Expenses. The Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Company and the
Trustee, and the Trustee shall be entitled to be reimbursed by the Company
for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder.
SECTION 8.02. Indemnification. The Company shall be liable as
primary obligor for, and shall indemnify the Trustee and its successors,
assigns, agents and servants (collectively, the "Indemnified Parties") from
and against, any and all liabilities, obligations, losses, damages, taxes,
claims, actions and suits, and any and all reasonable costs, expenses and
disbursements (including reasonable legal fees and expenses) of any kind
and nature whatsoever (collectively, "Expenses") which may at any time be
imposed on, incurred by or asserted against the Trustee or any Indemnified
Party in any way relating to or arising out of this Agreement, the Basic
Documents, the Trust Estate, the administration of the Trust Estate or the
action or inaction of the Trustee hereunder, except only that the Company
shall not be liable for or required to indemnify an Indemnified Party from
and against Expenses arising or resulting from any of the matters described
in the third sentence of Section 7.01. The indemnities contained in this
Section shall survive the resignation or termination of the Trustee or the
termination of this Agreement. In the event of any claim, action or
proceeding for which indemnity will be sought pursuant to this Section, the
Trustee's choice of legal counsel shall be subject to the approval of the
Company, which approval shall not be unreasonably withheld.
SECTION 8.03. Payments to the Trustee. Any amounts paid to the
Trustee pursuant to this Article VIII shall be deemed not to be a part of
the Trust Estate immediately after such payment.
ARTICLE IX
Termination of Trust Agreement
SECTION 9.01. Termination of Trust Agreement. (a) This Agreement
(other than Article VIII) and the Trust shall terminate and be of no
further force or effect (i) upon the final distribution by the Trustee of
all moneys or other property or proceeds of the Trust Estate in accordance
with the terms of Article V, (ii) at the time provided in Section 9.02 or
(iii) at the time provided in Section 9.03. The bankruptcy, liquidation,
dissolution, death or incapacity of any Owner, other than the Company as
described in Section 9.02, shall not (x) operate to terminate this
Agreement or the Trust or (y) entitle such Owner's legal representatives or
heirs to claim an accounting or to take any action or proceeding in any
court for a partition or winding up of all or any part of the Trust or
Trust Estate or (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), none of the Company or
any Owner shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the
Distribution Date upon which Certificateholders shall surrender their Trust
Certificates to the Paying Agent for payment of the final distribution and
cancellation, shall be given by the Trustee by letter to Certificateholders
mailed within five Business Days of receipt of notice of such termination
from the Company given pursuant to Section 9.03, stating (i) the
Distribution Date upon or with respect to which final payment of the Trust
Certificates shall be made upon presentation and surrender of the Trust
Certificates at the office of the Paying Agent therein designated, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made
only upon presentation and surrender of the Trust Certificates at the
office of the Paying Agent therein specified. The Trustee shall give such
notice to the Certificate Registrar (if other than the Trustee) and the
Paying Agent at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Trust Certificates, the Paying Agent
shall cause to be distributed to Certificateholders amounts distributable
on such Distribution Date pursuant to Section 5.05.
In the event that all of the Certificateholders shall not
surrender their Trust Certificates for cancellation within six months after
the date specified in the above mentioned written notice, the Trustee shall
give a second written notice to the remaining Certificateholders to
surrender their Trust Certificates for cancellation and receive the final
distribution with respect thereto. If within one year after the second
notice all the Trust Certificates shall not have been surrendered for
cancellation, the Trustee may take appropriate steps, or may appoint an
agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Trust Certificates, and
the cost thereof shall be paid out of the funds and other assets that shall
remain subject to this Agreement. Any funds remaining in the Trust after
exhaustion of such remedies shall be distributed by the Trustee to the
Company, subject to applicable laws with respect to escheat of funds.
(d) Upon the winding up of the Trust and its termination, the
Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with
the provisions of Section 3810 of the Business Trust Statute.
(e) Upon any sale of the assets of the Trust pursuant to Section
9.02, the Trustee shall deposit the proceeds from such sale after all
payments and reserves therefrom have been made (the "Insolvency Proceeds")
in the Collection Account. On the Distribution Date on which the Insolvency
Proceeds are deposited in the Collection Account (or, if such proceeds are
not so deposited on a Distribution Date, on the Distribution Date
immediately following such deposit), the Trustee shall make the following
deposits (after the application on such Distribution Date of the Total
Distribution Amount and funds on deposit in the Reserve Account pursuant to
Sections 5.03 and 5.04) from the Insolvency Proceeds and any funds
remaining on deposit in the Reserve Account (including the proceeds of any
sale of investments therein as described in the following sentence):
(i) to the Certificate Distribution Account, any portion
of the Certificateholders' Interest Distributable Amount not
otherwise deposited into the Certificate Distribution Account on
such Distribution Date; and
(ii) to the Certificate Distribution Account, the
Certificate Balance (after giving effect to the reduction in the
Certificate Balance to result from the deposits made in the
Certificate Distribution Account on such Distribution Date).
Any investments on deposit in the Reserve Account which will not mature on
or before such Distribution Date shall be sold by the Trustee at such time
as will result in the Trustee receiving the proceeds from such sale not
later than the Payment Determination Date preceding such Distribution Date.
Any Insolvency Proceeds remaining after the deposits described above shall
be paid to the Company.
SECTION 9.02. Dissolution upon Bankruptcy of the Company. (a) In
the event that an Insolvency Event shall occur with respect to the Company,
this Agreement shall be terminated in accordance with Section 9.01 90 days
after the date of such Insolvency Event, unless, before the end of such
90-day period, the Trustee shall have received written instructions from
Holders of Certificates (other than the Company) representing more than 50%
of the Certificate Balance (not including the Certificate Balance of the
Trust Certificates held by the Company) to the effect that each such party
disapproves of the liquidation of the Underlying Securities and termination
of the Trust. Promptly after the occurrence of any Insolvency Event with
respect to the Company, (A) the Company shall give the Trustee written
notice of such Insolvency Event and (B) the Trustee shall, upon receipt of
such written notice from the Company, give prompt written notice to the
Certificateholders of the occurrence of such event; provided, however, that
any failure to give a notice required by this sentence shall not prevent or
delay, in any manner, the termination of the Trust pursuant to the first
sentence of this Section 9.02. Upon termination pursuant to this Section,
the Trustee shall promptly sell the assets of the Trust (other than the
Trust Accounts and the Certificate Distribution Account) in a commercially
reasonable manner and on commercially reasonable terms. The proceeds of
such a sale of the assets of the Trust shall be treated as collections made
under this Agreement.
SECTION 9.03. Optional Purchase of All Underlying Securities. As
of the last day of any Collection Period immediately preceding a
Distribution Date as of which the then outstanding Pool Balance is 10% or
less of the Original Pool Balance, the Company shall have the option to
purchase the Trust Estate, other than the Trust Accounts. To exercise such
option, the Company shall deposit in the Collection Account an amount equal
to the aggregate Purchase Amount for the Underlying Securities, plus the
appraised value of any such other property held by the Trust other than the
Trust Accounts, such value to be determined by an appraiser approved by the
Trustee, and shall succeed to all interests in and to the Trust.
Notwithstanding the foregoing, the Company shall not be permitted to
exercise such option unless the amount to be deposited in the Collection
Account pursuant to the preceding sentence is greater than or equal to the
sum of the Certificate Balance and all accrued but unpaid interest
(including any overdue interest and premium) thereon.
ARTICLE X
Successor Trustees and Additional Trustees
SECTION 10.01. Eligibility Requirements for Trustee. The Trustee
shall at all times be a corporation satisfying the provisions of Section
3807(a) of the Business Trust Statute; authorized to exercise corporate
trust powers; having a combined capital and surplus of at least $50,000,000
and subject to supervision or examination by federal or state authorities;
and having (or having a parent that has) a rating of at least [Baa3] by
[Moody's]. If such corporation shall publish reports of condition at least
annually pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section,
the combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect specified in
Section 10.02.
SECTION 10.02. Resignation or Removal of Trustee. The Trustee may
at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Company. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor Trustee.
If no successor Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 10.01 and shall fail to resign
after written request therefor by the Company, or if at any time the
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Company may remove the Trustee. If
the Company shall remove the Trustee under the authority of the immediately
preceding sentence, the Company shall promptly appoint a successor Trustee
by written instrument, in duplicate, one copy of which instrument shall be
delivered to the outgoing Trustee so removed and one copy to the successor
Trustee, and shall pay all fees owed to the outgoing Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor
Trustee pursuant to Section 10.03 and payment of all fees and expenses owed
to the outgoing Trustee. The Company shall provide notice of such
resignation or removal of the Trustee to each of the Rating Agencies.
SECTION 10.03. Successor Trustee. Any successor Trustee appointed
pursuant to Section 10.02 shall execute, acknowledge and deliver to the
Company and to its predecessor Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal
of the predecessor Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its
predecessor under this Agreement, with like effect as if originally named
as Trustee. The predecessor Trustee shall upon payment of its fees and
expenses deliver to the successor Trustee all documents, statements and
monies held by it under this Agreement; and the Company and the predecessor
Trustee shall execute and deliver such instruments and do such other things
as may reasonably be required for fully and certainly vesting and
confirming in the successor Trustee all such rights, powers, duties and
obligations.
No successor Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Trustee shall
be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Trustee pursuant to
this Section, the Company shall mail notice thereof to all
Certificateholders and the Rating Agencies. If the Company shall fail to
mail such notice within 10 days after acceptance of such appointment by the
successor Trustee, the successor Trustee shall cause such notice to be
mailed at the expense of the Company.
SECTION 10.04. Merger or Consolidation of Trustee. Any corporation
into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of
the Trustee, shall be the successor of the Trustee hereunder, without the
execution or filing of any instrument or any further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding;
provided, that such corporation shall be eligible pursuant to Section 10.01
and, provided, further, that the Trustee shall mail notice of such merger
or consolidation to the Rating Agencies.
SECTION 10.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Estate may at the time be located, the Company and
the Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the
Company and Trustee to act as co-trustee, jointly with the Trustee, or as
separate trustee or separate trustees, of all or any part of the Trust
Estate, and to vest in such Person, in such capacity, such title to the
Trust or any part thereof and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the Company
and the Trustee may consider necessary or desirable. If the Company shall
not have joined in such appointment within 15 days after the receipt by it
of a request to do so, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee under this Agreement shall
be required to meet the terms of eligibility as successor Trustee under
Section 10.01 and no notice of the appointment of any co-trustee or
separate trustee shall be required under Section 10.03.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(a) All rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred upon and exercised or performed
by the Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to
act separately without the Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular act
or acts are to be performed, the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
Estate or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but solely at
the direction of the Trustee;
(b) No trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(c) The Company and the Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the
estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject
to all the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Trustee. Each such instrument
shall be filed with the Trustee and a copy thereof given to the Company.
Any separate trustee or co-trustee may at any time appoint the
Trustee as its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect
of this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and
be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor co-trustee or separate trustee.
ARTICLE XI
Miscellaneous
SECTION 11.01. Supplements and Amendments. This Agreement may be
amended by the Company and the Trustee, with prior written notice to the
Rating Agencies, without the consent of any of the Certificateholders, to
cure any ambiguity, to correct or supplement any provisions in this
Agreement or for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions in this Agreement or modifying
in any manner the rights of the Certificateholders; provided, however, that
such action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interest of any Certificateholder.
This Agreement may also be amended from time to time by the
Company and the Trustee, with prior written notice to the Rating Agencies,
with the consent of the Holders of Certificates evidencing not less than a
majority of the Certificate Balance, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Underlying Securities or
distributions that shall be required to be made for the benefit of the
Certificateholders or (b) reduce the aforesaid percentage of the
Certificate Balance required to consent to any such amendment, without the
consent of the holders of all the outstanding Certificates.
Promptly after the execution of any such amendment or consent, the
Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, and each of the Rating
Agencies.
It shall not be necessary for the consent of Certificateholders,
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and
any other consents of Certificateholders provided for in this Agreement or
in any other Basic Document) and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate
of Trust, the Trustee shall cause the filing of such amendment with the
Secretary of State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Trustee may, but shall not
be obligated to, enter into any such amendment that affects the Trustee's
own rights, duties or immunities under this Agreement or otherwise.
In connection with the execution of any amendment to this Trust
Agreement or any amendment of any other agreement to which the Issuer is a
party, the Trustee shall be entitled to receive and conclusively rely upon
an Opinion of Counsel to the effect that such amendment is authorized or
permitted by the Basic Documents and that all conditions precedent in the
Basic Documents for the execution and delivery thereof by the Issuer or the
Trustee, as the case may be, have been satisfied.
SECTION 11.02. No Legal Title to Trust Estate in Owners. The
Owners shall not have legal title to any part of the Trust Estate. The
Owners shall be entitled to receive distributions with respect to their
undivided ownership interest therein only in accordance with Articles V and
IX. No transfer, by operation of law or otherwise, of any right, title or
interest of the Owners to and in their ownership interest in the Trust
Estate shall operate to terminate this Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of legal
title to any part of the Trust Estate.
SECTION 11.03. Limitations on Rights of Others. Except for Section
2.07, the provisions of this Agreement are solely for the benefit of the
Trustee, the Company and the Owners and nothing in this Agreement (other
than Section 2.07 hereof), whether express or implied, shall be construed
to give to any other Person any legal or equitable right, remedy or claim
in the Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
SECTION 11.04. Notices. (a) Unless otherwise expressly specified
or permitted by the terms hereof, all notices shall be in writing and shall
be deemed given upon receipt by the intended recipient or three Business
Days after mailing if mailed by certified mail, postage prepaid (except
that notice to the Trustee shall be deemed given only upon actual receipt
by the Trustee), if to the Trustee, addressed to the Corporate Trust
Office; and if to the Company, addressed to [ ], _______________, Attention
_______________; or, as to each party, at such other address as shall be
designated by such party in a written notice to each other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at
the address of such Holder listed in the Certificate Register. Any notice
so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
SECTION 11.05. Severability. Any provision of this Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provisions in any other
jurisdiction.
SECTION 11.06. Separate Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when
so executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 11.07. Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit
of, each of the Company and its permitted assignees, the Trustee and its
successors and each Owner and its successors and permitted assigns, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by an Owner shall bind the successors and assigns of
such Owner.
SECTION 11.08. Covenants of the Company. In the event that any
litigation with claims in excess of $1,000,000 to which the Company is a
party which shall be reasonably likely to result in a material judgment
against the Company that the Company will not be able to satisfy shall be
commenced by an Owner, during the period beginning nine months following
the commencement of such litigation and continuing until such litigation is
dismissed or otherwise terminated (and, if such litigation has resulted in
a final judgment against the Company, such judgment has been satisfied),
the Company shall not pay any dividend to [ ], or make any distribution on
or in respect of its capital stock to [ ], or repay the principal amount of
any indebtedness of the Company held by [ ], unless (i) after giving effect
to such payment, distribution or repayment, the Company's liquid assets
shall not be less than the amount of actual damages claimed in such
litigation or (ii) the Rating Agency Condition shall have been satisfied
with respect to any such payment, distribution or repayment. The Company
will not at any time institute against the Trust any bankruptcy proceedings
under any United States federal or state bankruptcy or similar law in
connection with any obligations relating to the Trust Certificates, the
Trust Agreement or any of the Basic Documents.
SECTION 11.09. No Petition. The Trustee, by entering into this
Agreement, and each Owner, by accepting a Trust Certificate or a beneficial
interest therein, hereby covenant and agree that they will not at any time
institute against the Company or the Trust, or join in any institution
against the Company or the Trust of, any bankruptcy proceedings under any
United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Trust Certificates, this Agreement or any
of the Basic Documents.
SECTION 11.10. No Recourse. Each Owner, by accepting a Trust
Certificate or a beneficial interest therein, acknowledges that such
Owner's Trust Certificates represent beneficial interests in the Trust only
and do not represent interests in or obligations of the Company, the
Trustee or any of their respective Affiliates and no recourse may be had
against such parties or their assets, except as may be expressly set forth
or contemplated in this Agreement, the Trust Certificates or the Basic
Documents.
SECTION 11.11. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
SECTION 11.12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.13. Trust Certificate Transfer Restrictions(a) The
Trust Certificates may acquired by or for the account of: (i) an employee
benefit plan (as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) that is subject to the
provisions of Title I of ERISA, (ii) a plan described in Section 4975(e)(1)
of the Code or (iii) any entity whose underlying assets include plan assets
by reason of a plan's investment in the entity (each, a "Benefit Plan"),
only purusant to Prohibited Transaction Exemption 89-88, which was amended
pursuant to Prohibited Transaction Exemption 97-34, Prohibited Transaction
Exemption 2000-58 and Prohibited Transaction Exemption 2002-19
(collectively, the "Exemption"). By accepting and holding a Trust
Certificate, the Holder thereof shall be deemed to have represented and
warranted that it will satisify the conditions of the Exemption that is
within its control.
(b) If the conditions of the exemption that are within the control
of the Holder are not satisfied, the Benefit Plan, or other purchaser
acting on its behalf or with Benefit Plan assets, will:
(i) indemnify and hold harmless Goldmlan, Sachs & Co.,
the Trustee, the Servicers, the Underwriter and the Trust from and
against all liabilities, claims, costs or expenses incurred by
them as a result of the purchase; and
(ii) be disregarded as purchaser and the immediately
preceding permitted beneficial owner will be treated as the
beneficial owner of that certificate.
IN WITNESS WHEREOF, the parties hereto have caused this Amended
and Restated Trust Agreement to be duly executed by their respective
officers hereunto duly authorized, as of the day and year first above
written.
GS Mortgage Securities Corp. ,
as Company,
By ___________________________
Name:
Title:
_________________________________________,
not in its individual capacity but solely
as Trustee,
By ___________________________
Name:
Title:
EXHIBIT A
FORM OF TRUST CERTIFICATE
-------------------------
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NUMBER $_____________R-
CUSIP NO. ________
[ ] VEHICLE RECEIVABLES SECURITIES TRUST 200__-__
_______% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below,
the property of which consists of a pool of Underlying Securities.
(This Trust Certificate does not represent an interest in or an obligation
of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. or any of its affiliates, except to the extent
described below.)
THIS CERTIFIES THAT ___________________ is the registered owner of
______________ DOLLARS nonassessable, fully-paid, fractional undivided
interest in [ ] Vehicle Receivables Securities Trust 200__-__ (the
"Trust"), formed pursuant to a Trust Agreement dated as of
_________________ (the "Trust Agreement"), between [ ], a Delaware
corporation (the "Company") and ___________________, as Trustee (the
"Trustee").
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the within-mentioned
Trust Agreement.
___________________________________
as Trustee
By: _______________________________
Authorized Signatory
The Trust was created pursuant to the Trust Agreement, a summary
of certain of the pertinent provisions of which is set forth below. To the
extent not otherwise defined herein, the capitalized terms used herein have
the meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates
designated as the _______% Asset Backed Certificates (herein called the
"Trust Certificates") issued by the Trust. This Trust Certificate is issued
under and is subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the Holder of this Trust Certificate by
virtue of its acceptance hereof assents and by which such Holder is bound.
The property of the Trust consists of a pool of all monies due under such
Underlying Securities on or after the Cutoff Date, certain bank accounts
and the proceeds thereof, and certain other rights under the Trust
Agreement and all proceeds of the foregoing.
Under the Trust Agreement, there will be distributed on the
___________ day of each month or, if such _________ day is not a Business
Day, the next Business Day (each, a "Distribution Date"), commencing on
__________________, to the Person in whose name this Trust Certificate is
registered at the close of business on the day immediately preceding such
Distribution Date (the "Record Date"), such Certificateholder's fractional
undivided interest in the amount to be distributed to Certificateholders on
such Distribution Date.
It is the intent of the Company and the Certificateholders that,
for purposes of federal income, state and local income and single business
tax and any other income taxes, the Trust will be treated as a partnership
and the Certificateholders (including the Company) will be treated as
partners in that partnership. The Company and the other Certificateholders,
by acceptance of a Trust Certificate, agree to treat, and to take no action
inconsistent with the treatment of, the Trust Certificates for such tax
purposes as partnership interests in the Trust.
Each Certificateholder or Certificate Owner, by its acceptance of
a Trust Certificate or, in the case of a Certificate Owner, a beneficial
interest in a Trust Certificate, covenants and agrees that such
Certificateholder or Certificate Owner, as the case may be, will not at any
time institute against the Company, or join in any institution against the
Company of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding, or other proceedings under any United States
federal or state bankruptcy or similar law in connection with any
obligations relating to the Trust Certificates, the Trust Agreement or any
of the Basic Documents.
Distributions on this Trust Certificate will be made as provided
in the Trust Agreement by the Trustee by wire transfer or check mailed to
the Certificateholder of record in the Certificate Register without the
presentation or surrender of this Trust Certificate or the making of any
notation hereon, except that with respect to Trust Certificates registered
on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payments will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Trust Certificate
will made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Trust
Certificate at the office or agency maintained for that purpose by the
Trustee in the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of this Trust
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Trustee, by manual signature, this
Trust Certificate shall not entitle the Holder hereof to any benefit under
the Trust Agreement or be valid for any purpose.
THIS TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Trust Certificate to be duly
executed.
[ ] VEHICLE RECEIVABLES
SECURITIES TRUST 200__-__
By: __________________________, not in its
individual capacity but solely as Trustee
Dated: _____________ By: ___________________________
Authorized Signatory
[REVERSE OF TRUST CERTIFICATE]
The Trust Certificates do not represent an obligation of, or an
interest in, the Company, the Trustee or any of their respective
Affiliates, and no recourse may be had against such parties or their assets
except as expressly set forth or contemplated herein or in the Trust
Agreement or the Basic Documents. In addition, this Trust Certificate is
not guaranteed by any governmental agency or instrumentality and is limited
in right of payment to collections with respect to the Underlying
Securities (and certain other amounts), all as more specifically set forth
herein and in the Trust Agreement. A copy of the Trust Agreement may be
examined by any Certificateholder upon written request during normal
business hours at the principal office of the Company and at such other
places, if any, designated by the Company.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Certificateholders under
the Trust Agreement at any time by the Company and the Trustee with the
consent of Holders of the Trust Certificates evidencing not less than a
majority of the Certificate Balance. Any such consent by the Holder of this
Trust Certificate shall be conclusive and binding on such Holder and on all
future Holders of this Trust Certificate and of any Trust Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent is made upon this Trust
Certificate. The Trust Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of
the Trust Certificates.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Trust Certificate is
registerable in the Certificate Register upon surrender of this Trust
Certificate for registration of transfer at the offices or agencies of the
Certificate Registrar maintained by the Trustee in the Borough of
Manhattan, The City of New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar,
duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Trust Certificates of
authorized denominations evidencing the same aggregate interest in the
Trust will be issued to the designated transferee. The initial Certificate
Registrar appointed under the Trust Agreement is
____________________________.
Except as provided in the Trust Agreement, the Trust Certificates
are issuable only as registered Trust Certificates without coupons in
denominations of $20,000 and in integral multiples of $1 in excess thereof.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, Trust Certificates are exchangeable for new Trust
Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the Holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but
the Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Trustee, the Certificate Registrar and any agent of the
Trustee or the Certificate Registrar may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and
none of the Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Trust
Agreement and the Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to
the Trust Agreement and the disposition of all property held as part of the
Trust Estate. The Company may at its option purchase the Trust Estate at
the price specified in the Trust Agreement, and such purchase of the
Underlying Securities and other property of the Trust will effect an early
retirement of the Trust Certificates; however, such right of purchase is
exercisable only as of the last day of any Collection Period as of which
the Pool Balance is less than or equal to 10% of the Original Pool Balance.
The Trust Certificates may not be acquired by (a) an employee
benefit plan (as defined in Section 3(3) of ERISA) that is subject to the
provisions of Title I of ERISA, (b) a plan described in Section 4975(e)(1)
of the Code or (c) any entity whose underlying assets include plan assets
by reason of a plan's investment in the entity or which uses plan assets to
acquire Trust Certificates (each, a "Benefit Plan"). By accepting and
holding this Trust Certificate, the Holder hereof shall be deemed to have
represented and warranted that it is not a Benefit Plan.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
____________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
the within Trust Certificate, and all rights thereunder, and hereby irrevocably
constitutes and appoints _____________________ attorney to transfer said
Trust Certificate on the books of the Certificate Registrar, with full
power of substitution in the premises.
Dated:
_____________________________*
Signature Guaranteed:
_____________________________*
-----------------
* NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE
NAME AS IT APPEARS UPON THE FACE OF THE WITHIN TRUST CERTIFICATE
IN EVERY PARTICULAR, WITHOUT ALTERATION, ENLARGEMENT OR ANY CHANGE
WHATEVER. SUCH SIGNATURE MUST BE GUARANTEED BY A MEMBER FIRM OF
THE NEW YORK STOCK EXCHANGE OR A COMMERCIAL BANK OR TRUST COMPANY.
EXHIBIT B
CERTIFICATE OF TRUST OF
[ ] VEHICLE RECEIVABLES SECURITIES TRUST 200__-__
THIS Certificate of Trust of [ ] VEHICLE RECEIVABLES SECURITIES
TRUST 200__-__ (the "Trust"), dated ____________________, is being duly
executed and filed by ___________________, a Delaware banking corporation,
as trustee, to form a business trust under the Delaware Business Trust Act
(12 Del. Code. ss. 3801 et seq.).
1. Name: The name of the business trust formed hereby is [ ]
VEHICLE RECEIVABLES SECURITIES TRUST 200__-__.
2. Delaware Trustee. The name and business address of the trustee
of the Trust in the State of Delaware is _______________________.
Attention: ______________________.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
_____________________________________, not
in its individual capacity but solely as
owner trustee under a Trust Agreement
dated as of
______________________.
By:________________________________________
Name:
Title:
EXHIBIT C
[Form of Certificate Depository Agreement]
Letter of Representations
[To be Completed by Issuer and Trustee]
[Name of Issuer]
[Name of Trustee]
(Date)
Attention: General Counsel's Office
The Depository Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇; ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Re: ______________________________________________________________________
(Issue Description)
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain
matters relating to the above-referenced issue (the "Securities"). Trustee
will act as trustee with respect to the Securities pursuant to a trust
indenture dated ____________________ (the "Document").
______________________ (the "Underwriter") is distributing the Securities
through the Depository Trust Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at
DTC, and to act in accordance with its Rules with respect to the
Securities, Issuer and Trustee make the following representations to DTC:
1. Prior to closing on the Securities on ____________________
there shall be deposited with DTC one or more Security certificates
registered in the name of DTC's nominee, Cede & Co., for each stated
maturity of the Securities in the face amounts set forth on Schedule A
hereto, the total of which represents 100% of the principal amount of such
Securities. If, however, the aggregate principal amount of any maturity
exceeds $400 million, one certificate shall be issued with respect to each
$400 million of principal amount and an additional certificate shall be
issued with respect to any remaining principal amount. Each Security
certificate shall bear the following legend:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to Issuer or its agent for registration of transfer, exchange, or
payment, and any certificate issued is registered in the name of Cede & Co.
or in such other name as is requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
Issuer represents: [Note: Issuer must represent one of the following, and
shall cross out the other.]
[The Security certificate(s) shall remain in Agent's custody as a
"Balance Certificate" subject to the provisions of the Balance Certificate
Agreement between Agent and DTC currently in effect.
On each day on which Agent is open for business and on which it
receives an instruction originated by a DTC participant ("Participant")
through DTC's Deposit/Withdrawal at Custodian ("DWAC") system to increase
the Participant's account by a specified number of Securities (a "Deposit
Instruction"), Agent shall, no later than 6:30 p.m. (Eastern Time) that
day, either approve or cancel the Deposit Instruction through the DWAC
system.
On each day on which Agent is open for business and on which it
receives an instruction originated by Participant through the DWAC system
to decrease the Participant's account by a specified number of Securities
(a "Withdrawal Instruction"), Agent shall, no later than 6:30 p.m. (Eastern
Time) that day, either approve or cancel the Withdrawal Instruction through
the DWAC system.
Agent agrees that its approval of a Deposit or Withdrawal
Instruction shall be deemed to be the receipt by DTC of a new reissued or
reregistered certificated Security on registration of transfer to the name
of Cede & Co. for the quantity of Securities evidenced by the Balance
Certificate after the Deposit or Withdrawal Instruction is effected.]
[The Security certificate(s) shall be custodied with DTC.]
2. Issuer: (a) understands that DTC has no obligation to, and will
not, communicate to its Participants or to any person having an interest in
the Securities any information contained in the Security certificate(s);
and (b) acknowledges that neither DTC's Participants nor any person having
an interest in the Securities shall be deemed to have notice of the
provisions of the Security certificates by virtue of submission of such
certificate(s) to DTC.
3. In the event of any solicitation of consents from or voting by
holders of the Securities, Issuer or Agent shall establish a record date
for such purposes (with no provision for revocation of consents or votes by
subsequent holders) and shall send notice of such record date to DTC no
fewer than 15 calendar days in advance of such record date. Notices to DTC
pursuant to this Paragraph by telecopy shall be directed to DTC's
Reorganization Department, Proxy Unit at (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇.
If the party sending the notice does not receive a telecopy receipt from
DTC confirming that the notice has been received, such party shall
telephone (▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC pursuant to this Paragraph, by
mail or by any other means, shall be sent to: Supervisor, Proxy Unit,
Reorganization Department, The Depository Trust Company, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
4. In the event of a full or partial redemption, Issuer or Agent
shall send a notice to DTC specifying: (a) the amount of the redemption or
refunding; (b) in the case of a refunding, the maturity date(s) established
under the refunding; and (c) the date such notice is to be distributed to
Security holders (the "Publication Date"). Such notice shall be sent to DTC
by a secure means (e.g., legible telecopy, registered or certified mail,
overnight delivery) in a timely manner designed to assure that such notice
is in DTC's possession no later than the close of business on the business
day before or, if possible, two business days before the Publication Date.
Issuer or Agent shall forward such notice either in a separate secure
transmission for each CUSIP number or in a secure transmission for multiple
CUSIP numbers (if applicable) which includes a manifest or list of each
CUSIP number submitted in that transmission. (The party sending such notice
shall have a method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be no fewer than 30
days nor more than 60 days prior to the redemption date or, in the case of
an advance refunding, the date that the proceeds are deposited in escrow.
Notices to DTC pursuant to this Paragraph by telecopy shall be directed to
DTC's Call Notification Department at (516) 227- 4164 or (▇▇▇) ▇▇▇-▇▇▇▇. If
the party sending the notice does not receive a telecopy receipt from DTC
confirming that the notice has been received, such party shall telephone
(▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC pursuant to this Paragraph, by mail or by
any other means, shall be sent to: Manager, Call Notification Department,
The Depository Trust Company, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇
5. In the event of an invitation to tender the Securities
(including mandatory tenders, exchanges, and capital changes), notice by
Issuer or Agent to Security holders shall be sent to DTC specifying the
terms of the tender and the Publication Date of such notice. Such notice
shall be sent to DTC by a secure means (e.g., legible telecopy, registered
or certified mail, overnight delivery) in a timely manner designed to
assure that such notice is in DTC's possession no later than the close of
business on the business day before or, if possible, two business days
before the Publication Date. Issuer or Agent shall forward such notice
either in a separate secure transmission for each CUSIP number or in a
secure transmission for multiple CUSIP numbers (if applicable) which
includes a manifest or list of each CUSIP number submitted in that
transmission. (The party sending such notice shall have a method to verify
subsequently the use and timeliness of such notice.) Notices to DTC
pursuant to this Paragraph and notices of other corporate actions by
telecopy shall be directed to DTC's Reorganization Department at (212)
855-5488. If the party sending the notice does not receive a telecopy
receipt from DTC confirming that the notice has been received, such party
shall telephone (▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC pursuant to this Paragraph,
by mail or by any other means, shall be sent to: Manager, Reorganization
Department, Reorganization Window, The Depository Trust Company, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
6. It is understood that if the Security holders shall at any time
have the right to tender the Securities to Issuer and require that Issuer
repurchase such holders' Securities pursuant to the Document and Cede &
Co., as nominee of DTC, or its registered assigns, as the record owner, is
entitled to tender the Securities, such tenders will be effected by means
of DTC's Repayment Option Procedures. Under the Repayment Option
Procedures, DTC shall receive, during the applicable tender period,
instructions from its Participants to tender Securities for purchase.
Issuer and Agent agree that such tender for purchase may be made by DTC by
means of a book-entry credit of such Securities to the account of Agent,
provided that such credit is made on or before the final day of the
applicable tender period. DTC agrees that promptly after the recording of
any such book-entry credit, it will provide to Agent an Agent Receipt and
Confirmation or the equivalent, in accordance with the Repayment Option
Procedures, identifying the Securities and the aggregate principal amount
thereof as to which such tender for purchase has been made.
Agent shall send DTC notice regarding such optional tender by hand
or by a secure means (e.g., legible facsimile transmission, registered or
certified mail, overnight delivery) in a timely manner designed to assure
that such notice is in DTC's possession no later than the close of business
two business days before the Publication Date. The Publication Date shall
be no fewer than 15 days prior to the expiration date of the applicable
tender period. Such notice shall state whether any partial redemption of
the Securities is scheduled to occur during the applicable optional tender
period. Notices to DTC pursuant to this Paragraph by telecopy shall be
directed to DTC's Put Bond Unit at (▇▇▇) ▇▇▇-▇▇▇▇. If the party sending the
notice does not receive a telecopy receipt from DTC confirming that the
notice has been received, such party shall telephone (▇▇▇) ▇▇▇-▇▇▇▇.
Notices to DTC pursuant to this Paragraph, by mail or by any other means,
shall be sent to: Supervisor, Put Bond Unit, Reorganization Department, The
Depository Trust Company, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇.
7. All notices and payment advices sent to DTC shall contain the
CUSIP number of the Securities.
8. Issuer or Agent shall send DTC written notice with respect to
the dollar amount per $1,000 original face value (or other minimum
authorized denomination if less than $1,000 face value) payable on each
payment date allocated as to the interest and principal portions thereof
preferably five, but no fewer than two, business days prior to such payment
date. Such notices, which shall also contain the current pool factor, any
special adjustments to principal/interest rates (e.g., adjustments due to
deferred interest or shortfall), and Agent contact's name and telephone
number, shall be sent by telecopy to DTC's Dividend Department at (212)
855-4555, and receipt of such notices shall be confirmed by telephoning
(▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC, pursuant to this Paragraph, by mail or by
any other means, shall be sent to: Manager, Announcements, Dividend
Department, The Depository Trust Company, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇.
9. Issuer represents: [Note: Issuer must represent one of the
following, and shall cross out the other.] [The interest accrual period is
record date to record date.] [The interest accrual period is payment date
to payment date.]
10. Issuer or Agent shall provide a written notice of interest
payment information, including the stated coupon rate information, to DTC
as soon as the information is available. Issuer or Agent shall provide such
notice directly to DTC electronically, as previously arranged by Issuer or
Agent and DTC. If electronic transmission has not been arranged, absent any
other arrangements between Issuer or Agent and DTC, such information shall
be sent by telecopy to DTC's Dividend Department at (▇▇▇) ▇▇▇-▇▇▇▇ or (212)
855-4556. If the party sending the notice does not receive a telecopy
receipt from DTC confirming that the notice has been received, such party
shall telephone (▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC pursuant to this Paragraph,
by mail or by any other means, shall be sent to DTC's Dividend Department
as indicated in Paragraph 8.
11. Interest payments and principal payments that are part of
periodic principal-and-interest payments shall be received by Cede & Co.,
as nominee of DTC, or its registered assigns, in same-day funds no later
than 2:30 p.m. (Eastern Time) on each payment date. Issuer shall remit by
1:00 p.m. (Eastern Time) on the payment date all such interest payments due
Agent, or at such earlier time as may be required by Agent to guarantee
that DTC shall receive payment in same-day funds no later than 2:30 p.m.
(Eastern Time) on the payment date. Absent any other arrangements between
Issuer or Agent and DTC, such funds shall be wired to the Dividend Deposit
Account number that will be stamped on the signature page hereof at the
time DTC executes this Letter of Representations.
12. Issuer or Agent shall provide DTC's Dividend Department, no
later than 12:00 noon (Eastern Time) on the payment date, automated
notification of CUSIP-level detail. If the circumstances prevent the funds
paid to DTC from equaling the dollar amount associated with the detail
payments by 12:00 noon (Eastern Time), Issuer or Agent must provide
CUSIP-level reconciliation to DTC no later than 2:30 p.m. (Eastern Time).
Reconciliation must be provided by either automated means or written
format. Such reconciliation notice, if sent by telecopy, shall be directed
to DTC Dividend Department at (▇▇▇) ▇▇▇-▇▇▇▇ and receipt of such
reconciliation notice shall be confirmed by telephoning (▇▇▇) ▇▇▇-▇▇▇▇.
13. Maturity and redemption payments allocated with respect to
each CUSIP number shall be received by Cede & Co., as nominee of DTC, or
its registered assigns, in same-day funds no later than 2:30 p.m. (Eastern
Time) on the payment date. Issuer shall remit by 1:00 p.m. (Eastern Time)
on the payment date all such maturity and redemption payments due Agent, or
at such earlier time as required by Agent to guarantee that DTC shall
receive payment in same-day funds no later than 2:30 p.m. (Eastern Time) on
the payment date. Absent any other arrangements between Issuer or Agent and
DTC, such funds shall be wired to the Redemption Deposit Account number
that will be stamped on the signature page hereof at the time DTC executes
this Letter of Representations.
14. Principal payments (plus accrued interest, if any) as the
result of optional tenders for purchase effected by means of DTC's
Repayment Option Procedures shall be received by Cede & Co., as nominee of
DTC, or its registered assigns, in same-day funds no later than 2:30 p.m.
(Eastern Time) on the payment date. Issuer shall remit by 1:00 p.m.
(Eastern Time) on the payment date all such reorganization payments due
Agent, or at such earlier time as required by Agent to guarantee that DTC
shall receive payment in same-day funds no later than 2:30 p.m. (Eastern
Time) on the payment date. Absent any other arrangements between Issuer or
Agent and DTC, such funds shall be wired to the Reorganization Deposit
Account number that will be stamped on the signature page hereof at the
time DTC executes this Letter of Representations.
15. Agent shall send DTC all periodic certificate holders
remittance reports with respect to the Securities. If sent by facsimile
transmission, such reports shall be sent to (212) 855- 4777. If the party
sending the report does not receive a telecopy receipt from DTC confirming
that the notice has been received, such party shall telephone (212)
▇▇▇-▇▇▇▇.
16. DTC may direct Issuer or Agent to use any other number or
address as the number or address to which notices or payments of interest
or principal may be sent.
17. In the event of a redemption, acceleration, or any other
similar transaction (e.g., tender made and accepted in response to Issuer's
or Agent's invitation) necessitating a reduction in the aggregate principal
amount of Securities outstanding or an advance refunding of part of the
Securities outstanding, DTC, in its discretion: (a) may request Issuer or
Agent to issue and authenticate a new Security certificate; or (b) may make
an appropriate notation on the Security certificate indicating the date and
amount of such reduction in principal except in the case of final maturity,
in which case the certificate will be presented to Issuer or Agent prior to
payment, if required.
18. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, Issuer or Agent
shall notify DTC of the availability of certificates. In such event, Issuer
or Agent shall issue, transfer, and exchange certificates in appropriate
amounts, as required by DTC and others.
19. DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving reasonable
notice to Issuer or Agent (at which time DTC will confirm with Issuer or
Agent the aggregate principal amount of Securities outstanding). Under such
circumstances, at DTC's request Issuer and Agent shall cooperate fully with
DTC by taking appropriate action to make available one or more separate
certificates evidencing Securities to any Participant having Securities
credited to its DTC accounts.
20. Nothing herein shall be deemed to require Agent to advance
funds on behalf of Issuer.
21. This Letter of Representations may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original, but all such counterparts together shall constitute but one and
the same instrument.
22. This Letter of Representations shall be governed by, and
construed in accordance with, the laws of the State of New York, without
giving effect to principles of conflicts of law.
23. The sender of each notice delivered to DTC pursuant to this
Letter of Representations is responsible for confirming that such notice
was properly received by DTC.
24. Issuer recognizes that DTC does not in any way undertake to,
and shall not have any responsibility to, monitor or ascertain the
compliance of any transactions in the Securities with the following, as
amended from time to time: (a) any exemptions from registration under the
Securities Act of 1933; (b) the Investment Company Act of 1940; (c) the
Employee Retirement Income Security Act of 1974; (d) the Internal Revenue
Code of 1986; (e) any rules of any self-regulatory organizations (as
defined under the Securities Exchange Act of 1934); or (f) any other local,
state, or federal laws or regulations thereunder.
25. Issuer hereby authorizes DTC to provide to Agent listings of
Participants' holdings, known as Securities Position Listings ("SPLs") with
respect to the Securities from time to time at the request of the Agent.
DTC charges a fee for such SPLs. This authorization, unless revoked by
Issuer, shall continue with respect to the Securities while any Securities
are on deposit at DTC, until and unless Agent shall no longer be acting. In
such event, Issuer shall provide DTC with similar evidence, satisfactory to
DTC, of the authorization of any successor thereto so to act. Requests for
SPLs shall be sent by telecopy to the Proxy Unit of DTC's Reorganization
Department at (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇. Receipt of such requests
shall be confirmed by telephoning (▇▇▇) ▇▇▇-▇▇▇▇. Requests for SPLs, sent
by mail or by any other means, shall be directed to the address indicated
in Paragraph 3.
26. Issuer and Agent shall comply with the applicable requirements
stated in DTC's Operational Arrangements, as they may be amended from time
to time. DTC's Operational Arrangements are posted on DTC's website at
"▇▇▇.▇▇▇.▇▇▇."
27. The following rider(s), attached hereto, are hereby
incorporated into this Letter of Representations:
Notes: Very truly yours,
A. If there is an Agent (as defined in this ______________________________________
Letter of Representations), Agent as well (Issuer)
as Issuer must sign this Letter. By:___________________________________
If there is no Agent, in signing (Authorized Officer's Signature
this Letter Issuer itself undertakes
to perform all of the obligations set
forth herein.
B. Schedule B contains statements that DTC ______________________________________
believes accurately describe DTC, the method of (Trustee)
effecting book-entry transfers of securities By:___________________________________
distributed through DTC, and certain related (Authorized Officer's Signature)
matters.
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By: ______________________________
cc: Underwriter/Placement Agent
Underwriter's/Placement Agent's Counsel
SCHEDULE A
___________________________________________________________
___________________________________________________________
[Describe Issue, Including Issuer's Name]
CUSIP Number Principal Amount Maturity Date Interest Rate
------------ ---------------- ------------- -------------
SCHEDULE B
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(Prepared by DTC--bracketed material may be applicable only to certain issues)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities
will be issued as fully-registered securities registered in the name of
Cede & Co. (DTC's partnership nominee) or such other name as may be
requested by an authorized representative of DTC. One fully-registered
Security certificate will be issued for [each issue of] the Securities,
[each] in the aggregate principal amount of such issue, and will be
deposited with DTC. [If, however, the aggregate principal amount of [any]
issue exceeds $400 million, one certificate will be issued with respect to
each $400 million of principal amount and an additional certificate will be
issued with respect to any remaining principal amount of such issue.]
2. DTC is a limited-purpose trust company organized under the New
York Banking Law, a "banking organization" within the meaning of the New
York Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code,
and a "clearing agency" registered pursuant to the provisions of Section
17A of the Securities Exchange Act of 1934. DTC holds securities that its
participants ("Direct Participants") deposit with DTC. DTC also facilitates
the settlement among Direct Participants of securities transactions, such
as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Direct Participants' accounts, thereby
eliminating the need for physical movement of securities certificates.
Direct Participants include securities brokers and dealers, banks, trust
companies, clearing corporations, and certain other organizations. DTC is
owned by a number of its Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange LLC, and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others such as securities brokers and dealers, banks, and
trust companies that clear through or maintain a custodial relationship
with a Direct Participant, either directly or indirectly ("Indirect
Participants"). The Rules applicable to DTC and its Direct and Indirect
Participants are on file with the Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Securities
on DTC's records. The ownership interest of each actual purchaser of each
Security ("Beneficial Owner") is in turn to be recorded on the Direct and
Indirect Participants' records. Beneficial Owners will not receive written
confirmation from DTC of their purchase, but Beneficial Owners are expected
to receive written confirmations providing details of the transaction, as
well as periodic statements of their holdings, from the Direct or Indirect
Participant through which the Beneficial Owner entered into the
transaction. Transfers of ownership interests in the Securities are to be
accomplished by entries made on the books of Direct and Indirect
Participants acting on behalf of Beneficial Owners. Beneficial Owners will
not receive certificates representing their ownership interests in
Securities, except in the event that use of the book-entry system for the
Securities is discontinued.
4. To facilitate subsequent transfers, all Securities deposited by
Direct Participants with DTC are registered in the name of DTC's
partnership nominee, Cede & Co. or such other name as may be requested by
an authorized representative of DTC. The deposit of Securities with DTC and
their registration in the name of Cede & Co. or such other nominee do not
effect any change in beneficial ownership. DTC has no knowledge of the
actual Beneficial Owners of the Securities; DTC's records reflect only the
identity of the Direct Participants to whose accounts such Securities are
credited, which may or may not be the Beneficial Owners. The Direct and
Indirect Participants will remain responsible for keeping account of their
holdings on behalf of their customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by
Direct Participants and Indirect Participants to Beneficial Owners will be
governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time. [Beneficial Owners of
Securities may wish to take certain steps to augment transmission to them
of notices of significant events with respect to the Securities, such as
redemptions, tenders, defaults, and proposed amendments to the security
documents. Beneficial Owners of Securities may wish to ascertain that the
nominee holding the Securities for their benefit has agreed to obtain and
transmit notices to Beneficial Owners, or in the alternative, Beneficial
Owners may wish to provide their names and addresses to the registrar and
request that copies of the notices be provided directly to them.]
[6. Redemption notices shall be sent to DTC. If less than all of
the Securities within an issue are being redeemed, DTC's practice is to
determine by lot the amount of the interest of each Direct Participant in
such issue to be redeemed.]
7. Neither DTC nor Cede & Co. (nor such other DTC nominee) will
consent or vote with respect to the Securities. Under its usual procedures,
DTC mails an Omnibus Proxy to Issuer as soon as possible after the record
date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to
those Direct Participants to whose accounts the Securities are credited on
the record date (identified in a listing attached to the Omnibus Proxy).
8. Redemption proceeds, distributions, and dividend payments on
the Securities will be made to Cede & Co., or such other nominee as may be
requested by an authorized representative of DTC. DTC's practice is to
credit Direct Participants' accounts, upon DTC's receipt of funds and
corresponding detail information from Issuer or Agent on payable date in
accordance with their respective holdings shown on DTC's records. Payments
by Participants to Beneficial Owners will be governed by standing
instructions and customary practices, as is the case with securities held
for the accounts of customers in bearer form or registered in "street
name," and will be the responsibility of such Participant and not of DTC,
Agent, or Issuer, subject to any statutory or regulatory requirements as
may be in effect from time to time. Payment of redemption proceeds,
distributions, and dividends to Cede & Co. (or such other nominee as may be
requested by an authorized representative of DTC) is the responsibility of
Issuer or Agent, disbursement of such payments to Direct Participants shall
be the responsibility of DTC, and disbursement of such payments to the
Beneficial Owners shall be the responsibility of Direct and Indirect
Participants.
[9. A Beneficial Owner shall give notice to elect to have its
Securities purchased or tendered, through its Participant, to
[Tender/Remarketing] Agent, and shall effect delivery of such Securities by
causing the Direct Participant to transfer the Participant's interest in
the Securities, on DTC's records, to [Tender/Remarketing] Agent. The
requirement for physical delivery of Securities in connection with an
optional tender or a mandatory purchase will be deemed satisfied when the
ownership rights in the Securities are transferred by Direct Participants
on DTC's records and followed by a book-entry credit of tendered Securities
to [Tender/Remarketing] Agent's DTC account.]
10. DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving reasonable
notice to Issuer or Agent. Under such circumstances, in the event that a
successor securities depository is not obtained, Security certificates are
required to be printed and delivered.
11. Issuer may decide to discontinue use of the system of
book-entry transfers through DTC (or a successor securities depository). In
that event, Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's
book-entry system has been obtained from sources that Issuer believes to be
reliable, but Issuer takes no responsibility for the accuracy thereof.
EXHIBIT D
FORM OF STATEMENT
[To be supplied]
SCHEDULE I
Schedule of Underlying Securities
[To be Delivered to the Trustee at Closing]